C2006/2646, Transcript of Proceedings [2006] AIRCTrans 1103 (28 September 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15800-1

DEPUTY PRESIDENT LEARY

C2006/2646

AUSTRALIAN MARITIME OFFICERS’ UNION, THE-EASTERN AREA
AND
TASMANIAN PORTS CORPORATION
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2646)

HOBART

4.00PM, MONDAY, 05 JUNE 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN HOBART

PN1

MR M FLEMING: I am the secretary of the Australian Maritime Officers' Union and I appear on behalf of the union and on behalf of Captain M Boss-Walker.

PN2

MR MCELWAINE: In Launceston and I seek your leave to appear for the Tasmanian Ports Corporation and I have with me Captain C Black.

PN3

THE DEPUTY PRESIDENT: And Mr Bone is present in the court room?

PN4

MR MCELWAINE: Yes.

PN5

THE DEPUTY PRESIDENT: Any objection to Mr McElwaine?

PN6

MR FLEMING: No objection, your Honour.

PN7

THE DEPUTY PRESIDENT: All right. Leave is granted, Mr McElwaine.

PN8

MR MCELWAINE: Thank you, Deputy President

PN9

THE DEPUTY PRESIDENT: Mr Fleming, it's your notification.

PN10

MR FLEMING: Yes, thank you, Deputy President. First of all may I say that we very much appreciate the fact that this matter has been called on at very short notice. In our view it is a matter of urgency and the fact that the hearing is listed for today is appreciated. Deputy President, for the sake of the record may I say that on Friday 2 June a notice under a dispute settlement procedure in an agreement was lodged with the deputy industrial registrar here in Hobart of the Commission and that notice was pursuant to form R47 rule 66 of the Workplace Relations Act and as a result as we understand it of the filing of that notice that the matter is now before the Commission today.

PN11

THE DEPUTY PRESIDENT: It's pursuant to section170LW.

PN12

MR FLEMING: Yes.

PN13

THE DEPUTY PRESIDENT: Pre-reform.

PN14

MR FLEMING: Yes.

PN15

THE DEPUTY PRESIDENT: Is the latest expression I had to learn.

PN16

MR FLEMING: Yes, thank you, your Honour. Your Honour, we are in formal hearing and we intend this afternoon briefly in this formal hearing process to outline to your Honour the nature of the notice and the application. Essentially what this is all about and then subject to whatever is said by the employer, the Tasmanian Ports Corporation, we will then put a view, your Honour, as to the way we see this matter proceeding from today. So that's how we wish to proceed and we wish to also, your Honour, place before you a number of key documents, documents that are shared between the parties.

PN17

THE DEPUTY PRESIDENT: So, Mr McElwaine will have copies?

PN18

MR FLEMING: Well, I don’t know. I haven’t had any contact from
Mr McElwaine and I had no idea that he was appearing today or in the form. I was told about a minute or so before the hearing by Mr Bone that the corporation would be represented in this way and as I've indicated we have no objection but as a result of all of that I've had no contact with Mr McElwaine and therefore not foreshadowed to him the documents we intend to rely on.

PN19

THE DEPUTY PRESIDENT: Sure.

PN20

MR FLEMING: Having said that, the documents are documents that are shared between us. In other words that they're, for example, copies of the agreement.

PN21

THE DEPUTY PRESIDENT: Okay.

PN22

MR FLEMING: The Act.

PN23

THE DEPUTY PRESIDENT: All right.

PN24

MR FLEMING: Captain Boss-Walker's contract of employment and so they are documents that are very well known to the respondent, to the corporation.

PN25

THE DEPUTY PRESIDENT: All right. That should make it a bit easier then.

PN26

MR FLEMING: Yes. Thank you, your Honour. Your Honour, the first document I wish to rely on and place before you is a copy of the Hobart Ports Corporation Pty Ltd Marine Pilots Enterprise Agreement 2002 - 2005.

PN27

THE DEPUTY PRESIDENT: Thank you.

PN28

MR FLEMING: What I intend to do, your Honour, is just to speak to each of these documents as I place them before you. As your Honour is aware this agreement was made by yourself here in Hobart on 31 December 2002. The agreement came into force from that date and remained in force until 30 June 2005. It has continued to be in force. It has not been rescinded and in fact there has been substantial negotiations between the union and what was then the four port corporations including Hobart Ports Corporations Pty Ltd and in recent times the Tasmanian Ports Corporation for a replacement agreement and in fact the union believes and its members believe that subject to a meeting with at least one of the general managers to tomorrow with Captain Black here in Hobart we may well be close to finalising a replacement agreement.

PN29

THE DEPUTY PRESIDENT: Is that to cover all ports - - -

PN30

MR FLEMING: Yes it is.

PN31

THE DEPUTY PRESIDENT: - - - or are they going to ….. the agreement?

PN32

MR FLEMING: Yes the new agreement is intended, whilst it is not yet made, but it intended to apply to the Tasmanian Ports Corporation as the employer since January of marine pilots using the generic term in each of the Tasmanian ports and it will replace a number of agreements including the Hobart Ports Corporation Pty Ltd Marine Pilots Enterprise Agreement 2002-2005. Now that's what's intended to happen when the agreement is made and it is yet to be made. So, your Honour, the document I've placed before you today is in our understanding and our view the current agreement to use the vernacular.

PN33

It is the agreement that currently applies. Okay. So, your Honour, if I can take you to clause 2 of the agreement I've place before you which is titled, parties bound, and it says:

PN34

The agreement is binding upon the Hobart Ports Corporation.

PN35

and section 2:

PN36

The harbour master and marine pilots employed by Hobart Ports Corporation.

PN37

Your Honour, we emphasis the word, harbour master, because in fact the notice before you today is in connection with the employment of Captain Michael Boss-Walker who is here in the Commission room this afternoon and was, when this agreement was made, the harbour master of Hobart and employed by the Hobart Ports Corporation. Now, your Honour, if I can now take you to clause 9 of the agreement which is headed, disputes resolution procedures, and it says this, I quote:

PN38

If a dispute should develop between the parties about the meaning -

PN39

And we emphasis these words too -

PN40

or the effect of the agreement.

PN41

Unquote.

PN42

The parties will consult to reach a settlement. If the resolution proves difficult the following procedures shall apply.

PN43

And there's procedures number 1, number 2 and number 3, and your Honour can we now particularly refer to 9.4 where the agreement says this, quote:

PN44

If the matter is still not resolved after steps 1, 2 and 3 it shall be referred to the Australian Industrial Relations Commission initially for conciliation and if necessary arbitration.

PN45

Now, I think we all understand the meaning of those words.

PN46

THE DEPUTY PRESIDENT: I have seen them before.

PN47

MR FLEMING: Yes. And that brings us here today. Your Honour, can I take you back to clause 7, jurisdiction, and it says this, quote:

PN48

This agreement shall be certified in the Australian Industrial Relations Commission in accordance with the section 170LJ of the Workplace Relations Act.

PN49

Now, your Honour, if I could now take you to clause 22 of the agreement which is headed, contract of employment. Now, the agreement says this in 22.1:

PN50

Hobart Ports Corporation agrees that it shall not unreasonably refuse to offer renewal of a contract of employment pilotage functions to an employee covered by this agreement unless it can demonstrate substantial failure by the marine pilots to meet the requirements of the position description as contained in the contract.

PN51

Now, your Honour, I halt it there and make this observation to the Commission that this clause is recognising a matter of fact at the time of the agreement and as a matter of fact still that there were written contracts of employment that this agreement relates to and we will be coming to that in terms of Captain Boss-Walker because he has a contract of employment as contemplated in this section of the agreement.

PN52

THE DEPUTY PRESIDENT: Right.

PN53

MR FLEMING: Now, 22.2 says this:

PN54

At least nine months prior to the expiration of a period of appointment Hobart Ports Corporation a marine pilot shall confer with the view of reaching agreement as to whether the officer shall be reappointed for a further period.

PN55

22.3 says:

PN56

Each party shall advise the other no later than six months or such period as they may agree in writing prior to the expiration of the period of appointment of their decision regarding the matters referred to clause 2 above.

PN57

Now, 22.4 says this, your Honour, and we emphasis these words. It says, quote:

PN58

In the event of a dispute, difficulty or question, the parties agree to follow the provisions of clause 9 of this agreement.

PN59

And of course clause 9 is the dispute settlement procedure and then there is at 22.5 which relates to a process issue about contracts of certain marine pilots at the time of the making of the agreement. Now, in conclusion on the point, your Honour, and may I again say that this is the current agreement still in place and we say that the provisions of the agreement continue to apply and of course in particular those provisions that we have highlighted so far today.

PN60

THE DEPUTY PRESIDENT: Right.

PN61

MR FLEMING: Your Honour, can I now place before you a copy of the Tasmanian Ports Corporation Act 2005. Thank you.

PN62

THE DEPUTY PRESIDENT: Mr McElwaine, do you have a copy of the Ports Corporation Act?

PN63

MR MCELWAINE: Yes I do.

PN64

THE DEPUTY PRESIDENT: You do. All right.

EXHIBIT #A1 TASMANIAN PORTS CORPORATION ACT 2005

PN65

MR FLEMING: If the Commission pleases.

PN66

MR MCELWAINE: I'd assume that the agreement was going to be A1.

PN67

THE DEPUTY PRESIDENT: No, it's a document of the Commission.

PN68

MR MCELWAINE: Thank you.

PN69

MR FLEMING: Your Honour, exhibit A1 is a copy of the Tasmanian Ports Corporation Act 2005. It had its royal ascent on 13 October 2005 and as your Honour is probably aware this is the Act which created the Tasmanian Ports Corporation which of course is our employer.

PN70

THE DEPUTY PRESIDENT: Yes.

PN71

MR FLEMING: And is the successor the Hobart Ports Corporation Pty Ltd and this Act specifically states that the Tasmanian Ports Corporation is the success to the Hobart Ports Corporation Pty Ltd so therefore, your Honour, the Tasmanian Ports Corporation has succeeded the Hobart Ports Corporation in terms of the marine pilots agreement. It is now the employer by way of this Act. I think beyond dispute. Now, the Act says things relevant to the creation of the corporation and the transferring of assets and so on and section 24 which should be page 9 of the copy that we've given you, your Honour.

PN72

THE DEPUTY PRESIDENT: Yes.

PN73

MR FLEMING: Section 24 is headed, arrangements for employees of port company to transfer to the corporation and your Honour as we understand it, it is this section of the Act which is relevant to the employment - the transfer of the employment arrangements of the employees of the previous port corporation to the Tasmanian Ports Corporation and the ongoing employment of those employees and of course new employees by the Tasmanian Ports Corporation. It says a number of things, your Honour, particularly about the orderly transfer and in section 6 it says:

PN74

Subject to subsections (8) and (9) a contract of employment that had effect in relation to a person immediately before the person became a transport employee continues to have effect in relation to the person as a transferred employment.

PN75

So the contract of employment continues and then it says - in section 9, it says, quote:

PN76

Before or as soon as practicable after the employment of a person is transferred to the corporation by the operation of subsection (4) the corporation by written notice provided to the person may determine position description, title, role or duties for the position to be occupied or occupied by the person in the corporation that is different from his or her position description title roles or duties in the port company.

PN77

Just pardon me one second, your Honour. In section 5, your Honour, under the heading, the transferred employee, it says:

PN78

Is to be employed by the corporation for not less than the same remuneration as her or she was receiving immediately before coming a transferred employee.

PN79

And (b):

PN80

Except where an award, industrial agreement or any other law otherwise provides retains all accrued entitlements as if employment as an employee of the corporation were a continuation of employment with the port company.

PN81

And (c):

PN82

Is entitled to claim those entitlements against the corporation.

PN83

And (d):

PN84

Is not entitled to any compensation or any other payment in respect of the change of employer or any change in his or her position description, title, role or duties that results from the change in his or her employment from the port company to the corporation.

PN85

End of quote of section 5. Now, lastly we take your Honour to section 10 and it says this:

PN86

Nothing in this section prevents any of the terms of employment of a transferred employee being altered by an award, industrial agreement or law after he or she becomes a transferred employee.

PN87

Now, if my friend says that 5(d) does not allow us to proceed in this matter then we put the corporation on notice that we will oppose such an argument and we will submit that there is ample and appropriate jurisdiction by this Commission to deal with the matters that we say are in dispute. Now, your Honour, we now wish to place before you four documents and if I can place them as a bundle. The first document is a letter to Captain Boss-Walker dated 31 January 2003 signed by
Mr Knoop, K-n-o-o-p, general manager of the Hobart Ports Corporation.

PN88

The second document is a memorandum to Captain Mike Boss-Walker from
Mr Jon Lister, the chief executor of Hobart Ports Corporation, dated 22 July 2005. The third document is a copy of what we say the employment agreement and that's the title of the document made on 3 February 2003 between the Hobart Ports Corporation and Michael John Boss-Walker. Thank you. Fourthly, your Honour, is a copy of a letter. This copy is undated but I'll identify the date in a moment, of a letter to Captain Charles Black, general manager Port Services Tasmanian Ports Corporation, headed, confidential and without prejudice re: separation package Hobart harbour master, signed by Captain Mike Boss-Walker.

PN89

THE DEPUTY PRESIDENT: Thank you.

EXHIBIT #A2 BUNDLE OF DOCUMENTS

PN90

MR FLEMING: Now, your Honour, if we just very briefly go to that bundle of documents just to assist the Commission in identifying and understanding what these documents say in our view. The first document is 31 January 2003 letter fro the general manager of Hobart Ports to Captain Boss-Walker. In summary, we say that letter confirms an offer of employment to Captain Boss-Walker by Hobart Ports Corporation. The second document is a copy of the memorandum of Mr Jon Lister, the then chief executive of Hobart Ports Corporation dated 22 July 2005 and the subject of the memorandum is managers remuneration 2005 to 2006, and I'll read the first couple of sentences. It says:

PN91

Mike, please be advised that I have reviewed your remuneration package for 2005-2006 and confirm that you are to receive a 4 per cent increase in your current base salary.

PN92

And I now emphasis the next sentence.

PN93

Unlike other senior executives your salary conditions are derived from the recently expired Marine Pilots agreement 2002-2005. The 4 per cent offered is conditional in regard to any offer accepted in terms of a new Marine Pilots Agreement.

PN94

Your Honour, we make the obvious observation that Mr Lister in July 2005 quite rightly was observing that Captain Boss-Walker's contract of employment was made in connection with the Marine Pilots Agreement, the agreement which we've placed before you today.

PN95

THE DEPUTY PRESIDENT: Yes.

PN96

MR FLEMING: Now, your Honour, the next document is the document headed, employment agreement. Your Honour, at this stage we won't go to any of the terms other than to say that it's obviously material that we rely on during the course of these proceedings if necessary.

PN97

THE DEPUTY PRESIDENT: Yes.

PN98

MR FLEMING: This is the signed employment agreement between the Hobart Ports Corporation and Captain Boss-Walker and this is the employment agreement of which clause 22 of the Marine Pilots Agreement refers to and this is the agreement that Mr Lister was referring to in July 2005. And, of course, this is an agreement should there be any matter in dispute is the subject of the dispute settlement procedure hence the application before you. Now, your Honour, the last document and we have no further documents to put and this is a document which I now intend to rely on to give your Honour a more detailed understanding of why we are today.

PN99

This is a letter, we say, the copy that we've placed before you is undated, your Honour. Your Honour, would you accept that, I'll mark this, that the letter was dated 18 April 2006? We say that is the date.

PN100

THE DEPUTY PRESIDENT: That's the date is it?

PN101

MR FLEMING: Yes, we say that's the date of the letter that was sent by Captain Boss-Walker to Captain Black, the general manager of Port Services of the Tasmanian Ports Corporation. Now, your Honour, the letter says this:

PN102

Dear Charles, When we, you and I, and Michael Fleming my representative and secretary of the Australian Maritime Officers' Union met in my office on Wednesday 5 April ...(reads)... Hobart harbour master, manger, shipping services, marine pilot.

PN103

Now that of course refers to the other document which is the employment agreement.

PN104

THE DEPUTY PRESIDENT: Yes.

PN105

MR FLEMING: I read on:

PN106

I now find myself in a situation where as a result of the creation of the Tasmanian Ports Corporation my position of Hobart harbour master/manger shipping services/marine pilot has now been abolished. ...(reads)... similar and suitable alternative employment by the Tasmanian Ports Corporation.

PN107

Now, your Honour, I'll just stop there. We have pointed out that section 24 of the Act that created the Tasmanian Ports Corporation and it said various things about the ongoing employment and condition of employees and Captain Boss-Walker is saying here in this letter to Captain Black that he has not been certainly at that time offered similar and suitable alternative employment by Tasmanian Ports Corporation. I read on:

PN108

4. I believe that Tasmanian Ports Corporation does not require former marine pilot for the Port of Hobart ...(reads)... convenient time to finalise an agreement on terms described in this letter, yours sincerely, Mike Boss-Walker, harbour master.

PN109

Now, your Honour, Captain Boss-Walker still to this day has not received a written reply to this letter. He has been given a number of either telephone, brief telephone discussions and brief discussions in his office or in various meetings

PN110

THE DEPUTY PRESIDENT: But no specific possible - - -

PN111

MR FLEMING: But no specific reply. Captain Boss-Walker believes and I now summarise the position before the Commission. He believes that his position has been abolished, his staff has been taken away from him that he used to manage, just about all of the functions he used to perform have now ceased. He turns up for work in the office, the Tasmanian Ports Corporation here in Hobart and essentially has nothing to do. He has not been offered or directed in any sense which certainly in any written form any alternative position.

PN112

There's been some sort of every now and again suggestions, well maybe we can get you to do this and maybe we can get you to do special projects or maybe we can get you to do something else but nothing has really come of any of that. Certainly no agreement, no written proposals.

PN113

THE DEPUTY PRESIDENT: Has he been given any indication of what the corporation holds for him for the term of his contract?

PN114

MR FLEMING: Nothing that we - sorry, we being Captain Boss-Walker and me being his representative can rely on to conclude an agreement or an understanding with the corporation about either Captain Boss-Walker continuing employment or his separation.

PN115

THE DEPUTY PRESIDENT: Because the agreement goes until March 2008, is that correct?

PN116

MR FLEMING: Yes, correct. That is correct.

PN117

THE DEPUTY PRESIDENT: So is it expected that Captain Boss-Walker will turn up every day until then.

PN118

MR FLEMING: Well - - -

PN119

THE DEPUTY PRESIDENT: Or you don’t know.

PN120

MR FLEMING: We don’t know.

PN121

THE DEPUTY PRESIDENT: You don’t know.

PN122

MR FLEMING: We don’t know. Thank you, your Honour, for that. We don’t know. Captain Boss-Walker by evidence of this letter with his representative being myself as the secretary of the union that he is a member of has attempted to properly and appropriately and professionally deal with the matter by meeting with the corporation, by writing to the corporation, by attempting to resolve it by discussion and there has been no conclusion to any of that including not even a reply to this letter. Now, your Honour, our position is this that - when I say our position, the position of Captain Boss-Walker and me being his representative, is that what Captain Boss-Walker has set out in this letter is where we are at, we wish to conclude an agreement, a separation package, which essentially pays Captain Boss-Walker out for the remaining of his contract.

PN123

Now whether that's for the two and a half years or and we put the corporation on notice about this, or what was clearly contemplated within the contract a further three year extension. So is it two and a half years or five and a half years. Now, your Honour, we now ask that the Commission pursuant to the jurisdiction the Commission has in this matter which we think is clear, now proceed to arbitrate the matter. We have no belief that any conciliation proceedings by the Commission at this stage will conclude the matter. The corporation by its own actions, for example, by not even replying to the letter in writing leads us to that belief.

PN124

We are certainly happy to talk to the corporation outside the jurisdiction of the Commission at any time and I am hoping as secretary of the union to meet with Captain Black and Mr Bone tomorrow in Hobart to see if we can continue discussions about the employment arrangements of marine pilots for the Tasmanian Ports Corporation.

PN125

THE DEPUTY PRESIDENT: Surely your first position would be to try and seek some clarification as to where Captain Boss-Walker sits.

PN126

MR FLEMING: That's exactly right, your Honour, and we've done that for, we believe, for a considerable period of time and we've come to the view that to use the vernacular, enough is enough and we've made this application to the Commission under the dispute settlement procedure. Now, I don’t say that in any aggressive sense, I just say that, you know, at some stage something has to happen.

PN127

THE DEPUTY PRESIDENT: Sure.

PN128

MR FLEMING: We think enough time has passed and what is also - not only is the interests of Captain Boss-Walker and his staff and his colleagues and the corporation at the forefront of our thinking here, we're also aware of course that hopefully very soon, maybe a short time after tomorrow, we may be reaching agreement for new employment arrangements for marine pilots with the Tasmanian Ports Corporation. So, we took the view and we put the corporation on notice about this that at some stage we would - something would have to happen and as a result the application was filed before the Commission on Friday.

PN129

They are our opening comments about this matter, your Honour, and as I said again I just conclude on this, we are more than happy to talk to the corporation at any time in private conference to see if this matter can be resolved and we would do that on the basis that hopefully it can be resolved sooner rather than later. That is quickly and hopefully maybe even detailed discussions tomorrow. If that can't be done or the corporation is not of that view then we seek the matter to be arbitrated in accordance with the dispute settlement procedure. If the Commission pleases.

PN130

THE DEPUTY PRESIDENT: Has Captain Boss-Walker been given any indication that his position has been made surplus to requirements or is it just the fact that he has no work and his employees are gone?

PN131

MR FLEMING: No, he's - - -

PN132

THE DEPUTY PRESIDENT: Is it just a matter of attrition, is that basically what's happened or has there been any formal notice?

PN133

MR FLEMING: No, there has been no formal notice.

PN134

THE DEPUTY PRESIDENT: No formal notice.

PN135

MR FLEMING: No, your Honour.

PN136

THE DEPUTY PRESIDENT: All right.

PN137

MR FLEMING: If necessary we would lead evidence on that but in summary can we say that Captain Boss-Walker's position of harbour master has been abolished. He has not been given suitable alternative employment. That for a senior person in the Hobart Ports Corporation and in the Tasmanian Ports Corporation we don’t think this is a very satisfactory position to be in. The matter needs to be resolved. There's been conferences, letters and we're now at the point of wanting to resolve it.

PN138

THE DEPUTY PRESIDENT: Yes.

PN139

MR FLEMING: And we want to resolve it in the terms of the letter of 18 April that Captain Boss-Walker sent to the corporation.

PN140

THE DEPUTY PRESIDENT: All right.

PN141

MR FLEMING: Thank you, your Honour.

PN142

THE DEPUTY PRESIDENT: Thank you. Mr McElwaine?

PN143

MR MCELWAINE: Thank you, Deputy President. I was only briefed on this matter before lunchtime and I'm not as much on top of it as Mr Fleming is but if I could respond in a number of way just at the moment. Firstly, I have a concern about whether this Commission has jurisdiction in respect of the dispute which has been outlined by Mr Fleming. Now I note that the notice received by my client refers to section 170LW which of course has been repealed. I, in the short time available, have not been able to find any transitional provision in the new Act or the regulations which actually preserves the dispute notification procedure which is referred to in the agreement.

PN144

THE DEPUTY PRESIDENT: I think you'll find that pre reform 170LWs are pretty common place at the moment. If there's an agreement in place that has a provision for the Commission to be involved in a dispute settlement procedure as I understand it, a section 170LW gets you here, if I can put it in the vernacular.

PN145

MR MCELWAINE: Yes.

PN146

THE DEPUTY PRESIDENT: But I'm very proud of you if you've been ploughing through the new to try and find something.

PN147

MR MCELWAINE: All since before lunchtime I'm afraid.

PN148

THE DEPUTY PRESIDENT: Well, you did it very quickly.

PN149

MR MCELWAINE: I'm sorry, Deputy President, but that's the difficulty that I'm labouring under at the moment.

PN150

THE DEPUTY PRESIDENT: Yes.

PN151

MR MCELWAINE: Because I notice this wasn’t notified to my client until after 5 o'clock on Friday but in any event - - -

PN152

THE DEPUTY PRESIDENT: You're lucky they get early marks on Friday obviously.

PN153

MR MCELWAINE: In any event, Deputy President, I have been looking at some cases. I note the High Court recently looked at the jurisdiction of the Commission under the Acts Interpretation Act general provision that is that the repeal of a section not affect accrued rights and the High Court last looked at that as far as I can see in the case of Attorney General Queensland in the Commission which is [2002] HCA 42; (2002) 76 ALJR 1502 and in effect concluded that such provisions do not preserve what might be described as procedural rights. I would need to think about that in much more detail. I'm not aware that there is any decision of the Commission or indeed of the Federal Court thus far which confirms jurisdiction in pre reform section 170LW circumstances.

PN154

THE DEPUTY PRESIDENT: Well, perhaps if you put that to one side and maybe if you look at the issue in dispute and see whether that is possible to be resolved.

PN155

MR MCELWAINE: Yes, I was going to come to that. I always have a number of submissions, Deputy President. The next submission that I want to make is that if you look at the certified agreement of the Commission and the parties bound, it is limited to the harbour master and marine pilots. If I could draw to your attention clause 5.2 of the employment agreement which has been handed up which requires the employee to perform such duties as defined in the attached position description for harbour master/marine pilot in respect of the corporation or other duties as from time to time reasonably assigned. Could I next draw your attention to clause 5.3 that it is a condition of the agreement that the employee will progress to the position of manager shipping services upon attaining a Hobart pilotage zone licenses and satisfactory performance review.

PN156

Now, I'm instructed that that in fact occurred, that Captain Boss-Walker did in fact progress to the position of manager shipping services which is not the same thing as harbour master/marine pilot.

PN157

THE DEPUTY PRESIDENT: So you're saying that that excludes him from the agreement?

PN158

MR MCELWAINE: Yes. But that occurs well before the commencement of the Tasmanian Ports Corporation Act.

PN159

THE DEPUTY PRESIDENT: What, the attainment of the manager shipping service position?

PN160

MR MCELWAINE: Yes. And I know I had a document about that before lunch but regrettably, I wonder if, Mr Bone - do you have a copy of that memorandum about the progress Mr Bone?

PN161

MR BONE: In his contract?

PN162

MR MCELWAINE: No, there's was a memorandum - sorry, I've now got it. No, its not the one I had in mind. In any event that's another question about jurisdiction regrettably, Deputy President, that I must raise as well that needs to be looked at. The third issue that needs to be look into is if I can take you to the dispute resolution clause in the certified agreement. I am instructed that, 9.1, there have been discussion. 9.2 I'm not certain if there has been a reference but I'm most certainly instructed that 9.3 has not been attempted or implemented at all and that seems to be a condition precedent to reference to the Commission under clause 9.4.

PN163

THE DEPUTY PRESIDENT: It says, may, it doesn’t say shall. I think it's a choice isn’t it, that the usual. I don’t know, its not a common provision.

PN164

MR MCELWAINE: Although if you look at 9.4 it says:

PN165

If the matter is still not resolved after steps 9.1, 9.2 and or 9.3.

PN166

THE DEPUTY PRESIDENT: And or 9.3, yes.

PN167

MR MCELWAINE: It seems to contemplate that one must at least attempt step 9.3 and my instructions, that hasn’t occurred.

PN168

THE DEPUTY PRESIDENT: Perhaps if we resist the temptation to argue procedure and jurisdiction and words, could the simple questions be answered and that is, where does Captain Boss-Walker stand or sit, what's the future?

PN169

MR MCELWAINE: Well, no doubt he's still an employee of the Tasmanian Ports Corporation.

PN170

THE DEPUTY PRESIDENT: Has his position been abolished?

PN171

MR MCELWAINE: Well, I was just coming to that, if I might.

PN172

THE DEPUTY PRESIDENT: Sorry.

PN173

MR MCELWAINE: As Mr Fleming pointed out there is a specific section in Tasmanian Ports Corporation Act - - -

PN174

THE DEPUTY PRESIDENT: Yes.

PN175

MR MCELWAINE: - - - which entitles the new employer to change positions and change position descriptions.

PN176

THE DEPUTY PRESIDENT: Yes.

PN177

MR MCELWAINE: Whilst it is true that on a day to day basis Captain Boss-Walker does not discharge the duties of manager to which he had reached before the commencement of the Act, my client is currently formulating proposals to change his duties of employment. I am instructed today that special projects have been identified as appropriate for Captain Boss-Walker to work on. There is no suggestion whatsoever that his remuneration is going to be in any way reduced.

PN178

THE DEPUTY PRESIDENT: I don’t think that was the issue. I think the concern is that he doesn’t know what the future holds or if there is a future.

PN179

MR MCELWAINE: The Tasmanian Ports Corporation has only been up and running since 1 January.

PN180

THE DEPUTY PRESIDENT: And its now June.

PN181

MR MCELWAINE: Well, yes, I realise that but there have been significant internal reviews which have been implemented. There have been some redundancies. We're not saying that Captain Boss-Walker is to be made redundant. In fact I was speaking to Captain Black this afternoon and he has told me that he is in the process of identifying specific new tasks for Captain Boss-Walker to undertake.

PN182

THE DEPUTY PRESIDENT: Has this been brought to Captain Boss-Walker's attention?

PN183

MR MCELWAINE: As I understand there was a meeting scheduled for tomorrow in Hobart where this was to be discussed.

PN184

THE DEPUTY PRESIDENT: And is going to be discussed?

PN185

MR MCELWAINE: Yes. Captain Boss-Walker - sorry, Captain Black just said, yes, although you probably didn’t hear it.

PN186

THE DEPUTY PRESIDENT: No, I didn’t nor did I see him shaking his head.

PN187

MR MCELWAINE: No. All right. Well, perhaps Mr Fleming may want to comment on that because it seems that there could be some crossed wires. Special projects, are you aware that there have been some - - -

PN188

MR FLEMING: Well, it's terribly interesting that all of this has happened today, your Honour, and ready for a conference but we will talk to them tomorrow and see what happens but as I said before are prepared to talk to the corporation to settle this matter in private conference. If the matter can't be settled in private conference we ask that this Commission proceed with the notification.

PN189

THE DEPUTY PRESIDENT: I understand from what Mr McElwaine has said that he received the brief at short notice and has some issues that he needs to have a look at and if its anything to do with the new legislation I can understand that. But it may be appropriate that there be a direction that you do confer about these issues tomorrow and subject to the outcome of those discussions the file is still open and it can either be listed late tomorrow or on Wednesday if you wish to proceed on either an argument of jurisdiction or an arbitration to try and resolve it.

PN190

MR FLEMING: Thank you, your Honour.

PN191

THE DEPUTY PRESIDENT: In light of the fact that there is a meeting scheduled for you tomorrow and is it Captain Black?

PN192

MR FLEMING: Yes.

PN193

THE DEPUTY PRESIDENT: I'm not familiar with Captain Black. Captain Black obviously has something that he wants to put to Captain Boss-Walker tomorrow that may or may not resolve the issue and if it does that’s well and good. If not, you have leave to come back and seek to have this matter re-listed and dealt with as quickly as possible.

PN194

MR FLEMING: Thank you, your Honour, that is of great assistance.

PN195

THE DEPUTY PRESIDENT: All right. Are you happy with that,
Mr McElwaine, that we adjourn today to allow the meeting to proceed tomorrow?

PN196

MR MCELWAINE: Yes.

PN197

THE DEPUTY PRESIDENT: And then if there is no resolution and the union wants to proceed with the claim on behalf of Captain Boss-Walker it can be listed fairly quickly and dealt with.

PN198

MR MCELWAINE: Yes, I'm content with that but I do want it to be understood that if I form the view that there are minor jurisdictional issues that I would wish those matters to be dealt with first.

PN199

THE DEPUTY PRESIDENT: Certainly, you have a right to run those and have them heard and determined.

PN200

MR FLEMING: I can assure Mr McElwaine that the union will meet any jurisdiction argument that he may wish to bring before this Commission.

PN201

THE DEPUTY PRESIDENT: I add that the union has a right to respond to that argument. All right. Look, well, perhaps if we adjourn the application on the basis that the meeting proceed tomorrow and that there be hopefully a satisfactory outcome. If there is not Mr Fleming can advise and the matter will be re-listed at short notice to proceed obviously with the jurisdiction argument and then perhaps soon after to get to the merit of the application.

PN202

MR FLEMING: Thank you, your Honour.

PN203

THE DEPUTY PRESIDENT: Right. Thank you.

<ADJOURNED ACCORDINGLY [4.45PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 TASMANIAN PORTS CORPORATION ACT 2005 PN64
EXHIBIT #A2 BUNDLE OF DOCUMENTS PN89