C2005/1644, Transcript of Proceedings [2005] AIRCTrans 222 (2 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10136

SENIOR DEPUTY PRESIDENT DUNCAN

C2005/1644

s.99 - notification of an industrial dispute

Australian Maritime Officers' Union, The
and
CSR Building Products Limited
(C2005/1644)
Maritime Industry Seagoing Award 1999

SYDNEY

10.01AM, THURSDAY, 20 JANUARY 2005

PN1

MR J WYDELL: I appear for the Australian Maritime Officers' Union.

PN2

MR C MAGEE: I seek leave to appear with my instructing solicitor,
MR HENDERSON, and MR I FOREST, the Marine Operations Manager of CSR Shipping.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Magee. The question of leave?

PN4

MR WYDELL: No objection, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: No objection, leave is granted, Mr Magee.

PN6

MR MAGEE: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wydell?

PN8

MR WYDELL: Thank you, your Honour. This is a notification of an alleged industrial dispute under section 99 of the Act between the AMOU and in the notification we have listed CSR Building Products Limited and then an ACN number and also known as CSR Shipping. Now, I just want to be sure that we have the correct entity here because if you look at some of the attachments to the notification you will see at the header at the bottom there on the letter of 5 January CSR Building Products Limited and if you look at one of the other letters there we have CSR Limited and the relevant ABN number there.

PN9

THE SENIOR DEPUTY PRESIDENT: Limited, yes, a different ABN.

PN10

MR WYDELL: Now, just looking at the relevant agreement between the parties, I might just hand this one up now, if that is convenient, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN12

MR WYDELL: The agreement is between CSR Limited and AMOU and I checked with the statutory declarations filed with that agreement and it indicated that CSR Limited was actually the employer. So I would just like to clear up, at this stage it would be good, if it is CSR Limited are the employer, I just want to make sure that my friends on this side are not prejudiced, certainly not if numbers are anything to go by, but in terms of that we have the right respondent.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your point.

PN14

MR WYDELL: I might just let Mr Magee.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR MAGEE: Yes, thank you, your Honour. Your Honour, my instructions are that CSR Building Products Pty Limited is the correct respondent for the purposes - sorry, Limited, there is no Pty. CSR Building Products Limited which trades as CSR Shipping.

PN17

THE SENIOR DEPUTY PRESIDENT: I see. There is another question, is there not?

PN18

MR WYDELL: Yes, there is, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: About the agreement?

PN20

MR WYDELL: Well, I guess in fact there is two questions then. The first question would probably be how did the employees get from CSR Limited to CSR Building Products?

PN21

THE SENIOR DEPUTY PRESIDENT: Well, that's right, CSR Building Products.

PN22

MR WYDELL: And then the second question might be related to the agreement and of course these - the various sections in the Act, I think, is it LX that provides for the transmission?

PN23

THE SENIOR DEPUTY PRESIDENT: The transmission, yes, yes. I certainly do not carry around the particular section of the Act.

PN24

MR WYDELL: No, I'm not sure that it's the right one, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: There is a provision there for certified agreements.

PN26

MR WYDELL: Yes, yes. Do we need to hear from Mr Magee or - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Well, it depends what your case is going to develop as, Mr Wydell, or how far you intend to go today.

PN28

MR WYDELL: Well, I might just outline that at the start. We would intend to ask the Commission to find an industrial issue in this matter and then of course there is a question of preserving the status quo until the Commission would be able to conciliate and arbitrate on that issue. So it may be, and I'm just foreshadowing at this stage, an application for an interim exceptional matters order to prevent an employer terminating any employees. That is where I see it going at this stage.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I do not know whether that requires a great deal of attention. Is there anything that comes to your mind, Mr Magee, that we should address at the present time?

PN30

MR MAGEE: In terms of who is the correct respondent to the alleged dispute notification, your Honour, I think the parties that are here today on this side of the bar table appear to deal with the issues as alleged in the alleged dispute notification. I don't think the issue of the correct corporate entity for the purposes of today should prevent the exploration of the matters. The clarification of the correct corporate entity of the employer is something that we can seek some further instructions on in due course.

PN31

THE SENIOR DEPUTY PRESIDENT: I see. All right, thank you. I think we can go ahead, Mr Wydell.

PN32

MR WYDELL: Yes, if it pleases your Honour, I might just provide some background in relation to this. CSR currently manages three vessels, the Kowulka, which is spelt K-o-w-u-l-k-a, Ormiston, O-r-m-i-s-t-o-n, and Goliath, as in David and Goliath. Now, CSR currently employs six Masters and 18 deck officers who are directed by the company to work on the various vessels and if I could just take you to clause 11 of the CSR EBA, at the top of page 9. You will see there in the last paragraph of clause 11:

PN33

Employees covered by this agreement will be employed into the company fleet and not to an individual ship.

PN34

It's a condition of employment that the employees work on any ship as directed by the company. Now, each of the three vessels that I have eluded to are engaged in interstate trade and commerce. The persons employed on those vessels of Masters and deck officers are maritime employees within the definition of the Act and on that basis it's our submission that section 5(3)(b) is available.

PN35

Now, getting down to the more important part of it, the vessel Goliath is owned by Cement Australia Pty Ltd but is being managed by CSR and managed by CSR employees for the last 12 years. Now, Cement Australian has given notice to CSR termination of the ship management agreement, between it and CSR for the vessel Goliath and that is to take effect, as I understand it, close of business 22 February 2005 and if you have a look at the letters attached to the notification I think that's consistent with what is alluded to in there. I assume your Honour has had an opportunity to flick through those?

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I have.

PN37

MR WYDELL: Now, insofar as Cement Australia is concerned it operates two other vessels, being a vessel called the Alcem Calaca, which is A-l-c-e-m,
C-a-l-a-c-a, from memory, and that is a chartered vessel and it also operates a vessel called the Cementco and that is just as cement with c-o on the end of it which I understand that company owns. These vessels are manned and managed by Cement Australia. Cement Australia employs four Masters and 11 deck officers for those vessels. So they're currently short one officer. As it turns out Cement Australia do not have a crew for the Goliath. Cement Australia must maintain the vessels' operations and in order to do this they have offered jobs to the Masters and deck officers who happen to be working on the Goliath and their opposite number who happen to be on leave as at 5 January 2005.

PN38

Now, CSR have written to the officers telling them that if they do not accept the position with Cement Australia they will be taken to have resigned and again, your Honour, I refer you to the letters attached to the notification and I guess you do not need me to actually read them to you.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. No, I don't, Mr Wydell.

PN40

MR WYDELL: So I guess the union would submit here that in effect CSR is trying to coerce the officers to take up employment with Cement Australia and thus resigning from CSR and we would say an issue arises if the employees do not wish to accept an appointment with Cement Australia. CSR have indicated, and again I would refer you to those letters, that they cannot offer any alternative employment and this would mean, of course, that there will be a surplus of employees at CSR. So again I think an issue arises in relation to the procedure for determining which of the employees are to be retrenched, because of course when the Goliath goes eight positions will no longer exist, if you follow - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, eight consisting of two Masters and six deck officers.

PN42

MR WYDELL: So, now CSR say that these persons are not redundant, but the failure to accept the offer of voluntary - sorry, I will withdraw that and start again. CSR say these people are not redundant but say failure to accept the offer is a voluntary resignation and the union disagrees with this. Now, as I alluded - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Just before you go on, my quick reading of the correspondence suggests that CSR is saying not so much that they are not redundant, but that they are being offered, the famous phrase, alternative employment.

PN44

MR WYDELL: Well, that may be what they say, your Honour, but what they say and what is actually happening is two very different things.

PN45

THE SENIOR DEPUTY PRESIDENT: All right, that may be so, but I just had the impression from the correspondence that the company's position is that it is offering acceptable alternative employment.

PN46

MR WYDELL: No, well, we disagree with that. We say it's not the company offering it. We say and I am sort of coming to that, that Cement Australia who need to manage and keep that vessel running, who have taken the initiative to offer the guys who are on the Goliath as at that date, offers of employment with them, because Cement Australia do not have a crew and even if they wanted one, couldn't hire one. There is no deck officers to be had and, as I say, you know, that's just a submission from the table, but you can take it from me that I had a shipping company ring up yesterday and we couldn't supply them one third mate. So it is very tight. There is no loose officers around and in order to keep that vessel running so as there is no lapse or, how shall we say, interrupted transition, that they would dearly love these officers to come across. So they would leave CSR or they would take up employment with Cement Australia and thus resigning from CSR.

PN47

THE SENIOR DEPUTY PRESIDENT: That doesn't mean that the people affected are not offered reasonable alternative employment. The motivation of the taking over company isn't relevant.

PN48

MR WYDELL: Well, there is some cases, your Honour, and I think it was one of the Clothing Trades Award cases in 1982 or something, a Hot Tuna case, where I think the Full Bench in that case, I think it was Munro, Peterson JJs and one other Commissioner who I can't remember, said that - if I can recall just correctly - that in the offering of the employment or the alternative employment, the employer needed to be a moving force in the offers crystallising into permanent employment. Now, if I remember rightly that was the gist of the Full Bench decision on that one.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. It's a long time ago.

PN50

MR WYDELL: It is. So we are left with the impression after talking to people from Cement Australia that it was Cement Australia who took the initiative in offering the officers who happened to be aboard the Goliath at that time and their opposite number who was on leave, offers of employment, and out of pure - that's, you know, out of pure necessity. So we say a further issue also arises in that there has been no consultation with the union, but rather some perfunctory advice on the part of CSR, anyway, on what is going to happen. So I think amongst all of that that there's certainly an industrial issue existing between the AMOU and CSR.

PN51

I might add, your Honour, that - and this really doesn't sort of go too far - that the union has endeavoured to adhere to dispute settlement procedures as contained in clause 27 of the UBA that's currently binding upon the parties, although it may have passed it's nominal expiry date, it is still binding upon the parties, and of course the commission is empowered to settle disputes over the application of this agreement. Whether that assists you or not, and of course, I would like to raise this with you now. Of course I have no doubt that my friend would probably wish to take you to clause 23 of this current agreement and that deals with redundancy.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR WYDELL: And it says:

PN54

An employee who is surplus to the company's requirement because of the decommissioning, sale or laying up of a vessel and who is not offered reasonable alternative employment will be entitled to a redundancy payment. This will be paid at the salary applying as at the date of retrenchment for continuous service with the company as follows.

PN55

And then the clause goes on to displace the maritime industry seagoing award. So that clause there ousts 11.3 of MISA. We don't have an issue with that but we do have an issue in relation to this clause because we say that this clause does not cover the situation that's occurring here. This clause covers the situation where - I will take you back to the second line of clause 23:

PN56

Where there is a decommissioning, a sale or a laying up.

PN57

Now, there's no decommissioning, no sale and no laying up. What we have here is a situation where we have Cement Australia who owns that vessel, CSR have managed and manned it with their employees for a long time. The owner is coming along who is a ship manning company and manages its own ships and saying we're taking our ship back. Now, when they take that ship away that causes a number of surplus employees at CSR because those eight positions have gone. So I just thought I would take you to that and - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Just going on from that, are you putting that because 23 doesn't comprehend the action situation, clause 11.3 of MITA applies?

PN59

MR WYDELL: That's an interesting question, your Honour, but I had thought about that question, but what I am saying is and the way I think the thing works is that clause 23 ousts MISA in its entirety, then that leaves clause 23 to cover the situation of redundancies at CSR. Now of course, clause 23 doesn't cover this situation. Well, that's our respectful submission. Now, if I can just take you to MISA. I'm sorry, sir, I don't have a copy for you. Now, if we just go to clause 11.3 and it's very, very short. It's headed Redundancy Pay, 11.3.1, an employee, and then it goes on:

PN60

whose services are terminated because of the decommissioning and sale off the coast of a vessel and who is not offered reasonably suitable alternative employment by the employer.

PN61

So there's already a difference there between MISA and the EBA because the EBA says offered, in this case it says offered by the employer:

PN62

will be paid one and a half weeks' salary at the rate to which the employee was entitled at the time of termination for each completed year of continuous service and pro rata for completed months with the employer.

PN63

Now, whether we would like clause 11.3 to remain, even if it does, 11.3 doesn't cover this situation either in our respectful submission because it says:

PN64

whose services are terminated because of the decommissioning and sale off the coast of a vessel -

PN65

Now, that's not what is happening here. We have the owner of the vessel taking its vessel back, and it's going to manage it itself and that causes some problems for CSR. Now, your Honour, I say there's a bit of a game going on here, your Honour and, look, if I could just illustrate - if I could just give this one to my friend. Now, if I might just hand this document up to you. We won't ask you to mark this one or anything at the moment, your Honour, but we just want to give you a bit of a perspective as to what we are doing in here.

PN66

Now, two of the Masters who were on the Goliath, one has 35 - you will see Glen Booth, and he has 35 years service with CSR and then if you look across and if you apply the scales in the CSR EBA right, and they say the EBA applies, well, for the purposes of this argument, let's just say it does. So let's have a bit of a look at it. So, Glen Booth with 35 years service would be entitled to 90 weeks redundancy. Now, a further issue arises for CSR and Cement Australia because for the last 12 years Mr Booth has served on the Goliath, and for his previous 23 years he has served on CSR ships. Now, if I was either of those two companies I would be saying that Cement Australia would only be liable in pari pasu for the time that Mr Booth has spent on their vessel.

PN67

Cement Australia is not going to be liable for the previous 23 years that he served on the Kowvlka, the Ormiston, the Silver Harrier and I think one other vessel owned by CSR. So, all in all, if you said the guy was redundant and you took CSRs EBA for the purposes of calculating it, if you look there you will see the first 23 years, CSR ship, 69 weeks, last 12 years, Cement Australia ship, 21 weeks. Now, the total of redundancy there, on my rudimentary arithmetic, and I am just trying to illustrate the problem here, and this gives a bit of an insight as to the game that's going on, the redundancy is $196,290.

PN68

Let's go down to the next Master. Another long serving CSR employee who just happened to be on the Goliath on 5 January. Now he has got 30 years service. Now, you know on that scale that comes up to 85 weeks redundancy. Now, that comes out at a sum of $185,385. Now, again, if I was Cement Australia well I would be saying well look, you know, you have had the last 12 years on our ship so we will cop 16 weeks of that and CSR are up to the first 69 weeks. So if we add the two sums together, and just coming down to the bottom of that one, if we take the two sums together, the combined total is $381,675.

PN69

That is a staggering amount of money. That is a staggering amount of money. Again on dividing it up, pari pasu, on my rudimentary arithmetic, we have CSR who would be looking at $300,000 and Cement Australia who would be looking down the barrel of $81,000. Now, these are huge sums of money in terms of redundancy. So what we have here in our respectful submission, there's a bit of a game going on here, because really, it suits Cement Australia and CSR if the employees were to take up the offer of employment with Cement Australia, then CSR don't have a problem with surplus employees.

PN70

Likewise, CSR don't have a problem in terms if they have got surplus employees, and I guess if you do, what do you do. Well, I guess the first thing you do is you go and ask for volunteers to go. Well, I tell you these guys are getting mugged if he didn't put his hand up. I would have my hand up for that sort of money, of course they would. So, you see, I think that serves to illustrate and I know those are not the real figures but we are still talking - the actual figures are something relative to those. It just depends what we use. Whether we use the EBA or whether we use MISA. But we can't use MISA because MISA is gone. The EBA doesn't apply because it's not one of those things either. Does that mean that the redundancy scales in the EBA still exist?

PN71

So, there's a bit of a question about it. But, viewed from this perspective, one can see why that it would be very smooth indeed if the employees were to take an offer of employment with Cement Australia, leave CSR, go to Cement Australia. They might take their accrued leave over with them. They might take their long service leave over with them. Cement Australia might put them over on the same conditions that they're on at the moment. But, you know, I mean, you look at this guy, 35 years - - -

PN72

THE SENIOR DEPUTY PRESIDENT: Might take them over on the basis that their service for the purposes of redundancy in the future is also taken over.

PN73

MR WYDELL: They might do that as well. And, of course, assuming that you're an employee with 35 years service and you do a bit of mathematics, you can sort of guess whereabouts the guy's age is landing. It may be he just continues on his merry way with Cement Australia and just normally retires at the end and therefore no liability will arise on the part of Cement Australia and CSR, well, they can just take a huge deep breath and say there for the grace of God go I, we are not up for 69 weeks of $196,000. That's just an enormous amount of money. Enormous, but the guy has been there 35 years and, you know, on those - the way that's calculated that's the way it works. Anyway, first things first. As I say, the union has requested that the Commission find an industrial issue in this matter, and unless you have questions of me, your Honour, I might sit down so we can here from Mr Magee.

PN74

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Wydell.

PN75

MR WYDELL: Thank you.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Magee.

PN77

MR MAGEE: Thank you your Honour. Your Honour, as my friend has pointed out, this matter arises as a result of a Ship Management Agreement that was entered into between CSR Shipping and Cement Australia in 1993. This is a long running agreement. It's an agreement under which Cement Australia owns the ship, the Goliath, and under which CSR manage the navigation and working of the ship and the provided crew. Cement Australia have given notice that they intend to terminate this Ship Management Agreement and there will be a change of the ship management effective on 23 February 2005. Those matters are bona fide commercial matters, and those matters are not as my friend has sought to indicate, some sort of game play.

PN78

Cement Australia have indicated that they will manage the Goliath after this period. Cement Australia have indicated that they will offer to all CSR seafarers assigned to the Goliath as at 5 January 2005 ongoing employment. It's employment on conditions no less favourable. All service with CSR will thereafter be treated as service with Cement Australia. All leave entitlements that have accrued both in terms of annual leave and long service leave will be recognised, and by necessary implication, therefore, as your Honour raised, potentially any ongoing liability for redundancy in the future.

PN79

The employees, the officers, will undertake the same roles that they currently undertake. They will be governed by the enterprise agreement that currently governs them. It's clear from the letter of offer which is attached to 5 January 2005 - I think it's attached to the dispute notification - that Cement Australia intend to apply the terms of the CSR Limited and Australian Maritime Officers Union Enterprise Agreement to the employment.

PN80

THE SENIOR DEPUTY PRESIDENT: Where does it say that?

PN81

MR MAGEE: It says it under the enterprise agreement.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, under the enterprise agreement.

PN83

MR MAGEE: So, clearly this is a situation whereby as a result of a commercial and contractual arrangement, CSR - it should be CSR Building Products, is no longer in a position to continue to manage the ship. In terms of the due process and notification procedure and my friend's suggestion that Cement Australia are driving the process, on 1 December 2004 there was a joint presentation between CSR and Cement Australia to all of the employees who were then working on the Goliath. A document was given to the employees. It's clear that this has been a joint process whereby CSR has sort to ensure that at the end of this management.. agreement its employees have work to go to and have reasonable alternative work to go to. Indeed, CSR Shipping have undertaken a process whereby they also approached crew on the other two vessels, under their management, to enquire if any of those employees wished to transfer to Cement Australia.

PN84

So it's been a process by which it's been an open process. It's been a process that has been undertaken appropriately. The two other vessels are fully crewed. There's no other roles with CSR Building Products for these employees. They're qualified seafarers and officers and officially, apart from the two other vessels, there's no roles available and that's been investigated. Your Honour, whilst a nominal date on 5 January 2005 was determined as to be the basis upon which the crews would be offered employment, so those crew who were working, or were assigned to the Goliath as at 5 January 2005, were those that were offered employment by Cement Australia.

PN85

It's to be noted that each of the two Masters and the other six officers that my friend's union represent have been working on the Goliath for some considerable period of time, at a minimum a number of years, and as has been indicated, like in respect of Mr Booth and Mr Dunn, a considerable period of time. So, it's not like there has been some cherry picking or some unfair process by CSR or Cement Australia in terms of how the selection process has taken place. It's been a fair selection process. It's been a selection process essentially on the basis that in order to ensure continuity of the management of this vessel, those crew who have been working on the vessel for some considerable period of time, are those that have been offered employment by Cement Australia.

PN86

Now again, each of the officers were given letters of offer of employment on 5 January 2005 and your Honour has that document, and your Honour will see that all of the terms and conditions which they currently work under, they will be employed under when they move to Cement Australia. So there is clearly no disadvantage to any of the officers in this process. The issue of whether the enterprise agreement, and particular clause 23 applies, is an interesting one. Some of my friend's analysis, if he is correct, and we are not conceding that he is correct, if clause 23 does not apply and clause 11(3) of the award does not apply, well, then these employees, even if it were found that they had been made redundant, which again is not conceded, would have no entitlement to severance pay.

PN87

There is no entitlement to severance pay under their contract of employment, and we would say they'd be no implied term at common law as to redundancy pay, so I don't know whether my friend is attempting to do his own members a disservice, but, if that is in fact the case, then they have no entitlement to severance payment at all., even if one were to find that they were redundant, which we don't concede they are. CSR says that it is reasonably open to find that the circumstances in which the management by CSR of this ship is ceasing, is a decommissioning by CSR of the ship. It's not a decommissioning of the ship in general, but it's a decommissioning of CSRs role, and therefore on one reading of the clause, this clause does apply. It's not expressed in the terms of the enterprise agreement as such and clearly this is an enterprise agreement that is agreed between the union and the employer, it's not simply the employer's enterprise agreement.

PN88

But neither party have at the time this enterprise agreement was entered into, envisaged these circumstances, and then this clause doesn't apply, well then pursuant to the enterprise agreement, the employees are not entitled to any redundancy pay. If, as we contend, clause 21 does apply, then we say that each of these employees has been offered reasonable alternative employment. The enterprise agreement does not say reasonable alternative employment with CSR or with the employer. It is broader, and in fact, my friend took you to the terms of clause 11(3) of the award which this paragraph displaces - which is of more narrow compass - it has to be reasonable alternative employment offered by the employer.

PN89

Now, it's an uneven principle of interpretation of industrial instruments that where there is a difference in the terms of the enterprise agreement, it displaces the terms of the board, and where the parties had obviously had regard to the award, and there has been a deliberate change in the words, that has to have been put in for some reason.

PN90

MR MAGEE: Now the leaving out of by the employer in the circumstances of the enterprise agreement, clearly envisages that the parties, both the union and the employer party, intended that reasonable alternative employment was broader than just with the employer and clearly in these circumstances, one cannot see how the offer made by Cement Australia could in any circumstances be seen to be not reasonable alternative employment. When one looks at all of the tests in all of the authorities, one has to look for issues such as role of seniority. The masters on this ship, when they moved to Cement Australia, have been offered in the same role with the same seniority.

PN91

They have been offered the same remuneration, they have been offered that their service with CSR will continue, that their entitlements will continue and that the enterprise agreement will continue to govern the work that they perform. How anyone can say that that is not a reasonable offer for alternative employment beggers belief, your Honour. Further, my friend says there is a dispute. There is no evidence and even no suggestion from the bar table at this point in time that any of the officers who have been offered employment by Cement Australia do not intend to take up that employment. So we are dealing with phantoms at the moment.

PN92

We are dealing with, perhaps - and maybe the time frame for accepting offers of employment has not expired with Cement Australia. Again, from the letter of offer of employment, the employees have until 21 January to indicate their acceptance or otherwise. Similarly, we have not reached a circumstance where those who, if any, determine that they do not wish to seek alternative employment, have had their employment terminated by the respondent in this matter. So essentially we say that you would not find at this point in time, that there is any dispute because the employer has not had any indication from Cement Australia, nor has the time expired for acceptance of the offers. So it is not clear that there is any dispute.

PN93

My friend took your Honour to clause 11 of the enterprise agreement, the officer crewing and fostering provisions where it says that the employees are employed in the company fleet and not to an individual ship, but that is not to say that a selection process in terms of who is to be offered employment by Cement Australia cannot take place and that the basis upon that, is, that those employees that have worked for some lengthy period of time, and who at a particular point in time, could be employees who were allocated to that particular ship is not an appropriate selection process. We say it is an appropriate selection process and they indicated earlier, there has been no coercion, there has been no cherry picking, no-one has been treated differently, there has been no inconsistency in the approach.

PN94

So CSR disputes that its correspondence to the officers amounts to coercion to join Cement Australia. If CSR had made no attempt and had entered into no discussions with Cement Australia about what would happen to its crew, we would have the union down here complaining that CSR had taken no steps to ensure that these people on termination of the ship management agreement, were being offered other employment. In circumstances where CSR has taken steps to enter into discussions with Cement Australia to enable the offer of alternative employment, CSR has now been faced with this submission that it is coercion that these people be offered, essentially, to continue in their same jobs but with another corporate entity.

PN95

My friend referred to the dispute settlement procedure and said that the union had complied with terms of the dispute settlement procedure. That CSR disputes, that has in fact been adopted and the fact that the first real discussion of these matters as a dispute, is essentially, the dispute notification being lodged by the union of the parties being brought before a Commission ..... that suggestion. Now, my friend also put that this is game playing by CSR and game playing by Cement Australia. His own submission in regard to calculations of redundancy pay clearly plays out that this is game playing by the union and perhaps some of its members who when offered reasonable alternative employment, are seeking, essentially to say, no, we would rather have a big pay day now with redundancy and then given the tightness of the market to sea farers we can go tomorrow to Cement Australia and say, well, we notice you still don't have a master for the Goliath, I was the master for the Goliath for the last 20 years, I'm happy to take up employment now and to have essentially double dipped to have been paid a substantial redundancy payment and to then have obtained the same employment.

PN96

So with respect to my friend, the game playing would appear to be more from the side of my friend's members. My friend has handed up some calculations of redundancy payment and we don't concede that they are correct. We have not seen document prior to it being handed to your Honour. In any event, if my friend says that the enterprise agreement doesn't apply, in clause 23, then the amounts due that are calculated pursuant to clause 23 by my friend, clearly don't apply. The award has significantly different provisions in terms of calculating redundancy pay and one would get significantly less beneficial provisions which would result in significantly less calculations.

PN97

But in any event, we say that that is not relevant to the matter that is before you today. As I said, your Honour, at this point in time, we say that there is no dispute because there is clearly the timeframe for acceptance of these offers that has not expired, nor has the process of any of these people being terminated taken place. Essentially, the proposition is this, if the employees do not accept the offer of reasonable alternative employment as at 22 February, CSR will no longer have the management rights to this vessel. If there are no other positions available for those employees, then their employment will be terminated as a result of their failure to accept this reasonable alternative employment.

PN98

They may be entitled to some notice payments or in payments in lieu of notice on that occasion, however, given that these employees were given notice on 1 December 2004, of this time frame given in which could occur, it may well be that the notice period in which they are entitled to receive, would have expired by that time in any event. My recollection is under the enterprise agreement ..... under the award if it is 90 days notice for employees with more than 4 years service that that may apply to some of my friend's ..... and that clearly would be fairly close to be having expired as at 22nd February 2005. Your Honour, unless there is anything you wish to ask me, that is CSRs position.

PN99

SENIOR DEPUTY PRESIDENT DUNCAN: There is a question. Mr Wydell has raised the possibility that there is a section 170LW matter involved in this matter.

PN100

MR MAGEE: I must indicate, your Honour, that it was not raised prior to - - -

PN101

SENIOR DEPUTY PRESIDENT DUNCAN: That is obvious, but it has been hinted at. It is stronger than that, it has been raised as a possibility in the present situation. Of course, if there is a dispute over the application of the agreement, which is covered by section 170LW, the fact that there has been no decision made by the employees, I don't think is as significant as it may be in relation to the section 99 notification.

PN102

MR MAGEE: At this stage, we are faced with a section 99 application.

PN103

SENIOR DEPUTY PRESIDENT DUNCAN: Yes, that is true.

PN104

MR MAGEE: I think that is what we are dealing with today, your Honour. Certainly I take on board that my friend is foreshadowing that that may be an issue and take some instructions in regard to that.

PN105

SENIOR DEPUTY PRESIDENT DUNCAN: Very well. Mr Wydell?

PN106

MR WYDELL: Yes, thank you your Honour. I have trouble with part of what Mr Magee has just put to you and that is that there is no problem here. Well, if that was the case the union would not be here. The union is here because its members have contacted the union and said look what they are going to do to us if we don't take this job with Cement Australia, we are going to go down the road with very little indeed. Now, I might just - now, on our information, from our members, CSR may have approached one other employee and asked that employee if he wanted to go across to Cement Australia.

PN107

I understand that that employee indicated that he didn't want to go and I guess that employee had far less seniority in the company, in CSR, because the two masters we are talking about here is 35 and 30 years service and all of a sudden that seniority is going to be recognised with Cement Australia. I just don't believe it.

PN108

MR MAGEE: I object to that. It is in written form and my friend has tendered it in his own application. I don't mean to cut across my friend but to be making submissions from the bar table to that effect which are contrary to documents which he has put in his own application - - -

PN109

SENIOR DEPUTY PRESIDENT DUNCAN: Yes. The documents do seem to have a different position.

PN110

MR WYDELL: Yes, your Honour, but I didn't prepare the document. The document was prepared by CSR and Cement Australia. They are not my words. What I am - - -

PN111

MR MAGEE: Well, with respect to my friend. Sorry to cut across him again. It is an offer of employment, when signed by the employee, is a binding contract of employment.

PN112

SENIOR DEPUTY PRESIDENT DUNCAN: Yes.

PN113

MR MAGEE: I mean it is not just a letter. It is the terms of the contract of employment that is binding on Cement Australia.

PN114

SENIOR DEPUTY PRESIDENT DUNCAN: It is an offer of employment.

PN115

MR WYDELL: Your Honour, we don't have any issue that it is an offer of employment. That is not what we are talking about. The officer has indicated that in his assessment of it, that with his significant years of service and him being the senior master or one of the two senior masters at CSR, that when you look at the master, who is on a higher plane altogether from the deck officers, that it is not comparable. Now, I just wanted to deal with the - I wanted to go back and have a look at the EBA again and just talk about whether or not clause 23 applies.

PN116

Now, my friend has indicated that there is a decommissioning by CSR of the ship and a recommissioning by Cement Australia of the ship. As I say, I have seen some decommissionings in recent times and the CSL ship, so I have a fair indication of what is involved in the decommissioning of a ship and also there was one on the news last night in Western Australia, ..... decommissioning of that ship. But the decommissioning of the ship is more than the guys walking down the gangway one day with a pay advice issued to them by CSR and walking up the gangway the next day with a pay advice issued by Cement Australia.

PN117

There is more to a decommissioning than sort of, people going up and down the gangway or a changing of the employer. But anyway, I just wanted to come back to clause 23. Now, I guess we are familiar here with the construction of documents and how we construe them, but anyway, it is just a bit interesting as to clause 23 because if I have a look at the previous agreement, its 2001 agreement, I'm just having a look at the redundancy provision now, and it says interestingly at clause 26, and I'm sorry I don't have copies, but anyway I don't need to read too much of it.:

PN118

An employee who is surplus to the company's requirements because of the decommissioning, sale, or laying up of the vessel, and who is not offered reasonable alternative employment, will be get a redundancy pay.

PN119

Now, that is the 2001 EBA. Let's go to the 2004 EBA. Let's have a quick look at this one. The same clause, clause 26, dealing with redundancies. This is a bit interesting because it says:

PN120

An employee who is surplus to the company's requirements because of the transmission of business, decommissioning, sale or laying up of a vessel.

PN121

Now, obviously, when the drafters of the EBA came around and looked at the 2001 EBA and thought about how in 2004, yes, Goliath is going to change, we better fix up the redundancy pay, the redundancy clause, to include a transmission of business. Now, as I say, we may be stretching the limits of interpretation here, but we can see that those two clauses, although they were the same initially, have been altered, because somebody had it in their mind that something was going to happen, and they intended that the new clause cover that. But anyway, I think probably the question of whether clause 23 applies, is a live issue because that may go to the very heart of things further down the track.

PN122

It is not important for the finding of the industrial issue, but it is the company who relies upon clause 23 and all they are saying at this stage, is whether or not clause 23 actually applies. Now, it is obvious that CSR intend to terminate these employees. It is not a case that they are resigning. CSR are taking an active step to terminate the employment of these employees, if, of course, they don't accept the offer of employment made to them by Cement Australia. Now, can we just come back to the dispute settlement procedure which my friend says the union has had trouble with. The union says that it has complied with the dispute settlement procedure as contained in the agreement as far as its relevant and applicable.

PN123

SENIOR DEPUTY PRESIDENT DUNCAN: Well, it also seems to provide that you can go to the Commission whenever you feel like it.

PN124

MR WYDELL: Well I was getting to that. but the union for its part has spoken to Mr Forest from CSR who are unable to agree or reach any consensus on any of the issues such to the point that it was not worth continuing on with it. Now, at that stage, there is two things. We have got resolution by an arbitrator and we have got a situation whereby either party can refer the matter to the Commission.

PN125

Now, it's on transcript at the time of certification of that agreement that the Commission is authorised to settle disputes over the application of that agreement. I am sorry, again, your Honour, I don't have copies of this. Unfortunately, I have had no time to prepare at home and they are very short staffed, but anyway, if we might, your Honour, just to go to the transcript of the certification proceedings and at paragraph 9 Commissioner Lawson said:

PN126

I have one question in relation to clause 27(e) which is the dispute settling procedure clause that's on page 19 of the agreement. It is the last subsection of clause 27.

PN127

And he asked:

PN128

Do the parties intend that there be any ...(reads)... powers of conciliation and/or where necessary, arbitration.

PN129

Now, I appeared for the union and I responded:

PN130

I think as far as the AMOU is concerned a number of agreements provide ...(reads)... under the dispute settlement procedure.

PN131

Then the Commissioner said:

PN132

It is just that word, determination, it is not used in this particular ...(reads)... on the public record.

PN133

Mr Forest replied:

PN134

We would not seek to put any limitations on the Commission's powers in relation to the clause.

PN135

From that point Commissioner Lawson proceeded to certify the agreement after he was satisfied that the Commission was in fact authorised or empowered to settle disputes over the application of the agreement. I don't know where the union hasn't followed the procedure. I think it has done everything it could, all that's within its power to do. But anyway, I say that whether or not the agreement applies maybe an issue a bit further down the track. But it is still our submission that there is an industrial issue here and I am sure your Honour doesn't need me to assist him in characterising the issue, but we say, for what it's worth, that the issue concerns the failure of officers employed by CSR to accept an offer of employment with Cement Australia by a specified date taken as CSR as an act of voluntary resignation.

PN136

We say there are concerns of the selection procedure to determine the officers who are surplus to CSR after the transfer of the MV Goliath to Cement Australia will be terminated and we say that the industrial issue also concerns the termination benefit of officers who are surplus to CSR. So we say that, as your Honour may well know, that dispute or controversy is required to find the existence of an industrial issue and I would refer you to Fosters case and also R v Wright case, one of the early Waterside Workers' Federation case where they said, you know, the seaman's union was able to submit matters to the Commission and there was no need for a demand and a refusal.

PN137

All it needed was there is an industrial matter arose and they would submit that notice to the Commission and the Commission had a jurisdiction under the extended operation of the Act. Now, a question arises, of course, coming back to the dispute settlement clause in this agreement, at clause 27, and I would just take you to paragraph (d) which is on paragraph 19, at about point 3 on the page and it says:

PN138

Work shall continue without interruption. No party shall engage in provocative action and the status quo shall apply while the procedures set out in this clause are being followed.

PN139

Now, I would read from what my friend said and from my conversations with
Mr Forest that the company doesn't intend to apply the status quo. I think the company intends to do whatever it does and that's why I foreshadowed to you earlier, sir, that unless of course there was some undertaking by the other side, the AMOU might request that the Commission make an interim exceptional matters order to preserve the subject of the industrial issue until the Commission has had an opportunity to conciliate and arbitrate the matter. At this point I think unless you have any questions of me, your Honour - - -

PN140

THE SENIOR DEPUTY PRESIDENT: What we are dealing with as far as you are concerned at the moment is the finding of an industrial dispute?

PN141

MR WYDELL: Well, I think that's a necessary first step. It's one way of giving the Commission jurisdiction. There is a little bit of jurisdiction under section 170LW but I don't think it goes to satisfying the whole of the industrial issues as the union would see it, and of course depending upon the attitude of the parties, section 111AA is always there for the Commission to make recommendations by consent, assuming that the parties want to submit to the Commission's jurisdiction and are prepared to be bound by its recommendations.

PN142

So I think one of the first steps in the usual way of going about these things is to find some jurisdiction for the Commission and then it's generally that the Commission would try and conciliate the matters and if no agreement can be reached on any or all, then it may be that the Commission is left to arbitrate the matter.

PN143

THE SENIOR DEPUTY PRESIDENT: All right. Mr Magee, there is one point that arises which I need your further assistance on and that is the thought that we have got an impending dispute, whether or not there has been a refusal of the offer, or offers that have been circulated there is a dispute pending. What have you got to say about that?

PN144

MR MAGEE: Well, again we are left in a position where we only have from my friend at the bar table a suggestion that he has had inquiries from his members concerning what may or may not occur to their employment at some point in time. We have had no evidence before this Commission that there is in fact any actual impending dispute - - -

PN145

THE SENIOR DEPUTY PRESIDENT: You are moving your requirement for evidence further back all the time.

PN146

MR MAGEE: No, we have an alleged dispute by my friend. At this point in time, as at today's date it is not clear whether any or all of the officers that my friend represents will or will not be accepting the offer of reasonable alternative employment and I do note whilst not answering your question, your Honour, that my friend has managed to avoid any real discussion how he or his members say that the offer of employment by Cement Australia does not amount an offer of reasonable alternative employment. It seems to have been significantly looked over by my friend.

PN147

There may well be a dispute that arises at some point in the future, your Honour, a dispute that there is a potential in the future, but not at this point in time. We are here today. We are happy to have discussions with my friend about what is the position and who, if anyone, says that they are aggrieved. But at this point in time we have not had any particulars of who is aggrieved and why they are aggrieved. If these employees and these officers in particular were not aggrieved with the terms of their employment with CSR and pursuant to the terms of the enterprise agreement, one has difficulty in seeing how they would be aggrieved by remaining under the same terms and conditions of employment and under the same enterprise agreement with all of the same entitlements, but simply with the management of the ship being with another corporate entity.

PN148

As I said, your Honour, we are happy to sit and discuss the matter today. We are here, we can discuss it with the union, but at this point in time we say it is premature in terms of the Commission's jurisdiction. We are certainly not seeking not have your Honour's assistance in any capacity in those matters, but we say at this point in time there isn't jurisdiction.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thanks, Mr Magee. What do you say that proposal for the procedure, not the law in the matter?

PN150

MR WYDELL: Look, your Honour, we are happy to have discussions with the company. In fact, I indicated to Mr Henderson on the phone when he called me that the union was available to have discussions. He indicated to me that they may contact us on Wednesday. They did not. But the crucial issue is that the union is in the timeframe here. The company has said that they will terminate the employees on the 21st, or they will have taken or be deemed to have resigned. Now, that is tomorrow.

PN151

MR MAGEE: In fact again my friend is not even reading from his own documents, that it is clear that these employees' employment will not terminate until 22 February.

PN152

THE SENIOR DEPUTY PRESIDENT: Well, certainly that is my understanding of what has been put this morning.

PN153

MR MAGEE: Yes, and that is certainly again the correspondence that was provided by CSR to the officers is that if they do not accept the offers of alternative employment then the ship management agreement terms effective on 22 February 2005 if there are no other positions available for them at that time and it is anticipated that there will not be given the full crewing of the two other vessels, that their employment will at that point in time terminate.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Magee. I think before I rule on that single point as to whether or not there should be a finding of a dispute I will have some conversations with the parties and will do that in five minutes time.

<SHORT ADJOURNMENT [11.14AM]
<RESUMED [12.39PM]

PN155

THE SENIOR DEPUTY PRESIDENT: This matter arises from the loss of the management of the vessel Goliath by the CSR group. I use the word group advisedly because there is some doubt as to the actual employer within the group. I refer to the employer at this stage as CSR. The crews of the Goliath have been offered employment by Cement Australia on what CSR asserts is suitable alternative employment. The Australian Maritime Officers Union has notified the Commission under section 99 of the Workplace Relations Act of a dispute with CSR.

PN156

Having heard the parties this morning, I believe there are two basic issues in the alleged dispute. They are said in the notification to be, one, concerning the failure of officers employed by CSR to accept an offer of employment with Cement Australia by a specified date will be taken by CSR as an act of voluntary resignation, and two, concerning the selection procedure to determine which officer that are surplus to CSR after the transfer of the Goliath to Cement Australia shall be terminated. CSR maintains that it is premature to find a dispute as no-one has rejected the offer of employment by Cement Australia, but I disagree.

PN157

I have nominated two issues that are raised by the AMOU and CSR has made it plain that it rejects the issues. They are both relevant to the transfer of management of the Goliath. This is sufficient even if they may in some respects be seen as impending to find that there is a dispute, bearing in mind the provisions of the legislation with respect to the maritime industry. For the purposes of section 100, I record that I am satisfied that conciliation will not assist the prevent or settlement of the alleged dispute, my reason being that I have discussed the dispute with the parties and the positions adopted by the parties reveal an inability to successfully conciliate.

PN158

I will place on the file a formal finding pursuant to section 101 and for that purpose direct the CSR group to confirm to the AMOU and the Commission the appropriate employer company within the group by close of business tomorrow. The matter requires attention before 22 February. That is when the transfer of management of the Goliath will be effected and various employment relationships will alter. For that reason I direct the AMOU to prepare an outline of its submissions indicating orders it wants and to file and serve them within seven days of today's date. The matter will be listed for hearing at 2 pm on 31 January 2005. The parties are at liberty to apply. I adjourn this matter accordingly. I will adjourn the Commission indefinitely.

<ADJOURNED UNTIL MONDAY 31 JANUARY 2005 [12.42PM]