C2003/2461, Transcript of Proceedings [2005] AIRCTrans 301 (8 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10243

COMMISSIONER RAFFAELLI

C2003/2461, C2003/2515, C2003/2516

s.113 - application to vary an award

APPLICATION BY MARITIME UNION OF AUSTRALIA, THE AND OTHERS
(C2003/2461)
Maritime Industry Seagoing Award 1999

s.111(1)(b) - application for an award or order

APPLICATION BY AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
(C2003/2515)

s.111(1)(b) - application for an award or order

APPLICATION BY AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
(C2003/2516)

SYDNEY

10.09AM, FRIDAY, 28 JANUARY 2005

Continued from 27/1/2005

PN1194
PN1195

THE COMMISSIONER: Yes, Ms Zeitz?

PN1196

MS ZEITZ: A couple of minor matters. Yesterday I raised the issue of the AMOU and the fact that it doesn't have a current application before the Commission and orders that we would be seeking. Now, I understood from Mr McNally that clarification would be sought about whether he would be acting for the AMOU, I note that there's been no change of appearance filed, and if that is not the case then we would be seeking to have the matter called on and notice given. We do seek clarification of that this morning.

PN1197

MR McNALLY: I have sought some instructions but haven't got them yet, sir.

PN1198

THE COMMISSIONER: We will hear from them in due course, Ms Zeitz. I can understand the employers want the matter clarified, but I don't think it's something that everyone is waiting on.

PN1199

MS ZEITZ: No, Commissioner, I wasn't suggesting that.

PN1200

THE COMMISSIONER: So you know, in due course we will hear from the AMOU and if they want to put submissions contrary to what you have put, well then it will have to re-listed at some time otherwise - - -

PN1201

MS ZEITZ: Thank you, Commissioner. I didn't want it to get lost at the end of a long day. Now, the other matter I should raise as a preliminary matter, is that I understand from what is being put, and was put quite strongly yesterday by my friend, that the MISA is asserted by the two applicants to be a safety net award upon which they rely and so therefore there is a presumption that that award has legitimacy for the purposes of these proceedings. If the Commission pleases, I understand that INCO Ships currently has an application before the Commission that goes to that very issue. That is, the safety net status of that award.

PN1202

If it is indeed the submission of the applicants, that MISA in its current form, is an appropriate safety net for these proceedings, then MISA is currently under challenge on that very ground in a proceedings before the Commission, then it would seem to my clients that it's appropriate that these proceedings stand aside until that issue is resolved. If the assertion is, as I understood it to be put very clearly and very squarely before the Commission yesterday, that MISA is the appropriate safety net, then that informs the Commission for the purposes of these proceedings, and if that issue itself is under question and challenge, then we say quite logically that these proceedings should be put to one side to enable those proceedings to proceed.

PN1203

THE COMMISSIONER: How fair is that to the applicants? They've come along, they want two awards made and they rely on MISA. MISA is an award of the Commission, it's been through the award certification challenge. The fact that in another application, another company, not Celtic or Dateline, is challenging that award or the status of that award, well, yes, that might take a long time. I mean, we would be forever - what would happen if the Commission were to take that view in relation to certified agreements? If somebody says, well, you know, don't use that as a no disadvantage test because that's under challenge. I mean, I just think it's a bit unfair to the other side, isn't it?

PN1204

MS ZEITZ: I say two things. Firstly that with a certified agreement situation, that's an entirely different set of rules that govern in this jurisdiction.

PN1205

THE COMMISSIONER: Yes.

PN1206

MS ZEITZ: Secondly, this is promulgated by the applicants as an industry award relevant to the maritime industries. Now, I'll have something to say about how one defines the maritime industry at a later point in these proceedings. But to the extent that they present that as the fait accompli in these proceedings, my client is equally substantially prejudiced if the Commission accepts that premise and that assertion when the Commission itself is aware that that very premise is under substantial challenge.

PN1207

THE COMMISSIONER: If Dateline and Celtic don't think that MISA is an appropriate underpinning award, well, yes, I'm listening in these proceedings to that. You say that there is an application, so many applications, but if there is I don't think it's as well developed as you say.

PN1208

MS ZEITZ: I'm not aware of where it's up to.

PN1209

THE COMMISSIONER: No, exactly so yes, I have heard you on that Ms Zeitz, I don't propose to stand this matter over and I haven't heard from Mr McNally, but unless he agrees with that - Mr McNally?

PN1210

MR McNALLY: No, I don't agree.

PN1211

MS ZEITZ: I didn't anticipate consent.

PN1212

THE COMMISSIONER: Okay, well, we won't need to hear from him.

PN1213

MS ZEITZ: Having said that however, in relation to the matter I brought to the Commission's attention yesterday about whether or not the basic burden of proof has been established, I will address that at a later point.

PN1214

THE COMMISSIONER: Yes, of course.

PN1215

MS ZEITZ: Now, with respect to other matters, we have drafted a subpoena to the Minister for Immigration, Multicultural and Indigenous Affairs, it's a lengthy title, but it appears that that is the correct body to whom to direct the issue of visas. In an effort to circumvent that I did go on to their website last evening and attempt to locate sufficient information to be able to put before the Commission, but it was somewhat brief in its assistance, so hence the reason for proposing to issue the subpoena. What we would do is, simply send it to the usual people and provide them with information about what's required and ask them to attend the Commission and explain the situation at the appropriate time.

PN1216

THE COMMISSIONER: Yes. When did - - -

PN1217

MR McNALLY: Could I just say, on that - it's regulation 2.40, the Migration Regulations, that provide for special purpose visas, that is visas that are deemed to exist firstly for a vessel that is on a voyage that enters an Australian port and will depart Australia, the crew are deemed to have visas, and in the same regulation there's a regulation that gives - Mr Keats will bring the regulations down after lunch - the Minister power to make a declaration concerning vessels. In December, and the date escapes me but I'll have the date this afternoon for you, 19 December 2002, the Minister had the responsibility for administering migration regulations, made a declaration that the crew of a foreign vessel are deemed to have visas, whilst proceeding under permits issued under the Navigation Act, provided that vessel leaves the Australian coast on an overseas voyage every 13 weeks. Which is the reason why other ships such as CSL Pacific goes to Noumea, to comply with that regulation.

PN1218

That declaration was made because the Minister was made aware of the fact, that an overseas vessel is not on a foreign voyage if it goes from Brisbane to Sydney to Adelaide, and back to Sydney and back to Brisbane. So that these ships are coming on special purpose visas. Any crew member that needs to join an Australian ship in Australia, any foreign ship, in Australia, obtains a transit visa which lasts for five days, to permit him to join the ship. Once he's on the ship of course he's covered by a special purpose visa. That's the position and that's the way the ..... of the matters in this area.

PN1219

THE COMMISSIONER: But there was also the issue of - it came up with the dispute that, yes, the disputes procedure, what happens when the ship goes and the employee wishes to pursue a matter in this Commission, for example.

PN1220

MR McNALLY: If the ship goes overseas. That's where the confusion came in.

PN1221

THE COMMISSIONER: Well, yes, maybe it goes overseas. He or she says no, I want to litigate my disputes procedure - - -

PN1222

MR McNALLY: Special purpose visa and you have no operation - he is to obtain a visa similar to the visa that Mr Cocker obtained when he came to Sydney to give evidence.

PN1223

THE COMMISSIONER: Yes, but you're saying that's easy. They're saying it's not - Mr Ives says no, it's not that easy. I mean, you say Mr Ives wouldn't know, or the other side is saying, you say Mr Ives doesn't know, well, let's hear from someone - - -

PN1224

MR McNALLY: Well, Mr Cocker said it was easy.

PN1225

THE COMMISSIONER: Yes, Okay.

PN1226

MR McNALLY: It saves a visa that presumably my friend got to go and get the evidence to go to Tonga, they got a visa to go to Tonga. There's not an issue about it unless you - - -

PN1227

THE COMMISSIONER: But the point is - Mr McNally, what's your attitude to - they seem to have some experts - - -

PN1228

MR McNALLY: As long as it's available today. I don't want to hold proceedings up.

PN1229

THE COMMISSIONER: Yes. Yes, Ms Zeitz?

PN1230

MS ZEITZ: I don't know if they're available today or not.

PN1231

MR McNALLY: Oh, well, within a reasonable time.

PN1232

MS ZEITZ: And what I can say given what my friend has just said, is we are in fundamental disagreement about it, so it's probably best if we do get someone in.

PN1233

THE COMMISSIONER: And what time frame are we looking at?

PN1234

MS ZEITZ: Subject to availability of the Commission, so - we found on the last occasion when we subpoenaed DOTAS, they were very concerned when it was a relatively short time frame. The last time, and I don't know what the procedure is in Russian with DOTAS, they insisted on instructing lawyers and it was complicated, so I'm not anticipating we would be able to do it today. But I would imagine it would be some time this week, but it depends on the Commission's availability.

PN1235

THE COMMISSIONER: That quickly?

PN1236

MS ZEITZ: If we can serve on Monday, I guess there are a couple of ifs in that but we will assume we can serve on Monday and that it can get directed to the person within the department who deals with subpoenas. I'm sure they have, from memory - - -

PN1237

THE COMMISSIONER: Because they'll want to know what it's about, won't they?

PN1238

MS ZEITZ: They will. And that's when there'll be some exchange and discussion and presumably the appropriate officer delegated to do it. So I'm wondering perhaps toward the end of next week or even the following week might be - - -

PN1239

THE COMMISSIONER: Well, in a break or at the end of proceedings I'll sign the summons, dated at a time suitable to me and then, if without consulting the parties, if the relevant person can't do it on that day - or when they can do it and when it suits Mr McNally and yourself and the Commission, well, we might have to vary the date of the attendance, but, yes. Yes, okay, thank you, Ms Zeitz.

PN1240

MS ZEITZ: The Commission will recall that we were up to, I think it was exhibit EMA5, and I indicated to the Commission that the handbook attached to that exhibit had not been provided. We have obtained a copy, however, what came through, and I have provided a copy to my friend, what came through, the quality of the copy that came through on the business centre's fax machine is abysmal. I don't think I could apologise any more than that for the hotel, so what we can do is, if the Commission is minded to admit it, is to provide a better copy for the parties. So that affidavit and exhibit we say, is relevant because it is the statement of the principle of the Tongan Maritime Polytechnic Institute, and for any award to have application to current employees, those employees are graduates of that maritime polytechnic college.

PN1241

It is appropriate in determining what minimum rates of pay should be, how any negativities are determined and assessed, that the commission is aware of the training qualifications that are undertaken, and that is what is set out in the handbook attachment. So we say that for the purposes of what my client's promote as an appropriate award, this is relevant and appropriate information of the Commission.

PN1242

THE COMMISSIONER: Mr McNally?

PN1243

MR McNALLY: Yes, we object to the relevance of this. What the two applicants are seeking is an award based upon MISA, with relevant exceptions, to meet the occasion and we're seeking an underpinning award. We're not actually fixing rates of pay and conditions, if the Commission pleases. The method that Tonga uses to train maritime employees, and the number of maritime employees that they have, and the number that get jobs, is totally irrelevant to these proceedings we would submit.

EXHIBIT #EMA5 AFFIDAVIT AND ATTACHMENT

PN1244

MS ZEITZ: The next one EMA6 is the statement of Siositeni Paongo who is a trainee. Now, with respect to his statement and the attachments, we say when read in conjunction with the statement of Mr Cocker, and Mr Ives' evidence given yesterday, about the role of trainees on the vessels, this is appropriate information for the Commission as it establishes and clarifies the process by which training access, careers and employment opportunities on board the two vessels. So we say it's relevant for that reason. It establishes the qualifications and training basis, and the exhibit simply confirms what is asserted in the document and we say it has validity and weight in the context of the overall application. If the Commission pleases.

PN1245

MR McNALLY: I understand that this gentleman - well, I don't understand exactly what the affidavit is:

PN1246

I'm looking for work on an overseas vessel so I can improve my skills for some small ships here don't have equipment like the big vessels. This will help me before I start my further study. I have applied to Dateline Shipping for work.

PN1247

Attached is a copy of his application. Now, all this is a person who went through the college, who has applied for work, whether he works there or not, I'm not aware, and I would submit that that takes the matter no further. He attaches a copy of his passport. The same with the job application.

PN1248

THE COMMISSIONER: Yes, what's the relevance of this, Ms Zeitz?

PN1249

MS ZEITZ: Sorry, of the passport or the - - -

PN1250

THE COMMISSIONER: Well, the whole thing. I thought he was actually on the vessel as a trainee, but he's not, is he?

PN1251

MS ZEITZ: I don't know. He's an applicant. As I said, the Commission will recall yesterday Mr Ives gave evidence about the roles of vessels as training vessels and the request by the Secretary of Marine and Harbours that they take on additional trainee crew on the two vessels, to enable additional job opportunities for Tongans to gain sea time. This is an example, and I put it no higher than that, I foresaw that when the application was made, and he tested a number of people that applied and all those sorts of things, and we simply say that is relevant to an overall consideration about the discretion, about what terms and conditions should apply to the vessel.

PN1252

THE COMMISSIONER: Yes, I don't agree, Ms Zeitz. I don't propose to admit EMA6. Next?

PN1253

MS ZEITZ: Now, I think the next - perhaps if we just referred generically to the bundle, to a number of exhibits, because I understand the objection to be the same with all of them. EMA8 as to paragraphs 10 - sorry, EMA7, as to paragraphs 18 to 23 and 25 to 26 and EMA8 which is also the statement of Malakar Savieti from 5 - sentences from 5 through to 10, I understand they will be the objections. Now, with respect to EMA7, we say this, clause 18, which is objected to, confirms the amount which is paid which is current terms and conditions of employment, and the current employment arrangements and how that money is disbursed by the employer on behalf of the employee, they are all relevant conditions of employment. Clause 19 deals with leave arrangements as they currently exist. Clauses 20, 23 and 25 confirm the economic circumstances of Tonga.

PN1254

MR McNALLY: Are we doing 7 or 8, sir, I'm not - - -

PN1255

THE COMMISSIONER: Well, we're doing the current EMA7, the new EMA7, which was EMA6.

PN1256

MS ZEITZ: Sorry, I had EMA7 marked as the original statement, not the supplementary statement.

PN1257

THE COMMISSIONER: Yes, that's right, which was the old EMA6 and then the new supplementary is EMA8.

PN1258

MS ZEITZ: I'll recap there. With respect to the objection to clause 18, we say that would benefit payment employment arrangements between the employer and the employee through the arrangements provisions, which are therefore relevant. Clause 19 deals with leave arrangements, as does clause 20 through 23, simply deals with the economic circumstances that apply in Tonga. We say they set the context for wage rates and therefore are relevant. Clause 26 directly establishes the travel arrangements between Tonga and Australia, and demonstrates that the majority of flights appears to be via New Zealand. We say they are matters that are all relevant to award provisions that the Commission, if it decides to make an award, may ultimately assist the Commission.

PN1259

THE COMMISSIONER: Just hold on a second, Ms Zeitz. I'm going to deal with a few together. We will be here all day.

PN1260

MS ZEITZ: Can I indicate - - -

PN1261

THE COMMISSIONER: Sorry. EMA9, there was an objection from paragraph 10 onwards, remember that?

PN1262

MS ZEITZ: Yes. Commissioner, perhaps just for convenience if I could say with the exception of EMA7, which I have addressed in more detail, EMA8, clauses 5 to 10, 9, 10, through 17, 10, 7 through 14 and 18 to 20, 14 - - -

PN1263

THE COMMISSIONER: Yes, 14, yes?

PN1264

MS ZEITZ: 14 through 20, 15 - - -

PN1265

THE COMMISSIONER: 14, wait there. 14, what paragraphs?

PN1266

MS ZEITZ: 14 to 20, Commissioner.

PN1267

THE COMMISSIONER: Yes, that's right, yes.

PN1268

MS ZEITZ: 15, 13 and 14.

PN1269

THE COMMISSIONER: Yes.

PN1270

MS ZEITZ: 16, 8 to 13.

PN1271

THE COMMISSIONER: Yes.

PN1272

MS ZEITZ: And 17, 19 to 32.

PN1273

THE COMMISSIONER: Yes.

PN1274

MS ZEITZ: Now, all of those are challenged on the basis of relevance and they are in the evidence, although from individuals, is broadly similar style and content, and I think can usefully be summarised as setting the social context in which the receipt of wages and conditions operate. Now, we say they are relevant to the Commission in terms of background. I addressed you yesterday in terms of that although the award should be made on the basis of ships operating in the Australian maritime industry. Nevertheless an award is made will apply on board Tongan sovereign state laws, and will apply practicably in Tonga. It's not going to apply to an Australian citizen because there are no people that are covered by the award that are permanent residents or are Australian citizens. So it's not going to apply in Australia.

PN1275

So we say that the social context in which any proposed award before the Commission is to operate and the purpose of the terms under section 88 are what is appropriate in the award and the safety net. It's just critical that the Commission understands how its social content operates, and we say on that basis, that that information is relevant to the Commission and it should be retained. If the Commission pleases.

PN1276

THE COMMISSIONER: Yes, Mr McNally?

PN1277

MR McNALLY: Well, to deal with number 7, exhibit EMA7, which is the affidavit of Mr Savieti. Might I have a moment? Could I ask this, sir, whether EMA7 has five pages?

PN1278

THE COMMISSIONER: Yes, and 26 paragraphs.

PN1279

MR McNALLY: If we could deal with EMA7, we object to, from the second sentence of paragraph 18, probably from the third sentence:

PN1280

Most of my family pay is sent back to my family in Tonga. I have a wife and three children aged 4 -

PN1281

Family details, 19, family details, 20, it's all subjective considerations, 20, what he did when he was back in Tonga, he drove taxis. There's no relevance to these proceedings. Then he discusses in paragraph 20, the difference between taxi fares in Tonga and taxi fares in Australia, and I don't see the relevance to these proceedings of that remarkable difference. 21 is evidence as to what he does with his money which is irrelevant to the proceedings. 22 goes to the issue of what his family does with the money that he sends home to them. 23 is speculative, as to what he'd do if he didn't work on the Hakula. 24 we don't object to, it deals with hours of duty. 25 takes the matter no further, if he didn't have the job on Hakula he'd look for a job somewhere else. 26 expresses the fact that he enjoyed working on the Hakula because it's in close proximity to Tonga, and he describes the flights from New Zealand to Australia, none of which facts are relevant to any matter that is relevant and in issue in these proceedings. If the Commission pleases.

PN1282

THE COMMISSIONER: Yes.

PN1283

MR McNALLY: Do you wish to rule on each one or - - -

PN1284

THE COMMISSIONER: Well, I wish to rule on all of them.

PN1285

MR McNALLY: In one?

PN1286

THE COMMISSIONER: Yes.

PN1287

MR McNALLY: Very well. EMA8 is the affidavit of the same person, I understand, who at page 5 describes how much money he spends in port. I think that refers to where the ship goes, but he sends the rest back to his family in Tonga. Paragraph 6 describes in a general way what his family does with the money, as does paragraph 7. Paragraph 9 is evidence as to what he'd do if he lost his job. Paragraph 10 is evidence that he's a charitable donor to the Tongan Christian Church. None of those matters seem to touch upon any issue in the proceedings. EMA9, from paragraph 10 to paragraph 17, Sitani Tahitua, in 10 he describes what he - we don't object to - well, we don't object to 9 as to how much he gets paid.

PN1288

Paragraph 10 is what he does with his money, we object to that, as in paragraph 11. Paragraph 12 gives evidence as to what his parents does with his money that he sends back. Paragraph 13, similarly, what the parents do with the money. 14 deals with the fact that the parents don't get a pension. 15 deals with property ownership of the parents. 16 deals with the availability of employment in Tonga, which is not relevant. 17 deals with the cost of food in Tonga and we object to those paragraphs, paragraph 10 through 17, on the grounds that none of the matters covered have the slightest connection with any issue in these proceedings.

PN1289

Exhibit 10, we object from the second sentence of paragraph 7 through to 14 and from paragraph 18 to paragraph 20. The second sentence of paragraph 7 gives evidence as to where he sends his money, or how much he sends to his parents, what he does with the balance that he doesn't give to his parents, what his parents do with the money that he gives them and how he gets the money to his parents. Paragraph 10, the cost of food in Tonga and a general description in paragraph 11. Paragraph 13, what the parents do with their money that he sends them. Paragraph 13, what he proposes to do in the future with the money and 14 deals with the size of his family. None of those matters are relevant to any consideration that the Commission need apply to undertake.

PN1290

Paragraph 18 is evidence as to what he'd do if he didn't work on the Hakula, which is not relevant. 19 is a statement, general statement as to the economic viability of farming in Tonga, which is not relevant, and 20 is a description of available maritime jobs in Tonga, which is again not relevant. Paragraph 21, we haven't objected to. It's probably not relevant in any event. As my friend points out, those affidavits have a common thread through the objection. There's one remaining one - a few more. EMA14 is objected to in paragraph 14 to 20 and is the affidavit of Mr Nginingini, spelt with an N. Paragraph 14 deals with what he'd do if he didn't work for Ikuna, in light of the fact that he didn't work on the Ikuna and go back to Tonga, what work elsewhere. It can't possibly assist the Commission.

PN1291

15 deals with the availability of jobs in Tonga, the number of vessels of a Tongan shipping company which is unidentified. Paragraph 16 describes the occupations that he'd enter into if he wasn't at sea. 17 deals with the number of seamen that are available in Tonga, available for the jobs. 18 deals with what his family - describes in a general way what his family does with money that he gives them, which is not relevant. 19 deals with the cost in Tonga of water and electricity which is not relevant, and it describes the number of water tanks and dark houses at night in Tonga, the cost of electricity. Paragraph 20 deals with the cost of food in Tonga. None of those matters are relevant for any consideration and that is why we object.

PN1292

The next one is exhibit 15, Makaholia. We object to paragraphs 13 and 14. 13 deals with the difficulty of obtaining work in Tonga, describes the number of Tongan ships. 14 deals with what he'd do if he wasn't working on the Ikuna. None of those matters are relevant and are therefore objected to. Exhibit 16 is the second affidavit - no, it's not. The affidavit of another, Mr Manakufa. We object to the second sentence of paragraph 8 to the end. The first sentence deals with how much he gets paid. He's an able bodied seaman on the Ikuna. The rest of paragraph 8 deals with what he does with his money and the size of his family which is not relevant.

PN1293

9, what he does with the rest of his money that he doesn't send back to Tonga. Not relevant. 11 deals with the issue as to whether his brothers and the rest of his family - where they live, which is not relevant. 11 deals with the use to which the money is put that he sends back to Tonga, not relevant. 12 deals with what he'd do if he lost his job. And 13 deals with the job availability in Tonga, none of which is relevant in any way to any issue in these proceedings and we therefore object to those paragraphs.

PN1294

EMA17, Mr Uasi, we've objected to 19 to 32. 19 deals with sending money back to the family and how it's sent. 20 deals with the size of his family which is not relevant. 21 deals with where his brother works, is not relevant even though he works on the Hakula. 22 deals with the number of members of his family who work. 23 deals with the price of food in Tonga. 24 deals with the financial needs of his parents. I'm not being unsympathetic to these people, I'm only dealing factually with the relevance. 25 deals with the lives of his family and his earnings, which is not relevant. 26 deals with the difficulty of getting work if he is removed from the Hakula. 27 deals with the number of ships that the government owned line operates, that's not relevant. 28, the difficulty of obtaining work, not relevant, if he wasn't working where he is. 29 deals with alternative employment. 30 deals with alternative employment. 31 also deals with alternative employment and 32 deals with what people do when they can't get in Tonga and that is, they move to Sydney, Melbourne and Adelaide to seek better employment opportunities. That's not relevant.

PN1295

So therefore we've objected to those paragraphs 19 to 32 on the grounds of relevance of any issue in these proceedings. I think that's the sum total. There is a common thread through them.

PN1296

THE COMMISSIONER: Yes.

PN1297

MR McNALLY: I suppose there are rules that deal with site allowances, above a certain parallel in the Northern Territory they get allowances. There is no such claim in these proceedings involving seamen working in the Australian coastal - - -

PN1298

THE COMMISSIONER: Yes, I think there is a common thread. I propose to admit the exhibits without any deletions for these reasons. Firstly, I note they are all employed on the vessels subject of the applications. Secondly, what employees do with their money and whether they feel that they are adequately treated and the consequences of loss of jobs may be matters that the Commission will consider when deciding to make an award and the type of award. I have already touched on that in the 111(1)(g) matter, but perhaps more could be said in the light of the applications before me, and this might be of assistance.

PN1299

Finally, whatever else, these persons are not innocent bystanders unaffected by these proceedings, they may very well be affected by it, because of the fact that they are mariners and reside perhaps in areas away from Sydney or Australia, getting evidence from them is somewhat difficult and I propose to exercise my discretion to hear everything that they wanted to say. They've said that and as to what it does in the ultimate scheme of things, we can't predict, but I don't propose to exclude what they have felt necessary to say. Next, Ms Zeitz?

PN1300

MS ZEITZ: Thanks, Commissioner. Now, I think that takes us to EMA13 which is the - - -

PN1301

THE COMMISSIONER: The letter wasn't objected to, was it?

PN1302

MS ZEITZ: That was the table.

PN1303

MR McNALLY: That wasn't objected to.

PN1304

MS ZEITZ: I have made a note that it was subject to objection.

PN1305

THE COMMISSIONER: Sorry?

PN1306

MS ZEITZ: I made a note that it was subject to objection, I'm just not sure where.

PN1307

MR McNALLY: I think it was on the basis that the Shipping Act isn't relevant.

PN1308

MS ZEITZ: Right. Well, then perhaps I might then deal with that and EMA13, which is the affidavit of Deanna Oberdan. I'll put to one side for the moment DO1A, which is the Australian Coastal Shipping Report. The other three attachments to her affidavit go to providing the Commission with the copies of the Shipping Amendment Act. Number 20 of 1999, which is DO2A, 23 of 2001, which is DO3A, and DO4A which is 11 of 2003, which we say is to be read in conjunction with the copy of the Tonga Shipping Act which is part of Roger Cocker's documents.

PN1309

Now, we say that the Tonga Shipping Act is relevant because that is the law that applies to the vessels. Wherever it sails on the high seas, wherever the two vessels, wherever they may be, that is the law that applies, and that will continue to apply irrespective of whether the Commission determines to make an award of not. So that is the legislative basis upon which any award that the Commission may decide to make them fit, and that is the legislation that any award that the Commission may seek - may actually be an attempt at displacement of parts of the Tonga Shipping Act, and we say it is therefore highly relevant because that currently, that sets the current terms and conditions, the basis of the current terms and conditions of Tongan seafarers, because the two ships are Tongan registered vessels. It is the same as an Australian registered vessel which is the subject of the Navigation Act operating anywhere in the world.

PN1310

My friend is not averse to referring to the Navigation Act as being relevant to the proceedings in Australian cases for the very proper reason that it does underpin the law that governs Australian flagged vessels. Similarly the Tonga Shipping Act has exactly the same status. It is not some lesser piece of legislation that my friend can dismiss as irrelevant. It is the relevant law that applies to vessels registered in the Kingdom of Tonga, and is the very law which any award this Commission will make, or potentially there'll be an issue about conflicting laws and all the rest of it, no doubt, but it's something for submissions later, but that is the very heart of the collision between any award this Commission may seek to make and awards that will apply, that currently apply and will continue to apply and the enforcement in Tonga. If the Commission pleases.

PN1311

THE COMMISSIONER: Mr McNally?

PN1312

MR McNALLY: If the Commission pleases, we don't object to coastal shipping, an overview single which is DO1A, only on the basis that it gives a general overview of someone's opinion as to the current state of Australian shipping, in that it expresses a view about Australian shipping. The award that the Union seeks is an award that operates according to paragraph 4.2 of the award application in both cases:

PN1313

Applies in respect of any class of all voyages to and from ports in Australia.

PN1314

It's not relevant to say that the award will operate in Tonga. The award will only operate in respect of voyages as described in paragraph 4.2. There's no basis for making an award clause in the Safety Net Award that puts into effect a foreign law, puts into operation a foreign law.

PN1315

THE COMMISSIONER: But doesn't that foreign law apply to that vessel wherever it is? Nothing to do with Tonga. Because it's got a Tongan flag - - -

PN1316

MR McNALLY: If one has a look at what the High Court said on this issue, it's difficult to know the relevance of that because Australian law also applies at certain periods of time. But one thing is certain, at section 89, I think, of the Workplace Relations Act, it prescribes 20 allowable matters which doesn't include a clause in the award that puts into effect a foreign law. If the Commission pleases.

PN1317

THE COMMISSIONER: Yes. I propose to - while I did find that the operation of other laws was not a reason to cease dealing with the matter, there may be something in the shipping acts which impacts on employees of the vessel or on the employer of the vessel, of the employer of labour on the vessels. Now, whether in fact the Commission finds that particularly persuasive or not I don't think is relevant at this point, but overall to allow a reasonable picture to be had of the workplace at issue and what impacts upon it, I propose to admit EMA13 and, somewhat as a consequence of that, EMA11 has relevance and will also be admitted.

PN1318

MS ZEITZ: I think that leads us to EMA18 which is a statement of Roger Cocker with a number of attachments. Now, we understand that paragraphs 37 to 46 are objected to and we simply say this. It is relevant material from the employer, of the labour on those vessels, about the payroll arrangements that are made with respect to the employee, the direct knowledge of annual wages that apply in Tonga, and his direct knowledge of what's comparable employment in the maritime industry in Tonga would achieve by possible wages. It's direct and relevant evidence about what the current rate of pay is, and what that value is in Tongan Pa'anga, being the currency that is applicable, and insofar as it relates to his comments about the impact on Dateline's business. We say that at best it is absolutely sound and appropriate for an employer who is to be directly affected potentially by an award of the Commission to express a view about how that would impact on the basis of the claim that is made. The Commission is entitled to be informed about that and indeed should be. If the Commission pleases.

PN1319

THE COMMISSIONER: Yes. Mr McNally?

PN1320

MR McNALLY: These affidavits were prepared in relation to section 111(1)(d) proceedings, and the issues covered in the paragraphs objected to, paragraphs 37 to 46, were irrelevant in those proceedings. As I pointed out yesterday my friend should not be permitted to read contest in to the issues of section 111(1)(g) proceedings in these proceedings, and we therefore object to the paragraphs in question. They could only go to those public interest issues, and indeed, are not of any relevance to the fixation of an underpinning award. If the Commission pleases.

PN1321

THE COMMISSIONER: I propose to admit EMA18 without deletions because first of all it's the complete evidence of what seems to be the employer or senior representative of the employer. He has direct knowledge, he's giving direct evidence as to how persons are paid and also some other working arrangements. His views as to whether it is fair wages for employees, and how they deal with their wages is perhaps not as much weight as perhaps direct evidence of the employees, but I still nonetheless don't overall propose to exclude it. As to the impact on its business, well, in setting any award, I think the Commission often has to deal with arguments by employers as to the impact of an award on them, and it's for that reason that a substantial amount of delays in the application of increases are given, or changes are given from time to time. So EMA18 remains as it has been promoted. Yes, Ms Zeitz?

PN1322

MS ZEITZ: The next is EMA19 which is the statement of Lindsay Harvey with respect to clauses 51 through 63. Now, that's where Mr Harvey attests to the cost impact or increased costs and other things and this, I guess, in a sense brings my client to the point of - the reason we say this is relevant is because the Commission has found that the two vessels that operate in the Australian Maritime Industry. What is not defined in the context of these proceedings by the applicants is the maritime industry in Australia, and the submission will be put in due course by my clients, that the maritime industry in Australia comprise of two quite distinct elements. The first is an Australian coastal shipping fleet of which the Commission has heard evidence, to which Australian flagged vessels are exclusively involved by virtue of licence in ranges under the Navigation Act, and which at this point in time, as I understand it, are the sole respondents to the Maritime Industry Seagoing Award.

PN1323

There is then another component of the maritime industry in Australia, which is represented by foreign flagged - foreign crewed vessels which access Australia on either an infrequent or regular basis, and which operate under single voyage permits and continuous voyage permits. What is sought, and with respect to that component of the maritime industry in Australia, what is sought is to apply an award of the Commission, or two awards which have the genesis in an award which is alleged to be a Safety Net Award, to an area where it hasn't previously been and that - we've had our argument on 111(1)(g), but the Commission is being asked to make in this case a two employer award and we will have something to say about what the Full Bench has said on many occasions about the appropriateness of single employer or two employer awards, not being asked to make an industry award to apply to foreign flagged foreign crewed vessels that come into this country. It's being asked to make an award with respect to two small ships that come into this country under SVPs and CVPs of - and the evidence is already before the Commission - of which their contribution to the SVP and CVP trade is miniscule in comparison to what accesses this coastline under those two permits.

PN1324

So, we say that the impact that any award of this Commission entering into that component part of the maritime industry of Australia, having on the cost impact with higher wages, which is apparent from what is before the Commission, differing terms and conditions, which is apparent from what's before the Commission in the two applications and what our clients propose. We say that Mr Harvey's material in clauses 51 and following, properly identifies what the cost impact will be, and the relevance is important because in the context of that cost impact the Commission is being asked to impose a cost of two component parts of the industry that do not apply to the broader maritime industry operating under SVPs and CVPs and that cost impact, insofar as it directly affects our clients, has to be contemplated on the basis of the object of the Act which are to ensure, in (3)(a):

PN1325

Pursuit of high employment, improved living standards, low inflation, international competitiveness through higher productivity and flexible labour market.

PN1326

So we say that when the Commission comes to exercise its discretion about whether or not to make an award, the cost impact on our clients of the increase in labour costs, which is utterly consistent with principle 12 which deals with economic incapacity, although it's not that application, we freely concede that, is highly relevant, and so therefore the statement of Lindsay Harvey insofar as he refers to those issues of impact are relevant considerations in the exercise of discretion as to what, if any, appropriate award should be made. If the Commission pleases.

PN1327

THE COMMISSIONER: Yes. Mr McNally?

PN1328

MR McNALLY: Might I just have a moment, sir? That issue brings us down to precisely the issue to be decided in perhaps the 111(1)(b) proceedings and are dealt with in paragraph 60 to paragraph 63. We would submit that the evidence that my friend is referring to and the purpose from which it should be effected in these proceedings involve no more than an admission that they are attempting to re-contest the issues of the section 111(1)(g) discipline.

PN1329

THE COMMISSIONER: Yes. I propose to admit the statement in full. One, I note the objections but I note that they go to, first of all, the cost impact of MISA and perhaps awards similar to it, and that is relevant, I think, to whether an award should be made or its form with the impact of it, and it also makes other references to the vessels being expensive to run. That might be relevant to whether an award is suited, the appropriate award is suitably efficient to the performance of work in the light of the need of the enterprise. So I'm not dismissive of the position that some of this has already been agitated and the weight the Commission gives to this is perhaps to be seen, but I think to exclude it is not appropriate at this stage. I'd rather have it in and then perhaps see it as an opinion, or as evidence, but one perhaps - the opinion of one person, not necessarily conclusive as to why the Commission shouldn't make an award. But anyway, so as I said, I admit that. Next, Ms Zeitz?

PN1330

MS ZEITZ: Now, the statement of Quirk which is EMA20, I understand to be objected to in its entirety.

PN1331

THE COMMISSIONER: Sorry, in its entirety?

PN1332

MS ZEITZ: Yes. The Commission may recall Mr Quirk's evidence about how shipping operates in the company in Australia. This is really picking up on what I just said, this material really just goes to defining the industry for the purposes of the scope of any application of any award that may ultimately be made. The Commission needs to be informed, in our submission, about the two aspects of the maritime industry that operates in Australian territorial waters, and how they appropriately or inappropriately, depending on which side of the table you're on, interact and what the terms - this really is in a sense a background to that, and provides some useful statistical information. For example, at 30 he notes there were 50 Australian bulk carriers, that is Australian flagged, in 1980. The number is now approximately 12. We say that sort of information is relevant both for the extent to which MISA has current application, and the issue of the size of the foreign flagged fleet, for want of a better description, that is currently in operation under SVPs and CVPs. If the Commission pleases.

PN1333

THE COMMISSIONER: Yes. Mr McNally?

PN1334

MR McNALLY: Paragraphs 32 to 34, I'd like to bring the Commission's attention to that, deals with reasons for decline in the Australian fleet.

PN1335

MS ZEITZ: I'm happy to delete that.

PN1336

MR McNALLY: That's indicative of the affidavit generally, and it was prepared and filed in the section 111(1)(g) proceeding, that the issues in that case of mine and to admit it in these proceedings would afford the opportunity to anyone who wished to again raise those issues to do so. That would be the only relevance of a section 111(1)(b) application, not these proceedings. There may be some paragraphs that don't fall into that description, but generally the affidavit be directed at public interest issues, such as 111(1)(g) proceedings, not proceedings fixing a Safety Net Award.

PN1337

THE COMMISSIONER: I think, there's a certain preamble, but much of the evidence goes to the way that the ships are perhaps sourced by charterers and how they operate, the impact of MISA on freight rates, I think are all relevant. His opinion as to why there has been a decline in the employment of Australians on vessels is relevant, and he makes comments about the poor maintenance found on or afforded to Australian vessels, I think that's all relevant. However, I do not think that his views as to what should occur to improve the industry is relevant, and therefore paragraphs 32 to 37 I exclude, as well as paragraph 42. Yes, Ms Zeitz? And any attachments go to those paragraphs.

PN1338

MS ZEITZ: The next exhibits, EMA21 and 22, are both a statement of Andrew Peter Dally, which was filed in the first proceedings as EMA21 and the supplementary statements in these proceedings which is EMA22. I understand that's objected to in its entirety. On that, we say paragraphs 7 to 17 are clearly relevant because they set up or establish the basis upon which arrangements are entered into, and what the nature of the business that now INCO operates and INCO having the agency relationship with Dateline Shipping and Celtic Marine. It's appropriate, we say, that that information establishes the context in which the matters operate. Paragraphs 18 through 51 were matters that my friend cross-examined Mr Ives about yesterday, and we say therefore the argument as to relevance without weight, that is the history of the Ikuna and Hakula.

PN1339

Items 52 to 56 are all related issues and therefore - - -

PN1340

MR McNALLY: Yes, I don't think we press our objection, I have had another look at it, sir.

PN1341

THE COMMISSIONER: You don't press those, to either of Mr Dally's?

PN1342

MR McNALLY: No.

PN1343

THE COMMISSIONER: Okay, well, as they were.

PN1344

MS ZEITZ: Thank you, Commissioner, that will save us some time.

PN1345

MR McNALLY: I don't want to waste time.

PN1346

MS ZEITZ: I think the next one, Commissioner, is EMA23 which is the statement of Ray Chinn, that's the pen light matter. Commissioner, we similarly have had an opportunity to review that and in the circumstances don't press for the admission of that evidence. What a customer believes might be the impact on that is of limited relevance in these proceedings. With respect to EMA24 which is the statement of Benny Lee, we say this has the same status of the statement of Roger Cocker, he's the Director of - Celtic Marine is the direct employer. What they have to say about their employment arrangements, their arrangements with - the contractual arrangements they have made to supply appropriate - - -

PN1347

MR McNALLY: We don't object to it.

PN1348

MS ZEITZ: Sorry, Commissioner. I was in such a habit of having everything objected to, Commissioner. The final exhibit to which I understand there is objection is the report of Associate Professor Richard Peter Brown which is EMA25 and we understand that that is objected to in its entirety. Now, what we say in relation to this is that there are two distinct strands to this matter. The first is that the application of this matter be dismissed in the public interests, of which was not successful. The second aspect is that the Commission is being asked to make an award in an area where there is no award and it's being asked to determine wages and conditions of employment at certain levels and there's no secret that those levels that are sought are consistent with the Maritime Industry Seagoing Award.

PN1349

What the applicants choose or choose to not establish, is a matter for them and we will have more to say about the onus that they bear with respect to these proceedings later, but with respect to this material we say that this is not unlike, and I don't want to elevate the proceedings, but this is not unlike the exercise that the original arbitration court and commission had to undertake in the Harvester case when it was being asked to determine wages and conditions of employment, based on what was required for a person, an ordinary Australian as appropriate living standards, because if the Commission accepts what our submission is, and that is that the application of this award will not occur on Australian national territory, but will occur in another country, however it tracked through whatever legislative means it travels there. That is, that will be the practical effect.

PN1350

We say that is the compelling evidence in order to determine on, first of all, a principle basis and it will be the first award in the Kingdom of Tonga irrespective of anything else that might be said. It is appropriate for the Commission and, indeed, essential for the Commission, to be informed about the economic circumstances of any award that may be made and may have application, and that is what this witness statement certainly sets out, that context, and the Commission will see that we will be relying on the statements from the various crew members that point to the cost of living aspects, because we say that they are absolutely essential considerations for the Commission in the context of what my clients say, that it is appropriate if the Commission determines that an award is to be made. If the Commission pleases.

PN1351

THE COMMISSIONER: The substance of his evidence is the report, isn't it?

PN1352

MS ZEITZ: It is, Commissioner. We simply say this validates what is put by the various employees whose evidence is that it costs them $150 a month in rent, or it's $200 a month for electricity and water, whatever it might be, and the report establishes in the clearest possible terms, that this economy is not an equivalent economy to that of this country, it's different.

PN1353

THE COMMISSIONER: Why should the Commission worry about the Tongan economy? I can understand why it should worry about employees affected by its decision who happen to be Tongan, but going beyond that, why should the Commission be interested in that?

PN1354

MS ZEITZ: These employees are paid in Tonga. Their wages are drawn in Tonga. They apply in Tonga. These are wages that are not paid in Australia. So if the Commission makes an award that is in terms of the 42,000 and something Australian dollars that is sought by the applicants, which comes out of to somewhere between 60 and 70 Pa'anga, the Commission is awarding a rate of pay to a Tongan seaman, that is something like two or three times what the Prime Minister of that country draws, and that's why we say it's a minimum rate of pay, if the Commission is minded to make an award, can't be seen in isolation from where it is going to apply. An award applies where it operates and it will operate in the Kingdom of Tonga. It's not going to operate on board the vessel, other than in the limited extent of conditions that directly apply.

PN1355

THE COMMISSIONER: If the Commission were to make an award it may make it on the basis, that that part of Tonga that is represented by the ship going up and down the coast or between Brisbane and Noumea, or wherever it goes, that it should be regulated, there should be an Australian award applicable to employees. It would then determine what is fair wages, but the Act really presumes that those wages have got to be Australian wages, doesn't it?

PN1356

MS ZEITZ: The Act, with respect to the Commission and those who wrote it, it wasn't actually written - - -

PN1357

THE COMMISSIONER: I'm sorry?

PN1358

MS ZEITZ: I don't think the Act was written by the parliamentary drafts people with this operation in mind. It simply doesn't contemplate the application of an award beyond Australian territory. It gives the power to the Commission to make such an award, but the legislature hasn't actually clearly provided the direction that it has given to the Commission with respect to Australian workers in Australia. It hasn't given direction or consideration to what occurs when jurisdiction is exercised under section 5(3) of the Act with respect to people who are not in any sense present in this country other than by occasional transit on Special Purpose Visas, more particularly whose place of work certainly is on board a vessel that comes into Australian territorial waters, that's not argued, but where their records of business, where the records of employment, where the payroll records are all maintained quite properly by the employer in either Hong Kong or Tonga, which in due course I'll be raising with the Commission.

PN1359

The Commission raises some very interesting dilemmas about how the Inspectorate is going to inspect those wages records if it chooses to do so. I suspect there'll be a queue by some who are prepared to travel at great personal distress to some of those places, but there are very - we say - and I'll come to this in due course once the evidence is finished - but we say that there are very clear considerations that impact upon the Commission's exercise of discretion because the Commission might properly say, well, these vessels are here in Australia, Australian rates should apply. But the actual application of those rates does not occur in Australia. The application of those rates occurs in Tonga in this case, or in Hong Kong in the case of the Chief Engineer and the Master, and that is where the employment originates, that is where the Tongans reside and are domiciled, certainly in the case of the Tongans, so that's where the award operates, where the training - - -

PN1360

THE COMMISSIONER: Well, the award operates on the vessels and where people - the Commission is not blind to where people live or the impact of this award and that there is an argument that it should be adapted to the needs of current employees. The other side - well, there's also an argument that says, don't worry about which employees. An award should apply in terms of employees generally because they will come and go over the years. But anyway, let's assume here are some employees. It's unlikely the Commission will just say, well, I'm not interested in who they happen to be, whether they're Australian or Japanese or whatever, but when the Commission sets wages and conditions it normally sets them for the needs of the employer, employers have to pay 50 weeks of sick leave etcetera, the needs of employees, etcetera, but where the employee lives, whether somebody works for a car factory but chooses to live in some salubrious suburb of Melbourne, and somebody else lives in another locality, whether someone chooses to have 10 children and others choose to be double income no kids, well, that's all very nice, but that doesn't - it's the same sort of thing.

PN1361

We have to look at the workplace, and the employees at that workplace, and the needs of those employees at the workplace and what they do, where they reside - I'm not saying it's something we don't look at, but it's not - you're putting it much higher than that. You're saying, well, these people have got nothing to do with Australia. Well, we wouldn't be here if they had nothing to do with Australia. The evidence is clear, these ships go up and down, here and across, so.

PN1362

MS ZEITZ: The employer certainly has something to do with Australia and so do the ships, but this merely highlights the difficulties with section 88(b). It says, one of the objects:

PN1363

The need to provide a fair minimum standard for employees in the context of living standards generally prevailing in the Australian community.

PN1364

Which I understand the Commission referred to. The difficulty with that is that fair minimum standards for employees in Australia may not be fair minimum standards for employees in Tonga.

PN1365

THE COMMISSIONER: You mean they'll be more than fair, way more than fair?

PN1366

MS ZEITZ: Abundantly.

PN1367

THE COMMISSIONER: Yes, okay.

PN1368

MS ZEITZ: Super abundantly fair, if I could put it that way, and it is not a case here of an employee choosing to live somewhere in Australia, either beyond or within their economic means. This is a case of people who have, as individuals, employees who have no connection with Australia other than that they are here as visitors for the purposes of their employment. They have no connection. It is as if I go over to another country to perform duties and tasks in another country, if I'm employed over there I am paid in accordance with that country's standards and conditions. No one reaches over from Australia and says she's being overpaid or underpaid. Similarly, that if people actually come out to Australia, live and reside in Australia, then they generally are paid in accordance with community standards.

PN1369

The difficulty of this exercise for the Commission is that this is what used to be called the grey zone. These people have a presence in Australia but not a connection with it, and their presence is because of the nature of the trade of the vessels that the Commission has found has occurred, that they have no personal connection, but their evidence is quite clear. Their connection is to Tonga. So that for the Commission, it is one of these awkward situations where the obligation on the Commission in the context of the objects is almost practically impossible to fulfil and we will be submitting that if the Commission simply applies Australian rates, then it's not taken into account like some of the other matters that really should.

PN1370

THE COMMISSIONER: Yes, but Mr Cocker, I think, says something about the comparison of what these people get on the two vessels compared to if they were doing similar work as ferry Masters or ferry workers, but while the Commission may find it necessary or may find it relevant to know, well, if I make an award, it is in the context that the ship is not Australian, it's actually a floating part of Tonga, or a floating part of another country, the people on it are getting money that's well in excess or well paid as they say in their own direct evidence and that in practical terms what's the point of regulating this situation or in fact it shouldn't regulate the situation, that's Okay. But the trouble with that is that the Professor actually goes and specifically talks about Tonga.

PN1371

It seems to me that your argument is it wouldn't matter whether they were mariners of Sweden with much better wages and conditions and the economy is booming, etcetera, it seems to me that the point is still the same. The principal part of your argument is, look, this is not Australia, you shouldn't regulate it, they're not Australians, butt out. You have got an additional argument to say, well, if in fact you were to apply, give them $60,000 a year rather than $5000, they'd all lose their jobs. Well, that's an argument and I need to consider that. But I don't think that the Professor takes it much further. All he's telling me is about Tonga and its nature. Yes, he could have said - somebody else could tell me about some other country. Well, how is that relevant?

PN1372

MS ZEITZ: Well, that represents precisely the dilemma for the Commission. The dilemma for the Commission is that you were confronted with, as I said earlier, a very narrowly based application in relation to what occurs with respect to foreign vessels coming in to the country and in to Australian territorial waters under SVPs and CVPs. It is a significant and difficult dilemma for the Commission because what the Commission is not given by virtue of this application which we respectfully submit is selective in the extreme, or these applications, is that the absence of that picture doesn't actually assist the Commission in determining whether it's appropriate to make a maritime industry, bracket, (foreign flagged vessels), close brackets, award that takes into account international transport federation and terms and conditions with respect to the northern hemisphere for those vessels with respect to the Pacific or whatever it may be.

PN1373

The Commission has not been given that information. That is not part of the application. The application has been limited to Tonga by virtue of the two vessels selected by the applicants and so, I'll agree, what you raise is valid, it's not the application that's before the Commission and my clients can only respond to the application as given and say that in respect of these matters the issues that apply are complex because a Tongan registered vessel is - I'm not sure what the applicants' proposal result from it - but the effect will be that there will be a grafting on of some additional Australian law with respect to terms and conditions of employment that will attach to those two vessels, and that's a matter for the Commission to determine, but that grafted on law travels back to Tonga. It doesn't apply in Australia because that's where the employees reside and so we say that is why this information is generally - now, if the Commission says this information doesn't advance that submission, then it's a matter for the Commission and we will accept the ruling with respect to Mr Brown.

PN1374

So we say in terms of placing generally in the economy of Tonga context, this is of assistance to the Commission. If the Commission has a different view, that is a matter for the Commission, but I hope what I have mentioned has put the basis upon which we say this is relevant in the context that assists. If the Commission pleases.

PN1375

THE COMMISSIONER: Yes, I don't propose to admit the statement of Associate Professor Brown. I note in paragraph 2 of his attachment he actually says:

PN1376

It should be noted that this report does not address or analyse the implications of the application of an award.

PN1377

Or the award or likely scenario and he then goes on and says:

PN1378

It's really about the characteristics of recent performance of the Tongan economy, the importance and objectives of Australian Foreign Aid Program, the role of migration and remittances and the comparative wage earning.

PN1379

The second last points perhaps, I think, are adequately and more appropriately dealt with by employees themselves. The other aspects I don't think are all that relevant and as I said, I don't propose to admit it and that's it, isn't it?

PN1380

MR McNALLY: We intend to undertake to - in cross-examination, the witnesses of the evidence from Cocker, Dally, Harvey and Quirk. That's the cross-examination of the witnesses' evidence. It's both, the oral evidence statement.

PN1381

THE COMMISSIONER: Do you have problems with that?

PN1382

MS ZEITZ: No, thanks, certainly I was just clarifying what - but that's quite correct. The agreement between the parties was that if that material was admitted before the Commission, then it was appropriate that the evidence that went through all that material and was admitted - so I thank my friend for copies.

PN1383

THE COMMISSIONER: What is it that you're holding, Ms Zeitz? Is that transcript?

PN1384

MS ZEITZ: Yes, apart from lots of paper, Commissioner. It's probably appropriate if we do tender them as exhibits.

PN1385

THE COMMISSIONER: Yes, yes, that will be good.

PN1386

MS ZEITZ: I thank my friend for supplying copies, it's appreciated, and formally tender the - - -

PN1387

THE COMMISSIONER: There were some exhibits that were marked yesterday and today I have excluded them but perhaps to keep some order we will leave some holes in the exhibits but the next exhibit will be EMA26, what's that?

PN1388

MS ZEITZ: That will be the evidence of Lindsay Ernest Harvey.

PN1389

THE COMMISSIONER: Which is paragraph 751 of the - - -

PN1390

MS ZEITZ: Yes, Commissioner.

PN1391

THE COMMISSIONER: That will be exhibit EMA26.

EXHIBIT #EMA26 STATEMENT OF LINDSAY ERNEST HARVEY

PN1392

MS ZEITZ: To PN911.

PN1393

THE COMMISSIONER: Yes.

PN1394

MS ZEITZ: The next is Peter Maxwell Quirk, being PN1025 to 1235.

PN1395

THE COMMISSIONER: Yes, and that will be exhibit EMA27.

EXHIBIT #EMA27 STATEMENT OF PETER MAXWELL QUIRK

PN1396

MS ZEITZ: The next will be the evidence of Andrew Peter Dally, being PN1244 to 1831.

PN1397

THE COMMISSIONER: That will be exhibit EMA28.

EXHIBIT #EMA28 EVIDENCE OF ANDREW PETER DALLY

PN1398

MS ZEITZ: The next is that of Roger Cocker, which is PN246 to PN747.

PN1399

THE COMMISSIONER: Yes, and that will be exhibit EMA29.

EXHIBIT #EMA29 EVIDENCE OF ROGER COCKER

PN1400

MS ZEITZ: I think that is the conclusion of the evidentiary material subject to the subpoena.

PN1401

THE COMMISSIONER: Yes.

PN1402

MS ZEITZ: We'd be asking the Commission to - - -

PN1403

THE COMMISSIONER: There's one other matter. Mr Dally hasn't pressed or hasn't referred to it but I thought Mr Ives was going to produce something which set out who's who on the two boats. It doesn't have to be done - - -

PN1404

MS ZEITZ: Commissioner, he was asked if he could, he said he could, but he didn't indicate - he wasn't actually requested to do so and had he done so I would have objected.

PN1405

THE COMMISSIONER: Why?

PN1406

MS ZEITZ: I would simply say it's not relevant.

PN1407

THE COMMISSIONER: Well, why isn't it relevant?

PN1408

MS ZEITZ: Well, Commissioner, the information has been provided directly by a number of the employees. The profile of the crew has been given by Mr Ives and not, as I understand it, challenged the purpose for which the identity of particular individuals have previously been needed, we simply don't see the relevance. That information is already sufficiently before the Commission so there's nothing further required.

PN1409

THE COMMISSIONER: Well, it is before the Commission, but it's a little bit all over the place and from my point of view I wouldn't mind knowing. I wouldn't mind knowing if there were some Australians on board, and there seem to be, and what their - I know this was touched on in the 111(1)(g) matters, but if we're to - you know, this is not perhaps something that Mr McNally need trouble himself with, but I wouldn't mind knowing what it all looks like and there's all these words that came out yesterday, Motorman etcetera, and in the award there's provisions or there's references to it but it's not that clear how many there are. There's also a change. On the last - these young people weren't there last time, which is what - I mean - - -

PN1410

MS ZEITZ: If it would assist the Commission.

PN1411

THE COMMISSIONER: Yes, I think it would, and whether it needs to be evidence, it can just be material presented by your side and I guess it's probably more in Mr Lee and Mr Cocker's area of expertise, but nonetheless it shouldn't be that hard.

PN1412

MS ZEITZ: Does the Commission request the crew list?

PN1413

THE COMMISSIONER: I don't need to know the names of the people. It's more like there's a Master, there's - and what their nationality is. Now, obviously if it changes, it might be a New Zealand Master now - in three months it might be a New Zealand Master or a Ukrainian Chief Engineer?

PN1414

MR McNALLY: Could I say something on this? What I might have to do and I thought I'd ask to do it, is that the names and nationality if we can of the current crew. That's what we were doing yesterday. We have some knowledge of it. The best way to prove it without argument is for Mr Ives to produce a list of the current crew, the vessels and their nationalities. That's what we seek and we'd seek to put it into evidence.

PN1415

MS ZEITZ: Is that positions and nationalities or names as well?

PN1416

MR McNALLY: Names and nationalities.

PN1417

THE COMMISSIONER: Now, obviously it's at a particular date. If that changes, well, Mr McNally is stuck with that.

PN1418

MS ZEITZ: I mean, we can obtain the current - - -

PN1419

THE COMMISSIONER: And he wants it in evidence, so it may very well be that it is part of Mr Ives' evidence, and on the next occasion when we're dealing with an immigration issue he may need to be around, or it might very well be that Mr McNally says thanks very much, I don't need to hear from him.

PN1420

MR McNALLY: As long as it goes into evidence, I would have thought.

PN1421

THE COMMISSIONER: Yes.

PN1422

MR McNALLY: But they will remain as exhibits.

PN1423

MS ZEITZ: That might be a bit scary.

PN1424

THE COMMISSIONER: Right.

PN1425

MS ZEITZ: Subject to those caveats we will undertake to do that as quickly as we can and provide that to the Commission and my friend. There is no further material that I wish to formally put before the Commission save and except that with respect to when we do get to final submissions I would probably be making reference to some extracts from material that has been before the Commission, but at this stage I can't tell you what they'll be.

PN1426

THE COMMISSIONER: Yes.

PN1427

MS ZEITZ: And if my friend indicates that he has an objection at that point he'll raise it, so I don't - other than that caveat, we have no further material to put before the Commission.

PN1428

THE COMMISSIONER: Mr McNally, do you have any further evidence?

PN1429

MR McNALLY: No, subject to the production of the doctor as a witness - sorry, can I tender Marine Order Part 3 Seagoing Qualifications? I only have one copy but my friend knows what's in it and I'll read it overnight. Why I tender that in reply is that we notice that the curriculum for the Tongan college is based on the Australian TAFE course.

PN1430

THE COMMISSIONER: This is the college that we excluded, wasn't it?

PN1431

MR McNALLY: No.

PN1432

MS ZEITZ: No. There's going to be a dispute about that, I'm afraid.

PN1433

THE COMMISSIONER: About what?

PN1434

MS ZEITZ: Firstly that the marine orders that have just been tendered don't apply to these vessels.

PN1435

MR McNALLY: No, they don't.

PN1436

MS ZEITZ: The marine orders don't set out the TAFE course, so if my friend is referring to comparators, then there's more - either they'll have to provide more material to support what they assert, or we will have to object to what they're putting in because simply, there is no evidence, evidentiary link between what is before the Polytechnic Maritime College - I think I have got that the right way round - and Marine Order Part 3. They simply don't apply. The handbook which is part of exhibit EMA5 refers to the program based on the New Zealand and Australian TAFE National Curriculum, with some modifications to suit local requirements, that's down to page 13. Marine Orders Part 3 are not, as far as I can tell, and never have been TAFE National Curriculum. The comparator is the TAFE National Curriculum. The comparator is not what results from that for the purposes of Australian regulations. If the Commission pleases.

PN1437

THE COMMISSIONER: Mr McNally, one, it doesn't seem to apply to these vessels and secondly, the link with the Tongan training regime doesn't seem to be there or seems to be challenged?

PN1438

MR McNALLY: It surprises me - - -

PN1439

THE COMMISSIONER: We won't admit it now. It may be that in some other way, we will revisit it perhaps.

PN1440

MR McNALLY: Do you propose to take a short break, Commissioner?

PN1441

THE COMMISSIONER: Well, what else do we need to do?

PN1442

MR McNALLY: We were going to address, I think, weren't we?

PN1443

THE COMMISSIONER: Address me on what, final submissions?

PN1444

MR McNALLY: Yes.

PN1445

THE COMMISSIONER: Well, is that what Ms Zeitz wants to do?

PN1446

MS ZEITZ: I understood that there will be debate about getting the further evidence in about the visa - sorry, not a debate, that to be scheduled and I would anticipate that there would be final addresses following that.

PN1447

THE COMMISSIONER: Yes.

PN1448

MR McNALLY: All right. I'm pretty anxious to finish this case. I'm not sure about your availability in the immediate future.

PN1449

THE COMMISSIONER: Well, I have got availability in the immediate future.

PN1450

MR McNALLY: I'm sorry?

PN1451

THE COMMISSIONER: I have got availability in the immediate future. It's not - unless you know something that I don't. No, I was actually going to propose to perhaps set down a time for the immigration people to be examined that fits into our three needs, and hopefully they can fit in with that and if we have to change, well we will have to look at it, and then finally on the basis of that - well, not on the basis of that - and then sometime after, whenever it suits you we can look at a day for submissions.

PN1452

MR McNALLY: Can we fix the day for submission now, would that be - - -

PN1453

THE COMMISSIONER: Yes, that's what I mean. I don't mean to leave it to later - - -

PN1454

MR McNALLY: Yes. On the day that the visa witness gives evidence I'll seek leave to call Mr Mellows who's an educationalist in this area and knows all about the connection between the clauses and the orders that have been handed up.

PN1455

THE COMMISSIONER: Yes.

PN1456

MR McNALLY: Good, thank you. Might I raise another matter?

PN1457

THE COMMISSIONER: Yes.

PN1458

MR McNALLY: In addresses, I'm assuming that I'll address first I suppose, and I'll address on the issue of should an order be made and then go on to deal with the individual clauses in this award. We have prepared a comparison. Is it proposed that I deal with all the clauses without comment from my friend or is it the Commission's wish that we go through the process clause by clause? For example, the first clause, what do we call the award? This is an issue on that and I can address on that and then go on to address on the area covered right through, or would it be more helpful to you, sir, if we did it clause by clause?

PN1459

THE COMMISSIONER: I think it would be - well, I don't know, but it would be preferable if you did it all in one go and then Ms Zeitz then says, no, you shouldn't make an award, but if you do this is the award you should make, which we have already - - -

PN1460

MR McNALLY: I can do that now actually because I have got the document here.

PN1461

THE COMMISSIONER: I know, but it's a bit unusual to do that before we hear from the - - -

PN1462

MR McNALLY: That's what I'm getting at. Do we want to hear about whether an award should be made first and then deal with the - - -

PN1463

THE COMMISSIONER: Well, no, because whether an award should be made, leaving aside the content of it, may very well depend on what the immigration situation is. I'm not saying that's the only issue, but that's one issue, isn't it?

PN1464

MR McNALLY: That's a concession I'm not prepared to make. I'm just thinking of practical - could I hand up to you the comparison, the type of document I have prepared, I haven't got copies of it at the moment but - - -

PN1465

THE COMMISSIONER: Yes, okay. Look, I just don't - Mr McNally, I appreciate the desire for bringing the matter to a conclusion but I must say that to enable the Commission to perhaps put appropriate questions to the advocates I need some time to reflect on what's in them. I don't think it would be fair for you to put your submissions now, and then - - -

PN1466

MR McNALLY: I'm not seeking to put them now. I'm seeking to plan ahead as to how we do them in the future.

PN1467

THE COMMISSIONER: Yes, yes, and what I say is that on the day that you would come back for the submissions I would expect the advocates to say one, you shouldn't make an award, you should make an award and this is what it should look like and if you need to go clause by clause or you want to do clauses in groups, you'd say well, this is the justification in the whole because Commissioner Wilkes has already made an award similar to this and it's been ticked off, and then deal with specifics perhaps, given the rest of the evidence that's come through and then Ms Zeitz would respond obviously in an opposite - - -

PN1468

MR McNALLY: Perhaps if you hand the document back we can direct it to that. That's not needed, if the Commission pleases.

PN1469

MS ZEITZ: Can I just perhaps clarify that. On the next occasion that the matter is listed there'll be the witness evidence of Nginingini, witness that my friend has referred to, and can I just indicate it would assist if we could be provided with, at least, a brief statement of what the evidence of that witness will be prior to the day, so that we can cross-examine. I would ask my friend if he could advise the Commission and my clients on that next occasion of the status of his instructions from the AMOU with respect to the matter I raised yesterday. I then understand that the Commission would set a further day.

PN1470

THE COMMISSIONER: Yes, and there would be that document about the ships.

PN1471

MR McNALLY: Looking at it practically, would it be appropriate that the AMOU be asked to attend? I don't know whether we've got instructions or not, that's the difficulty. I don't want to create a situation where they'll come along and say we're uninstructed and then have no one here.

PN1472

MS ZEITZ: On that indication from my friend my clients will contact - - -

PN1473

THE COMMISSIONER: That's right. I think it's appropriate. The application before me involves - I know the 113 is also before him but it seems that 2515 and 516, if you wish to do something with 2461 you should write to the AMOU. They might agree, yes.

PN1474

MS ZEITZ: I'm content with that course, thank you, Commissioner.

PN1475

THE COMMISSIONER: We will just go off the record.

OFF THE RECORD

PN1476

THE COMMISSIONER: Yes, this matter is now adjourned and will resume for the purposes of additional evidence at 10 o'clock on 9 February and then for final submissions at 10 o'clock on 17 February. On that basis these proceedings are now adjourned.

<ADJOURNED UNTIL WEDNESDAY 9 FEBRUARY 2005 [12.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #EMA5 AFFIDAVIT AND ATTACHMENT PN1240
EXHIBIT #EMA26 STATEMENT OF LINDSAY ERNEST HARVEY PN1388
EXHIBIT #EMA27 STATEMENT OF PETER MAXWELL QUIRK PN1392
EXHIBIT #EMA28 EVIDENCE OF ANDREW PETER DALLY PN1394
EXHIBIT #EMA29 EVIDENCE OF ROGER COCKER PN1396