AG2004/8755, Transcript of Proceedings [2005] AIRCTrans 564 (7 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10656

SENIOR DEPUTY PRESIDENT LLOYD

AG2004/8755

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY P&O MARITIME SERVICES PTY LTD AND ANOTHER
(AG2004/8755)

MELBOURNE

2.24PM, THURSDAY, 24 FEBRUARY 2005

PN1

MS S BUTTERWORTH: Thank you. I appear on behalf of the employer, of the Australian Mines and Metals Association, together with MS R LITTLE, Human Resource Manager, P & O Maritime Services.

PN2

MS J THOMPSON: If the Commission pleases, I appear for the Australian Institute of Marine & Power Engineers. Thank you.

PN3

THE SENIOR DEPUTY PRESIDENT: We have two agreements; we might start first with matter 8755, which is the Aurora Australis Agreement. Does anybody want to lead off?

PN4

MS BUTTERWORTH: Thank you. This is an application under Division 2, Part VIB of the Workplace Relations Act 1996 for the certification of an agreement made under section 170LJ of the Workplace Relations Act between P & O Maritime Services and the Australian Institute of Marine & Power Engineers. This agreement ends a bargaining period, BP5515 of 2003. P & O Maritime Services is a constitutional corporation; the agreement is made by P & O Polar, a division of that corporation. The agreement is made in respect of the engineering employees employed on the Antarctic ship, MV Aurora Australis.

PN5

The work to which the proposed agreement relates is the engineering department on the Antarctic ship, Aurora Australis, which satisfies the requirements under 170LB(3), that it is a distinct operational or organisational unit within that business. The agreement is made with the Australian Institute of Marine & Power Engineers. That organisation has members employed in the part of the business whose employment will be the subject to the agreement, and is entitled to represent the industrial interests of those members in relation to work which is the subject of the proposed agreement.

PN6

The agreement has been approved by a valid majority of employees, whose work will be the subject of the agreement and the employer has taken reasonable steps to ensure that employees were provided with access to the agreement in writing at least 14 days prior to any approval being given, and that the terms of the agreement have been explained to all employees as required by 170LJ(4). The employer did facilitate the presence of workplace delegates in agreement negotiations with AIMPE. Employees have been provided with early drafts of the agreement and have been kept informed as to the progress of the negotiations and with subsequent drafts.

PN7

The final text of the agreement has been presented to employees onboard the MV Aurora Australis in Hobart on 15 November. All employees were available on that date as it was crew change day. Additionally, AIMPE provided a four-page explanatory document which detailed and explained the changes made, and advised that employees had 14 days from the receipt of the document prior to voting on the agreement. Also after the meeting, Captain Richard Burgess, the general manager, was available on the vessel to answer any queries that the employees may have raised.

PN8

It is submitted that the application for certification does meet the requirements of section 170LM in that the application has been lodged within 21 days after the date on which the agreement was approved. The agreement was made on 10 December and the application for certification lodged with the Industrial Registry on 17 December. The proposed agreement meets the requirements for certification as expressed in 170LT, in that the agreement passes the no disadvantage test, and does not result overall in the reduction of the terms and conditions which currently relate to the employees contained in the Research and Supply Vessel Aurora Australis Award 1998. It is the intention of the parties that this agreement replace the current agreement in place.

PN9

The agreement includes procedures for the prevention and settlement of disputes between the employer and the employees whose work will be subject to the agreement. These are contained in clause 10 of the agreement which empowers the Commission to settle disputes over the application of the agreement. Also the agreement specifies a nominal expiry date which is not more than three years after the date on which the agreement will come into operation. I understand that there have been some discussions in relation to the commencement of the agreement, but the nominal expiry date is contained in clause 5.

PN10

I do understand that the Commission may have some issues or questions in relation to certain clauses in the agreement, in light of the Electrolux decision of the High Court and subsequent decisions of the Industrial Commission. The parties have not had the opportunity to confer in any detail regarding these issues, but in light of some recent decisions, particularly that of Senior Deputy President Duncan in the Macquarie University Enterprise Agreement 2003/2006 on 11 February, it's our submission that some of the questions which may be raised today have been clarified particularly in that decision, which covered aspects including union rights, union representatives, rights of entry, union delegate training and associated matters.

PN11

We note in that case that the Senior Deputy President did provide the parties with an opportunity to make written submissions in relation to the issues of concern. If it pleases the Commission, we request that in the event that your Honour may foresee any impediments to certification today, that the parties have an opportunity to lodge written submissions on these issues. We would also appreciate, if you consider it to be appropriate, an opportunity to adjourn into chambers to discuss any particular issues your Honour may have with the agreements before you today.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. So you're saying on the Electrolux-type matter, that you don't have a position, I suppose? There's no clauses that cause you any concern? I am just trying to fathom your position.

PN13

MS BUTTERWORTH: We certainly understand that there are some clauses in the agreement which, on the face of it, may cause the Commission some concern. The parties, in negotiating this agreement and, I guess, in agreeing on the final draft and wording of the clauses, are satisfied that the Electrolux issues are not going to be an impediment to certification; however, given the current nature of these types of issues being, if I may refer to them as a slightly moveable feast, we would appreciate the benefit and the opportunity to present the Commission with some detailed written submissions on those issues, if indeed your Honour is concerned about those particular issues, to the extent that they prevent certification today.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Ms Butterworth. Now, I have a number of questions, but I might hear from the Association first, before I go into what issues I have.

PN15

MS THOMPSON: Thank you, your Honour. We have had extensive discussions with your associate, Fiona, and there have been a number of typos identified and we would like to put forward three signed copies of the amendments. I don't know whether you want to go through the typos or you are happy with - - -

PN16

THE SENIOR DEPUTY PRESIDENT: We might do. When I come to my questions, some of mine go to typos, some go to more substantive issues.

PN17

MS THOMPSON: There is one substantive issue, yes.

PN18

THE SENIOR DEPUTY PRESIDENT: We might try and reconcile things when we get to that next stage. I think that might be best. Yes?

PN19

MS THOMPSON: The most substantive issue, actually, in the Aurora agreement is at clause 5 where the agreement did say:

PN20

shall operate on and from 1 July 2003.

PN21

We now appreciate that section 170LX does not allow that, and that has been changed to date of certification with a reference to salaries and allowances coming into effect from 1 July 2003. The rest of them are, for instance, in clause 7 there's a bracket removed behind section 30. They are of that nature. There are no other substantive changes, so if you are happy to accept that?

PN22

THE SENIOR DEPUTY PRESIDENT: Well, let's go through, I think it's best, I know it's a bit of detailed work, I think agreements should be as accurate as possible because there can be difficulties if they're not, and you can answer as I go through some of these issues. Thank you for clarification of clause 5. Clause 7, I am not too sure that your change there rectifies the problem. I don't think clause 7, Anti-Discrimination, I think it should actually be - it is in section 3, I think, rather than section 30.

PN23

MS THOMPSON: Okay. So we have two typos.

PN24

THE SENIOR DEPUTY PRESIDENT: Section 30 deals with the manner in which the Commission may be constituted. So I think the intention was - I know there was a bracket there - I think the intention was that section 3 of the Act, which is the Objects section, and the Anti-Discrimination one is in fact
section 3 - - -

PN25

MS THOMPSON: Section 3.

PN26

THE SENIOR DEPUTY PRESIDENT: Section 3J, so that is something we will just need to continue to - well, fix up again, I think.

PN27

MS THOMPSON: If the Commission pleases, we would be prepared to submit a replacement page, if that pleases the Commission?

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. It leads on then to what is, I must say - this is more an inquiry of both parties. The next section is an interesting section, given that you have got Anti-Discrimination before that, and that includes basis of age, and then you have, at 8.2, a list of entitlements which is clearly based on age. So, if you are 55 or less - or less than 60, you are four times worse off than someone who is 30. Is there any difficulty there, given the object of the Act, to avoid discrimination based on age?

PN29

MS THOMPSON: The Loss of Certificate of Competency Scheme is money for training, so I think, if you are perhaps nearing retirement, you may not be retraining completely into a new field, where as you might retrain to a smaller extent, is the philosophy behind it, yes, but on the surface of it, it does seem age-discriminatory.

PN30

THE SENIOR DEPUTY PRESIDENT: Does the employer parties have a view on that?

PN31

MS BUTTERWORTH: We agree with the position put forward by AIMPE on that issue.

PN32

THE SENIOR DEPUTY PRESIDENT: All right. The position is that it's related to a training relief and is justified on that ground; is that what you're saying, basically?

PN33

MS THOMPSON: Yes, your Honour. That's the historical basis, that if you could no longer hold a certificate of competency from AMSA, you were no longer able to go to sea, so the employer would provide some benefits for you to retrain in another field.

PN34

THE SENIOR DEPUTY PRESIDENT: Right. I haven't had an opportunity to look up any case law on this, but just that it was bumped in right next to the anti-discrimination issue and it sort of caught my eye. It does raise a question.

PN35

MS BUTTERWORTH: If I may, your Honour?

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MS BUTTERWORTH: It's my understanding that that clause does appear in the current agreement, which is company-endorsed.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. I now move on to clause 10. This is a question I ask of many parties who appear before me certifying LJ agreements. The procedure, as outlined, moves very quickly to meetings, as I read it, between the employer and the Institute. Now, section 170LT(8), which requires there be a dispute settlement procedure, does in its terms talk about a procedure for settling disputes between an employer and employees. I would like your advice as to whether this type of clause in any way infringes the rights of a non-union member who might be in dispute with another employee who is a union member. Is there any sort of freedom of association implications in the way the clause is drafted? It is not uncommon that I ask these questions of the parties, to give an undertaking in the event that there was a dispute involving a non-union member, they would respect the rights of that person to have the dispute dealt with in a fair manner. Do you have any submissions on that issue at all?

PN39

I should say, too, you have sort of put in your submission that we may need to get some written submissions on this. If it's a matter you do want to consult another party about, I don't want to pressure either party too much to give me an answer straight away.

PN40

MS BUTTERWORTH: Thank you. This was certainly a clause that we put our mind to in the context of potential Electrolux impediments to certifying the agreement. On the face of it, the clause would appear to give preferential treatment to employees that were union members, in the resolution of disputes arising. However, in the context of the overall agreement, it's clear that the notification of disputes is certainly to the union, but it is also to a representative appropriate officer of P&O. Our submission is that P&O has appropriate mechanisms in place through their supervisors, their human resource management team, that employees who are not members of the union which is a party to this agreement will not be disadvantaged in the resolution and raising of disputes which arise under this agreement, or indeed, in the workplace in a broader context.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Butterworth.
Ms Thompson?

PN42

MS THOMPSON: Your Honour, this is a fairly common clause throughout all of our agreements, and you're the first Commissioner to raise this question. I concur with my colleague, that I am sure P&O wouldn't disadvantage a non-union member and it would be dealt with in-house, but if you want further written submissions on it.

PN43

THE SENIOR DEPUTY PRESIDENT: I think what you have said today, I think suffices, the intention that the non-union member not be disadvantaged.

PN44

MS THOMPSON: Thank you, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: The next query is more a typographical error, which I think you may have rectified; it's clause 24.3.6.

PN46

MS THOMPSON: Yes, your Honour. That has been corrected.

PN47

THE SENIOR DEPUTY PRESIDENT: Then we go over to 39.3.6.

PN48

MS THOMPSON: Yes, your Honour. That has been corrected.

PN49

THE SENIOR DEPUTY PRESIDENT: Then 39.4.2, at the bottom of the page?

PN50

MS THOMPSON: Corrected, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: And 39.7?

PN52

MS THOMPSON: Yes, your Honour. Correct.

PN53

THE SENIOR DEPUTY PRESIDENT: Very good. And 43 had some unusual numbering there.

PN54

MS THOMPSON: Sorry, your Honour, if I could take you back one, there is a 39.9.1, it appears as 40.9.1. That has been corrected.

PN55

THE SENIOR DEPUTY PRESIDENT: Right. Yes. The travel expenses?

PN56

MS THOMPSON: At 43.1; I am not quite sure if that has been corrected.

PN57

THE SENIOR DEPUTY PRESIDENT: Then there are - the ones in the indented parts have funny numbers there; 431.1 - - -

PN58

MS THOMPSON: Yes, they all need correcting.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. Qantas might be offended by the way Qantas is spelt in 43.4.

PN60

MS THOMPSON: Yes. We will provide a replacement page. Is that satisfactory?

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. That's fine, yes. This is another one, I think, in 47, the reference to the appendix there. The name is different, I think, to what's in the appendix.

PN62

MS THOMPSON: That has been changed.

PN63

THE SENIOR DEPUTY PRESIDENT: Very good. Thank you, and 49.6 refers to 4 above. I think that's probably meant to be, is it, 49.24? There's a reference in 49.6, in the first sentence. It says:

PN64

In accordance with 4 above -

PN65

MS THOMPSON: 49 point - the entitlement prescribed in 49.3?

PN66

THE SENIOR DEPUTY PRESIDENT: So we have 49.3. So it has been changed, yes. Thanks very much. It looks like it's been corrected.

PN67

MS THOMPSON: If I could just bring you to 49.1, it has been corrected. It was originally reading, 50.1.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN69

MS THOMPSON: I don't know how all this has happened.

PN70

THE SENIOR DEPUTY PRESIDENT: The last issue that I have is probably the most substantive, and that's the clause 57, the charter for union representatives, which I think does raise some issues in relation to Electrolux, in that on one reading of it, it purports to set out a charter of issues that are really of interest to perhaps the employer, but particularly the union. I am interested in anybody's views on that. If you want to offer any now?

PN71

MS THOMPSON: Your Honour, in particular which point?

PN72

THE SENIOR DEPUTY PRESIDENT: Well, the charter itself, I think. The agreement is the intent of Electrolux, that sort of thing, whether it's an agreement about matters pertaining to the employer as an employer and an employee in their role as an employee; setting out a charter as to the rights and role of union representatives, could be seen to be not quite fitting within that matters pertaining umbrella.

PN73

MS THOMPSON: We would rely on Vice President Ross' Ballantyne decision in that he said that delegate recognition was ancillary, time for delegate pertains to the employment, we would rely on those types of arguments for its insertion. The only point that perhaps we may have a problem with is the right to address new employees about the benefits of union membership at the time that they enter employment. Once again, we would rely on Vice President Ross in the Ballantyne decision, in which he said:

PN74

In addition to provisions which are incidental, ancillary or machinery in nature, it may be permissible for a certified agreement to contain provisions which do not pertain to the requisite relationship, provided they do not give rise to any right or obligation, a clause which is merely aspirational in nature may be such a provision.

PN75

We would ask that that be regarded as aspirational in nature and seek certification on that basis. Thank you.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Thompson. Ms Butterworth?

PN77

MS BUTTERWORTH: I have some submissions in relation to that issue, particularly the context of the union delegates charter in the framework of the overall agreement. Again, because of the nature of these issues, we would still appreciate an opportunity to provide some further written submissions, if your Honour deems that appropriate and desirable. However, since the Ballantyne case, we have had more recently the case I referred to previously, which was the Macquarie University Enterprise Agreement, a decision of Senior Deputy President Duncan on 11 February.

PN78

While not specifically dealing with a union delegates charter clause as such, that decision, or at least the submissions that were put forward and accepted in Senior Deputy President Duncan's decision, did go to the heart of the issues which are concerning the Commission today; one of those being the provision of union information to employees during an induction process or on commencement of employment.

PN79

Now, my understanding was, in that particular case, the Commission did accept a submission that, while on the face of it, providing union material to employees on induction might be contrary to the principles of Electrolux, in that it might relate to the employment relationship as it pertains between the employer and employees as potential members of the union, as opposed to employees as employees, the Commission did accept arguments that those types of facilitative provisions did assist in ensuring freedom of association in the workplace. So we would submit, on that basis, that the provision of information regarding union membership and union activities to employees is in accordance, and does comply with the requirements.

PN80

THE SENIOR DEPUTY PRESIDENT: If that clause remains, and the Institute has the right to address new employees, does management do anything to ensure that new employees understand they have a right to choose to join or to choose not to join?

PN81

MS BUTTERWORTH: They are certainly prepared to provide an undertaking, if that's required, to clarify what procedures would be in place in the workplace on induction, but if I may refer - my apologies, your Honour - it's actually in the objectives to the other agreement that I was seeking to make reference to. Perhaps if we might frame the union delegates charter in the context of the overall agreement, that on the face of it, that clause most certainly does look offensive to freedom of association, and particularly the agreement embodying conditions as they apply to the employment relationship as it pertains the employer and the employee.

PN82

I would suggest that we view it in the context that it pertains to the employment relationship by recognising the rights and responsibilities of union delegates, and rather than a substantive provision in its own right, it is ancillary to the dispute resolution provisions which are contained elsewhere within the agreement. It's designed to ensure that union representatives may undertake their representative duties freely and without undue interference, recognising that the effective performance of union representative work is crucial to the smooth operation and application of the agreement. Embodied within that clause is a formal recognition by the employer of the role of workplace delegates in assisting in the prevention and resolution of industrial disputes.

PN83

Indeed, that was certainly recognised in Macquarie University, that effective performance of union work depends on appropriate resourcing and appropriate facilities, to ensure that dispute resolution mechanisms can be effective. It's our submission that the ability of staff to participate in union activities which assist in the prevention and resolution of disputes is a very important process, particularly given the nature of employment on vessels which are at sea for long periods of time. It's of crucial importance that disputes are able to be discussed at early opportunities and that appropriate mechanisms are in place for communication of those disputes both within and on that vessel, and with management and vice versa. Without adequate resources, disputes will be unable to be resolved at the earliest opportunity, potentially leading to situations where the position of the parties becomes entrenched; effective communication then breaks down leading to unnecessary anxiety and disruptions to the work. So it's our submission that it goes to the very heart of the employment relationship, to ensure that disputes can be effectively communicated and resolved.

PN84

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Butterworth. They are all the queries I have in relation to that agreement. I think it might be best now to move on to the other agreement before we come to some finalisation of today's proceedings, if that satisfies the parties? There is nothing else you want to put on the Aurora Australis Agreement? No? We might move on then, to the next one, which is the Research & Security Vessels Agreement. Do you wish to make a submission on that?

PN85

MS BUTTERWORTH: This is an application under Division 2 of Part VIB of the Workplace Relations Act for certification of an agreement made under section 170LJ, between P & O Maritime Services and the Australian Institute of Marine & Power Engineers. This agreement ends a bargaining period, BP5515 of 2003. P & O Maritime Services is a constitutional corporation; the agreement being made by P&O Polar, a division of that corporation. The agreement is made in respect of employees within the engineering department on the science vessels MV Southern Supporter, MV Southern Surveyor and MV Oceanic Viking.

PN86

The work to which the proposed agreement relates is the engineering department on the science vessels, and satisfies the requirements under 170LB(3) in that the departments are distinct operational or organisational units within the business. The agreement is made with the Australian Institute of Marine & Power Engineers. The organisation has members employed in the part of the business whose employment would be the subject of the agreement, and is entitled to represent the industrial interests of its members in relation to that work, as required by section 170LJ.

PN87

The agreement has been approved by a valid majority of the employees. There are a total of 12 employees intended to be covered by the agreement. The employer has taken reasonable steps to ensure that employees were provided with access to the agreement in writing, at least 14 days prior to any approval being given, and that the terms of the agreement were explained to all employees. The employer facilitated the presence of workplace delegates in agreement negotiations. Employees have been provided with early drafts of the agreement, together with explanations as to how the agreement evolved over time.

PN88

A final draft of the proposed agreement was posted to vessels on 22 November, with additional supplementary electronic or hard copies being forwarded by email, or posted to residential addresses for employees who were not present on the vessel at that date. Additionally, AIMPE provided a four-page explanatory paper on the agreement and this was distributed, together with the proposed agreement. Employees were advised in those communications that they had 14 days in which to consider their position prior to voting.

PN89

It is submitted that the application for certification meets the requirements of 170LM, in that the application has been lodged within 21 days after the date on which the agreement was approved, it having been approved on 13 December and the application for certification lodged with the Industrial Registry on 17 December. The agreement passes the no disadvantage test and does not result in a reduction of the overall terms and conditions of employees, in comparison with the Maritime Industry Research Vessels Award 2000. I note the existence of the P&O Maritime Services and AIMPE Research Vessels Agreement 2001, and that it is the intention of the parties that this agreement replace that agreement.

PN90

A valid majority of employees employed at the time, whose agreement would be subject to the agreement, have genuinely approved it as required by section 170LT(6). There has been an appropriate explanation of the terms of the agreement, having regard to any individual needs or particular circumstances. The agreement does include procedures for the prevention and settlement of disputes between the employer and the employees. These are contained in clause 55. That clause empowers the Commission to settle disputes over the application of the agreement. The agreement does specify a nominal expiry date which is not more than three years after the date on which the agreement is proposed to come into operation.

PN91

We do recognise that the Commission may have particular questions concerning some of the provisions in this agreement, particularly in light of the High Court's decision in Electrolux and subsequent decisions of the Commission. The parties would request an opportunity to provide written submissions to the Commission in the event that you foresee that there are impediments to certification today.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Butterworth.
Ms Thompson?

PN93

MS THOMPSON: Thank you, your Honour. Once again, your associate, Fiona, has identified some typos and corrections and other substantive matters.

PN94

THE SENIOR DEPUTY PRESIDENT: All right.

PN95

MS THOMPSON: Three copies, again. I will go through the changes. She is very efficient.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MS THOMPSON: If I can take you to the first page, clause 26 was, junior engineer, it's training engineer. On the second page, appendix 2 has been removed, performance appraisal and letter of exchange is now appendix 2. In clause 4.4, we have changed the operation from 1 July for the reference to salary and allowances, from 1 July.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes.

PN99

MS THOMPSON: In clause 7.1, we have removed the reference in accordance with appendix 2. Clause 9.4 has been renumbered, there were two 9.4s; 9.5, 9.5 has been renumbered to 9.6. Clause 28.6, the Roman numeral has been renumbered. Clause 32.1.3 was missing a dot point.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes.

PN101

MS THOMPSON: Clause 34, the Roman numeral has been replaced. Sorry, your Honour, if I could take you back to 32.6? There was a full stop behind "leave".

PN102

THE SENIOR DEPUTY PRESIDENT: All right.

PN103

MS THOMPSON: In the last sentence of 32.6:

PN104

Any such change is to be notified at least -

PN105

- instead of "to".

PN106

THE SENIOR DEPUTY PRESIDENT: I picked up at 32.8, it says:

PN107

transfer to a safe job, 32.8.1

PN108

- I see. Perhaps that's meant to be a drop-down paragraph. It's a bit confusing.

PN109

MS THOMPSON: It does seem incorrect. It perhaps should read:

PN110

transfer to a safe job in accordance with 32.8.1.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes.

PN112

MS THOMPSON: We will provide a replacement page.

PN113

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN114

MS THOMPSON: Appendix 3 has been renamed appendix 2, and the dates for the signature, instead of 2004, to 2005. That is all the typographical changes.

PN115

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN116

MS THOMPSON: In making this application, we rely upon the statutory declaration made by Henny Christensen, Federal Secretary of the union, which should appear on the file. Unless you have any questions, we would just seek certification from today. Thank you.

PN117

THE SENIOR DEPUTY PRESIDENT: I have a couple of questions. The first one is a clarification. Clause 5.2, can you tell me what that means, that the roster will be applied? I am just a bit unsure as to what it actually meant.

PN118

MS THOMPSON: The roster is a list of members, which lists members' qualifications and availability, and their address and phone number.

PN119

THE SENIOR DEPUTY PRESIDENT: Right. So does that mean if the company employs new staff, it doesn't go to an outside competition, just take staff off the roster? Is that the intention of it?

PN120

MS THOMPSON: If I can answer, your Honour? My understanding is that for casual vacancies, they will ring us and ask if there's anyone. If it's a permanent vacancy, they will advertise externally as well. It's really just to help them in short-term crises.

PN121

THE SENIOR DEPUTY PRESIDENT: I see.

PN122

MS BUTTERWORTH: If I may clarify? That clause is not designed to give preferential treatment in employment to union members, and I suspect that that's the Commission's concern with that particular subclause. My understanding and instructions from the company is that it's a mechanism for the company to look at that particular list and availability of employees as well as going outside. It in no way precludes them from recruiting employees outside of that list.

PN123

THE SENIOR DEPUTY PRESIDENT: Right. Thank you both for clarifying that. Clause 29, which appears to be in two parts, and one part is where AMSA
P & O will pursue concerns over AMSA. I would be assisted by knowing what AMSA is and - not knowing what AMSA is, and just from my limited knowledge there, it does raise issues about the extent to which the first paragraph and the second paragraph comply to matters pertaining; you might be able to assist me in that?

PN124

MS BUTTERWORTH: Thank you. That is something that the parties have put their minds to prior to today's certification hearing. Again, we would request an opportunity to provide written submissions in relation to that issue, but if I may briefly outline the relevance of that particular clause as it pertains to the employment relationship? The clause articulates a commitment by P & O to its employees in the manner in which negotiations regarding the levy of fees will be conducted.

PN125

THE SENIOR DEPUTY PRESIDENT: Who is AMSA? Can you just explain that for me, please?

PN126

MS THOMPSON: If I can assist, your Honour, AMSA is the Australian Maritime Safety Authority. They issue the certificates of competency which we spoke about before in the Loss of Certificates, and you must have a certificate to go to sea. So we would say that it pertains to the employment relationship because if you do not have a certificate, like if you do not have a current medical certificate, you are not fit for sea duties, and we would argue that they are matters that pertain to the employment relationship and we seek certification.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. How do you distinguish it from - the Electrolux decision is fairly direct in, saying, an induction of union dues, which is payment to the employer of union dues, doesn't satisfy a matter pertaining. How would you distinguish this from that situation?

PN128

MS THOMPSON: The distinction would be you don't have to be a union member to go to sea, but you definitely have to have an AMSA Certificate of Competency and a medical certificate which they charge levies for, to go to sea. So it definitely pertains to the employment relationship.

PN129

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN130

MS BUTTERWORTH: The clause also does articulate that the AMSA fees levied against employees are going to be paid for by P & O, so in that respect the clause very directly pertains to the employment relationship as it defines a benefit of employment, if you like, that P & O extends their employees.

PN131

THE SENIOR DEPUTY PRESIDENT: Thank you. This agreement also has clause 55, the settlement of disputes clause, which I think raise the same issues which were traversed in the previous agreement, so I won't get you to repeat what was traversed there. I imagine your positions are the same in relation to this agreement, so that satisfies me if that's the case, if your submissions would be the same in relation to this agreement as the previous agreement?

PN132

MS THOMPSON: Yes, your Honour.

PN133

THE SENIOR DEPUTY PRESIDENT: Thank you. And 58.2 again is the age scale, and again we have traversed that as previously. Just before I go onto the final one, which is the union charter clause, clause 56, what does that mean

PN134

Nothing shall be construed as limiting the rights of the employee under the Navigation Act.

PN135

MS THOMPSON: Your Honour, in addition to the employment conditions contained in the agreement, there's also a series of employment conditions that are contained in the Navigation Act. An example would be if you're injured at sea, you are provided with 90 days' wages to recover in, those sorts of elements. Another example would be the Navigation provides that the employer provides library material onboard a vessel, and that's the need for the reference clause.

PN136

THE SENIOR DEPUTY PRESIDENT: Right. So is the intent to save - the Navigation Act prevails, or is there expectation they don't intersect or - - -

PN137

MS BUTTERWORTH: In accordance with the rules of statutory interpretation, the Navigation Act would most certainly prevail. Perhaps the reference in this agreement to the Navigation Act is not necessarily required. It may be the point of confusion in relation to this issue. I believe that the clause has been inserted to clarify, for employees, that in addition to the terms and conditions which are contained in here, that it is has not been the intention of the parties to limit their rights under the Navigation Act, or the operation of that Act.

PN138

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. My other query is the charter clause which we have traversed previously, what I propose to do now, if the parties are satisfied, is just to break off into a brief private conference to canvass how we might move on from here. Are the parties satisfied with that, if we just briefly break into a private conference?

PN139

MS BUTTERWORTH: Yes. Thank you, your Honour.

<SHORT ADJOURNMENT [3.16PM]
<RESUMED [3.24PM]

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you. I thank the parties for their cooperative assistance during the private conference. I have decided to reserve my decision in respect of the certification of the agreements. I request the parties to provide written submissions by close of business on 10 March 2005. Those written submissions are to address the issue of Electrolux, for want of a better term, and that's particularly in respect of the clause dealing with the union representatives' charter. The Commission is adjourned.

<ADJOURNED INDEFINITELY [3.25PM]