AG2006/2952, Transcript of Proceedings [2006] AIRCTrans 728 (9 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14923-1

SENIOR DEPUTY PRESIDENT MARSH
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CARGILL

AG2006/2952

APPLICATION BY MARITIME UNION OF AUSTRALIA, THE & BOSKALIS AUSTRALIA PTY LIMITED
s.170LC - Multiple business agreement
(AG2006/2952)

SYDNEY

10.00AM, THURSDAY, 27 APRIL 2006

PN1

MR W GIDDINS: I appear in this matter for the Maritime Union of Australia.

PN2

MR D DAVIES: I seek leave to appear in these proceedings on behalf of Boskalis, Dredeco and Van Oord.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Any objection?

PN4

MR GIDDINS: No objection, your Honour.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Thank you. That is granted. Mr Giddins, I note on the basis of your supplementary statutory declaration that this matter is out of time.

PN6

MR GIDDINS: On the basis of my - - -

PN7

SENIOR DEPUTY PRESIDENT MARSH: Yes, that the date the agreement was approved was 15 February. Is that right, or is this within time? That is the note I have got.

PN8

MR GIDDINS: I understood that the agreement was approved on 15 February. Yes, your Honour, the application was filed on 16 March.

PN9

SENIOR DEPUTY PRESIDENT MARSH: Well, we in fact received - lodged on the 23rd. We can deal with that.

PN10

MR GIDDINS: I am happy to make submissions when the time comes in respect to the extension of time under section 111(1)(r) of the former Act, if that is suitable to you or I could do it now.

PN11

SENIOR DEPUTY PRESIDENT MARSH: Could you do it now?

PN12

MR GIDDINS: Yes.

PN13

SENIOR DEPUTY PRESIDENT MARSH: I am most concerned that the vote couldn't have been affected by a change in the composition of the workforce.

PN14

MR GIDDINS: Your Honour, I haven't addressed my mind as to why there was that space in time between when it was approved by postal vote and when the application was filed. I do know that there was some interaction between ourselves about having the documents transferred to each other to have them signed, but in any event, consideration of both my original and supplementary statutory declaration and that of Mr Diamond illustrates that the nature of employment in this industry is significantly based on casual employment.

PN15

The MUA has sent out to a number of employees that it knows actively participate in the dredging industry and are available for engagement a postal ballot. There were approximately 56, 58 ballot papers sent out. I've got copies of those returned. There are we suspect some employees who may on a less regular basis be engaged in the dredging industry. The only thing I can say to you at this stage is it's not a greenfields agreement, but there are no projects in place. There are no current engagements of employees to the best of my knowledge, but I just inquired of Mr Davies prior to the matter being called on.

PN16

I understand that there are two projects, one at Hay Point and one near Weipa commenced in the immediate future. I couldn't say that the composition of the workforce as such has changed. All I could say to you was that those that participated in the vote accurately reflect those who are most likely to engage by the three employers from time to time under the agreement and they would not have been affected in any way by the expiration between when they approved the agreement and when the agreement was filed.

PN17

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Do you concur with that, Mr Davies?

PN18

MR DAVIES: Yes, I do, your Honour. In fact, the situation is that there are no employees in the industry at the moment to the best of my knowledge or dredging projects which are extant at the time that the postal vote was taken by Mr Giddins' union had been concluded and this is an industry which is project driven and therefore there will be no further employment until such time as the projects which Mr Giddins referred to commence.

PN19

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Very well. Thank you. On the basis of those submissions, we're prepared to exercise our discretion and extend the 21-day time limit described in section 170LM(2)(a) pursuant to section 111(1)(r) of the Workplace Relations Act. That means we have a properly made application before us and we will proceed on that basis. Thank you.

PN20

MR DAVIES: If it please the Commission, Mr Giddins suggested that I open the proceedings today.

PN21

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly.

PN22

MR DAVIES: We have today an application filed by the MUA on 23 March seeking the certification of a multiple business agreement and that agreement to be known as Boskalis, Dredeco and Van Oord Contract Dredging Maritime - AMOU Enterprise Agreement 2005. The application was accompanied by a statutory declaration of Mr Giddins on behalf of the applicant and I understand that he has also filed a supplementary statutory declaration and he has provided me with a copy of that.

PN23

The statutory declaration by Mr Diamond on behalf of the respondent employers was filed in the registry on 23 March and, of course, a signed original of the agreement was also filed at the same time. Your Honours, Commissioner, this is the latest in a series of multiple employer agreements between my clients under various names. The names of the companies have changed, but it's the same employers, going back at least until 1997 and the Act provides that the application for such agreements, multi-employer agreements are to be heard pursuant to section 170LC(3) and are not to be certified until the Commission is satisfied that it's in the public interest to do so as set out in section 170LC(4) in the pre-reform legislation.

PN24

As to the issue of public interest, we wish to draw the Commission's attention to the statements which are set out in 9.1 and 9.2 of both Mr Diamond's and Mr Giddins' original affidavits. If I may quote those, 9.1 says:

PN25

On dredging projects, the employer parties may contract to undertake work as joint ventures. In these circumstances, uniform employment conditions facilitate the most efficient utilisation of the dredging plant. Lack of uniformity could generate industrial disputation.

PN26

9.2 says:

PN27

There is a high degree of labour mobility and only a relatively small pool of experienced dredging personnel in the industry. As a result, employees often end up working for a number of employers over a period of time when different employers secure dredging contracts. Uniform employment conditions facilitate a high degree of labour mobility which in turn ensures that employees with the necessary skill and experience are available for each dredging project.

PN28

And I conclude the quotation there. We say that the same conditions that are set out in Mr Diamond and Mr Giddins' statutory declarations were taken into account by another Full Bench of this Commission on 18 April in a decision set out in print PR971683. That matter dealt with a counterpart multi-employer agreement between my clients and the Australian Maritime Officers' Union and I would hand up a copy of that decision.

PN29

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN30

MR DAVIES: It's my submission that the circumstances prevailing in this industry in the matter before the Commission last week are the same as which prevail today before the Commission as presently constituted and we say that there should be no impediment to the Commission certifying the agreement in the terms sought. In respect of the remaining provisions of section 170LC and the other relevant provisions of the Act, we rely on the statutory declarations of Messrs Giddins and Diamons.

PN31

As to the general provisions of the agreement, we submit that it meets the technical requirements of the pre-reform Act and there are no impediments on that score to prevent certification of the agreement. We ask that the Commission certify the agreement in terms of the documents filed. If it please the Commission.

PN32

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Davies.

PN33

DEPUTY PRESIDENT HAMILTON: Before you sit down, Mr Davies, just one question. Have a look at clause 9.1(c) and (d), just remind me why that is not a breach of the freedom of association provisions of the Act. I am sure it isn't, but I hope it isn't.

PN34

MR DAVIES: Well, perhaps Mr Giddins is in a better position to address that. However, let me say that my understanding as a result of negotiations which I was in and then moved out of in relation to the settlement of disputes procedure, there was no distinction drawn between someone who was a member of a union represented by the delegate or official of the union or a person who was employed pursuant to this agreement who was not a member of the union both being able to access the settlement of disputes procedure to the same degree. That was certainly not the intent of the parties.

PN35

DEPUTY PRESIDENT HAMILTON: Thank you.

PN36

SENIOR DEPUTY PRESIDENT MARSH: I think that was clarified before the Full Bench last week.

PN37

MR DAVIES: Indeed, it was. Mr Groves of the AMOU was asked the same question.

PN38

SENIOR DEPUTY PRESIDENT MARSH: Yes. I think it's important that we have it on the record that that is the intent.

PN39

MR DAVIES: Indeed, that is the intent of the parties, your Honour.

PN40

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN41

DEPUTY PRESIDENT HAMILTON: Thanks very much.

PN42

SENIOR DEPUTY PRESIDENT MARSH: Mr Giddins.

PN43

MR GIDDINS: Your Honours and Commissioner, in respect to that very last matter, I can confirm that is the position. Clause 9.1 should not be read down as exclusive to union officials. As it is, there is a high saturation level within the dredging industry within various organisations, but in the event that any employee who was not a union member required the assistance either through that particular clause or to the union in an informal matter, they would be represented and assisted and there is no impediment on the employee dealing directly with them arising out of the clause itself, so in that regard, there was nobody that would be placed outside of the machinery provisions in the agreement to settle a dispute.

PN44

Now, in relation to the general application, we support and embrace Mr Davies' submissions in respect of section 170LC(4) in regard to the public interest. There are a number of agreements in the dredging industry since 1996 that have been approved and in the circumstances where there is no distinction or departure from the way the industry is worked, the make up of the employers and the reasons underpinning the public interest tests, we think it would be prudent in the circumstances that this Bench not depart either from those previous decisions, unless there was some area of distinction or particular need.

PN45

We think that a multiple business agreement is not only industrially convenient and practical, but is essentially the only alternative form of regulation that would properly govern this industry and the employers and employees underneath it. It provides for high mobility of labour between employers and also to the fact that employees of more than one employer may be working alongside each other in a remote area performing exactly the same tasks and so for the purposes of industrial harmonisation, we think there is a utility in having an agreement such as this certified by the Commission.

PN46

I should just for the purposes of further clarification of clause 9, at clause 9.1(e) there is a provision that talks about continuity of work pending or not being prejudiced in any way towards the final settlement of a dispute. I should say to you that the parties have discussed this issue and whilst the agreement itself is not specific, the parties wish the transcript to reflect the intention of the parties that clause 9 for the purposes of ultimate resolution of a dispute intends to empower the Commission to use any powers it has under conciliation and, if necessary, arbitration to resolve any dispute that may arise. Other than those very brief comments, we commend the agreement and ask that subject to any questions you may have of myself, that the agreement be certified.

PN47

SENIOR DEPUTY PRESIDENT MARSH: Thank you for the submissions. On the material before us, we're satisfied that the relevant provisions of the Workplace Relations Act have been met. The agreement will be certified on the date 26 April 2006 and remain in force until 30 June 2008. We will issue short reasons for decision, we will publish short reasons for decision in due course. Thank you for your attendance. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [10.14AM]