C2003/2461, Transcript of Proceedings [2005] AIRCTrans 485 (25 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10519

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

10.13AM, THURSDAY, 17 FEBRUARY 2005

Continued from 9/2/2005

PN1544

THE COMMISSIONER: There is no change to appearances? There might be.

PN1545

MS ZEITZ: Yes, there are thanks, Commissioner. I now appear with
MR MANUEL and MS OBERDAN, for Dateline and Celtic.

PN1546

THE COMMISSIONER: Yes, and Mr McNally, you are continuing with
Mr Keats. Yes.

PN1547

MS ZEITZ: Perhaps just a housekeeping matter initially, Commissioner. We did undertake to provide the Commission with a clean copy of the handbook for the Maritime Poly Technical Institute, which was an exhibit to
Mr Crockers, affidavit or statement and I have now provided copies to my friends.

PN1548

THE COMMISSIONER: Is that EMA18?

PN1549

MS ZEITZ: It is actually a principle - a statement of Otumaka Manakufua, it's EMA5.

PN1550

THE COMMISSIONER: To Mr Missy, is that it?

PN1551

MS ZEITZ: Yes, that is it.

PN1552

THE COMMISSIONER: Okay. Yes.

PN1553

MS ZEITZ: That was the only matter that I think we had to make available to the Commission from the last occasion.

PN1554

MR McNALLY: We probably did explore it in the past, but we do not have the transcript of the last occasion.

PN1555

THE COMMISSIONER: Yes.

PN1556

MR McNALLY: I do not think much turns on that, but if my friend wanted to supplement anything she says, or I do, as a result of receiving the transcript, then we probably do that later on.

PN1557

THE COMMISSIONER: Yes, you will.

PN1558

MR McNALLY: The first day, on the occasion before of the hearing, the transcript we have noticed in preparation has numerous errors and omissions. It is impossible to deal with that at the moment, because there are just too many of them. What I have suggested to my friend, and we extend this offer, is that
Mr Keats has kindly undertaken to go through it and point out the mistakes that he observed, because he takes pretty detailed notes, but we would give that to the other side and then presumably we would be able to agree on everything and then submit it to you.

PN1559

THE COMMISSIONER: In writing.

PN1560

MR McNALLY: Hopefully in the next 14 days or so.

PN1561

THE COMMISSIONER: Yes, so that would be a record of what the parties think the transcript should say.

PN1562

MR McNALLY: We would remember what was said now, but down the track we might not. There is another sort of related matter. My instructions to act for the AMOU have now been confirmed and we wish to report back on that matter. The complicating factor is that there is an application to dismiss the dispute finding in matter 2461, insofar as it relates to the AMOU. That is listed on
7 March, before Deputy President Lloyd, in Melbourne. I do not know whether that is an accident or what we should do about it.

PN1563

THE COMMISSIONER: Well, what are the consequences of the Senior Deputy President continuing to deal with it?

PN1564

MR McNALLY: Well, I will be making an application to you to list the very matter that he is entertaining an application to strike out.

PN1565

THE COMMISSIONER: I am not sure - - -

PN1566

MR McNALLY: I mean, if it is the intention that the Deputy President deal with 2461, insofar as it relates to, I had assumed, I should have this - I had assumed that it had been allocated by mistake.

PN1567

THE COMMISSIONER: Well, Mr McNally, I did not quite understand your - what are you intending to do, are you intending to in fact make application out of that dispute finding or that industrial issue to have an award made, binding the AMOU in relation to the Hakula and Ikuna, is that the case?

PN1568

MR McNALLY: To have an order made bearing the MISA, but my instructions are that we seek to have that matter listed after the decision is given in relation to the other unions. And the reason for that is that the time involved in future hearing would be materially, we anticipate, materially cut down in the knowledge that will be gained by any forthcoming decision. Negotiations broke down somewhere round about Christmas time the last time discussions took place just after Christmas. I don't have the exact date.

PN1569

THE COMMISSIONER: Yes.

PN1570

MR McNALLY: Should we approach the Deputy President or - I am just seeking some indication.

PN1571

THE COMMISSIONER: 2461, was an application by the AMOU together with the other two to vary MISA.

PN1572

MR McNALLY: Yes.

PN1573

THE COMMISSIONER: Is all that has happened that that matter just has not been progressed.

PN1574

MR McNALLY: What has happened is that there were discussions in progress between the AMOU and various parties involving the Stratacona, the CSL Pacific and these two ships. And they have broken down. There are of course members of the union on some of these ships. They have broken down and what the intention of the union was was to - armed with the decisions forthcoming, see if they could provide those negotiations in the light of the decision and if it could not be resolved then to have the matter programmed for hearing, but yes, Inco have made an application to strike it out for want of prosecution, so that has forced our hand as it were.

PN1575

THE COMMISSIONER: Yes.

PN1576

MR McNALLY: If employers want hearings fixed straight away I suppose we have to do that, but I do not want to have a decision made today.

PN1577

THE COMMISSIONER: Yes, thank you Mr McNally on that.

PN1578

MR McNALLY: There is one other matter. I do not know whether consultation has taken place between you and the President, on the issue of the claim relating to the minimum rate. I assume that if it has that will at some appropriate time.

PN1579

THE COMMISSIONER: I am sorry, I did not - - -

PN1580

MR McNALLY: There was a claim - the employer's claim was below minimum standards, there was no respect of- they raised the question of the principles in relation to who should hear it. I am just not sure whether the expert consultation between you, sir and the President, if I am entitled to know then -

PN1581

THE COMMISSIONER: Yes. No, there has not been.

PN1582

MR McNALLY: Well, if I could just say this. We will proceed on the basis that at some stage it will happen.

PN1583

THE COMMISSIONER: Well, only if the Commission thinks that the other - that the position of the employers have merit, or is persuasive or part of it is persuasive. The Commission appreciates there are standards set and if it is above those standards or below those standards and it decides to proceed that way obviously there needs to be some reference as the Act and the wage fixing principles require.

PN1584

MR McNALLY: Thank you.

PN1585

THE COMMISSIONER: Yes, Ms Zeitz.

PN1586

MS ZEITZ: Commissioner, we agree with my friend that the application to vary your dispute finding made in 2461, of 2003, may be better dealt with before yourself rather than Deputy President Lloyd. And we simply say that because there is a matter of - the manner in which this matter has proceeded. I am not clear from my friend what he seeks to now prosecute on behalf of the AMOU. The dispute finding does not seek to extend or rope in the Maritime Sea - my client to the Maritime Industry Seagoing Award. It is whether terms and conditions of employment corresponding some or all of the terms and conditions of employment applicable from that award should be applied to employees engaged on the ships, Hakula and Ikuna.

PN1587

So one of the issues that we have and would indeed be raising in the matter of substance with respect to these proceedings is that what has been sought by the AIMPE and the MUA are two separate awards. We seek clarification about whether this award was proposed for the AMOU and we will have something to say about that subject to certain other matters and the desirability of the Commission departing from the finding of the Commission made in, I think 1972, that one award was appropriate for the industry in terms of coverage and what is sought with respect to our clients are in fact three separate awards. And we say that there are some substantial issues about that and we can address that later.

PN1588

If what is sought is yet another award with respect to the AMOU, as it applies to my client then we say my client is entitled to know the full case that it is expected to meet and not just with respect to the two unions because the issue of how ultimately something may be resolved and whether that occurs in the context of one award or three awards is a matter of substance before the Commission. At the moment it is whether it is one award or two, but if we are now going to have at the eleventh hour a third brought in, the Commission will be aware that my client certainly has not addressed any evidence to the issue of coverage of that particular union at this stage in the proceedings. So I simply raise that because it is a fundamental issue about how this matter proceeds at this point.

PN1589

THE COMMISSIONER: What is the disadvantage of not knowing the - or not having the ability to litigate the coverage for the, sorry, the regulation of captains and mates to the question of regulation of engineers and seamen?

PN1590

MS ZEITZ: Well, while the material may be similar it is not the same.

PN1591

THE COMMISSIONER: No, no.

PN1592

MS ZEITZ: My client is going to be put to the expense now of potentially having to run another case entirely with respect to that when in the context of the current proceedings some of the evidence may be able to be used on a common basis. My client, in my submission, my clients are entitled to know the full case that they are expected to meet and we will be raising issues of genuineness as a jurisdictional issue in the context of these proceedings and indeed the reason for the application that was filed was in fact, we say that there is no genuine dispute between our client and the AMOU. That colours in our submission, all of that colours - we have three unions purporting to cover two shifts with a total complement of 16 or 17 people with three separate awards, they are all significant matters of merit.

PN1593

And we say, yes, we are disadvantaged if we are now expected to finish this case and then have the AMOU, then trying to either come in on the coat tails and run another case again or take whatever steps it might want to when one of our arguments may well be - we do not know because we have not seen what they are after - that the terms and conditions sought by the AMOU where they differ to what is already - the Commission might decide, there is a whole range of issues that this can flow out of and we state very strongly that we are entitled to meet the full case before the Commission.

PN1594

THE COMMISSIONER: But it is true is it not, that if the AMOU was not allowed to proceed with whatever they wish to do tomorrow they can lodge a separate application.

PN1595

MS ZEITZ: Start again, indeed, if they want to do it.

PN1596

THE COMMISSIONER: Yes.

PN1597

MS ZEITZ: The other aspect of that is I am operating on this without the basis of clear instructions about what our position is with respect to the AMOU at the moment. My instructions as of today are to seek to have the dispute of the industrial issue final and bearing to exclude them from that finding. So that becomes I suppose - - -

PN1598

THE COMMISSIONER: But you have made an application about that haven't you and that is before the Senior Deputy President.

PN1599

MS ZEITZ: Yes.

PN1600

THE COMMISSIONER: Well, we cannot do anything today, but take steps to see if that file can go from the Senior Deputy President, back to myself and listed at another time. That cannot - it should not stop us from proceeding today, but is it something that should be dealt with before the Commission issues a decision in this matter.

PN1601

MS ZEITZ: It depends a bit what they want in terms of - and where it proceeds.

PN1602

THE COMMISSIONER: Yes.

PN1603

MS ZEITZ: Can I indicate to the Commission, my friend raised the issue of whether you had consulted with the President and the Commission would be aware that I have raised that in the past. One of the issues that has arisen from my client's perspective as we have gone about preparing what is the final part of this case, and it is probably appropriate I raise it now, is that in looking over the last week or ten days at how this, how an award if the Commission were of the mind to make one, would operate in the context of the Commission. We have looked obviously at the Workplace Relations Act, but we have also had cause to look at the issue of genuineness of the dispute, which is an issue going to jurisdiction, and in that context we had looked at the organisation rules of coverage for both the Maritime Union in Australia and the Australian Institute of Marine and Power Engineers and we have reached a conclusion.

PN1604

And we accept that there may be a debate about this, but it is a matter we raise seriously, that in order for the Commission to exercise jurisdiction in terms that is sought by the applicant unions for new awards there are a series of steps that the Commission needs to go through. The first is, does the Commission have jurisdiction and that goes to the capacity of the organisation to establish an industrial dispute and the issue of genuineness of that dispute, if when so, if so found. If there is jurisdiction, what is the scope of the jurisdiction and we say that is defined by the finding the Commission made on 2 October 2003.

We say that has some limitations that should properly drawn to the Commission's attention. And what we will say having raised these issues this morning is that in our view it is appropriate and if we make formal application that the matter should be referred to the Full Bench, because these are matters of significance. Firstly, as to the jurisdiction - - -

PN1605

THE COMMISSIONER: Did you say these are to be referred to the President?

PN1606

MS ZEITZ: To the Full Bench, to a Full Bench, yes, under section 107.

PN1607

THE COMMISSIONER: So it is 107, right, yes. To the President for whether or not a Full Bench should be - - -

PN1608

MS ZEITZ: Should be convened.

PN1609

THE COMMISSIONER: Yes.

PN1610

MS ZEITZ: Now we do not make this application lightly, but given - now that we have had an opportunity to review all the material that is before the Commission, we think that the matters are of sufficient significance to warrant a Full Bench. We say that for a couple of reasons. The first is that in our submission the rules of the AIMPE and the MUA, do not effectively cover and cannot effectively in their terms, cover employees on the Hakula and the Ikuna. In order to have the ability to establish an industrial issue they must be able to establish in our submission that they have coverage.

PN1611

The evidence is clear and I refer in particular to the crew lists that were tendered last week and I think they are EMA30, that the persons that would reportedly be covered by the proposed two awards that are before the Commission are - none of them are Australian nationals or Australian residents and on that basis we say that the union rules do not extend to cover such individuals and cannot. I have obtained copies of the rules from the Commission website, which incorporate alterations to 24 May last year and which we understand to be current. Now, perhaps looking first at the rules of the Australian Institute of Marine and Power Engineers. First of all we say the whole focus of the rules is Australian. There is nowhere recognition in the rules of the capacity to establish branches beyond the Commonwealth of Australia.

PN1612

Employees who are not Australian nationals or Australian residents, have no prospects on the basis of the rules, and I will just do this by way of summary and then take the Commission through the rules, have no prospect of being members and no prospect of participating as elected officers of any of the officer roles within the organisation. The rules are required to be interpreted in the context in which they are crafted which is inconsistent with schedule 1(B) and what is apparent on reading the rules is that even if one looks just - if one just looks at the eligibility rule on its face it may seem that these people can be covered. When one looks at the operation of the rules with respect to persons who are engaged on the Hakula and the Ikuna, the issue clarifies substantially. Rule 15 which is at page 8 provides that:

PN1613

The Institute shall consist of a head office and branches. The branches shall be as follows, Queensland, Newcastle, Sydney, Victoria, Tasmania, South Australia, West Australia.

PN1614

Sub placitum 2 states that:

PN1615

The Federal Council may establish such other branches within the Commonwealth of Australia or its Territories as are thought proper and necessary for the purpose of the Institute.

PN1616

And I do not think it would be debated that Kingdom of Tonga is not a territory of Australia. Sub placitum 3 requires that:

PN1617

Members of a branch shall be all the members of the Institute whose normal place of residence is located within the boundaries of that branch.

PN1618

In order therefore to be a member of a branch, and all people must be members of a branch, we say on an ordinary reading of the rules the crew of the - any engineers on board either the Hakula or the Ikuna, must be resident within the boundaries of one of the branches set out in clause 15 - in rule 15. The Federal President is required - - -

PN1619

MR McNALLY: I am simply pointing out to my friend that you skipped over
a very relevant clause. She may wish to come back to it. The clause is:

PN1620

A member of the Institute not residing within the Commonwealth of Australia at the time of joining the Institute shall deemed to be a member in the branch through which he joins the Institute.

PN1621

I do not know whether she is coming back to that.

PN1622

MS ZEITZ: Well, I will deal with it now. A member of the Institute not resident within the Commonwealth of Australia at the time of joining, the clear implication we say of that clause when read in the context of the rest of rule 15, is that the person will be resident, is in fact entitled to be resident in the Commonwealth of Australia. There is no suggestion there, it does not say in its terms, a member of the Institute who is ordinarily resident outside the Commonwealth of Australia, may be a member and may be assigned through the branch which they join, which is the suggestion with the Hakula and the Ikuna. What it says in its terms is:

PN1623

Not resident at the time

PN1624

Clear implication on an ordinary reading of the words is that the person is usually a resident or national of the Commonwealth of Australia and we say it is quite clear on an ordinary reading of rule 15, that what is intended is for this to operate in its terms for Australian residents and Australian nationals and that is consistent with clause 9(3) which are the duties imposed on the seat of President, who is required to keep a register of branch members, people obviously assigned to branches, and rule 48(2) which we say quite clearly indicates how this is supposed to operate, and that is that if a branch member changes their normal place of residence to a place within the boundaries of another branch, not placed within the boundaries of a branch:

PN1625

He shall upon being satisfied that the member is currently financial forward clearance for the transfer to that branch.

PN1626

Now we say on a plain and ordinary reading of the rules of the organisation it is quite clear that Tongan nationals, Ukrainian nationals and others who are not resident in Australia, are not entitled to be members of the organisation because they cannot be properly represented by the union by the AIMPE, they cannot be properly, we say, a member of the union with all the rights of the members that usually attach and when this is read in conjunction with schedule 1(B) - - -

PN1627

THE COMMISSIONER: Schedule 1(B) of what?

PN1628

MS ZEITZ: The Workplace Relations Act.

PN1629

THE COMMISSIONER: Right.

PN1630

MS ZEITZ: It is quite clear from the way in which schedule 1(B) is drafted, that its whole purpose and intent, is to deal with the rights of members located within Australia. There is nothing there in those rules we say, sorry in schedule 1(B), that imparts an extraterritorial operation that in addition to what might otherwise be found in the rules themselves. So we say on a plain and ordinary reading it is clear that even if the Commission, were minded to make an award this organisation insofar as engineers are concerned, is not able to properly represent persons engaged on board the vessels. And there is no dispute as I understand it as to the engineers being non-Australian onboard the vessel. And we say that on that basis it is a matter of substance that the Commission needs to determine, because it does go into whether the dispute is genuine and whether there is a proper jurisdictional basis for the dispute to continue upon which an award can be made.

PN1631

THE COMMISSIONER: Does it make a difference that we are dealing with the question of an industrial issue under section 5?

PN1632

MS ZEITZ: We say it does not, Commissioner. In order to be able to create an industrial issue the organisation must be able to validly enrol as members - it must have coverage of the persons with respect of whom an award or an industrial issue is sought to be found. And we say that this perhaps just highlights again the unusual nature of these particular proceedings because we are not in this case looking strictly at what is the traditional issue of the eligibility rule, what we are actually looking at is the operation of the rules as a whole, which do not deliver and cannot deliver full and effective membership representation and we say that therefore the organisation is not able to create an industrial issue that meets the requirements of defining of the dispute on the basis of both jurisdiction as to coverage and genuineness.

PN1633

THE COMMISSIONER: Unions usually serve logs on people whether members or not, but what you say is even if they are not they have to be capable of being members.

PN1634

MS ZEITZ: Yes.

PN1635

THE COMMISSIONER: Yes.

PN1636

MS ZEITZ: And we say that that does not constrain the operation of section 5(3) because that quite properly applies currently to Australian flag vessels that travel internationally and there is, as I understand it, no issue about that. But that is not the situation here. And when we come to the rules of the Maritime Union the same issues arise.

PN1637

THE COMMISSIONER: Look, these may not be official documents, sorry, they may not be original stamped or copies stamped, so the one that the - the marine engineers' rules, at least as far as this document goes, will be exhibit EMA31

EXHIBIT #EMA31 MARINE ENGINEER RULES

PN1638

MR McNALLY: Can I be heard on tender?

PN1639

THE COMMISSIONER: Yes.

PN1640

MR McNALLY: I think my friend is arguing jurisdiction. It's too late to be doing that.

PN1641

THE COMMISSIONER: Well, because a jurisdictional problem is never too late is it?

PN1642

MR McNALLY: The matter is - the question of jurisdiction argument is appropriate in another place, not here. The matter was - the applications were instituted in June 2003 and my friend has had every - the couple have had every opportunity to consider their position. They have argued - their argument of doubt - I do not know whether it was a jurisdiction argument or what it was, but it a denial of procedural fairness and the matter was stood over while the decision was given and we have argued section 111(1)(g) and then that was stood over. But that was reserved, a decision was given and then we listed the matter for hearing and that was delayed because of some necessity to get some evidence from Tonga. And right at the death they raise a jurisdiction argument.

PN1643

THE COMMISSIONER: Well, it is a - - -

PN1644

MR McNALLY: And re-open the evidence.

PN1645

THE COMMISSIONER: Well, let me do this, Mr McNally, I will not mark it as EMA31, I will mark them, well they are both documents for identification, but they are not strictly raising a jurisdictional argument, what they are doing is they are raising, they are putting an application pursuant to section 107. The Commission, has very little alternative but to make that to refer it to the President. I guess they are then putting some meat as far as the President's consideration is concerned and that is based on jurisdiction.

PN1646

MR McNALLY: An application under that section has already been made and the President referred it back to you in the proceedings. I have no notice of this argument having been presented, but that issue has been disposed of.

PN1647

THE COMMISSIONER: There was a 107 reference in the application by Inco and CSL Australia, Mr McNally and that was rejected and the matter was thrown back to myself, but I am not sure that - there was a 106 application by EMA and I have dealt with, well, I have considered that and I may, I have got that in mind, but I have done nothing about it as far as the President goes.

PN1648

MR McNALLY: I am not sure, I mean I would have thought we had notice of this, but we have not.

PN1649

THE COMMISSIONER: Well, yes. Perhaps you should have notice to put whatever material, once we have heard from Ms Zeitz, you perhaps need to consider what material you wish to put on the record so that the President can consider it. I am not denying you that ability, Mr McNally. The point is, following you standing up and to be fair to you I have not admitted those matters as exhibits as yet.

PN1650

MR McNALLY: We will check whether an application has already been made. It is just Mr Keats' recollection, but he gets a bit confused sometimes. If there is an application under 107, then there is an application under 107 which we can probably dispose of here and now, but it is very, very late for such an application to be made. I mean with rules of those two units have not been varied in the time that these proceedings have proceeded. It is pretty trite to say that a dispute can only be created within the area of coverage of the union. It is very surprising that they looked at the area of coverage this late in the particular proceeding. The rule would seem to be pretty clear in the constitution area, that in the engineers' case they cover marine engineers and in the seamen's case they cover seamen. But text 107, section 107 I suppose.

PN1651

I do not know whether the Commission can adjourn and endeavour to contact the President. I would suggest that it is appropriate to draw to the attention of the President, that it is very late in the proceedings for such an application to be made in relation to a point that could have been made in the proceedings that were originally instituted. Indeed, when the dispute finding was being argued it would have been appropriate then to say that the union did not have constitutional coverage of the area in question. A dispute is found in respect of vessels travelling to and from Australian ports, clearly the Commission has constitution in that area. The application is made only in respect of the classifications of seafarers or seamen within the meaning of the - maritime employees within the meaning of the Workplace Relations Act.

PN1652

The Act, obviously relates to overseas employers. The Act, obviously does not exclude nationals. In various parts of the Act, it is careful to point out that race should not be a relevant factor. The argument that is presented seems to be an argument that because the administrative part of the rules, dealt with the idea of union members living in Australia, that the constitution rule should be amended accordingly by implication. The constitution rule is quite clear in both cases. They cover marine engineers - in the case of the marine engineers and they cover seamen in the case of the seamen's union. It is constitutional coverage, end of story. It is not a very complicated proposition. The President, no doubt will readily recognise that, but if my friend asks that it be referred then ask. As I understand the law, if application has not previously been made then you do not have any discretion, but it is regrettable it happened at this stage.

PN1653

And we have spent a week and a half preparing for today, at great cost to the unions, well a small sum. And we are frustrated, without any notice at all.

PN1654

THE COMMISSIONER: Yes.

PN1655

MS ZEITZ: Commissioner, can I indicate two things. One, insofar as the issue of coverage is concerned, I would like to say I am free to concede at the beginning of this process, I actually assumed that there was coverage and in context broke one of the golden rules I was first of all taught when I first started in this area because former Commissioner McCutcheon from the South Australian Commission, was the person who taught me that the first thing you do is look at that sort of stuff and I had not done it. In the context of preparing for this and the working out of submissions over the last few days, and that is why we have not gone a sealed copy of the rules to hand up, it was in the context of going through some of the questions that we say the Commission has to answer, before it gets to any final determination about if an award should be made and what should be its terms.

PN1656

One of the issues that occurred to us was, how can these people be effectively represented. The Commissioner would recall I think on the 27th or the 28th the issue of the Tongan Seafarers' Association was raised in sort of passing and that I suppose was what in part led to that train of thought. Having said that, having now looked at this there are two things we say. First of all, if there is a jurisdictional flaw in the basis upon which the industrial issue was raised then it needs to be dealt with. It is not something where we can say well we will overlook it this time and get jurisdiction by consent, that simply can't happen. The rules of the unions do not cover the Hakula and the Ikuna. To the extent they have coverage they cover the people engaged on those vessels and if they do not extend to cover those people then we say that there is fundamental flaw in the dispute finding.

PN1657

And the issue of democratic representation and the right to fully participate as a member of a union is absolutely underpinned by schedule 1(B) of the Workplace Relations Act, and if the rules cannot deliver that we say that that is a fundamental issue of coverage. If you cannot be an effective member, irrespective of what the eligibility rule says, it has to be interpreted in the context of what the rules allow the organisation to do and on the basis of what the Maritime Union of Australia rules say and the AIMPE rules say, what they allow is for branches to established in the States and Territories within the Commonwealth of Australia. They do not envisage the creation of branches externally to that in any capacity whatsoever. And the question then becomes, in that circumstance can there be an effective enrolling of a member of a person who is a seafarer in the organisation in Australia, that provides them with the right that they are entitled to under schedule 1(B) of the legislation. And we say the answer to that is no.

PN1658

Given that issue, given that we have now also, and perhaps I have just identified - and I acknowledge my friend has not had - foreshadowing of this and we were going to actually suggest that given that we were now raising the 107 issue we are quite happy, if the Commission directs, to provide a formal written outline of the issues we rely and give my friend a proper opportunity to file something in reply or to prepare a reply. We certainly do not haggle with his complaint that this is at the last minute insofar as this issue is concerned. But the issue of genuineness we say has been fairly disported as the Commission throughout the proceedings and that is an issue that we will be raising as a matter of substance. Is there in fact a genuine industrial issue before the Commission and there is material we can refer to that goes to the state of intention of both of the applicants to displace Tonga Seafarers with Australian Seafarers.

PN1659

We say that there is therefore no genuine dispute insofar as the employer and employees are concerned, to proposed to be covered at the time by any award that the Commission may make. So we see that as a matter of substance and again it is a significant issue and in that context and given the other issues we have raised, it is appropriate that a Full Bench, should deal with it. The scope of the industrial issue - - -

PN1660

THE COMMISSIONER: Why should a Full Bench, deal with it, and not me?

PN1661

MS ZEITZ: On its own Commissioner, we would not.

PN1662

THE COMMISSIONER: Sorry.

PN1663

MS ZEITZ: On its own we would leave it with the Commission as it is currently constituted, but having identified the issues of the rules coverage, and we say that is a particular issue that elevates the matter and warrants consideration because it is not the sort of issue that is generally raised in the context of a dispute finding, ie. do they have coverage. It actually is a broader issue than that.

PN1664

THE COMMISSIONER: I see your problem, I see what you say. I note your point, or I see your point, that because they cannot cover these people - these are your words not mine - because they cannot cover these people, that is because they cannot really be part of the union and therefore the constitutional coverage is just a, needs to be seen in that context, it cannot therefore be said that it is a dispute or it is a demand ultimately over persons who are members of the union or eligible to be members. I understand it, but what is your genuineness point exactly, it seems to be a separate point.

PN1665

MS ZEITZ: Yes, it is a separate point.

PN1666

THE COMMISSIONER: And what is that based on?

PN1667

MS ZEITZ: That is based upon what we say is in order to establish - that it is necessary for them to establish that the industrial issue is genuinely pursued and we say that as the finding refers to terms and conditions of MISA applying to employees on the Ikuna and the Hakula, that is what the finding refers to. We say the genuineness issue is called fairly and squarely into question because the evidence of Mr Crumlin in 2461, in 2003.

PN1668

Quite clearly says that the intention of the MUA is to displace the seafarers currently engaged as Australians and the cross examination of Mr Ives, at 1070 to 1074 was clearly directed to the potential for the vessels to be reregistered in Australia. There is no evidence that either of the organisations seeking the award had sought to engage, to meet with or otherwise contact any of the crew and to seek to ascertain what they might want out of this process. They have demonstrated no representative interest whatsoever. And we say on that basis, and that basis alone, there is a substantive issue in genuineness.

PN1669

THE COMMISSIONER: But that is a shortcoming found often in actions by unions where they seek to generate disputes with employees that are not members of the union who sometimes even come to the Commission and say we do not want - you know, we are quite happy under a state award - that is not usually an issue of genuineness is it?

PN1670

MS ZEITZ: We say on this occasion that the issue of genuineness is that because these organisations have no intention, and it is clear from the evidence we say, no intention of representing the employees on board either of those vessels as currently constituted. Their sole purpose in this process is to utilise the resources of the Commission to reclaim these two vessels back into the Australian fleet.

PN1671

And that is the evidence that is before the Commission in the proceedings and we say that that is not a proper basis upon which - a genuine basis upon which an award should be made. It is one thing for an organisation to say, as a party, that we seek award coverage for good and proper reasons and the history of the Commission on dispute findings in those matters is extensive, but this is a circumstance where the evidence of the Secretary of the MUA is abundantly clear, he has no interest in the Tongans, no interest whatsoever in the current crew.

PN1672

His sole purpose on his evidence is to reclaim those two vessels back into the Australian fold and we say that cannot be an issue of genuineness. We say it goes to the issue of a device to achieve a political outcome that cannot be achieved a different way and on that basis we say there is a genuine - there is real issue of genuineness that it is appropriate for the Commission to address.

PN1673

The other issues, that we identify, as matters that have now become apparent and it is appropriate, because we say at some stage this matter, would end up before a Full Bench, anyway. Firstly, a number of - - -

PN1674

THE COMMISSIONER: You might be happy with my decision, Ms Zeitz.

PN1675

MS ZEITZ: Not by way of appeal necessarily, Commissioner, I just say that by way reference as to some of the matters. Firstly there is the issue of whether it is appropriate under the principles for a, what is effectively a single employee award to be made, and in this case three single award employees to be made. And that is a matter that the principles of wage fixation insofar as they deal with safety nets and how they apply should be addressed.

PN1676

Secondly there is the issue that both applications in their terms seek matters that are in excess of the Federal Commission's standards. For example, there is a 35 hour week claim included in both matters which is clearly in excess of the 38 hour week standard of the principles of the Commission. And this is not a matter, and this is why I have been clear on this from the outset, where this is a roping in application to a pre existing condition, in which case we may have something to say about validity of the provision.

PN1677

But what we say is that these are applications for new awards and they have to therefore withstand scrutiny of the Commission's standards on their own and to the extent that matters such as the accrual of leave at the rate of 0.926 per day are sought, the wage rates reportedly establish for the classifications are sought, and the 35 hour week. These are all matters that at some point or other depending on the train of the Commission's decisions in this matter, would need to be determined by a Full Bench, because they are matters that go to the principles in any event.

PN1678

And that indeed go to the scope of section 89(A) and those are all matters of substance that we say it is appropriate for the Commission to deal with. And then there are a number of the other matters that we have raised. That the issue of fixing of wage rates for the classifications has never been fully arbitrated before the Commission and how those work value processes are to take place. Again are matters that we would be challenging in terms of how they are struck or proposed in the context of the proposed awards.

PN1679

A number of those matters on their own are not matters where we would make a 107 application, but when we sort of compiled the list of matters that we would be putting before the Commission as currently constituted, it seemed to us that there were a significant number of matters that would result in you at some point having to consult with the President, about the appropriateness of a referral and it seemed more appropriate to ask that that occurred at this stage in the proceedings. The parties are then in a position with this material to go forward, presumably you Commissioner would be part of that Bench, so you would have the benefit of the history of the matter, and that would provide a basis upon which the parties could fully agitate all of the matters as directed by the Full Bench, in terms of process.

PN1680

That is why we raise it now. We just think in one sense it is a more efficient method of dealing with it. Now my friend may well have a different view, but that was the issue. And we would say that the Full Bench, will then have the task of determining firstly whether there is jurisdiction, secondly if there is, what the scope of the industrial issue is found is, and thirdly on that basis, if there is, assuming that there is something left out of that process, whether an award should be made and what were its terms.

PN1681

And we will have something to say about, on the material before the Commission, whether or not the onus of proof that is on the applicants has been discharged to even the most basic level, and we would say that it is has not. So we say there are a number of steps in the process all of which are appropriately dealt with by a Full Bench. If the Commission pleases.

PN1682

THE COMMISSIONER: Mr McNally.

PN1683

MR McNALLY: Well, we are still checking whether an application has been made. We have not got that transcript here, but on the assumption that it has not been made we would submit that the President, should be informed in the consultation process that the application was made in the proceedings, at the conclusion of proceedings when all the evidence was finished, when the parties were allotted one day to address on merits, as to whether an award should be made.

PN1684

The President, should be made aware of the terms of the dispute finding that has been made. There was never any issue as to what was in the dispute finding and it is too late in the proceedings to have the Full Bench, deal with the matter at this stage. What we do with all the evidence that has been called I just do not know. In passing let me say this. The evidence of Mr Crumlin is not in these proceedings, but that is a technical point, I don't like taking those, but my recollection of the evidence - - -

PN1685

THE COMMISSIONER: That was in 111(1)(g) wasn't it?

PN1686

MR McNALLY: It was in 111(1)(g), yes. But that is not what my friend outlined Mr Crumlin said he did not say, and your decision in the section 111(1)(g) proceedings confirms that. An eligible member is defined in the Workplace Relations Act, as a person who is eligible to join an organisation. These people are eligible. So that point goes. I suppose we have to confer.

PN1687

THE COMMISSIONER: Yes, thank you Mr McNally. Some of the latter points on which Ms Zeitz, or Ms Zeitz raises, which is the innate question of belief and whether it is a properly fixed minimum, ie. if that was the objection and that was the reason for a Full Bench, then I would be probably taking steps to see if we could adjourn, contact the President and see what he says. But the jurisdictional matters that are raised, going to the capacity of the organisations to generate such industrial issue, they are arguments that I don't think it would be fair to the parties for me to somehow convey the impact of that to the President by short conversation. It would be from both his point and my point it would be a bit of rough justice to whoever, I do not know what the outcome would be, but it would be a bit rough on perhaps a significant point at least held by one or both of the parties.

PN1688

So I think unfortunate as it is, Mr McNally, but these things constantly appear in any litigation, I think it is - my view is that Ms Zeitz, you should within a period of perhaps by the middle of next week, provide written arguments with which the matter can then be addressed to the President, and then at a convenient - let us say a week later, if the union, well if the union wishes to respond in writing that should also be forwarded to the Commission. I will then consult the President. In the meantime it would probably assist if we can deal with the transcript problems, not that that is probably of great moment as far as the President's consideration, but we might as well deal with that, and also as I indicated, I will confer with either Senior Deputy President Watson or with Senior Deputy President Lloyd about the AMOU matter. I do not think we can take it any further today.

PN1689

MS ZEITZ: Perhaps just on that last point, Commissioner. It might be appropriate given what my friend has indicated if - we will get someone in to get some instructions - but it may be that we can get instructions to actually withdraw that application that is formally before the Commission and that we can somehow come back in before and get back involved in these proceedings however that may bowl out. We will get some instructions.

PN1690

THE COMMISSIONER: All right. Well you let me know before I approach the Senior Deputy Presidents.

PN1691

MS ZEITZ: Thank you Commissioner.

PN1692

THE COMMISSIONER: Well, we cannot take it any further than that it will be referred now because of the application under 107 to the President and we will hear the substance of the matter for his attention. Yes Mr McNally.

PN1693

MR McNALLY: There is an argument, and I have not formed a final opinion as to which one is correct, but there is an argument that the suggested award that my friend handed up or tendered, was indeed an application for conditions below the minimum wage. I make no submission one way or the other, but I wonder if it is appropriate, and there is an argument that the President, should be involved in allocating the matter, it is not a reference, but in allocating the matter to you before the matter proceeds. I wonder if it is appropriate at the same time that the Commission might discuss that with the President or Deputy President. I do not require an answer, it is just a suggestion I make. If the Commission pleases.

PN1694

MS ZEITZ: I think we have provided, or the Tongan award was provided on the basis that it gave the indication to the Commission of what our client regarded as an acceptable outcome. We have never filed it as, nor had instructions to file it as an application. And on a strict reading of the issue of industrial issue as found, that might be an issue about whether it can actually form part of an arbitrated outcome in any event. So I think we will probably both need to reserve our positions on that. But certainly my instructions are that it was not and it never has been filed as an application. If the Commission pleases. I have also just had a quick perusal of the transcripts. My recollection is section 107 was raised before you on one of the directions listings, that was something the parties might have done, but it never actually eventuated in these proceedings to a formal application. So, if the Commission pleases.

PN1695

THE COMMISSIONER: Yes, okay. On that basis we will adjourn.

<ADJOURNED INDEFINETLY [11.14AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #EMA31 MARINE ENGINEER RULES PN1637