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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 13280-1
SENIOR DEPUTY PRESIDENT LACY
C2005/1265 C2005/1233 BP2005/1134
FARSTAD SHIPPING (INDIAN PACIFIC) PTY LTD
AND
AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
s.127(2) - Appln to stop or prevent industrial action
(C2005/1265)
PERTH
8.14AM, MONDAY, 24 OCTOBER 2005
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN PERTH
PN1
THE SENIOR DEPUTY PRESIDENT: Can I have appearances please? Can you hear me in Melbourne?
PN2
MR R BUNTING: A little faintly, sir, but we can hear you. I seek leave to appear on behalf of Farstad, the applicant.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bunting.
PN4
MR BUNTING: I know Mr McNally will put in an appearance, but could I request that all three matters be called on please, sir, and I will wish to enter an appearance in all three matters.
PN5
THE SENIOR DEPUTY PRESIDENT: When you say all three matters, what are we talking about there?
PN6
MR BUNTING: There's the new section 127 application, which is 1265 of 2005 and then there are the two adjourned Farstad matters, one is a section 127 matter, 1233 of 2004 and the other is the section 170MW(2) application which is BP1134 of 2005.
PN7
THE SENIOR DEPUTY PRESIDENT: Very well. Will you call those two matters on, please, for the record.
PN8
ASSOCIATE: c20051233, section 127(2) application to stop and prevent industrial action, Farstad Shipping (Indian Pacific) and the AIMPE. BP20051134, section 170MW, power of the Commission to suspend or terminate a bargaining period, application by Farstad Shipping.
PN9
MR BUNTING: I continue my appearance in the two adjourned matters and I seek leave to appear in the new matter.
PN10
THE SENIOR DEPUTY PRESIDENT: Yes. Any other appearances?
PN11
MR W G McNALLY: I seek leave to appear for the Australian Institute of Marine and Power Engineers in the three matters.
PN12
THE SENIOR DEPUTY PRESIDENT: Any other appearances? No. Leave is granted in both cases to appear in the matter 20051265 and Mr McNally, you have leave to appear in respect of the matters 1233 and 1134. Yes, Mr Bunting.
PN13
MR BUNTING: Your Honour, the section 170MW(2) application was listed before you on Friday last week, 21 October. In the course of proceedings that day you exercised some conciliation powers concerning the underlying EBA negotiations and you, as I recall, directed the parties to confer further and that there be a conciliation conference chaired by you and this was to occur on 31 October.
PN14
Late that day, last Friday, about 4 o'clock, half past 4 or thereabouts, the Institute sent a notice under section 170MO announcing its intention to withdraw labour on Farstad's vessels for three days commencing at 7 am Wednesday, 26 October. That's the day after tomorrow. I just parenthetically, sir, that the Institute did not favour us or the Commission with information about its intention to undertake that plan during the proceedings earlier in the day. The actual notice that they've given us is attached to the section 127 application which was filed late on Friday, that is it's attached to 1265 of 2005.
PN15
We're grateful for the assistance of the Commission in allowing these matters to be called on, the two earlier matters, together with the fresh 127 application. We rely upon the material in the earlier proceedings. I could go through details about filing and serving the fresh section 127 application but given that the Institute is here, I won't take up the limited time with that. Suffice to say, we did take steps to let the Institute and its officers and its solicitor know straightaway on late Friday that there would be a hearing this morning.
PN16
We gave notice on Friday, sir, before we knew about this industrial action, of intention to seek leave to amend our application in the section 170MW(2) matter, to have it defer to the new bargaining period, that's 2005/1316 as well as the original Farstad bargaining period 2005/112. That notice was given by fax which was faxed to the union and to its solicitor and a copy of that was also sent to your Honour's associate and I do seek to rely upon that document. I don't know if you have it handy but it is in the Commission's precinct somewhere.
PN17
THE SENIOR DEPUTY PRESIDENT: Which document is that?
PN18
MR BUNTING: It's a fax which was sent on last Friday, the 21st, from Blake Dawson Waldron notifying of an application to amend the section 170MW(2) application which is before you, to amend it. The substance of the amendment is to make reference to the new bargaining period as well as the old bargaining period.
PN19
THE SENIOR DEPUTY PRESIDENT: I don't appear to have that fax. The only fax I seem to have is a fax copy of a witness statement.
PN20
MR BUNTING: Yes, that' was faxed to you this morning, sir. You just don't have it handy, I appreciate that, but we did fax to the parties and to the Commission on Friday, and indeed we filed in the Commission on Friday, we filed in the Registry in Victoria, an amended application to suspend or terminate the bargaining period. That was ..... the list before you and the substance of the amendment is simply to indicate that in that application we said not only to suspend or terminate BP112 of 2005, but also BP1316 of 2005. That's the only alteration. I can inform the Commission that the amended application was in fact filed in the Registry on the 21st and a copy was also faxed to the union and its solicitor.
PN21
THE SENIOR DEPUTY PRESIDENT: Yes, right.
PN22
MR BUNTING: The essence of what we say, sir, in respect of each of these applications, that is the application to suspend or terminate and our applications brought under section 127, is that the industrial action intended will not be protected action and that in the circumstances it is appropriate that an order be made preventing the industrial action and suspending or terminating the bargaining period.
PN23
There are a couple of reasons why we say the industrial action will not be protected and I will go directly to those. The first reason is that we are still concerned with, in essence, pattern bargaining by the Institute. This is the argument which we advanced before you in the proceedings in Perth in the middle of September. I won't go to it in detail because the argument is already before you and I know there's limited time. But we say that the Institute in the view of Farstad is pursuing a set of claims which it is seeking to impose upon all of the employers in the industry.
PN24
The essential claims are core claims, details of which are set out at tab 9 of exhibit A1 which was a bundle of documents tendered on the last occasion, and the core claims are things like parity of wages as between the master and the chief engineer, default manning of three marine engineers, certain training claims, et cetera. We say that this is a position being put against the industry generally and it's not able to be supported by protected industrial action.
PN25
The principal authority on which we rely is the one to which we drew attention last time. It's AIG v AMWU decision of Munroe J, print T1982 and that is the decision which is referred to in the footnote of section 170MW(2) and we rely upon that decision. There was a wealth of argument put about this last time and I don't take up time restating it, it has already been put.
PN26
The Institute has made a play in earlier parts of some of these proceedings and will probably will say today that this is all ancient history. They've served a new bargaining notice, which they did in 1316 of 2005. They served that on 5 October.
PN27
THE SENIOR DEPUTY PRESIDENT: Sorry, which - - -
PN28
MR BUNTING: Then they amended it.
PN29
THE SENIOR DEPUTY PRESIDENT: Yes, sorry, 1316.
PN30
MR BUNTING: 1316, yes, and then they amended it with an amended bargaining notice on 10 October. Mr McNally said the last time we were before you that that was because they apprehended Electrolux problems or something. In any event, they amended it and served a new document and then they served another document amending the original bargaining period, 112 of 2005, by withdrawing everything except some expense claims. They did that on the 20th. So they're likely to contend that this means that all of the earlier history is irrelevant and that they can move away from that at any industry-wide element because they're now dealing with this on a different, fresh enterprise bargaining basis and it's a fresh start as from 5 October.
PN31
Our submission on that is that that is not correct, that you can't just move away from all that has happened. What's happened has happened, it can't be willed away, and that they are still pressing essentially the same claims, certainly the core claims which I mentioned.
PN32
Our first argument, sir, is that it still suffers from the defect which we dealt with on the last occasion and all that has happened since then is essentially camouflage. In the alternative, and on the assumption that the Institute has commenced afresh and that the earlier chapters are now irrelevant, then its resort to industrial action is peremptory and premature and it could not possibly be said - - -
PN33
THE SENIOR DEPUTY PRESIDENT: This is your second reason, is it?
PN34
MR BUNTING: This is our second reason and it's in the alternative to the first. It's an alternative argument. Either it's a fresh chapter of the old negotiations or if it's a fresh start, then we say it's far too premature and they could not possibly say at this stage that, prior to taking the industrial action, they have genuinely tried to reach agreement with us, the requirements, of course, coming from section 170MP and 170MW(2)(a). Indeed, it would be outrageously premature.
PN35
If the Institute is correct, and this is a fresh negotiation, if that's what's been put, then there has been a grand total of one meeting involving a couple of Institute officers and two delegates and that took place at Port Melbourne at the Institute's office on 6 October 2005. There has been no other meeting. There is to be a conciliation conference next Monday, 31 October, which you will chair, sir. We have proposed, Farstad has proposed a meeting of a bona fide enterprise bargaining nature for this Thursday.
PN36
The Institute, playing its games, has said that it will meet but it only intends to discuss expense related issues arising from its contracted bargaining notice in the original bargaining period. So we're having a bit of trouble getting a sensible meeting, but it's not for the want of trying. To date the only enterprise bargaining meeting we've had is the one on 6 October. So it quite ridiculous, sir, we submit against that background, if they have come and said that they have made a genuine attempt to bargain and reach agreement and it's now legitimate that we go off and have a three day strike.
PN37
In relation to that, of course, you already have before the Munroe J decision to which I had drawn your attention a little while ago.
Might I just mention one other decision of Munroe J, I think arising in the same general controversy, and that's a decision of Munroe
J given on 29 August 2000, so it's AIG v AMWU,
29 August 2000 and it's print S9711 and the interim order made in that matter is S9710, an interim order made on 28 August 2000.
PN38
In that matter his Honour was dealing with Campaign 2000 claims. The AMWU on the evidence, as it appears from the decision, had with many of the employers, only one or two meetings and Munroe J considered that that was prima facie sufficient to satisfy the requirement of Section 170MW(2) and made an interim order suspending or terminating the bargaining period.
PN39
Our second reason, put in the alternative to the first, is that if this is a fresh start then there's no way in the world the Institute can, with a straight face, contend that they have genuinely tried so far to reach agreement before embarking on their industrial action campaign.
PN40
There are two other short reasons, sir, which I put as to why this is not protected action and these are just additional, they're not in any sense an alternative. The first point is that Farstad has had a barrage of bargaining notices and amendments over the last short while and it is quite inconsistent with genuine bargaining, we submit, to be faced with that. If you're genuinely bargaining, if you want to get agreement, you say what you want and you mean what you say and you sit down and say, "Now let's negotiate about these things." But we don't get that from the Institute. What we get is one list of claims and then we get another one, differently framed, although with significant overlap, and then we get an amendment of that one and then we get a substantial contraction of the first one.
PN41
It is quite impossible for Farstad to know what are the claims that the Institute is pursuing, particularly when they go through farcical processes saying, "We want to sit down and have a serious discussion about expense claims" as though that were the issue between the parties. They're playing ducks and drakes with us that is inconsistent with genuine bargaining and for that reason, whether you say this is industry or enterprise, it is not genuine bargaining and it is not under the statutory scheme able to be accompanied by protected action.
PN42
The fourth and last reason why we say this is not protected action relates specifically to the last bargaining notice that has been filed in the matter. You may not have that before, sir, so I do need to - - -
PN43
THE SENIOR DEPUTY PRESIDENT: Sorry, I don't have the bargaining notice, I have a copy of the notice of intention to take industrial action in respect of it. That's BP3730 of 2005. Is that the one?
PN44
MR BUNTING: Sorry, which is the document you have, sir?
PN45
THE SENIOR DEPUTY PRESIDENT: Attached to your application under section 127 is the notice of intention to take industrial action re bargaining period 3730 of 2005 and I take it the bargaining period notice to which you refer is that bargaining period notice.
PN46
MR BUNTING: Yes.
PN47
THE SENIOR DEPUTY PRESIDENT: Well, I don't have the notice, the bargaining period notice.
PN48
MR BUNTING: I will read the relevant passage of it. This is an Electrolux point. The bargaining period notice as amended - - -
PN49
THE SENIOR DEPUTY PRESIDENT: This is 3730, is it?
PN50
MR BUNTING: It's 1316.
PN51
THE SENIOR DEPUTY PRESIDENT: I thought you were going to say something about the new bargaining period notice, which I gather is - - -
PN52
MR BUNTING: I'm talking not the strike notice, but the bargaining period notice.
PN53
THE SENIOR DEPUTY PRESIDENT: What is that one? What did you say it is?
PN54
MR BUNTING: I think the correct number, sir, this is the amendment 10 October document and it's BP2005/1316.
PN55
THE SENIOR DEPUTY PRESIDENT: Has there not been another notice given subsequent to that?
PN56
MR BUNTING: I think the notice they've given subsequent to that is just a contraction of the original one. I'm not aware, and the Institute will correct me if I'm wrong, but I'm not aware of a substantive bargaining period notice applying to Farstad after the 10 October one, the number of which is 1316.
PN57
THE SENIOR DEPUTY PRESIDENT: Do you have any knowledge of the BP number that is sitting in the heading of the notice of intention to take industrial action, that is BP2005/3730?
PN58
MR BUNTING: No, I do not.
PN59
THE SENIOR DEPUTY PRESIDENT: That's the matter in respect of which the notice of intention to take industrial action relates.
PN60
MR BUNTING: Thank you for drawing that to my attention, sir. I do not know what that is. We might, before the day is out, inquire of the Institute about that.
PN61
Just on the assumption though, sir, for the moment that that's a clerical error, that the matter that they really intend to rely upon is the one I mentioned, which is - - -
PN62
THE SENIOR DEPUTY PRESIDENT: 1316, is it?
PN63
MR BUNTING: 1316, although I think, if nothing else, it would seem that that would invalidate their current notice, but leaving that aside - - -
PN64
MR McNALLY: 3730 ..... industry verbally gave us .....
PN65
MR BUNTING: So what is the actual number?
PN66
MR McNALLY: I think it's 1316.
PN67
THE COMMISSIONER: In any event, you continue Mr Bunting. As you say, if there is no such bargaining period as 3730, that would virtually invalidate the notice, I think in any event.
PN68
MR BUNTING: Yes. I'll come back to that point. In any event, the 1316 bargaining notice has a claim which is item 3, employment related expenses and their reimbursement and then there are a series of claims which it seeks to have under that general heading reimbursed. It says:
PN69
The employer will reimburse any employee any expenses reasonably incurred by the employee in the performance of their duties on behalf of the employer. The entitlement under this clause includes -
PN70
and then there are various items and the one to which I draw attention is this:
PN71
Expenses, including costs of personal legal representation, including, if there is an irreconcilable conflict of ...(reads)... finds that such an inquiry or proceedings have been occasioned by the wilful default or misconduct of the officer.
PN72
We wish to submit, your Honour, that an application in the context of a Division 2 agreement, that an application by a union that fines incurred by employees under the general law, such as, for instance, under environmental legislation, a claim for reimbursement of those fines does not pertain to the employment relationship and that as a result of that, and on the authority of Electrolux, that an industrial action campaign cannot be sustained.
PN73
I have tried to research whether there is any consideration of this or a comparable point under the decisions of the Commission and courts, et cetera. I have not found anything directly on the point. There is a High Court decision called Spain v Union Steamship Company of New Zealand (1923) 32CLR 138 where there was a provision apparently in an award which was not wholly different from the one that is being advanced here. The consideration by the court was not about its validity but about essentially an interpretation point on the agreement so it would be relevant for consideration but it does not deal with the point.
PN74
Moreover, having regard to the narrow range of matters that can legitimately be found to pertain to the relations between this employer and these employees for a Division 2 agreement, we would submit that it's not matter that could be within the permissible range. It's not a matter arising in the employment. The duty to comply with the general law is not something which arises from employment, it arises from the citizens ordinary interaction with society.
PN75
THE SENIOR DEPUTY PRESIDENT: Just thinking it through for a minute, the common law position is that the company is responsible for the acts and omissions of its employees but the employer is able to recover from employees losses suffered as a result of the employees' negligence. Is that right?
PN76
MR BUNTING: Yes, that would be right. We're here talking, though, about penalties.
PN77
THE SENIOR DEPUTY PRESIDENT: Yes, I understand. I'm just trying to think this through in a logical way - or trying to be logical. Does that right not arise as a result of the employment relationship and the implied terms?
PN78
MR BUNTING: I think the point your Honour made about the law of tort probably does arise. It's an incident of the employment relationship that, for example, an employer is vicariously liable for the negligence of its employee and there's probably another side to that coin so that the employee can look to the employer if what he is doing is in the ordinary course of his employment but it involves him in some tortious action. I would say that does arise in the employment context. I can't cavil with that, but I think it's a different step if you're saying, let's say in criminal law or penal sanctions imposed by legislation, these are matters of civic duty, they don't come within the tortious concepts we've just been discussing.
PN79
It couldn't possibly be legitimate for an employer to authorise somebody to engage in conduct which is unlawful in that sense of doing something which the statute has prohibited, nor can it be lawful, in fact it would just be bad for public policy to say that you have some contract to indemnify people about it. It's a matter of practicality. It may be that employees do look to employers and employers would often give some form of comfort, but it's not a matter about which we would say an award could be made or not a matter which could be legitimately included in a certified agreement. It's not a matter which pertains to the employment relationship in the requisite sense and therefore you can't have protected action about it. That's our submission on that point.
PN80
I can't find a specific authority on the point so it really is a matter, as far as I can see, that needs to be looked at from both aspects.
PN81
THE SENIOR DEPUTY PRESIDENT: Yes. Very well, thank you.
PN82
MR BUNTING: The statement, sir, that you do have that was faxed over which I've given just shortly prior to the proceedings commencing to Mr McNally, that's a statement of Peter Russell Stirtevant Barrow. It deals with the apprehended impact of the foreshadowed industrial action. May I tender that statement?
PN83
THE SENIOR DEPUTY PRESIDENT: I'll mark it for identification at this point in time. It's the statement of Peter Russell Stirtevant Barrow, is it?
MR BUNTING: Yes. S-t-i-r-t-e-v-a-n-t.
MFI #F2 STATEMENT OF PETER RUSSELL STIRTEVANT BARROW
PN85
MR BUNTING: Your Honour Mr Barrow is here and if Mr McNally has questions of him, he is able to answer them. Perhaps if I just ask your Honour to read the statement rather than me read it.
PN86
THE SENIOR DEPUTY PRESIDENT: I have read the statement.
PN87
MR BUNTING: We rely upon the information in that statement. The only other submission I wish to make is really the one which emerged in the course of discussion this morning and that is that the strike notice that the Institute has given us appears not to relate to any bargaining period known to us. I think Mr McNally has confirmed that the actual number is 1316 of 2005. We don't know what this 3730 is. If they're able to produce a bargaining period notice which has been served on us which has that number, then we may have to reconsider, but at the moment we would submit that in addition to the other matters we've mentioned, it would not be legitimate to proceed on the basis of this strike notice because it does not refer accurately to any bargaining period which is before the Commission or which involves Farstad Shipping.
PN88
For those various reasons, sir, we ask that an order be made either on a permanent or interim basis, depending on your degree of satisfaction with the opportunity Mr McNally has to answer, but we ask that at least an interim order be made suspending or terminating the bargaining period and secondly, we ask that an order be made under section 127 to prohibit the industrial action which has been foreshadowed. Those are my submissions.
PN89
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bunting. Mr McNally.
PN90
MR McNALLY: I would like to cross-examine the witness.
PN91
THE SENIOR DEPUTY PRESIDENT: Sorry, I should have given you that opportunity. Is there a member of the Registry in the courtroom, Mr McNally?
PN92
MR McNALLY: No, there's not.
PN93
THE SENIOR DEPUTY PRESIDENT: Very well. My associate will either affirm or administer the oath to Mr - - -
PN94
MR BUNTING: Do you have Mr Barrow in view?
THE SENIOR DEPUTY PRESIDENT: Whereabouts is he? If Mr Barrow goes to the witness box. You can't see me, you can see my associate. That's probably more advantageous than looking at me. Sit down, Mr Barrow, please. Mr Barrow, can you reach in front of you and pick up the Bible that's over the top of the thing. Sit down please, Mr Barrow.
<PETER RUSSELL STIRTEVANT BARROW, SWORN [8.50AM]
<EXAMINATION-IN-CHIEF BY MR BUNTING
PN96
MR BUNTING: Perhaps, sir, I should ask Mr Barrow whether the statement he has with his signature on it, which has been faxed to the Commission, is that a statement you have prepared for the purpose of these proceedings?---It is.
PN97
Is it to the best of your knowledge, true and correct?---To the best of my knowledge true and correct.
I tender that statement, sir.
EXHIBIT #F2 STATEMENT OF PETER RUSSELL STIRTEVANT BARROW
PN99
MR BUNTING: I have no further questions.
THE SENIOR DEPUTY PRESIDENT: Mr McNally.
<CROSS-EXAMINATION BY MR MCNALLY [8.51AM]
PN101
MR McNALLY: Mr Barrow, on 5 October this year did you receive from the Australian Institute of Marine and Power Engineers a notice of initiation of a bargaining period?---Yes, Mr McNally.
PN102
Upon receipt of that notice, did you do anything?---We, on receipt of that notice ..... meeting with the Institute on 6 October.
PN103
There's a document I'll show you which is a copy of the notice of intention of a bargaining period dated 5 October 2005. Might I hand it over to him?
PN104
THE SENIOR DEPUTY PRESIDENT: There's somebody shuffling papers there. Can I ask you not to do that because it amplifies on the microphone and I can't hear what people are saying.
PN105
THE WITNESS: Yes, Mr McNally, that appears to be a document I received before we met with the Institute on 6 October.
PN106
MR McNALLY: Who arranged that meeting?---We - I think it was by way, of my recollection, be probably a mutual understanding that we would meet. I can't actually recall whether it was instigated by ourselves or the Institute. I know we certainly set dates between ourselves and we were to have delegates available et cetera to meet in South Melbourne. The only point of conjecture was whether the meeting would take place in either our office or the office of the Institute.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN107
Sir, how do I tender the document that I've shown the witness?
PN108
THE SENIOR DEPUTY PRESIDENT: What is the document, please?
PN109
MR McNALLY: It's the notice of initiation of bargaining period which was served on the company on 5 October 2005.
PN110
THE SENIOR DEPUTY PRESIDENT: Just bear with me a moment. I think I do have a copy of that here.
PN111
MR McNALLY: A number of page annexed to it, sir.
PN112
THE SENIOR DEPUTY PRESIDENT: Perhaps if you tender that document and then at the conclusion of the hearing I'll ask you to perhaps give it to my associate that's in Melbourne. Just hold on. I'll arrange for my associate to come into the hearing room in Melbourne and collect the document in any event. Just identify the document as fully as you can for me, please.
PN113
MR McNALLY: It's on the Institute letterhead. It's a form R40 rule 58. It's addressed to Farstad Shipping (Indian Pacific) Pty Ltd and the IBN number is shown on the front page and gives notification of the initiation of a bargaining period. Annexed to the document are a number of pages ..... there are 10 pages annexed. The first one on the first page is Farstad issues and claims ..... conditions. The final words are .....
PN114
THE SENIOR DEPUTY PRESIDENT: I do have that document Yes, go on.
PN115
MR McNALLY: There's no number on the document.
PN116
THE SENIOR DEPUTY PRESIDENT: That's all right. I'll mark the document, I do have it here on the file.
PN117
MR McNALLY: Is there any number on that document, sir?
PN118
THE SENIOR DEPUTY PRESIDENT: You mean BP number or anything like that?
PN119
MR McNALLY: Yes.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN120
THE SENIOR DEPUTY PRESIDENT: Not that I can see. It does refer to a notice under section 170MI(2) of the Act given to Farstad - yes, there is a date on the bottom of it, 10 October.
PN121
MR McNALLY: But does it have a number?
PN122
THE SENIOR DEPUTY PRESIDENT: A number? No, I can't find a number. In any event, I'll mark that document. It's a document apparently signed by Phillip Olsen and dated 10 October 2005.
PN123
MR McNALLY: You said 10 October, did you, sir?
PN124
THE SENIOR DEPUTY PRESIDENT: That's the date down the bottom of the document.
PN125
MR McNALLY: It should be 5 October.
PN126
THE SENIOR DEPUTY PRESIDENT: Hold on.
PN127
MR McNALLY: You've got the amended.
PN128
THE SENIOR DEPUTY PRESIDENT: I've got the amended document, have I, Right. So I don't have the document. Is that right?
PN129
MR McNALLY: You should have it, it was tendered the other day. It was handed up the other day, but you may not have it.
PN130
THE SENIOR DEPUTY PRESIDENT: You proceed and we'll arrange for my associate in Melbourne to come in and get it off you. As it is I'll mark that document that you're referring to dated 5 October you said?
MR McNALLY: Yes.
EXHIBIT #AIMPE1 DOCUMENT DATED 5 OCTOBER 2005
PN132
MR McNALLY: ..... exhibit AIMPE1.
PN133
THE SENIOR DEPUTY PRESIDENT: Well, there you go. I got it right, didn't I?
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN134
MR McNALLY: Top right-hand corner, thanks, sir.
PN135
THE SENIOR DEPUTY PRESIDENT: That was tendered the other day, was it?
PN136
MR McNALLY: It was handed up.
PN137
THE SENIOR DEPUTY PRESIDENT: Handed up?
PN138
MR McNALLY: I thought it was.
PN139
THE SENIOR DEPUTY PRESIDENT: All right. It may well be on the file back in Melbourne.
PN140
MR BUNTING: I think certainly the one dated 10 October was part of exhibit T1.
PN141
THE SENIOR DEPUTY PRESIDENT: Yes, but in any event I'll mark that document that you've referred as AIMPE1. Mr McNally.
PN142
MR McNALLY: If I could just go back, you did meet on 6 October?---That's correct.
PN143
That meeting, when was that arranged?--- ..... actually. It would have been a reasonable period of notice prior to it happening because we had to obviously ….. quite a difference ..... where the meeting was going to take place.
PN144
The contents of the bargaining period was going to be delivered to you. Is that right?--- Well, the contents of the bargaining period was delivered to us on the evening of the - the evening prior - late in the afternoon prior to that meeting.
PN145
The delegates you to refer to are the delegates of the Institute?---Employees - engineer officer employees of Farstad who were invited in by the Institute.
PN146
Those negotiations were negotiations directed at reaching agreement on the terms of an agreement certified under Workplace Relations Act?---Yes, it was our first meeting under the - under that bargaining period, sir.
PN147
That's the bargaining period that you identified, which is now exhibit AIMPE1. Is that correct?--- ..... It came in on the 5th prior to that meeting on the 6th.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN148
Who was present at that meeting representing the company?---Both myself and Mr Cocomo from the Australian Institute of Marine and Power Engineers ..... ….. Metals Association ..... Australian Mines and Metals Association and I took it upon myself at that meeting to give an overview of the company's activities because there was a bit of confusion as to what ships were operating in the region at the time so I made it my business to give a fair understanding how we were conducting our business, where the ships were.
PN149
Talking about who was present, are we, or are you talking about something else?
---Talking about something else I just thought of - - -
PN150
Let's go back to the question. Who was present on behalf of the Institute of Marine and Power Engineers?---Mr Christianson, Mr Olsen, Ms Thompson and there were two engineer officers out of our fleet.
PN151
Now you can have the floor. Just describe what happened at that meeting? Firstly, do you want to tell us, how long did it take?---We went into the night of the afternoon because we had lunch probably - I know I had an appointment at 4.30 which I had to leave to go to. I had meter parking so I was in and out of the office a couple of times.
PN152
That's all very interesting, but the question was, how long did the meeting last?
---I'm just trying to get my head around that. I think it was probably about four to five hours. As I said we started at 10.30
to 11. I had a meeting that I had to attend at 4.30 so I would have left around four to get to that meeting.
PN153
You commenced, I think you said, by outlining to those present the company's operations?---Yes.
PN154
How long did that take?---We spoke in general terms for 20 minutes, 25 minutes to the best of my knowledge.
PN155
At the end of that did you feel that everyone present knew about the enterprise they were involving in negotiation?---I think they would have had a pretty good idea of what our business activities were, yes, sir.
PN156
What followed that outline of the business activities?---We went to go over - discuss ..... spoke to his document. We responded - - -
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN157
The document you are now referring to is exhibit AIMPE1, notice of initiation of bargaining period?---That's right, the one we received on the evening of the 5th.
PN158
And he went through and explained the document, I think you were saying?
---He went through and spoke to quite a lot of points on the document. We responded. We spoke to some issues that we had and part
of that discussion we - towards the end of the meeting we agreed that there was a whole lot of decisions from previous meetings as
well as decisions that had come on the table at this meeting. There were documents that had been prepared by Australian Mines and
Metals Association and AIMPE and we agreed to take on the administrative function of bringing those documents together, which wasn't
formalised until late last - I think late week.
PN159
A letter to the union the night before you were in this - last Thursday, was it?
---That's correct, yes.
PN160
Did you discuss the issue of parity of salaries ..... ?---The issue of parity and wages in general, we certainly discussed wages. In that context I couldn't be sure if we spoke directly about parity or not but it was made quite clear by the Institute that they had a large wage claim upon us and that people were very keen to know the outcome and in general terms that would be my recollection.
PN161
The company - - -
PN162
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr McNally, just a moment.
PN163
Can you hear me?---Yes, sir.
PN164
I just want to clarify. I'm uncertain of what you said then about whether or not there was any discussion of parity?---We spoke in the way that we spoke in very general terms about the wage claim. As to the specifics I couldn't actually recall. I could not put my hand on my heart and say - go into the specifics of that discussion.
PN165
Yes, all right?---What I can recall was that the Institute were very bullish about their position on wages.
PN166
MR McNALLY: Which was?---That they had circulated to members throughout the industry and our employees - they sent a questionnaire out which elevated their claim that - for an 8 per cent wage rise.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN167
They wanted the company to agree to that 8 per cent wage rise?---Certainly that was their claim, sir.
PN168
And the company indicated their position?---The company said that - I think we said that was not in - we probably saw that as an ambit claim and that we weren't - we certainly weren't in a position to settle on anything like 8 per cent. They already had a position ..... position out in the marketplace already.
PN169
Already you said .....?---Well, there's a market position out in the marketplace already on wages.
PN170
You indicated a position that you weren't prepared to agree to 8 per cent then or ever?---I couldn't say whether I said ever, sir, but - - -
PN171
I'm not asking you what you said about ..... the position you indicated?---I couldn't say whether I indicated - - -
PN172
Did you indicate that the company wouldn't be prepared to consider 8 per cent?
---No.
PN173
Did you indicate to the contrary?---Probably, sir, contrary.
PN174
Did the Institute adhere to its position of 8 per cent?---They haven't varied from that position, no. They basically said that we, of course, are very bullish about wages, that's the main - and their instructions from the membership.
PN175
.....?---That's correct.
PN176
Do you see that as a serious issue because of the company and the Institute and their members?---I think the issue of parity and wages is a very serious issue. There are other core issues which surprised us.
PN177
Following the meeting you undertook to prepare a document which you did?
---Yes.
PN178
In the interim did you receive an amended notice of initiation of a bargaining period dated 10 October 2005?---That's correct.
PN179
This is a copy of the document that you received, if I might approach, sir.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN180
THE SENIOR DEPUTY PRESIDENT: Yes.
PN181
THE WITNESS: Yes, that's .....
PN182
MR McNALLY: The document is a four page document on the letterhead of the AIMPE head office. It's dated 10 October 2005 and it's headed Amendment of Notice of Initiation of Bargaining Period. I tender that document.
PN183
THE SENIOR DEPUTY PRESIDENT: That document has been tendered in proceedings before me on 21 October - sorry, on the 14th - sorry, just bear with me I'll find the document. Yes, I have the document. It was part of exhibit F1.
PN184
MR McNALLY: Has it got a fax stamp on it, sir?
PN185
THE SENIOR DEPUTY PRESIDENT: Fax stamp? Yes, it has.
10 October 2005 AIMPE head office.
PN186
MR McNALLY: There's no court number on it, sir?
PN187
THE SENIOR DEPUTY PRESIDENT: Not that I can see, no.
PN188
MR McNALLY: I rely upon that document as part of exhibit F1.
PN189
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN190
MR McNALLY: When you received that document, did you do anything with it?---Yes, the document was duly noted and I duly noted it, circulated it to my management and we thought about a response. The Institute had sought a response from us on their primary claims and I think we received a notification from the Institute. They had some concerns about their primary claims which they sought a response from us on. Those primary claims were pretty consistent with what we'd been dealing with for quite a period of time.
PN191
And at the meeting of 6 October?---Yes, and prior to that meeting.
PN192
They contained an increased level of remuneration of 8 per cent plus 2 per cent parity shift by all employees permanent closing the gap with the master?--I cannot see it. I assume that's correct, sir, yes.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN193
Did you see that as a document amending the notice of initiation of bargaining period of 5 October?---I took it at its face. It was a document amending the bargaining period.
PN194
Of 5 October?---Yes.
PN195
Indeed the document states that, doesn't it?---I don't doubt that it says that.
PN196
The matter was listed before the Commission last Friday. You were here, were you?---Yes, sir.
PN197
Those proceedings and conferences resulted in the programming of conferences between the Institute and Farstad directed at the resolution of the issues arising out of the bargaining period notification. Is that correct?---Well, no, but we finished up, I believe, that we certainly wanted to - if I can go back. We did provide a response to the Institute over their - what we saw as the ..... claims in an attempt to settle our enterprise bargaining agreement. Then we proposed - or last Friday we proposed to meeting for Thursday of this week and we were subsequently told that that meeting would be directed - directing some matters pertaining to the original bargaining period . We would only be dealing with matters relating to expenses on Thursday.
PN198
The Commission provided for a report back on 31 October. Is that correct?
---That's correct.
PN199
What did you understand that report back was directed at?---Well, we were hoping that we would be able to proceed with discussions on all substantive issues on the Thursday. We were aware that the ..... at a meeting to further develop some decisions and particularly regarding to manning, which is a pretty big issue there, and we were hoping to progress discussions and then be in a position to report back to the Commission on the 31st with some progress on where we are.
PN200
You were hoping to progress discussions concerning the subject remaining in the first bargaining period notification and matters involving the second bargaining period notification?---First, second and third problems, sir.
PN201
Yes, well, the June one, 5 October one and 10 October, that's fair enough, whereas the Institute, as far as the meetings with the company were concerned, were limiting the discussions to the bargaining period issues arising out of the June notification?---That was not our impression when we left the Commission. That was drawn to our attention in a communication from the Institute.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN202
You were pretty happy with the position when you left the Commission. Some progress was indicated?---I thought - I was happy in that communication is always a good thing. If you don't have your lines of communication, you're only going to be going against .....
PN203
You deal with someone on behalf of the company then give some instruction to Blake Dawson Waldron concerning amending the application, an application that's been filed in the Commission?---We certainly spoke to - we were in contact with Blakes during the day and we - I'm just trying to recollect the events as they transpired on the Friday afternoon. Once - I know once we received notice of industrial action we certainly contacted Blakes and - - -
PN204
I'm not talking about the notice of industrial action, I'm talking about the document that was filed by Blakes before that notification. I'm talking about amending the application to terminate the bargaining period?---I would suggest that that's what's transpired, that's what I was talking to my management at the time and point of communication to that effect.
PN205
Who gave instructions to Blakes to amend the application under section 170MW to amend the application to include the bargaining period
created in October?
---If that's come from our office, it would have been from myself and my manager.
PN206
Do you remember giving those instructions?---No, I don't actually.
PN207
Did you give those instructions?---Well, I won't ..... and say that I can't give - I can't put my hand on my heart and say I actually remember giving those instructions but I don't doubt that it's come from myself or my manager.
PN208
Who did you speak to at Blakes?---I was in touch with both ..... and associate and with Richard during the day.
PN209
Did you give them instructions on behalf of the company to amend the application under section 170MW?---It's hard to recall actually giving them that instruction but I would not doubt that that's happened and it may well have happened with both myself and my manager, who's our managing director, but off the top of my head, you know, it may have come out through a discussion I was having with Blakes. I'm not sure.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN210
Have you any understanding of the reason why the application to clear the bargaining of 5 October in the original application under
section 170MW away?
---To what the bargaining period?
PN211
I withdraw that. Put it this way. You program meetings for the Thursday with the Institute at which you hoped to discuss the remaining issue in the June bargaining period and the October bargaining period, didn't you?---All matters pertaining to any claims that we had with the Institute we wanted to progress.
PN212
At the same time the company gave instructions, through you or someone else, to terminate the bargaining period that was involved in negotiations?---The majority ..... it's probably - it's come through myself or my MD but I can't remember exactly how that would have transpired.
PN213
Is it any wonder that the members were then ..... to initiate a protected action.
PN214
THE SENIOR DEPUTY PRESIDENT: Sorry, is that a question? I don't understand it.
PN215
MR McNALLY: It's a question?---I wouldn't see it in that context at all. I would suggest that we - what really surprised us was the fact that we had advice that all we were going to be talking about was the issue of expenses from the first bargaining period, which really surprised us.
PN216
Then you took action to terminate the second bargaining period, suspend ..... is that right?---Well, if Blakes acted on our instructions I'm sure that that's what's transpired.
PN217
Why did you give those instructions?---To terminate the - which bargaining period are we talking about?
PN218
The October bargaining period, the one initiated in October as amended?---We would have been seeking to be in a position to ..... to discussions with the Institute on all the substantial claims.
PN219
Why did you seek to have the Commission terminate the second bargaining period?---Make an application to terminate.
PN220
Yes?---It's not ..... I'm just not sure.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN221
Why did you do it?---Well, probably to get us into a position where we could discuss the substantial claims, so that we could at a bona fide meeting on the Thursday, get to the core issues so we could get an agreement.
PN222
Wouldn't you see that as a provocative action?---No, not in the slightest.
PN223
When you received the written notice of protected action, did you understand the issues that were involved in that notice? I'm sorry, I should ask you first, did you receive a written notice of protected action?---We did and I fully expected to receive one during that day. My instincts being what they were, I fully expected we would receive that notice that day.
PN224
Is that why the company filed the application to terminate the bargaining period or amend the application to terminate the bargaining period because of your instincts?---I'm just saying that that's mutually exclusive. I felt that we would receive notification that day.
PN225
What did you base that on?---Just the conduct of the discussions to date - - -
PN226
Today you mean?---No, to date. The conduct of the discussions to date and the manoeuvring and, you know, just where things were going, I thought that - well, I expected that we would receive 72 hours' notice and that was just a gut feeling that I had.
PN227
Was that gut feeling that you had connected to the fact that you gave instructions to Blakes to terminate the October bargaining period?---It may well have - we've always had - that position has always been there since we had our first hearings.
PN228
The position you're referring to as the gut feeling you had, what position are you referring to?--- I'm just trying to answer your question relating to the bargaining periods.
PN229
You said the feeling was always there. I'm asking you to explain that?---My feeling?
PN230
Yes?---My feeling was that AIMPE were very keen to take action out in the field and particularly keen to have a crack at my company for some reason which still is a mystery to me.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN231
Upon what did you base that feeling?---The fact that I thought that strategically, for some reason, the Institute has singled us out from the rest of the industry and that they would see that, if - well, they would dominate the area, if they had a crack at us and we tipped over on the parity, then the rest would follow.
PN232
On what did you base that belief?---One instance.
PN233
That's all?--- 30 years in the industry and probably 15 years - 20 to 15 years in the management role and understanding the politics of how things operate with the workforce and just what issues are out there and understanding the strength of their conviction.
PN234
You based your action upon your instinct which you've now explained. Is that right?---Well, no, I think that the variation - we've already - we've almost had that matter adjourned and I think that we were just following the pattern or the different bargaining notices that have been out there and probably covering our bases.
PN235
THE SENIOR DEPUTY PRESIDENT: Mr Barrow, could I just ask you, have you ever received from AIMPE a written notice terminating or telling you that they no longer wished to reach agreement in BP112 of 2005? That's the one, I think filed in June, or notified in June?---There was - the only - my understanding is that what's transpired over the last week is that their claims with relation to that bargaining period for now have been limited ..... expenses and we didn't - it wasn't - I'm pretty sure we did not receive a - there was a notice to that effect.
PN236
Do you understand that there are two bargaining period notices extant at the present time, namely 1316 which relates to a number of issues, and 112 which is specifically confined to expenses? Is that right?---Yes, that's how I understand it now, sir, yes, sir.
PN237
Sorry, go on Mr McNally.
PN238
MR McNALLY: Do you know the number of these bargaining periods?---No. I'm totally confused as to the numbers now.
PN239
Did you receive late in the day last Friday, at around about 5 o'clock, a notice from the Institute signed by Phillip Olsen giving three days' notice of protected action?---Yes. We had a document hand delivered to us and I think it was about 20 minutes to 5 on Friday.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN240
Is this a copy of the document? Might I perhaps - - -
PN241
THE SENIOR DEPUTY PRESIDENT: Yes.
PN242
MR BUNTING: It's attached to the application.
PN243
THE SENIOR DEPUTY PRESIDENT: Yes.
PN244
MR McNALLY: I'm showing you a document that's attached to the notification?---That's correct.
PN245
If the Commission pleases, the notification of protected action annexed to the application - - -
PN246
THE SENIOR DEPUTY PRESIDENT: Is that the document dated 21 October 2005 and a heading Re BP2005/3730?
MR McNALLY: Yes.
EXHIBIT #AIMPE2 DOCUMENT DATED 21/10/2005
PN248
MR McNALLY: At that stage, the claim for salaries was being pursued in respect to the bargaining period notified in October. Is that correct?--- .....
PN249
I'll read to you now the notification of protected action - well, I'll summarise it. The first paragraph, will you agree, gave you three clear days' notice of our intention to embark upon protected action. Is that correct?---Yes.
PN250
Or our decision, it reads, actually to be precise - pursuant to the Workplace Relations Act. Is that what you were made aware of? Did the document describe the nature of the action that was going to be undertaken?---That you would withdraw labour.
PN251
For three days?---Yes.
PN252
Commencing on 7 am tomorrow?---Yes.
PN253
Were you advised in the letter that the action is in pursuit of salary increases, the subject of our negotiations in the abovementioned bargaining period?---Yes, I was.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN254
Have you any doubt as to what bargaining period was there being referred to?
---I do now. It was a bit confusing what you were saying this morning.
PN255
I'm talking about then?---Sorry.
PN256
I'm talking about then, when you received the notice. You had no doubt that that was referring to the bargaining period initiated in October?---Yes, I assumed that it would have been referring to the state of our discussions .....
PN257
That's the conclusion you came to?---That's the conclusion I came to, yes.
PN258
What did you do when you received the notification about 20 to 5 - I'm sorry, to be fair, was it you who received it?---No, it was - I think it was my managing director, Joseph Ponson..
PN259
Did Joseph Ponson give it to you?---He informed me when I had a meeting with him.
PN260
What did you do then?---We notified - obviously notified our clients because they would have had very much an interest in this.
PN261
Did you give Blakes instructions to file an application under section 127 of the Workplace Relations Act?---Yes, we did.
PN262
What time did you give that instruction?---Well, any time from 5 o'clock on. It was eight or nine on Friday evening.
PN263
Some hours after the section 170MW amendment application had been notified?
---We tried to be as quick on our feet as we possibly can because we wanted to get a hearing for this morning.
PN264
The 127 application was filed some hours after the application had been filed to amend the section 170MW application. That's the question. Do you have an answer?---Well, I object, but that was probably the case.
PN265
I would like to refer you to exhibit 2 which is your statement which was submitted into evidence today. Do you have a copy of that statement?---I do, sir.
PN266
I refer you to paragraph 3(e) where you refer to the safety ..... you say there that:
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN267
In the event of a well controlled incident where Woodside needed -
PN268
A well controlled incident, what's a well controlled incident?---A well controlled incident would be where you have a loose control
develop, which means you can have a blow-out of generally gas, lose control ..... you have an uncontrolled
gas .....
PN269
What flows from that - or what doesn't flow, to be correct?---Gas, if you have a flow of gas which has to be controlled and - you need to get the technology out there to manage that situation, you know, collect any mud or whatever ..... pump down the well to recontrol the oil.
PN270
How long does that take to get that out there, that, you know, mud. You're talking about mud?---As soon as you possibly could, as soon as you can load it on the boat and get it out there on a vessel. So it depends on the steaming sort of location ..... three weeks working for Woodside at varying locations at the moment, one out of Broome, two out of .....
PN271
You can't get more help than that in terms of timing?---Again, steaming time, the ships can do a maximum of 14, 15 knots and it's a matter of waiting out the pump at the wharf and then getting it out quick. The ships are, I don't know the exact geographic locations but we would been talking, you know, maybe 18 hours to - 18 to 20 hours to - maybe 12 to 18 hours to get a boat out there.
PN272
What about the loading time?---Don't know. Probably just a matter of hours to get it on board.
PN273
All up it would be 24 hours to have whatever it is you need out there at the rig?
---I'm guessing - - -
PN274
Don't guess?---Sorry?
PN275
Don't guess?---Well I don't know. I mean, I'm not sure of the actual geographic locations of the three rigs at the moment.
PN276
Have you had any well controlled incidents before or has Woodside had any well controlled incidents before, before involving your company?--- ..... sulphide gas scare a few years ago.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN277
How many years ago?---I would say many years ago and the major well controlled issue that's been in Australia was in Bass Strait when we had that blow out in the 1960s. There was a huge wave there during the sixties.
PN278
Putting aside ..... was Farstad involved in the 1960 blow-out?---We were not operating here, it was our predecessor company was here. That was Australian Offshore Services.
PN279
There has been no well controlled incident involving Woodside whilst you've provided your services to them?---No, no.
PN280
Do you think there's a chance there might be in the next three days or so, is that the position?---It's a high risk industry and I mean ..... the engineering is always around prevention.
PN281
Do you seriously think that if that unlikely event occurred for the first time in 40-something years, the Institute's members wouldn't throw in and help?---I certainly hope they would.
PN282
You'd expect that, wouldn't you?---Yes.
PN283
Even if on strike?---We would expect them to, yes.
PN284
We'll move on - paragraph 4. You refer to the two .....9.45.29 vessels performing a series of critical tasks in paragraph 4(a). What are the critical tasks you're referring to?---Sorry 4?
PN285
4(a) on the second page?---I think it's the supply the price of ....., for fuel, for food, drilling supplies to the Bass Strait field.
PN286
You refer there to:
PN287
They performed a series of critical tasks which if the task was ..... inferior would result in gas production shutting in and oil production facility potentially shutting in and the start plus a significant period ....
PN288
?---I think the ..... supplies have a - we're sorting them out on the .....of - as we - I think we put some documentation to the Commission last time ..... that they had a four or five day window of buying off supplies.
**** PETER RUSSELL STIRTEVANT BARROW XXN MR MCNALLY
PN289
How long is the stoppage particularly for?---72 hours. But I think the last - the problem we have is the last top-ups we were - vessels in town today and I think the last top-ups were probably late last week or over the weekend.
PN290
Despite there was suspicion that there was going to be a stop?---My instincts told me on Friday certain - we would be having a stoppage on Friday.
PN291
Can you explain 4(b) of your statement?---4(b) is that Esso was still a primary supplier of vessel 12 and that ..... - as advice to me they had - the state government's ..... ever since the ..... issues were - you know, the guarantee of supply was pretty critical to explain .....
PN292
You suggested the three day stoppage was going to shut down the supply of gas in the State of Victoria? Is that what you want the public to understand?---That's - those are the concerns ..... advised to me by - - -
PN293
Fair enough. Fair enough. You predicted that there will be a shutdown of gas supplies to the state of Victoria if this three day stoppage proceeded?---Well, if they had a problem with their ..... supply offshore, there is the potential for problems but I'd need further technical advice on it.
PN294
So you can't predict it without further advice?---I couldn't predict it without further advice.
PN295
Yes, I have got no - thank you.
PN296
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McNally. Any re-examination, Mr Bunting?
MR BUNTING: Just very briefly, if I may, sir.
<RE-EXAMINATION BY MR BUNTING [9.50AM]
PN298
MR BUNTING: Do you recall, Mr Barrow, his Honour Senior Deputy President Lacy giving directions following the proceedings in Perth in the middle of September 2005?---Yes.
PN299
You do? Okay. Can I just show you some directions by consent issued under the Commission letterhead, signed by Senior Deputy President Lacy, dated 19 September 2005?---Yes, sir.
**** PETER RUSSELL STIRTEVANT BARROW RXN MR BUNTING
PN300
Was the conference that you had with the Institute on 6 October an outcome of those agreed directions?---Yes, I believe ..... instructed to - of a ..... and we did have that meeting prior to.....
PN301
Thank you. I'll take that back. Were you present in the proceedings before the Commission last Friday?---Yes, I was.
PN302
You were. And do you recall me foreshadowing an intention to the Commission and to the Institute, Mr McNally as representative - foreshadowing the intention of the company to seek leave to amend the application under 170MW(2) to bring in the new bargaining period? Do you recall that or not?---I vaguely recall that, yes.
PN303
You vaguely that, all right. I've got no further questions of Mr Barrow.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Barrow. You're excused, thank you.
<THE WITNESS WITHDREW [9.52AM]
PN305
MR BUNTING: Your Honour, while that questioning has been underway we have made some inquiries about these numbers at the registry and the upshot of those inquiries, I should inform your Honour, is, according to the registry, the BP number which is on the Institute's strike notice is the correct number for the second bargaining period, 3730. So I apologise if we have led you astray on that but that is, as I understand it, according to the registry, at least what we have been advised this morning, the correct number, so I inform the Commission of that. A consequence of that - - -
PN306
THE SENIOR DEPUTY PRESIDENT: Sorry, just - yes, sorry, go on, you were going to say a consequence of that, yes.
PN307
MR BUNTING: A consequence of that is that probably the wrong number is notified in our application to amend and we would seek to have that understood, the additional BP number to which we seek leave to refer there is 3730 of 2005.
PN308
THE SENIOR DEPUTY PRESIDENT: Can you assist me in ascertaining or telling me what BP1316 of 2005 is?
PN309
MR BUNTING: We made an inquiry about that and it apparently is a matter pertaining to a different union, Australian Maritime Officers Union.
PN310
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Bunting. So, you wish now to amend the application to amend, to substitute 3730 for 1316 in your 170MW application, is that right?
PN311
MR BUNTING: That is correct. And I apologise for the confusion.
PN312
THE SENIOR DEPUTY PRESIDENT: No, that's all right. I also now can indicate that I have received the facsimile copy of your application to amend under section 170MW, yes. Thank you. Mr McNally, do you wish to call any evidence?
PN313
MR McNALLY: Can I have a few moments to get some instructions, sir?
PN314
THE SENIOR DEPUTY PRESIDENT: Well, what I'm intending to do, I have another matter here which was supposed to start at 9 o'clock and the parties are sitting outside waiting. I'm going to adjourn this matter until 2 pm Eastern Standard Time and resume at that time to hear whatever you have to say, Mr McNally.
PN315
MR McNALLY: Thank you.
<SHORT ADJOURNMENT [9.55AM]
<RESUMED [12.05PM]
PN316
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McNally?
PN317
MR McNALLY: Thank you, sir. We did, with the kind assistance of the registry here, fax over to the registry there to deliver it to you, a number of documents.
PN318
THE SENIOR DEPUTY PRESIDENT: I understand they are being brought to me but I haven't got them yet. Do you want - can you proceed without them at this stage or do I need to have them before me?
PN319
MR McNALLY: Well, I had intended to direct your attention to provisions in those documents, which is exhibit 1, I think, of this morning.
PN320
THE SENIOR DEPUTY PRESIDENT: Yes.
PN321
MR McNALLY: A copy of - - -
PN322
THE SENIOR DEPUTY PRESIDENT: Is that AIMPE1, is it?
PN323
MR McNALLY: Yes.
PN324
THE SENIOR DEPUTY PRESIDENT: Yes, I do have a copy of that document.
PN325
MR McNALLY: Can I point out that that voting notification - for voting, period notification, page 2, set out the federation claim.
PN326
THE SENIOR DEPUTY PRESIDENT: Yes.
PN327
MR McNALLY: Paragraph 2 of the annexure.
PN328
THE SENIOR DEPUTY PRESIDENT: Yes.
PN329
MR McNALLY: I won't read that if you have it. The evidence this morning from Mr Barrow was that the wages claim was discussed and rejected at the meeting the following day.
PN330
THE SENIOR DEPUTY PRESIDENT: Sorry, what happened the following day?
PN331
MR McNALLY: The wages claim of 8 per cent - - -
PN332
THE SENIOR DEPUTY PRESIDENT: Yes.
PN333
MR McNALLY: - - - set out in paragraph 2 was discussed at the meeting - - -
PN334
THE SENIOR DEPUTY PRESIDENT: Yes.
PN335
MR McNALLY: - - - and rejected by the company, with no occasion to continue to negotiate in respect of it.
PN336
THE SENIOR DEPUTY PRESIDENT: With no what, sorry?
PN337
MR McNALLY: No encouragement for the union to continue to negotiate in respect of it. I'm summarising the evidence. There is a
letter dated
11 October 2005 which was sent by Mr Olsen and Mr Barrow. It has been faxed across to you, sir.
PN338
THE SENIOR DEPUTY PRESIDENT: Yes? I haven't received that just yet. How long is it?
PN339
MR McNALLY: It's four pages. Mr Barrow - should I wait for it, sir, or - - -
PN340
THE SENIOR DEPUTY PRESIDENT: Perhaps you could tell me in summary what it's about and then when I get it I can have a look at it.
PN341
MR McNALLY: All right. Mr Barrow received a letter from Mr Olsen in which he stated that the claims of our 6 October 2005 meeting in Melbourne, it was left to Farstad to produce a document integrating the company's submission paper and updating the responses as appropriate ..... of claim. ..... have the document as an aid to the processing of reporting back to our members employed Farstad. And then is attached a summary of the most pressing issues.
PN342
The first of those - there's a schedule attached to the letter, which has three columns in it. The first column is headed, "AIMP Urgent Issues". The second column summarises Farstad's position, ..... on 6 October and then there's a revision of the company response.
PN343
THE SENIOR DEPUTY PRESIDENT: Yes, I have the documents now, by the way.
PN344
MR McNALLY: Thank you very much, sir. You'll see there that the first four entries in the second page deal with the question of salaries.
PN345
THE SENIOR DEPUTY PRESIDENT: Yes.
PN346
MR McNALLY:
PN347
As from July 2005 an increase in all remuneration ..... plus 2 per cent .....12.09.57 shift for all employees. On the date of signing the agreement a new salary system which pays an additional premium above the salary rate otherwise set by the vessels served on where the employee holds qualifications higher than those required.
PN348
The third issue is that:
PN349
From 1 July of 2006 an increase of all remuneration by ….. and next financial - on 1 July 2007 an increase of all remuneration made to all ..... as we see from the second column were rejected at the meeting of 6 October.
PN350
There are other issues set out there which I won't go through. The letter concludes on the third page:
PN351
The AIMP and Farstad enterprise agreement expired at the end of June and we are under enormous pressure from our members to rapidly progress these matters to conclude in the light of the shortage of skilled tradesperson ashore and an even greater shortage of marine engineers. We have summarised the other less immediately pressing issues in the attachment for your attention in due course. We seek Farstad's in principle agreement to each of the issues above as a matter of priority by close of business on Thursday, 13 October 2005.
The next document we faxed to you is a document received from Farstad on 14 October 2005 and requested in the earlier document. Could I tender that earlier document, the fax to Mr Barrow from Mr Olsen?
EXHIBIT # AIMPE3 FAX TO MR BARROW FROM MR OLSEN DATED 11/10/2005
PN353
MR McNALLY: Could I now tender an email from - and I'm referring to the last page to indicate it is an email - from Peter Barrow to - - -
PN354
THE SENIOR DEPUTY PRESIDENT: In the last page of the bundle of documents, you mean?
PN355
MR McNALLY: Last page of the document headed, ".....12.13.01 letter received 14/10/2005". If you go to the back page you'll see that that's the email to ..... of Peter Barrow with a copy to Phil Olsen. I tender that email plus the attachment.
PN356
THE SENIOR DEPUTY PRESIDENT: Yes. Just a moment. I think these documents haven't been sorted the way you said - but anyway.
PN357
MR McNALLY: I'm sorry, sir.
PN358
THE SENIOR DEPUTY PRESIDENT: No, no, it's not your fault.
PN359
MR McNALLY: The next document has got five pages. The covering email is at the back.
PN360
THE SENIOR DEPUTY PRESIDENT: So who is the email from and to? It's from Mr Barrow, is it, to Mr Christianson?
PN361
MR McNALLY: Christianson, and a copy to Mr Olsen.
PN362
THE SENIOR DEPUTY PRESIDENT: Yes.
PN363
MR McNALLY: Do you have the email there, sir?
PN364
THE SENIOR DEPUTY PRESIDENT: I do, yes.
PN365
MR McNALLY: You'll see that it's a response from Farstad to the Institute, pursuant to the request of the Olsen letter.
PN366
THE SENIOR DEPUTY PRESIDENT: Yes.
PN367
MR McNALLY: Dated 11 October. The company responded by 14 October and ..... has dealt with is item 2.
PN368
THE SENIOR DEPUTY PRESIDENT: Yes.
MR McNALLY: The increase of 5 per cent for the date of arrangement is the offer, not the 8 per cent, 2 per cent that was indicated. So that's the company's position as at 14 October. I'm not sure you gave that an exhibit number, sir.
EXHIBIT #AIMPE4 EMAIL FROM MR BARROW TO
MR CHRISTIANSON AND MR OLSEN DATED 11/10/2005
PN370
MR McNALLY: The next document is an email from Henning Christianson, a fax to Peter Barrow.
PN371
THE SENIOR DEPUTY PRESIDENT: Dated 17 October, is it?
MR McNALLY: Yes, sir.
EXHIBIT #AIMPE5 EMAIL FROM MR CHRISTIANSON TO MR BARROW DATED 17/10/2005
PN373
MR McNALLY: It's a document summarises the position following the rejection of the way - of the salary paid by the Institute. The first page points out - Mr Christianson points out to Mr Barrow:
PN374
AIMPE members in your employ are not satisfied with your written 14.10.2005 salary offer. It does not conform with ...(reads)... we refer to some of the reasons below.
PN375
Then he sets out the reasons why - that justify the claim for 8 per cent and 2 per cent. They're set out in a number of paragraphs which I won't read but invite the Commission to peruse.
PN376
THE SENIOR DEPUTY PRESIDENT: Yes.
PN377
MR McNALLY: Then attached is a summary of the current position in relation to salaries:
PN378
As from 1 July 2005, back pay for all persons -
PN379
et cetera, that's the first column.
PN380
THE SENIOR DEPUTY PRESIDENT: Hold on. I don't know - don't have the summary that you're referring to. Is that attached to that email, was it?
PN381
MR McNALLY: Yes.
PN382
THE SENIOR DEPUTY PRESIDENT: Just a sec.
PN383
MR McNALLY: Yes, a five-page table.
PN384
THE SENIOR DEPUTY PRESIDENT: I think there's been a bit of shuffling gone on with the papers here. It's a five-page - - -
PN385
MR McNALLY: It's headed, "Summary AIMPE Farstad Issues".
PN386
THE SENIOR DEPUTY PRESIDENT: No, I don't appear to have that document.
PN387
MR McNALLY: Well, perhaps I can say this, that the document summarises the ..... issues of the AIMPE raised in the earlier communication.
PN388
THE SENIOR DEPUTY PRESIDENT: Sorry, I do have it. Yes.
PN389
MR McNALLY: I direct your attention to the first four rows in the table - I'm sorry, the second to the fifth row of the table, where it refers to the position of salary claim had been rejected, there's no back pay. There's a 5 and a half per cent offer made. The reconstruction of the salary was rejected, that the increase of 8 per cent from 1 July 2006 was rejected and replaced by 4 per cent increase, that from 1 July 2007 the increased claim of 8 per cent was rejected and a counteroffer of 4 per cent was made. In relation to that communication - could I tender that email?
PN390
THE SENIOR DEPUTY PRESIDENT: Yes, I'll mark that - well, was that the one attached to the one that we talked about before of the - what date was the email?
PN391
MR McNALLY: It was attached to the email of 17 October.
PN392
THE SENIOR DEPUTY PRESIDENT: Yes, well, I have marked that AIMPE5.
PN393
MR McNALLY: All right, thank you. The email of course on the first page indicates that they -
PN394
- request a reconsideration of all the letters and advice from you in time for ...(reads)... at midday, Wednesday, 9 October as the letter of 14 October is "your final position on these matters".
PN395
The company in response to that on 19 October sent a letter to - Mr Barrow on behalf of the company, sent a letter to Mr Henning Christianson:
PN396
I acknowledge receipt of your email of 17 October 2005.
PN397
Could I tender that letter, please, sir?
PN398
THE SENIOR DEPUTY PRESIDENT: That's the letter dated 19 October?
MR McNALLY: Yes.
EXHIBIT #AIMPE6 LETTER FROM MR BARROW TO MR CHRISTIANSON DATED 19/10/2005
PN400
MR McNALLY:
PN401
Farstad's understanding that the ALP claim for wages parity ...(reads)... outcome of the issues.
PN402
The next step in the proceedings is of course we appeared before you, sir, on Friday when Mr Bunting on behalf of Farstad made it abundantly clear the wages claim was rejected, resisted and he again on behalf of the company sent an invitation to arbitrate. He raised in arbitration the whole scheme of negotiating enterprise agreements is - does not contemplate the resolution by arbitration in the ordinary course.
PN403
At those proceedings a document was purported to be tendered by the company. It was an extensive paged document. We hadn't had time to read it. We have now read it and we would - I would not ..... of it or we would tender it ourselves. It's a document headed, "AIMPE Farstad Shipping (Indian Pacific), Issues and Claims on Top of Current EBA Conditions". Could I apply, sir, that that sets of document conveyed to you - - -
PN404
THE SENIOR DEPUTY PRESIDENT: Does that have a date on it?
PN405
MR McNALLY: In the first row of the table, on the first page, it says:
PN406
Employers' position at 20 October 2005.
PN407
It has - - -
PN408
MR BUNTING: Is it F1 in the other document?
PN409
MR McNALLY: Yes.
PN410
MR BUNTING: It is F1?
PN411
MR WILLIAMSON: No, no, F1 was a different document. F1 was the 27 September document, I think.
PN412
MR BUNTING: Yes, that's true.
PN413
THE SENIOR DEPUTY PRESIDENT: I have the 27th September document. I don't appear to have the document dated the 20th - 20 October, you said?
PN414
MR McNALLY: It's undated. It's probably 30 pages. It's headed, "AHP Farstad Shipping (Indian Pacific) Issues and Claims".
PN415
THE SENIOR DEPUTY PRESIDENT: I'll tell you what I have got. I have got a document, "Farstad Shipping (Indian Pacific) Pty Ltd Response to AIMPE Claims, 27 September 2005".
PN416
MR McNALLY: That's an earlier one, was it?
PN417
THE SENIOR DEPUTY PRESIDENT: Yes. And then I have got a bundle of documents, T1, which includes a tidewater response but that's not relevant here.
PN418
MR McNALLY: Well, perhaps I could just refer you to it. Could I show it to my friend so he can identify it?
PN419
THE SENIOR DEPUTY PRESIDENT: Yes.
PN420
MR McNALLY: I wonder if Mr Olsen has a copy there he may be able to give you.
PN421
THE SENIOR DEPUTY PRESIDENT: Perhaps Mr Olsen can tell me. Mr Olsen, do you have a copy of that document they're referring to now?
PN422
MR OLSEN: Not with me at the moment.
PN423
THE SENIOR DEPUTY PRESIDENT: No, not with him.
PN424
MR BUNTING: There's no dispute about the document that Mr McNally has got, that is a document - it is a document which Mr Barrow gave to the Institute but I don't recall that we handed it up the other day. We could have, we certainly talked about it.
PN425
THE SENIOR DEPUTY PRESIDENT: I seem to recall some discussion about it but it wasn't disclosed because some parties hadn't had an opportunity to look at it.
PN426
MR BUNTING: Yes.
PN427
MR McNALLY: I tender that document when it becomes available by Mr Olsen.
PN428
THE SENIOR DEPUTY PRESIDENT: Well, perhaps I can arrange for my associate to come in and collect it off you, Mr McNally.
MR McNALLY: Thank you, sir.
EXHIBIT #AIMPE7 DOCUMENT ENTITLED "AHP FARSTAD SHIPPING (INDIAN PACIFIC) ISSUES AND CLAIMS", UNDATED
PN430
MR McNALLY: There are a number of written - there is a number of written items on the copy I have. They are Mr Christianson's comment and we don't seek to include those in the document, which is an employer document. Remuneration is dealt with on the second page which summarises as at 20 October - that's as of last Friday - the employer's position. And the copies from the meeting of 6 October in relation to remuneration it is again confirmed on pages 2 and 3 through to 4 that the wages claim of the Institute is rejected by the company.
PN431
So, the next step in the proceedings - honorary proceedings, following an application by the company to terminate the bargain period
instituted on
5 October and amended on 10 October, an application under section 170MW was sought to be amended to terminate that bargaining period.
In view of the attitude taken by the company in the negotiations that have taken place prior to the - I'm sorry, post 5 October,
and having regard to the resistance shown to claims prior to that date, it's not surprising and it is not premature to say that that
notice of intended action - of protected action was issued by the Institute late in the day last Friday.
PN432
It was instituted - if I might refer to the exhibit, which is the date of protected action. Final paragraph:
PN433
You are advised that this action is pursuant to salary and increases the subject of our negotiations within ...(reads)... the bargaining period.
PN434
..... submits that despite that stern, firm assertion that the claim should be met by the Institute, and despite a firm rejection of Farstad to that claim, then it is premature to institute protected action in the circumstances. We would submit that in the light of that history, in the light of that firm rejection, without any encouragement for reconsideration that it's not appropriate to even consider that the Institute has failed to conciliate and negotiate that particular issue.
PN435
The Act contemplates a bargaining period notification, negotiations and the right to institute protected action enforcing claims that are made within the terms of the bargaining period notification. Now, we would submit that that proposition put forward on behalf of the company should be rejected in the exercise of the Commission's discretion on the issue.
PN436
The point was raised by my friend this morning. Well, firstly that the enforcement of an issue contained within a pattern bargaining framework cannot form the basis for certified agreement negotiations. That's relied on - my friend relies extensively upon the decision in the AIG - Australian Industry Group and groups of unions, a decision of Munro J on 16 October 2002. "It is true to say" - do you have a copy of that decision, sir?
PN437
THE SENIOR DEPUTY PRESIDENT: I don't have a copy with me but I'm familiar with it. Go on.
PN438
MR McNALLY:
PN439
It is true to say that in the opening submissions in those proceedings the representatives of the Australian Industries Group relied upon a proposition that ...(reads)... set out in section 3 of the Act and is contrary to the general principles of the enterprise bargaining fostered by the Act on page 2.
PN440
On page 3:
PN441
The company relied upon a submission that the circumstances listed in section 170MW(2)(a) and (b) existed that the respondent organisation had organised ...(reads)... for the reasons that they are pursuing claims on an industry-wide basis and not on the basis of enterprise bargaining.
PN442
The decision indicates - the decision then traces the various applications that were made, traces the background of the proceedings and the interlocutory developments. And in particular paragraph 14 of the decision his Honour indicates that counsel who appeared for the AMWU and AWU:
PN443
- submitted that the second series of bargaining periods being instituted by the AMWU as identified have ceased to exist ...(reads)... on the letterhead from the instructing solicitor which read as follows.
PN444
And the letter is set out at page 7 of the decision and "reads as follows":
PN445
On the instructions of the AMWU and AWU we hereby advise that the AMWU and the AWU no longer want to reach an agreement ...(reads)...
12 September 2002.
PN446
One then departs from that recital of the history of the matter and at page 415 his Honour deals with -
PN447
The pursuit of common claims across the whole industry and the test of generally trying to reach agreement with the other negotiating parties -
PN448
- commences that at paragraph 40, traces the history of the legislation and in paragraph 64 deals with the role of some facts - a rider from my ..... to make that order pursuant to section 170MW. If I could refer the Commission to those paragraphs, it will become evident that the Commission - the decision of the Commission was not based upon the proposition that pattern bargaining couldn't form part of the negotiations towards an enterprise agreement because it was conduct of the parties in that particular case that led to the consequences of the making of the order.
PN449
At 64:
PN450
The importance of the evidentiary material which demonstrates that industrial action has been taken on at least 14 sites operated by 33 applicant employees ...(reads)... represented to the Commission that the relevant employer negotiating parties that they did not seek to reach agreement.
PN451
Now, that's the basis that led to the ..... that there hadn't been union negotiation. Industrial action that was taken at a time where the AMWU had indicated by letter from their solicitor that they did not seek to reach agreement. At paragraph 64 his Honour makes mention of a ..... that:
PN452
The members and delegates who became so involved may now be exposed to personal liabilities for industrial action that may have been protected when first conceived but have since arguably ceased to be protected because the desire to reach an agreement had been withdrawn.
PN453
At paragraph 67, his Honour refers to the decision adopted by the AMWU in ending the relevant bargaining period has not be consistently productive and the cessation of industrial activity identified there.
PN454
So what we have here - or what his Honour had there was a circumstance where the pattern bargaining had been agreed because of negotiations. The AMWU indicated that they no longer wished to reach agreement and then industrial action followed. Those were the matters that the Commission relied upon in reaching a decision that the orders should be made under section 170MW and the orders were set out in paragraph 85.
PN455
I want to refer the Commission to paragraphs 73 and 74 to demonstrate that the pattern bargaining agreement was not the determining factor. "Would not have been satisfied", the Commission says -
PN456
- now, on that basis, as the existence of the circumstances within the meaning of paragraph 170MW(2)(a) and (b). Were it not for the AMWU's action ...(reads)... and the AWU on that or any other basis.
PN457
Paragraph 74:
PN458
I differentiate in relation to the AMWU. Primarily I do so because of the circumstances and conduct to which I alluded to in paragraphs 65 to 67.
PN459
They're the paragraphs that I've taken the Commission to. The Commission needs access to that today. That decision is Print T1982. It is not true to say, as my friends say, that you can't, as part of the exercise, negotiate a certified agreement and never put into place a claim that is put forward by the union on an industry-wide basis. Of course, there's never been in the peculiar circumstances of the Institute a dispute with Farstad any industry-wide stoppage but there is an acknowledgement that there is a desire to put across the industry the parity claim.
PN460
The second argument advanced by my friend is that the negotiations that commenced with the notification of the bargaining period of 5 October - I have already dealt with that.
PN461
THE SENIOR DEPUTY PRESIDENT: Yes.
PN462
MR McNALLY: It's clear that the claims rate per cent is rejected by the company. The industrial action - I'll try to get the text of that - was instituted by the unions directed at that issue and has the intention of endeavouring to persuade the company to reconsider their position in that area.
PN463
In relation to the legal expenses brought that my friend raised is outside the area of subjects that can pertain to the employment relationship, could I point out to the Commission that the clause in question - I'm sorry, the clause in question is contained in exhibit - or part of exhibit F1. Does the Commission have that document?
PN464
THE SENIOR DEPUTY PRESIDENT: Yes.
PN465
MR McNALLY: It's on the third page. It's a letter from the Institute which was faxed on 10 October.
PN466
THE SENIOR DEPUTY PRESIDENT: Yes.
PN467
MR McNALLY: It's a notification of bargaining period ..... - third page of the - provision was sought to put in place. The head of the page:
PN468
The employer seeks reimbursement of expenses reasonably incurred by employees in the performance of their duties.
PN469
THE SENIOR DEPUTY PRESIDENT: Hold on, hold on, I don't - I have got one that says:
PN470
The employer will reimburse an employee -
PN471
Is that - - -
PN472
MR McNALLY: Yes, that's the one.
PN473
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN474
MR McNALLY: Have you got that - sorry.
PN475
THE SENIOR DEPUTY PRESIDENT: Yes.
PN476
MR McNALLY:
PN477
The employer will reimburse employees any expenses reasonably incurred by the employee in performance of their duties on behalf of the employer. The entitlements under this clause include -
PN478
And then you go down to the sixth dot point, and essentially what is their claim is expenses and - including legal costs and fines relating to inquiries as related to environmental issues. Clause - it's said that that's outside the area pertaining to the relationship. The award in operation in this industry is the Maritime Industry Offshore Oil and Gas Operating Award 1991. Clause 24 of that award provides for the reinstatement of legal costs and fines imposed on employees and the legal costs of fines relating to inquiries into casualties.
PN479
THE SENIOR DEPUTY PRESIDENT: What provides for that, the award, did you say?
PN480
MR McNALLY: The award - the award in operation in this industry. The award has been simplified and presumably those provisions are found to be compliant with the necessary employment relationship. I can read the clause of the award if that's necessary. It's clause 24:
PN481
The employer shall reimburse an officer any expenses reasonably incurred by him in performance of his duties or on behalf of the employer ...(reads)... occasioned by serious default or serious misconduct of the officer.
PN482
THE SENIOR DEPUTY PRESIDENT: When was the award simplified?
PN483
MR McNALLY: In 2003, sir.
PN484
THE SENIOR DEPUTY PRESIDENT: Yes.
PN485
MR McNALLY: As part of the ..... process.
PN486
THE SENIOR DEPUTY PRESIDENT: Yes.
PN487
MR McNALLY: Subclause (b) of that clause 24:
PN488
Reimbursement of reasonable legal costs incurred ...(reads)... occasioned by serious default or serious misconduct of the employee concerned.
PN489
Now, the only essential .....:
PN490
If the employer disputes ..... under this claim the question so shall be dealt with in accordance with the settlement disputes procedure.
PN491
Now, there's an issue that arises in relation to that and that is the question of independent legal advice. You get circumstances involving injury, involving responsibility, involving liability or circumstances of an environmental issue where there has to be a question of good legal representation because the conflict is in position.
PN492
The clause we saw in the enterprise agreement is simply addressed - sought to address that issue, that if there has to be two lots of lawyers appearing, one for the employee and one for the employer, the employer will still bear the legal responsibility to pay those legal costs.
PN493
My friend ..... point to any authority that I have ..... hasn't been able to find any authority that touches on these issues contrary to the principles enunciated in Electrolux. It is a provision that's contained in the award. It's a provision that's contained in the award that's been simplified. It's a circumstance that can only arise because of the employee's employment and is therefore, in our view, a provision that pertains to the relationship between employer and employee irrespective of the fact that it involves either legal costs, involves the paying of a fine. It is an allowable matter for the purpose of Electrolux's considerations of certified agreements and of bargaining period notification. I would submit that that third submission would then fail. If there was a fourth submission - - -
PN494
THE SENIOR DEPUTY PRESIDENT: That was the fourth point.
PN495
MR McNALLY: Was it? Well, I have got them around the wrong way.
PN496
THE SENIOR DEPUTY PRESIDENT: No, the first point was concern about pattern bargaining and the second point was about:
PN497
Peremptory notice of industrial action without any genuine attempt to reach agreement.
PN498
And the third point was related in some respects I think to the second point.
PN499
MR McNALLY: Yes. Well, I have seen to the - the order, the directions by consent of 19 December 2005. I didn't really understand the point he was seeking to make.
PN500
MR BUNTING: If you want me to assist, the third point we made was that there had been a barrage of - - -
PN501
THE SENIOR DEPUTY PRESIDENT: Yes.
PN502
MR BUNTING: - - - bargaining periods and that took away what integrity there may have been from the bargaining positions we were confronting.
PN503
THE SENIOR DEPUTY PRESIDENT: Yes.
PN504
MR McNALLY: So, you have to write in arguing the basis on section - could I ask ..... sir, for convenience? I understand what you're now saying, I have misunderstood your submission. I understood you to be relying upon to some extent section 111A.
PN505
MR BUNTING: Section 111AA. It's not part of any submission of mine.
PN506
MR McNALLY: If the Commission pleases, organisations and their members have the right to take protective action providing that procedure is followed and providing they satisfy the requirements in relation to bargaining. Nobody, in my respectful submission, ..... the institution of protected action in relation to this wages claim ..... If the Commission pleases.
PN507
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McNally. Mr Bunting, anything in reply? I should indicate, Mr Bunting, I'm supposed to be leaving here 10 minutes ago to go and catch a plane but - - -
PN508
MR BUNTING: 10 minutes ago, did you say?
PN509
THE SENIOR DEPUTY PRESIDENT: Yes, 10 minutes ago, yes.
PN510
MR BUNTING: Right. Thank you, your Honour, I will be very quick. I have just got a couple of points. I won't labour things that I have already put.
PN511
THE SENIOR DEPUTY PRESIDENT: I suppose the thing that - what I'd like you to address is perhaps the issue of the provisions or the claims for expenses and the extent to which that does not pertain to the employment relationship given that it does appear in the award.
PN512
MR BUNTING: Yes, we accept that it's in the award and indeed we accept that - I think there may be a clause similar in the current agreement. The claim I think that is now put expands a little because it seeks to bring in environmental legislation. Mr Christianson is saying, "Oh, so perhaps that's not so". In any event - - -
PN513
MR McNALLY: It's all in the award.
PN514
MR BUNTING: I don't know that environmental legislation is in the award.
PN515
THE SENIOR DEPUTY PRESIDENT: Yes, but in any event, assuming that it is in the award - - -
PN516
MR BUNTING: What I'd say, sir, is there are quite a lot of things that have gone into awards and gone into certified agreements which now, having regard to the discipline that is required or that has come into this area as a result of the consideration of the High Court in the Electrolux matter, quite a few matters turn out not to pertain and that's why Parliament went to the trouble of validating, quite recently, certified agreements which contain quite a few things which did not pertain to the employment relationship.
PN517
We would submit that the particular matter that we're talking about - yes, it may well have gone into this award and there may be other things in other industries. I have not had the opportunity to research that but even if it does, by application of correct principle, we would submit that it ought to be regarded as one pertaining.
PN518
Your Honour, just very quickly a couple of other points. Mr McNally took you through AIMPE1 to 7.
PN519
THE COMMISSIONER: Yes.
PN520
MR BUNTING: And he says, "Look, they haven't agreed to our 8 per cent plus 2 per cent wage rises. Therefore, you know, we have done all that we have to do". And it's interesting, if you have a look at AIMPE5, which is the email from Henning Christianson to Peter Barrow dated 17 October, at about point 5 or 6 of the page there are some emboldened words, three lines:
PN521
AIMPE members in your employ are not satisfied with your written 14/10/2005 salary offer. It does not conform with instructions they have already given us.
PN522
Then he goes on from there. So, what they're saying, Mr McNally has really confirmed this, "Look, you have just got to take it or leave an offer here".
PN523
THE SENIOR DEPUTY PRESIDENT: But the authorities say that that's a valid negotiating position, doesn't it, for people to take?
PN524
MR BUNTING: A party doesn't have to conform to somebody else's constraint about it. I accept that. But where you have a "take it or leave it" offer, one meeting with two delegates present, a bit of correspondence going backwards and forwards but on a strict basis of take it or leave it, and the wages position is not only the 8 per cent but a 2 per cent parity shift so that they'll be getting the same as the master and deck officers, an inherently improbable proposition having regard to the history in the industry.
PN525
Then, in that situation, they say, "Well, we're bargaining with - we have really tried, we have tried genuinely to reach agreement" in the circumstances where they have just had the one meeting about what we would say is an inherently improbable claim put on a "take it or leave it" basis. And having regard to the approach that the cases say - and I refer again to the Munroe J decision which I mentioned this morning, not the one that Mr McNally was just speaking about but the decision in Print S - - -
PN526
THE SENIOR DEPUTY PRESIDENT: Yes, I know the one you mean.
PN527
MR BUNTING: - - - N711, that that would be an inadequate attempt to demonstrate genuine bargaining or a genuine attempt to reach agreement. In relation to the - our first proposition was that really this is really still across the board bargaining. I rely upon what I previously put that the passage in the judgment of Munro J - this is the one to which Mr McNally was referring - is, I think, paragraph 44. I took your Honour to this on the last occasion; that is the occasion in Perth. Paragraph 40 and then 44, his Honour says - it's just a short passage:
PN528
Does it follow that in truth the respondent negotiator is trying to secure agreement with all or an entire class of negotiating ...(reads)... is dependant upon matters and degree.
PN529
Now, that's the principle his Honour enunciated. Mr McNally took you to some material which indicated that by the end of that case he felt that that situation was provable in some instances but not in others - that's an assessment of the facts - but the principle is as set out in that paragraph 44. And Mr McNally just now acknowledged that the Institute acknowledges that there is a desire to put across the industry the parity claim.
PN530
Now, the evidence before you today and in the earlier proceedings, and I refer to the document behind - in particular the document behind tab 9 in exhibit A1 in the earlier proceedings. It's a document headed - it's on the Institute's letterhead, dated 1 September 2005, headed, "Offshore Enterprise Agreement Negotiations". Update of page 3, there's core claims. There is no doubt, I would submit, that those are provisions being advanced across the industry on an industry basis.
PN531
Now, in the alternative we have our claim on the genuine bargaining based on the one meeting they have had, and I won't repeat my submissions there. I won't say any more about the legal expenses claim. Your Honour, we submit that the statutory conception of enterprise bargaining has not been met in this situation and this union lurching from an industry-wide position to a make-believe enterprise bargaining position, it can't shrug off its history and if it tries to do so, then it hasn't done anything like enough to show a genuine interest in reaching agreement with us.
PN532
In those circumstances, having regard to the importance of the industry, the significance that the industrial action will have to other people who rely upon vessels supporting them in offshore oil rig and similar installations, then the appropriate course is to suspend the bargaining period or to terminate it and to allow the parties - to require the parties indeed, to undertake the sort of conciliation that you yourself, your Honour, directed should occur when we were before you last Friday.
PN533
The only other point I wish to make - we do not accept one iota that this strike notice is in any sense in response to the amendment to the application about bargaining periods. That was disclosed during the course of the proceedings yesterday. It wouldn't have come as any surprise to the Institute because we said and the transcript will bear out - we said during the course of proceedings today that we would be doing that and the reasons why. Thank you, your Honour.
PN534
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. This is an application by Farstad for orders under section 127 to prevent or stop industrial action and for orders under section 170MW to suspend or terminate a bargaining period.
PN535
Farstad has outlined four grounds upon which it seeks to prosecute its claims. Of those I am satisfied that the claim that the AIMPE makes in respect of expenses is one that arguably does not pertain to the employment relationship. I understand that it is included, or part of it at least is incorporated in the award, the relevant award in the industry. However, that does not necessarily mean that it is a provision that pertains to the employment relationship. In the circumstances, I propose to issue an interim section 127 order which will come into effect at midnight tonight and remain in effect until midnight on 30 November[sic] 2005 and that order will be issued.
PN536
Now, as to service, Mr Bunting, what do you say about that?
PN537
MR BUNTING: Your Honour, we would say - it's service of the order your Honour is asking?
PN538
THE SENIOR DEPUTY PRESIDENT: Yes.
PN539
MR BUNTING: In our application we have suggested that it should be capable of being served by fax on the Institute at its registered office which is in Sydney. We would submit that that's a convenient course but we are prepared of course to undertake service in accordance with the rules at the Institute's office as well. We do have a timing issue. The Institute by its notice intends to go on strike at 7am tomorrow. It's now 3 o'clock. By the time an order is made it may be difficult to get it to the institute but we would certainly endeavour to do so, if your Honour felt that there was any difficulty about relying upon facts.
PN540
THE SENIOR DEPUTY PRESIDENT: Very well. The order will only be made in respect of the Institute and service may be effected by - or the order will provide that service be effected by fax. The matter is adjourned to conference on - sorry, the order is to come into effect today, midnight today, and remain in effect until 31 October, and I adjourn the matter until 31 October conciliation.
<ADJOURNED INDEFINITELY [1.03PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MFI #F2 STATEMENT OF PETER RUSSELL STIRTEVANT BARROW PN84
PETER RUSSELL STIRTEVANT BARROW, SWORN PN95
EXAMINATION-IN-CHIEF BY MR BUNTING PN95
EXHIBIT #F2 STATEMENT OF PETER RUSSELL STIRTEVANT BARROW PN98
CROSS-EXAMINATION BY MR MCNALLY PN100
EXHIBIT #AIMPE1 DOCUMENT DATED 5 OCTOBER 2005 PN131
EXHIBIT #AIMPE2 DOCUMENT DATED 21/10/2005 PN247
RE-EXAMINATION BY MR BUNTING PN297
THE WITNESS WITHDREW PN304
EXHIBIT # AIMPE3 FAX TO MR BARROW FROM MR OLSEN DATED 11/10/2005 PN352
EXHIBIT #AIMPE4 EMAIL FROM MR BARROW TO
MR CHRISTIANSON AND MR OLSEN DATED 11/10/2005 PN369
EXHIBIT #AIMPE5 EMAIL FROM MR CHRISTIANSON TO MR BARROW DATED 17/10/2005 PN372
EXHIBIT #AIMPE6 LETTER FROM MR BARROW TO MR CHRISTIANSON DATED 19/10/2005 PN399
EXHIBIT #AIMPE7 DOCUMENT ENTITLED "AHP FARSTAD SHIPPING (INDIAN PACIFIC) ISSUES AND CLAIMS", UNDATED PN429
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