AG2005/2400, Transcript of Proceedings [2006] AIRCTrans 245 (27 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

SENIOR DEPUTY PRESIDENT LACY

AG2005/2400

APPLICATION BY WOODSIDE PETROLEUM (WA OIL) PTY LTD & AUSTRALIAN INSTITUTE OF MARINES AND POWER ENGINEERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/2400)

PERTH

8.43AM, THURSDAY, 08 DECEMBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN PERTH

PN1

MR I MASSON: I appear for Woodside Petroleum (WA Oil) Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Who have we got in Sydney?

PN3

MR P REDDAN: I appear for the Australian Institute of Marine and Power Engineers, appearing today for Mr Henning Christensen who is attending to other business.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Masson?

PN5

MR MASSON: If the Commission pleases, this is an application for the certification of section 170LJ agreement between Woodside Petroleum (WA Oil) Pty Ltd and the Australian Institute of Marine and Power Engineers, under Division 2 Part 6(b) of the Workplace Relations Act. The agreement covers persons engaged in marine engineering classifications in the maintenance department on Woodside (WA Oil) Pty Ltd, Cossack Pioneer floating productions storage and offtake facility. Negotiations between the parties in relation to the reaching of this agreement commenced in October 2004 and were recently included with the assistance of the Australian Industrial Relations Commission.

PN6

That agreement is now reflected in the agreement between the parties, copies of which have been provided to the Commission as part of the application for certification. Woodside respectfully submits that the statutory requirements necessary for certification of the agreement have been met and are detailed in the statutory declarations lodged by both parties. For the company, Mr Donald Fraser, and for the union, Mr Henning Christensen. Unless there are particular questions going to the satisfaction of the statutory requirements, from the company's perspective there is one matter that we would seek to deal with on transcript, and that relates to an agreement reached between the parties which it was agreed should be reflected and supported by way of an undertaking by the company to be reported in transcript as part of the certification process.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR MASSON: If the Commission pleases, might I deal with that now?

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, please, thanks, Mr Masson.

PN10

MR MASSON: The specific undertaking is in relation to the preservation of a qualification requirement, that being a Class 1 Marine Engineering Certificate within the position description of the current maintenance team leader role engaged on the FPSO Cossack Pioneer. The above undertaking is documented in the letter from the company to the AIMPE dated 19 September 2005 and if the Commission pleases, I just hand up a copy of that correspondence.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR MASSON: I believe Mr Reddan has a copy of the correspondence in front of him.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. I'll mark that letter dated
19 September addressed to Mr Henning Christensen on Woodside letterhead and signed by Mr Ian Masson as W1.

EXHIBIT #W1 LETTER TO MR HENNING CHRISTENSON FROM MR IAN MASSON DATED 19/09/2005

PN14

MR MASSON: The letter deals with a range of issues which were the subject of discussion of the agreement between the parties and were ultimately reflected into the final agreement. But the specific issue in there that this undertaking deals with can be found on page 2 under the second point, Manning Levels, subclause (a). Whilst that undertaking is documented in the letter, I would seek to specifically record that undertaking on transcript and I will do so now if that's - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, please, Mr Masson.

PN16

MR MASSON: The company undertakes to the Australian Institute of Marine and Power Engineers, that it will maintain the qualifications requirement, that is, Class 1, Marine Engineer Certificate, within the position description of the current Maintenance Team Leader, MTL, role on the FPSA Cossack Pioneer thereby requiring the Maintenance Team Leader, MTL, to be a Chief Engineer for the life of the agreement with the AIMPE. As pointed out in (b) the undertaking is to be made in the course of certification proceedings before the AIRC and recorded in transcript.

PN17

I would just draw your attention to a particular clause in the agreement which seeks to introduce the means by which that undertaking may be enforced and that can be found at clause 11.2 of the agreement.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR MASSON: That clause states as follows:

PN20

Where the issue in dispute relates to an undertaking given by either party as part of the agreement certification process and where the employee or work group is dissatisfied with delivery on that undertaking, that employee or work group and the AIMPE, on their behalf, may refer the matter to a single member of the Australian Industrial Relations Commission for conciliation and/or determination. Such determination shall be binding on all parties.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR MASSON: That constitutes the undertaking agreed to as part of the settlement of this matter and the conclusion of the agreement. I don't wish to add any further to that. I just make the additional comment that you will note in the agreement that it will operate for a period of three years from the date of signature by the parties, that having been 30 November 2005. I would finally submit that the agreement should be certified for the reasons outlined above and for any other reasons that the Commission may deem proper. If the Commission pleases.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Masson. Mr Reddan, do you want to add anything to that?

PN24

MR REDDAN: Thank you, sir. I would concur with the submissions made by my colleagues in Western Australia and I would also rely on the filed statutory declaration for my submission. Just a couple of points in relation to the statutory declaration. The agreement was generally approved by a valid majority of employees on 30 November 2005. The agreement would not result in the overall reduction of the terms and issues of employees, the agreement described by the relevant award or law. The agreement contains a nominal expiry date ..... The agreement also specifies a dispute resolution procedure ..... in Western Australia.

PN25

The clause 11, which is a dispute resolution procedure, was referenced in that letter which my colleague in Western Australia handed up to the Commission. That clause is clause 11.2. At this stage there are no further submissions.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Reddan. Just on the period, Mr Masson, you asked for it to come into force on 30 November 2005 and remain in force til 30 November 2008. I think that's just one day over three years, so I'll make 1 December, if you like, or - - -

PN27

MR MASSON: Yes, that would be fine.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. The other thing I was going to ask about is in clause 11.3 it provides the company will not dismiss employees in an unfair, harsh or unjust manner. Now, I can only apply the Act as it exists at the present time, but I confess I'm not fully across all the proposed amendments to the legislation, but I understood that there is a provision in that legislation that will make those sorts of clauses null and void, but I don't know when it's going to operate from. As I say, I can only apply the Act as it is now.

PN29

MR MASSON: Yes, and that was our view as well, that essentially that is a reflection of the provisions in the current agreement as made under the Workplace Relations Act 1996. We did not seek to amend those provisions in anticipation of what might and when it might occur under the new legislation.

PN30

THE SENIOR DEPUTY PRESIDENT: That's right.

PN31

MR MASSON: If the effect of the new legislation is to render those provisions null and void, then that's something that we would need to deal with at the time.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, all right. You understand that too, do you, Mr Reddan?

PN33

MR REDDAN: Yes, sir. ..... new employment laws and ..... obviously have an affect on the agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, may affect the agreement. I don't know that it will, but it certainly may, yes. All right. This is an application pursuant to Part 6B Division 2, section 170LJ of the Workplace Relations Act 1996 to certify an agreement to be known as the Woodside Petroleum (WA Oil) Pty Ltd/AIMPE Cossack Pioneer Certified Agreement 2005. Having heard Mr Ian Masson on behalf of Woodside Petroleum (WA Oil) Pty Ltd, Woodside, I'll refer to it as Woodside, and Mr Reddan on behalf of AIMPE, and having read the statutory declaration filed by Donald Fraser on behalf of Woodside and the statutory declaration filed by Mr Henning Christensen on behalf of AIMPE, I'm satisfied that the agreement filed relates to a constitutional corporation, namely Woodside Petroleum (WA Oil) Pty Ltd, ACN 050135192.

PN35

I'm also satisfied that the AIMPE has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member. I am satisfied as to the following matters. All of the terms of the agreement pertaining to the employment relationship or are incidental to it. The agreement passes the no disadvantage test. The agreement was made in accordance with section 170LJ and a valid majority of persons employed at the time whose employment will be subject to the agreement genuinely approved the agreement. The explanation of the terms of the agreement was appropriate. The agreement includes procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement, and the agreement specifies a date as a nominal expiry date which is not more than three years after the date on which the agreement will come into operation.

PN36

I'm also satisfied that there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly the agreement will be certified with effect and in accordance with its terms on 1 December 2005 and shall remain in force until 30 November 2008.

PN37

Anything else, Mr Masson?

PN38

MR MASSON: No, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Reddan, anything else?

PN40

MR REDDAN: No, sir.

PN41

THE SENIOR DEPUTY PRESIDENT: Very well. The matter is adjourned, thank you.

<ADJOURNED INDEFINITELY [8.58AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER TO MR HENNING CHRISTENSON FROM MR IAN MASSON DATED 19/09/2005 PN13