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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 16655-1
COMMISSIONER RAFFAELLI
C2006/2744
AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
AND
TOTAL MARINE SERVICES PTY LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2744)
PERTH
9.37AM, WEDNESDAY, 14 MARCH 2007
Continued from 6/9/2006
PN140
MR M BYRNE: I appear on behalf of the Australian Institute of Marine and Power Engineers. Also in the Commission today is MR P OLSEN, who is another official of the Australian Institute of Marine and Power Engineers, and MR G MAYNARD, a member of the Australian Institute of Marine and Power Engineers, the original claimant in this matter.
PN141
MR M LLEWELLYN: I appear on behalf of Total Marine Services.
PN142
THE COMMISSIONER: Thank you. Yes, Mr Byrne?
PN143
MR BYRNE: Thank you, Commissioner. In accordance with directions that were issued by yourself in Sydney on 28 December last we have filed in the Commission on 14 February 2007 written submissions addressing the various issues that were referred to in the Commission's directions. I understand that the Commission has received those.
PN144
THE COMMISSIONER: Yes.
PN145
MR BYRNE: And a copy was provided to Mr Llewellyn and Total Marine Services as well. I apologise to the Commission and Mr Llewellyn that the attachment tabs were not numbered. They were in sequential order and if you are able to number them you should be able to follow the references in the submission.
PN146
THE COMMISSIONER: Yes. Actually my tabs are numbered.
PN147
MR LLEWELLYN: You have somebody, we don't.
THE COMMISSIONER: Well, your submissions, I'll mark those, Mr Byrne. I don't take it as evidence in case Mr Llewellyn has objections, but more for my own identification.
EXHIBIT #AIMPE1 SUBMISSIONS
PN149
MR BYRNE: Thank you. Commissioner, I don't intend to read to the Commission 10 or 11 pages of submissions and a stack of attachments. I'd make an assumption that the Commission and Mr Llewellyn have read the submissions and understand them, and I ..... for the purposes only to refresh your memory of ..... submissions ...... historical background to the question of the issue of loss of confidence ...... I address the issue that the Commissioner did ask about which agreement applied to Mr Maynard. I indicate in that section of the submission that we're seeking to educe evidence about that aspect from Mr Olsen.
PN150
I also indicate that we'll be seeking to educe evidence in support of that part of the submission, the emphasis including Mr Maynard and Mr Olsen. Now, subsequently I certainly do intend to do that this morning, that is to call those two gentlemen, Mr Maynard and Mr Olsen, but subsequent to comparing the statement I sought to have issued a summons to witness Mr Ray Meadowcroft, and a summons to witness Mr Peter Richards. If the Commission so desires I can place copies of those summonses on the file if that's appropriate.
PN151
THE COMMISSIONER: No, we've got copies of the summonses.
PN152
MR BYRNE: I brought my copies of the summonses to ..... advised of those matters. Service was affected on both of those gentlemen, and I now seek to provide to the Commission ..... statement of service. The statement of service identifies Ms Tess as a party, the recipient of one of the summonses, and it was the summons in relation to Mr Meadowcroft, which is a party and employee in the same organisation where Mr Meadowcroft now works. And likewise I'd like to tender - I'm not sure if the Commission wants to mark that statement of service.
PN153
THE COMMISSIONER: Not yet.
PN154
MR LLEWELLYN: Perhaps if I can just ask my friend at that point, has the summons actually been served on Mr Meadowcroft, or has it simply been served on an employee in his company?
PN155
MR BYRNE: I think the Act makes it clear that service on an adult person employed in the company is adequate service, Commissioner.
PN156
MR LLEWELLYN: Well, that's if you're summonsing a company, not a person.
PN157
MR BYRNE: .....
PN158
THE COMMISSIONER: Well, we'll deal with that as we get to the other documents that I'm aware of.
PN159
MR BYRNE: So I provide the Commission and Mr Llewellyn with a copy of the statement of service of Mr Richards.
PN160
THE COMMISSIONER: Yes.
PN161
MR BYRNE: And if I can advise the Commission that in relation to two gentlemen as follows. Mr Richards is Malaysian ..... and unable to attend. He has indicated in his statutory declaration that he would be available by telephone hook up should the Commission so desire, but he is unable to be here this morning or any part of today as I understand it.
PN162
THE COMMISSIONER: Yes.
PN163
MR BYRNE: In relation to Mr Meadowcroft I am advised that he is in Adelaide this morning and will be returning to Perth this afternoon and can be available either late this afternoon or tomorrow morning.
PN164
THE COMMISSIONER: Yes.
PN165
MR BYRNE: Obviously we can't call those witnesses at this point in time. ..... But I'd ask that during the course of the day the Commission ...... that issue proceeding. We can either proceed to call Mr Meadowcroft late in the day, adjourn to tomorrow after we've dealt with all the other matters we can deal with today, or we can adjourn to another day to be fixed by the Commission to educe the evidence of these two witnesses.
PN166
THE COMMISSIONER: Mr Richards doesn't live in Malaysia?
PN167
MR BYRNE: No.
PN168
THE COMMISSIONER: He's only travelling, yes, okay.
PN169
MR BYRNE: He's there on business as I understand it, sir.
PN170
THE COMMISSIONER: Well, we might discuss that later. I note you may have something to say as well, Mr Llewellyn, and we'll hear from you in due course about that so, as I said, we need not trouble ourselves at this point.
PN171
MR BYRNE: So putting those matters, that is the summonses, to one side I'd like to call Mr Gregory Joseph Maynard.
PN172
MR LLEWELLYN: If I may, I'd like witnesses excluded from the proceedings.
THE COMMISSIONER: There's no great problem with that is there, Mr Byrne? Thank you, Mr Olsen, you might - we'll get to you in due course.
<GREGORY JOSEPH MAYNARD, AFFIRMED [9.48AM]
<EXAMINATION-IN-CHIEF BY MR BYRNE
PN174
MR BYRNE: Can I provide the witness with a copy of his statement?
PN175
THE COMMISSIONER: Yes.
PN176
MR BYRNE: Thank you, sir.
PN177
This is a copy of a statement that you prepared, Mr Maynard?---Yes, that's correct.
PN178
Can you advise the Commission if this statement is a true and correct statement of your recollection of the facts in this matter?---It is.
PN179
So can I take you to the statement. You say in paragraph 2 that you commenced work in Total Marine Services on 23 September 1991, is that correct?---It is.
PN180
Can you just indicate to the Commission the kind of work that you performed in Total Marine subsequent to that commencement date?---I was working as a marine engineer at various offshore vessels.
PN181
And you indicate in paragraph 3 of your statement that you remained a permanent employee B by Total Marine from 25 December 1991, is that correct?---That is.
PN182
You then say in paragraph 4 that you continued to work on offshore oil and gas sector vessels until May of 1997, is that correct?---Yes.
PN183
You indicate that you in May 1997 you joined the self propelled dredger Volvox Delta in Geelong, Victoria, and you say that you were
employed as a first engineer on that vessel. You go on to say that the rate of pay which applied was the rate which applied to the
dredge you believe was even time, not the 1.153 received in the offshore sector. Can we just deal with that paragraph there and
ask you to explain to the Commission the difference between even time and 1.153?
---Well, 1.153 is a payment in the offshore oil and gas sector, and the 1.41 is the payment that is in the dredging sector.
PN184
So if it was even time and the swing lengths were four weeks in length, that means that it was four weeks of duty and four weeks of leave, is that correct, in the dredge sector?---It is correct, yes.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN185
And how was the 1.153 leave ratio delivered in the offshore oil and gas sector?
---It was an accumulation onto your leave and it would be taken some time in the future that suited both parties.
PN186
So what was the normal swing arrangement in the offshore oil and gas sector?
---Five weeks on, five weeks off.
PN187
Thank you. In paragraph 5 you say you went from one swing on the offshore drilling on Sedco 701 as a first engineer, is that correct?---That's correct.
PN188
Then in paragraph 6 you state that you returned in February '98 to the Geelong dredging project, this time on the Jan Steen, another dredge being crewed by TMS. Again you say you worked a four week swing and subsequently sailed the vessel from Fremantle, Western Australia to Singapore. Can you indicate if you had leave between those two events, that is, between working a four week swing in Geelong and doing the delivery work?---I had four weeks off in between.
PN189
Thank you. Then on the second page of your statement you indicate that you worked on the Leonardo Da Vinci dredge, the Leonardo Da Vinci in Dampier, you worked three swings of four weeks duration commencing May 1998, and I assume - can you confirm for the Commission whether you had leave in between those work swings?---Yes, I did. It was four weeks leave in between the four weeks that were worked on.
PN190
Yes, thank you. You then worked on the Volvox Delta dredging in Onslow, once again as first engineer. From December 98 you did two swings on that vessel. Can you confirm that for the Commission?---Yes, that's correct.
PN191
Then in paragraph 9 you say that after the Onslow dredging work you served on various offshore vessels from 1999 to 2002, and offshore conditions applied to pay and leave, is that correct?---Yes, it is.
PN192
You then say in paragraph 10 that in 2002, July, you worked on the drill rig Sedco 702 with offshore conditions applying, is that correct?---Yes, it is.
PN193
In paragraph 11 of your statement you say that in August 2002 Mr Nunn called you. That was a telephone call I presume?---No, it was at Total Marine's offices.
PN194
Okay. And he asked you if you would join the dredge Nina in Dubai for a voyage to Geraldton, is that correct?---Yes, it is.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN195
You say in your statement that you agreed to join the Nina in Dubai as long as you were covered under the TMS AIMPE Offshore Agreement,
is that correct?
---Well, yes, it is, with the normal rates of pay and leave that apply to dredging, but everything else was the offshore agreement.
PN196
You then go on to say in paragraph 11 you agreed that the pay and leave would be at the Nina rates which Paul had advised about. Can you indicate to the Commission if Mr Nunn agreed with you about those two matters, that is, that the pay and the leave would be at Nina rates and that you would for other purposes be covered under the TMS AIMPE Offshore Agreement?---Yes, that's correct.
PN197
Now, you also say in paragraph 11 that you requested authorisation to take your long service leave entitlements and your unused leave from December 2002 to March 2003, and you say that this was agreed, is that correct?---Yes, it is.
PN198
At that time did you discuss the rate of pay that would apply to those long service leave entitlements and the unused leave?---Not the long service leave part of it, but the unused leave would have been what I would have worked at and accumulated at.
PN199
So would it be correct to describe that unused leave as the .153 accumulation that did not discharge previously?---That's correct.
PN200
Was there any written confirmation about those arrangements provided to you?
---There was after I had delivered the vessel from Dubai. I believe it was on my second swing, during part of my second swing, we
had a discussion and a letter did turn up at my house I believe.
PN201
Thank you. And what did that say about the matter? You have a copy of it?---I do have a copy, yes. Basically that I'd be covered by the offshore oil and gas agreement, long service leave, seniority, superannuation and severance pay I believe.
PN202
Mr Llewellyn may want to see a copy of that letter so we might see if we can provide a copy of that letter in due course?---Okay.
PN203
Then in paragraph 11 you indicate that from September 2002 to October 2002 you were on board the dredge Nina in Geraldton, is that correct?---Yes, it is.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN204
In paragraph 13 you state that you in October 2002 were requested to join the Leonardo Da Vinci as second engineer, and previously been on you stated as first engineer, in paragraph 7 of your statement, you were first engineer. You say you declined this request because it would have been a drop in pay, and then you state it was agreed that you would go back to the dredge Nina as chief engineer for a swing and then proceed on long service leave, is that correct?---Yes, it is.
PN205
And you say in the following paragraph at paragraph 14 that you commenced that long service leave on 26 November, is that correct?---Yes, it is.
PN206
And then in paragraph 15 you make a number of statements in relation to the rate of pay that would apply during your long service
leave, and you state that you spoke with Mr Richards at TMS about that, and you state that Mr Richards replied that the rate that
would apply would be the offshore rate of payment or the Nina rate of pay as you were a permanent offshore employee. You state that
he said that while dredging oil offshore entitlements apply. You also state that he said that he had an agreement with Phil Olsen
that all permanent offshore employees of TMS who transferred to dredging are covered and will continue to receive all offshore entitlements.
You further state in this paragraph that you told Mr Richards that Mr Nunn had sent you a letter dated 8 November 2002, but that
you disagreed with it. So Peter said - Mr Richards, I interpolate - said ignore the letter, as a gentleman's agreement consistent
with Mr Olsen. Is that all correct?
---That is correct.
PN207
Can you indicate to the Commission what it is that you disagreed with in that letter of 8 November?---As a permanent employee in the offshore sector there was an entitlement for health insurance, and I wasn't being covered by the health insurance, and as a permanent employee I believed I was entitled to it, that's why I disagreed with it.
PN208
So moving to paragraph 16 of your statement, do you say that you, on 28 February 2003 you were surprised to receive travel order to join Nina as chief engineer. I usually got a phone call to discuss arrangements. Can you indicate or clarify for the Commission how you received those travel orders?---I received them by telephone from one of the office ladies who looks after the travel arrangements. She just rang up and asked me to join the Nina. I was surprised because I believe that the project was finishing up in February so I was surprised that they were still there.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN209
I see. You then say in the following paragraph in paragraph 17 that you felt a sharp pain in your left hip and the following day, that would be 3 March 2003, you visited your GP Dr Buckeridge, is that correct?---That's correct.
PN210
However in paragraph 18 you then say that another two days later on 5 March you nevertheless joined the Nina for a four week swing?---That's correct.
PN211
Can you indicate to the Commission how that swing went? Did you perform it normally given that you had that pain in the left hip?---Yes, I was suffering, but I believed I wanted to get through the swing and I just did my four weeks and, yes.
PN212
You then say in paragraph 19 that on 2 April you began your leave off the Nina and then on 5 April you visited Dr Langlands, a rheumatologist. Can I ask you if that appointment with the rheumatologist Dr Langlands had been authorised by your GP?---Yes, it had.
PN213
So do you recall if you had made that arrangement with him on your previous visit prior to that swing on the Nina?---No. I had been at the rheumatologist probably six months earlier to that and he - I lived in the country so he visited every six weeks, and it just so happens he was there at the right time after I'd got off and so I visited him.
PN214
Thank you. You then state in paragraph 20 of your statement that on 23 April you rang - this is in 2003 - you rang Mr Richards and said you'd be unfit for work for several months. You state that he asked what happened and you replied that you had a cracked femur, cause unknown. You also state that "Peter's reply was that I was covered as a permanent employee under the offshore agreement," and you also state that he said that he would speak to payroll and you would be entitled under the agreement to personal injury insurance which is 75 per cent of salary for three months. You also state that he requested that you provide a medical certificate, and you state that you provided a certificate subsequently. Is that all correct?---That's correct.
PN215
Now, in paragraph 21 of your statement you then indicate that from 23 April to
12 May you were paid full pay being your offshore leave. Can I ask you if that means that - - -
PN216
MR LLEWELLYN: Perhaps rather than leading just ask what it means, not give the meaning and ask if that's what it is.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN217
THE COMMISSIONER: Yes.
PN218
MR BYRNE: Can I ask what happened to you between leaving the Nina after your four week swing on the Nina and the period before 23 April in terms of your pay?---I was paid the four weeks that was owing to me from the Nina.
PN219
And what rate was that payment?---That was paid at the chief engineer's Nina rate.
PN220
I see. And so the rate of pay changed did it in the period that you refer to in paragraph 21?---Yes. From 23 April to 12 May it was back on to my accumulated leave from the offshore oil and gas. May I say that that was then previously back dated and I went on to the 75 per cent of salary under the Offshore Oil and Gas Agreement.
PN221
Yes, so that's the payment that you then refer to in paragraph 22 of your statement. You say that from 12 May to 11 August you received personal injury insurance payments of 75 per cent?---That's correct.
PN222
And in paragraph 23 of your statement you say that from August 2003 until February 2005 you received temporary salary continuance payments from AMP Life to the AIMPE superannuation, is that correct?---That's correct.
PN223
Can you indicate to the Commission at what rate those payments were made as well?---They were 75 per cent of the chief engineer's rate, the last vessel I had been on.
PN224
Thank you.
PN225
THE COMMISSIONER: I didn't hear the last bit, 75 per cent of what?---Of the last vessel that I'd been on which was the Nina, which was the dredge.
PN226
MR BYRNE: And in paragraph 24 you say that in March 2005 you visited the TMS office, you met with Mr Richards and Mr Nunn, you state that you told them that you had failed the AMSA medical and would not be able to return to work permanently. You say that Mr Nunn said that he would contact Mr Olsen to discuss the loss of certificate procedures, and he would also arrange for remaining leave to start being paid. Is that all correct?---Yes.
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN227
And then finally in paragraph 25 you state that on 1 April 2005 your employment was terminated and your leave was paid out, is that correct?---That's correct.
PN228
For the information of the Commission can you indicate what has happened with your medical condition since that period of time?---I've had both left and right hips totally replaced.
PN229
Thanks, Commissioner, that's the evidence-in-chief.
PN230
THE COMMISSIONER: Yes. Yes, Mr Llewellyn?
PN231
MR LLEWELLYN: I'm just wondering if we've got a copy of the letter Mr Maynard referred to?
PN232
THE COMMISSIONER: Yes, okay. We'll adjourn briefly for five minutes and we'll get a copy.
<SHORT ADJOURNMENT [10.12AM]
<RESUMED [10.19AM]
PN233
THE COMMISSIONER: Yes, Mr Byrne?
PN234
MR BYRNE: Commissioner, Mr Llewellyn is about to examine but asked for the copy of the letter. Mr Maynard has provided three items of correspondence, one a letter on Total Marine Services letterhead dated 17 April 1997 and it's signed by Mr Meadowcroft, commercial manager Total Marine Services. If you wish to mark that as an exhibit?
THE COMMISSIONER: Yes, we'll mark this. Well, we should have marked Mr Maynard's statement as exhibit AIMPE2, and we will mark this letter AIMPE3.
EXHIBIT #AIMPE2 STATEMENT OF GREGORY MAYNARD
EXHIBIT #AIMPE3 LETTER FROM MR MEADOWCROFT, TOTAL MARINE SERVICES DATED 17/04/1997
MR BYRNE: The second in chronological order is the letter from Total Marine Services dated 8 November 2002 addressed to Mr Maynard signed by Mr Paul Nunn, marine coordinator Total Marine Services.
EXHIBIT #AIMPE4 LETTER FROM MR NUNN, TOTAL MARINE SERVICES DATED 08/11/2002
**** GREGORY JOSEPH MAYNARD XN MR BYRNE
PN237
MR BYRNE: And the fax from Mr Maynard to Mr Richards dated 7 January 2003.
EXHIBIT #AIMPE5 FAX FROM MR MAYNARD TO
MR RICHARDS DATED 07/01/2003
THE COMMISSIONER: Yes, thank you. Yes, Mr Llewellyn?
<CROSS-EXAMINATION BY MR LLEWELLYN [10.22AM]
PN239
MR LLEWELLYN: Mr Maynard, is it correct you've never performed, or you haven't performed any work for Total Marine Services under the 2002-2005 agreement?---No, that's incorrect.
PN240
Well, the 2005 agreement came into being in May 2003. You've never done any work for Total Marine since the end of 2002 effectively, that's correct isn't it?---I was on the offshore industry in August 2002, and then again in March 2003 I was on the dredge.
PN241
So the last vessel you worked on for Total Marine, which was your duty period ending 31 March 2003 as the chief engineer on the Nina, is that right?---That's correct.
PN242
So you've never actually performed any work under the offshore agreement that came into being in May 2003, that's also correct isn't it?---Yes, that would be correct.
PN243
Now, I think my friend has taken you through, that you actually prepared your witness statement, that's correct, and what's in here is true and correct?---That's correct.
PN244
And what you say is in 1997 you worked on the Volvox Delta?---That's correct.
PN245
And the letter you've now provided which was the letter under Mr Meadowcroft's signature indicates the conditions on which you were employed under that doesn't it, AIMPE3, from Mr Meadowcroft in April 1997?---That's correct.
PN246
Can you recall if you actually started work on the Volvox Delta?---Sorry?
PN247
Can you recall if you actually worked on the Volvox Delta in May 97?---Yes, I believe so, yes.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN248
What makes you think that?---I don't understand what you're saying.
PN249
Well, it's a fairly simple question. Let's go back to, as a marine engineer you're required to revalidate your certificate every so often, correct?---Every five years, yes.
PN250
Right. And when you go and revalidate your certificate you prove to the regulatory authority, being AMSA, what vessels you have actually worked on in the preceding five year period?---Not all the time. Sometimes a letter from the company would be sufficient.
PN251
Which gives your sea service for the vessels you've been on?---It will say that you've served 12 months in the last five years.
PN252
Or it will give a list of all the vessels you've served on?---Not necessarily.
PN253
Not necessarily. Commissioner, I wonder if I could have the witness shown this document please? Do you recognise that document?---No, I don't.
PN254
Wasn't this the testimonial sea service given to you to renew your certificate in 2000?---I would take it that it is, but I can't recall the actual document itself or having any possession of it.
PN255
Well, Mr Maynard, I put to you that those records were taken from the Total Marine System payroll records which indicates all of the vessels you've worked on for the company during that period. Would you dispute that?---No. No, I don't think so, sir.
PN256
Which doesn't list the Volvox Delta as being a vessel you worked on in May 97?
---No, it doesn't.
PN257
It actually recognises that vessel in October 98?---Yes, that's correct, that would have been in Onslow.
Commissioner, I wonder if I might have that document marked?
EXHIBIT #TMS1 TESTIMONIAL TO SEA SERVICE
PN259
MR LLEWELLYN: Now, I think you also said that you worked on the Jan Steen, another dredge?---It was a rock dumper.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN260
So it wasn't a dredge was it?---No.
PN261
Right, so that part of your statement is incorrect as well?---It was employed - it was a multi purpose vessel. It was a rock dumper, you can put a crane on the end of it and you can go dredging.
PN262
And in 98 it was a rock dumper?---In 98 it had a crane on the end with a grab picking up dirt off the ocean, I would classify it as a dredge at the time.
PN263
All right. Now, you say that all through - let me understand your evidence. All through all of the time that you've worked on dredges for Total Marine your evidence is that the offshore agreement would continue to apply to you in all respects other than pay and leave?---That is correct.
PN264
Can I just ask you to look at your letter from Mr Meadowcroft again dated April 97, AIMPE3?---Yes.
PN265
Is that what that letter says?---Sorry?
PN266
Is that what that letter says? That letter doesn't say that at all does it? It says that you'll get the benefits of long service leave, severance and superannuation, that's it. That's correct isn't it?---That's correct.
PN267
You didn't dispute that did you?---At the time, no.
PN268
Now, you again went to work dredge, on the Leonardo Da Vinci and the Volvox Delta from 20 April 98 through to 29.12.98, that's correct isn't it?---Can you repeat that question please?
PN269
Yes. You again went to work on the Leonardo Da Vinci, a cutter dredge, on 28.4.98 and you continued to work on dredges including the Volvox Delta until 29.12.98, that's correct isn't it?---Yes. From what I understand, going from this, yes, I'd say that was correct.
PN270
Can't you remember?---No, I can't remember back exact dates that far, no.
PN271
Do you remember what terms and conditions you were engaged on, on that occasion on the dredges?---I was never given a letter. We had an understanding that I'd be covered as a permanent employee under the Offshore Oil and Gas Agreement.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN272
So you were never given a letter then?---Not to my recollection and it's certainly not in my records.
PN273
Do you recognise that letter, Mr Maynard?---No, but it's the same as the other letters I presented to you.
PN274
Well, Ms Ridian who was the personnel manager at the time recalls sending this to you, and they were the terms and conditions you were engaged under and you worked under those terms and conditions. You don't dispute that do you?---No.
PN275
And again that only limits you under what was the AIMPE agreement, if I use the term AIMPE agreement for offshore, to those three issues doesn't it?---No. I was covered under the Offshore Oil and Gas Agreement except for the pay and leave, I was not to be disadvantaged.
PN276
Well, what's the - - -?---The main things that we had to cover was long service leave, the severance pay and the superannuation, the most three obvious things that needed to be covered. We always had an agreement that leave and pay were the only things I'd be changed, I wasn't to be disadvantaged or anything else.
PN277
That's not what that letter says, Mr Maynard?---Well, they can send a letter to my home, it doesn't mean I agree with it.
PN278
Well, you've just told me on the last letter you never disputed it. Are you telling me you disputed this one?---No, I'm not telling you anything.
PN279
So you accept that you continued to work, correct?---I guess I did, sir.
PN280
And in fact that letter is also consistent with the letter you received from Mr Nunn is it not?---It is consistent with the letter from Mr Nunn, but I disagree with the letter from Mr Nunn.
PN281
All right. And the reason you disagreed with that is, in the 2003 agreement you were going to get medical cover and you wanted it?---Yes, and in between all these cases I was verbally agreed that I'd be covered by - - -
PN282
Well, hang on. Up until now you've told me you didn't argue with any of these letters. Who did you argue with in between now?---There's no argument, it was an agreement.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN283
With who?---With Total Marine Services.
PN284
Who?---Ray Meadowcroft, Peter Richards.
PN285
So you did dispute these letters then?---I'm not disputing them.
PN286
MR BYRNE: Objection, Commissioner. The witness has already given evidence this morning in paragraph 15 of his statement that he had a dispute and he disagreed with the terms of this letter, that's the evidence.
PN287
MR LLEWELLYN: In 2003.
PN288
MR BYRNE: In 2002. And then he's given an exhibit, exhibit AIMPE5, which again says he disagreed.
PN289
MR LLEWELLYN: Well, with respect to my friend, I simply asked the witness merely though in terms of 1997 whether he disputed it, he didn't, he's told me that. He said he didn't get a letter in 98, but now he's got the letter he doesn't recall disputing that. And when pressed on it he's now disputed all of it and got some separate verbal agreement that was never put in writing. That's the evidence to date.
PN290
THE COMMISSIONER: Yes. Well, continue with your questions, Mr Llewellyn.
PN291
MR LLEWELLYN: Thank you, sir.
PN292
So in November you received the same letter in exactly the same terms, November 2002 off Mr Nunn, correct?---Correct, yes.
PN293
Right. And you accepted that until January when you were on long service leave, again taking your long service leave, is that correct?---Yes, that's correct, yes.
PN294
So from 8 November until 7 January you never saw any reason to dispute any of that, some two months?---I saw a reason to dispute it. If they'd answered the phone and returned my calls I might have been able to sort it out.
Sorry, if I could have the letter marked, the letter dated 1 December 98 marked please.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
EXHIBIT #TMS2 LETTER DATED 01/12/1998
PN296
MR LLEWELLYN: And then on 7 January 2003, this was after having worked on the Pinta since September, and then taking your leave, I think you took your leave sometime around November. So from when you worked on the Pinta you sent a letter to Mr Richards or a fax to Mr Richards which said that you wanted to confirm you were still receiving benefits under the AIMPE TMS Officers Agreement, ie, long service leave, severance, super, and there's the new one, the health insurance benefit, that's right isn't it?---Yes, as example, yes.
PN297
Yes. So you wanted to make sure that you were getting not only the three things you'd got previously but you were also going to get the $2469 for private health cover?---Yes and - yes, that's correct.
PN298
You didn't raise anything else at that stage did you?---Well, we talked about several things at that stage.
PN299
Did you?---Including that he said don't worry about any letters, we've got a gentleman's agreement with Phil Olsen that you're covered under the Offshore Oil and Gas Agreement except for leave and pay.
PN300
But Mr Richards notes at the time indicate that what he said, he discussed it with you, discussed with Mr Maynard, Greg Maynard, long service leave arrangements, that's it?---Yes, we discussed long service leave arrangements or what the rate of pay was, we discussed several things.
PN301
So the whole time you worked on dredges the only thing you've ever had confirmed from the company is that they were going to be long service leave, severance and super paid?---No.
PN302
At the offshore rates?---The agreement that I had with them that I wasn't to be disadvantaged. Whatever they wrote on paper, when you're away you get something in the mail it stays in the mail, you know.
PN303
Come on, Mr Maynard, there's a good history of you responding to letters in your personal file you didn't agree with?---Mm.
PN304
Any number of them, you know, behaviour on planes, you didn't waste any time responding to those when you got them in the mail?---I was asked to respond and I did respond.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN305
Well, it's not just left in the mail is it? You read it and if you don't agree with it you respond?---If I have to agree - have to respond I respond. I didn't see any reason.
PN306
No, that's right, from 1997 through to 2003 you saw no reason to respond to what you'd been given?---Because we had an agreement, a verbal agreement that that's what I'd be covered for, as I've explained already.
PN307
All right. So is your evidence then that while working on the dredge you received all your health benefits?---No, I didn't receive any health benefits.
PN308
So you didn't receive the health insurance premiums?---Not to my knowledge, no.
PN309
So the agreement didn't apply to you? You did nothing about it, is that correct?
---Well, when I spoke to Peter Richards in January he brought it up again.
PN310
Mr Maynard, what I'm asking you is, in all of the time that you worked on the dredges did you receive the medical benefit?---The medical benefit wasn't even in place in 1997.
PN311
Well, what about in 2003?---I'd have to check my records. I don't believe I was paid it.
PN312
THE COMMISSIONER: Just as we go along, Mr Llewellyn, you might assist me. Medical insurance, health insurance means the company paying Medibank Private on behalf of an employee, is that right, is that what you mean?
PN313
MR LLEWELLYN: Yes. Actually what was done is, there was a deal that's been partially undone now, but what was done in - if my terminology is right - AIMPE were going to one year agreements at that point, but in 1999 roughly, or it might have been 2003 it actually came into effect, it might have been the 1999 agreement - I'll just to see if it's in here - there was an arrangement whereby there used to be - yes, it came in in the 2003 agreement I think - there was an arrangement by which the various allowances or - actually, no, they never come in in the 99 agreement, or in AIMPEs case the 2000 agreement.
PN314
The arrangements for construction allowances and some sort, it reared it's ugly head in the last agreement whereby there was various construction allowances paid on jobs and only the people that worked on those jobs got it, and then in 99 I think it was there was an arrangement whereby - because the argument always started about when the vessel actually arrived on the construction project, so it was the subject of great disputation as I understand it, even though it's before my time. So there was an agreement reached with all the unions back then as I understand it to do away with the construction allowance.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN315
In schedule 8 the specialist vessels were raised to 117 per cent and all employees throughout the marine or the offshore marine sector received either an amount of money to cover medical benefit, in the case of the agreement in the periods we're talking now it was $86.54 per fortnight, and that can be found at clause 15 of the Total Marine Services, Australian Institute of Marine and Power Engineers 1999 Certified Agreement which was certified in May 2000, and it remained in force until July 2002, and that's in clause 15.4.
PN316
THE COMMISSIONER: It's not in the current agreement though.
PN317
MR LLEWELLYN: Sorry?
PN318
THE COMMISSIONER: It's not in the current agreement.
PN319
MR LLEWELLYN: Yes, no it's in the current agreement.
PN320
THE COMMISSIONER: Where do I find it there?
PN321
MR LLEWELLYN: It will be under the allowances currently in - - -
PN322
THE COMMISSIONER: 2005, yes.
PN323
MR LLEWELLYN: That's right, there's a more current ......
PN324
THE COMMISSIONER: I see. Well, for our purposes now - - -
PN325
MR LLEWELLYN: It's probably under clause 19 I suspect being an allowance.
PN326
THE COMMISSIONER: I see, yes.
PN327
MR LLEWELLYN: And I'll say that and somebody will probably move it. There it is, 19.6. So under the current agreement the allowance went up to $94.96 which is the $2469.
PN328
THE COMMISSIONER: I see, yes, thank you. Yes. Sorry to have interrupted everybody. Yes, proceed with Mr Maynard.
PN329
MR LLEWELLYN: The agreements seem to have colourful histories from what I've found.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN330
All right. So from your understanding you never ever received that, that's right isn't it?---I haven't. In the Offshore Oil and Gas - - -
PN331
While you were working on the barge?---I'd been working on the dredge.
PN332
Your evidence is you never received that, that's correct isn't it?---I believe that's the case. I could be incorrect but I believe that is the case.
PN333
So again in terms of your so called conversation with Mr Richards that the agreement you say you had was never applied?---I'm not sure.
PN334
What you're saying, Mr Maynard, is that Mr Richards agreed he would pay everything under the offshore agreement to you with the exception of your pay rate and your leave because your leave is now one for one and your pay is the rate ..... is that right?---Yes.
PN335
You sent a letter to him in 2003, January 2003, wanting the health insurance paid to you?---Mm.
PN336
And it wasn't paid to you?---Yes. His explanation was that it was an allowance and I received other allowances on the dredge which should cover it, other allowances being remote allowance and different sorts of allowances. Because it's not a - it's an allowance he don't feel we should be paid.
PN337
So again he didn't apply the agreement to you, that's right? I just wonder if I could have the witness shown this next. Mr Maynard, I'm not going to ask you identify that document at the moment, suffice to say that it's a printout of your payroll record or your duty and leave record from January 2002 up until - well, at the moment up until the end of April. It was up until the end of July but you went on leave without pay because you were on - you were ill as I understand it?---I went on to 75 per cent pay under the agreement, offshore agreement. I don't know why it's not there.
PN338
Can I just ask you just to scan through that, and that takes you through when you worked on semi?---Yes.
PN339
And that being the Sedco 702 - sorry, yes, Sedco 702?---Yes.
PN340
You then worked on the Nina and Pinta as first engineering commencing in September 2002?---Yes, yes.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN341
And you continued to work on that up until you went on leave essentially in April 2003. It's about four lines down from the top?---2 April 2003, yes.
PN342
And the only other payments you received during that period was from leave you accrued prior to September 2003, is that correct?---Yes, yes.
PN343
The leave you accrued on the Sedco 702?---Yes.
PN344
Now, just one other thing in your witness statement. I think you said at one stage you worked on the Sedco 701?---702, that's a mistake.
PN345
Right, that was actually the Sedco 703 wasn't it?---I did one swing as the rig mechanic or first engineer on the 703, and the other one was the 702, I'm sure it was the 702, yes.
PN346
No, it's all right, I accept that. There's no rig called the 701, that's why I asked?
---No, no. It's a mistake.
PN347
So again when I look at that service for you, you've never actually performed any work under the certified agreement we've been discussing, the 2003 agreement, have you?---The 2002 agreement did you say?
PN348
The one that was certified in May 2003. You never performed any work under the agreement that was certified by this Commission in May 2003?---No, just accrued leave.
PN349
You say in paragraph 21 of your witness statement in April 2003 you received all of your accrued leave which the leave you accrued both on the semi, or some of it on the semi and some of it on the Nina and Pinta?---I don't believe I would have had any leave left from the Nina, it would have been accumulated from the, probably the 702. I don't honestly recall exactly but I can find out for you if you like.
PN350
No, it's all right, it's in the records. And you went on PI payments?---Correct.
PN351
And you had all your leave paid out?---No, no. There was - no. It was frozen.
PN352
Mr Maynard, the payroll records show you had your leave paid out and you subsequently repaid it so you could fill out your declaration to AIMPE to say that you hadn't received any income in that period so you could gain another 17,000 out of your temporary disablement. I can give you the payslips if you like?---I have the payslips here, sir. If you can understand them you're - - -
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN353
It's not hard, Mr Maynard. It shows the summaries quite clearly?---What dates were we talking about?
PN354
Well, let's take you down to 3 August, which is the third set of figures down the page. You received 31 days of PI - sorry, 26 days of PI, and you subsequently repaid 12 days of leave?---Mm.
PN355
Going down to 28 September, you paid back a further 19 days of leave?---I've got lost in this, sorry, how far down is it?
PN356
It's about halfway down the page where it says period ending 1st?---1 September?
PN357
The period ending 28 September.
PN358
THE COMMISSIONER: Advice 4. There's two 28 Septembers.
PN359
MR LLEWELLYN: Yes. One pays back 19 days leave as I add it up, and the other one pays back 14 days leave, that's right isn't it?---Well, my payslips are completely different to these ones.
PN360
Well, at one point you were paid all your leave, and AIMPE made protestations on your behalf to Mr Meadowcroft to the effect that having paid you your leave denied you $17,000 of your claim for - - -?---No, that's incorrect.
PN361
There's letters from Mr Olsen to that effect. Didn't you instruct Mr Olsen to do that for you?---No.
PN362
So Mr Olsen did it off his own bat did he?---Well, I'll explain. The 13 weeks of sickness was covered after I'd taken my four weeks from the Nina. Under the agreement of the superannuation you have a waiting period of 13 weeks. After the 13 weeks of PI ran out I was to go straight onto the AIMPE continuancy and salary payments. Again payroll messed up and they started paying my leave. Consequently that leave would have been offset against the payments of AIMPE, so it was agreed by Mr Meadowcroft, myself and Phil Olsen that that particular leave, and I believe it was about $4000 - I don't know where 17,000 comes from - $4000 was to be paid back, I'd get the leave back and then we can just run through with the AIMPE continuancy salary.
PN363
The letter from Mr Olsen and Mr Meadowcroft demand that you repay the leave because you - the forms and Mr Meadowcroft ..... what I'll put to Mr Meadowcroft when he turns up, is that on his letter he sent to AIMPE, that he's required to fill out a return for AMP to say that you hadn't received any income and Total Marine had actually paid out your leave, which Mr Olsen said by doing that you're denying you, Mr Maynard, $17,000, and the leave should be repaid. You don't recall any of that?---I paid back $4600. I think that would have come to, you know, four weeks pay or something like that. It was about $4000 I recall because I paid them the money back, they paid the leave that was due to me back to my balance.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN364
AMP take it at 75 per cent of what you would have earned, the equivalent?---Yes, they pay 75 per cent, yes.
PN365
And I think your evidence also is that under the AIMPE fund they also paid you the rate of the Nina and not your offshore rates?---That's correct, yes.
PN366
So according to the AIMPE fund they believed you were working on a dredge, not the offshore rigs?---The dredge doesn't cover for it. They only got 10 days sick pay a year, they don't cover - - -
PN367
That's not what I asked you. Under your AIMPE insurance your evidence is that the AIMPE insurance, the AMP insurance that you say you got from your super fund, was paid to you as if you'd been working on a dredge?---Sorry, sir, can you explain that one more time?
PN368
You're a member of the AIMPE fund, correct, AIMPE super fund?---Yes.
PN369
Your evidence is that under the AMP insurance you got as part of that fund paid to you as if you had been working on a dredge?---No. Once a year your super, being a defined benefit fund, is - I think it's 1 July, whatever rate of pay you're on, on 1 July, you would get paid that as - for the rest as being your normal salary. At that time I was - must have been on the dredge I suppose and that's what they paid.
PN370
Well, my friend asked you a question in relation to paragraph 23 of your witness statement, where you said "I received temporary salary continuance payments from AMP Life under the AIMPE super plan," and you said that was the rate of pay you were as the chief engineer on the Nina, Pinta?---Yes.
PN371
So from - - -?---That was the rate of pay because that's what my superannuation for salary purposes was.
PN372
A chief engineer on the dredge?---On that particular dredge, the Nina, yes.
PN373
I seek to have the payroll records marked at this point.
PN374
THE COMMISSIONER: Which ones are they?
PN375
MR LLEWELLYN: ..... produced or marked ..... my friends perspective if I can call that payroll list for us to go through if need be.
**** GREGORY JOSEPH MAYNARD XXN MR LLEWELLYN
PN376
THE COMMISSIONER: Well, which are the payroll?
PN377
MR LLEWELLYN: There's actually two that I've tendered. One is the printout of Mr Maynard's leave and duty period from January 2002.
PN378
THE COMMISSIONER: Yes, that was the first one you did.
MR LLEWELLYN: That's correct.
EXHIBIT #TMS3 PRINTOUT OF MR MAYNARD'S LEAVE AND DUTY PERIOD FROM JANUARY 2002
MR LLEWELLYN: And the second one being Mr Maynard's actual payroll records which run from the period of July 03 through to February 04.
EXHIBIT #TMS4 PAYROLL RECORDS FOR MR MAYNARD FROM JULY 2003 TO FEBRUARY 2004
PN381
MR LLEWELLYN: I have nothing further.
PN382
THE COMMISSIONER: Yes, Mr Byrne?
MR BYRNE: Just a couple of things in re-examination, sir.
<RE-EXAMINATION BY MR BYRNE [10.56AM]
PN384
MR BYRNE: Mr Maynard, when I took you through your statement you confirmed there should be ..... paragraph subsequently ...... Can I ask you to advise the Commission how you prepared this statement and on what basis you made the references to each of the dates and the vessels?---I went back through my payslips and basically put it all together off my payslips, rejogged my mind.
PN385
So you've kept records going back as far as, for instance, the 1997 period, May 1997?---I have all my payslips from 1991.
PN386
I don't know if the Commission wants to see those payslips in evidence.
PN387
THE COMMISSIONER: No.
PN388
MR BYRNE: I'm just curious as to how you came across - you compiled your statement indicating where you were at what times?---Yes. Well, I have records of sea service, you get discharged, I used them and my payslips.
**** GREGORY JOSEPH MAYNARD RXN MR BYRNE
PN389
Now, taking you to the question that Mr Llewellyn - - -
PN390
MR LLEWELLYN: I may be curious about that given my friend - under cross-examination the witness said that he couldn't remember those dates. He's now said he's got all the payslips and he got it all off that, which would give the exact dates if that's the case. So I might be interested to have those produced.
PN391
MR BYRNE: ..... What is the volume of material .....
PN392
THE COMMISSIONER: Leaving aside some shortcomings in the statement or some issues in the statement that have come out of cross-examination, what's the - even if Mr Maynard's statement is slightly at odds with your facts, where does it take us though, just that fact? I'm not talking about the other letters you're talking about that were received, but just whether or not he started with the, you know, whether the Jan Steen was a dredge or not and whether or not he started with the Volvox Delta at a particular time or didn't.
PN393
MR LLEWELLYN: I'm happy to leave it other than - - -
PN394
THE COMMISSIONER: Yes. I mean, I don't think it's - - -
PN395
MR LLEWELLYN: The evidence is contradictory at best.
PN396
THE COMMISSIONER: Well, yes, but it's contradictory - well, some of the contradictions might be of relevance, but the one that just goes to his payslips and when he started, I don't know if they're - - -
PN397
MR LLEWELLYN: I'm happy to leave it.
PN398
THE COMMISSIONER: Yes, because I think Mr Maynard quite correctly, and one of the things that is to the point is he agrees with you, whatever else he did he was on a dredge and not an offshore vessel at key times that you're interested.
PN399
MR LLEWELLYN: I'm fine to leave it at that.
PN400
THE COMMISSIONER: Okay. Yes, you need not worry about your payslips, Mr Maynard. Yes, Mr Byrne?
PN401
MR BYRNE: Mr Maynard, Mr Llewellyn asked you at the very outset about the letters that you referred to, and they actually went in as AIMPE exhibits but I didn't ask you any questions about those at the time. Mr Llewellyn has asked you some questions - - -
**** GREGORY JOSEPH MAYNARD RXN MR BYRNE
PN402
THE COMMISSIONER: What do you mean they went in as AIMPE exhibits?
PN403
MR BYRNE: Yes, 3, 4 and 5 are the ones I'm talking about, sir, AIMPE3, 4 and 5.
PN404
THE COMMISSIONER: Yes. But there was also TMS2.
PN405
MR BYRNE: Yes, indeed.
PN406
THE COMMISSIONER: That's different.
PN407
MR BYRNE: Same type of letter.
PN408
THE COMMISSIONER: Same type of letter, okay.
PN409
MR BYRNE: Different date.
PN410
MR LLEWELLYN: I think the letters were actually referred to in my friend's examination-in-chief.
PN411
MR BYRNE: Yes, and Mr Llewellyn asked questions about them. I was just going to take Mr Maynard to those letters.
PN412
THE COMMISSIONER: Right, okay.
PN413
MR BYRNE: Each of them seem to be a pro forma from within the company that seem to have very similar type of wording. The three in that category, which are AIMPE3 from 1997, TMS2 from 1998, and AIMPE4, 2002, each of them refers to three specifics, long service leave, severance and superannuation. There is no mention in any of those letters is there of personal injury and illness insurance?---No.
PN414
No, there's not. Are you familiar enough with the dredging conditions to know whether personal illness and injury insurance is a dredging industry feature of the dredging industry agreements?---I do. I do now, yes. I believe it's 10 days per year.
PN415
Were you paid on that basis?---No, I was paid on the Offshore Oil and Gas Agreement that we'd all agreed on.
**** GREGORY JOSEPH MAYNARD RXN MR BYRNE
PN416
And what was that basis?---Seventy five per cent pay at my rate for 13 weeks.
PN417
And that was not a feature of the Dredging Industry Award?---No.
PN418
And not a feature particularly of the dredging Geraldton agreement, TMS AIMPE Geraldton Dredging Agreement?---No.
PN419
So when you say in paragraph 22 that Mr Llewellyn asked you about - - -
PN420
MR LLEWELLYN: I object. I didn't go anywhere near the dredging agreement in cross-examination. If my friend wants to go there again I'll re-examine under the dredging agreement which states:
PN421
All employees covered by this agreement will be entitled to sickness and accident benefits provided by Seafarers Rehab.
PN422
MR BYRNE: No. Mr Llewellyn wants to address your attention, Commissioner, to parts only of the truth, and I'm trying to give you a broader picture.
PN423
MR LLEWELLYN: Well, I object to that. If my friend wants to go down that road let's look at submissions. If you're going to traverse issues that weren't raised in cross-examination, which my friend has no right to do in re-examination, if he wants to go through the Geraldton dredging agreement I'll put it to the witness and take him through clause by clause, including the clauses that provide for offshore rehab and conditions for sickness and accident. Now, if that's the way my friend wants to go let's put the agreement up and do it. It was never registered. And if we want to go to misleading the Commission, look at the submissions on that matter.
PN424
MR BYRNE: I haven't yet addressed the TMS submissions, sir. I will address those points and I've got things to say about those. But Mr Llewellyn did ask Mr Maynard questions about paragraph 22.
PN425
THE COMMISSIONER: Of what?
PN426
MR BYRNE: Of his statement, which deals with personal illness insurance payments.
PN427
THE COMMISSIONER: Yes.
**** GREGORY JOSEPH MAYNARD RXN MR BYRNE
PN428
MR BYRNE: And I was asking Mr Maynard to further clarify the personal illness insurance payments that he received. Now, I was also asking Mr Maynard to draw his attention to exhibits AIMPE4, 3 and TMS2, which were the subject of cross-examination.
PN429
MR LLEWELLYN: With respect, my friend was asking what's in the dredge agreement, not what - - -
PN430
THE COMMISSIONER: Well, he hasn't got to that yet.
PN431
MR BYRNE: Now, Mr Maynard has answered the questions about what he was being paid, Commissioner, and I'm most happy with the answer that Mr Maynard gave, and I have nothing further.
THE COMMISSIONER: Yes, thank you, Mr Maynard, you're excused.
<THE WITNESS WITHDREW [11.04AM]
PN433
THE COMMISSIONER: Yes?
MR BYRNE: We seek to call Mr Olsen next, Commissioner.
<PHILIP CHARLES OLSEN, AFFIRMED [11.06AM]
<EXAMINATION-IN-CHIEF BY MR BYRNE
PN435
MR BYRNE: Thank you, Commissioner. I'd like to provide Mr Olsen with a copy of his statement.
PN436
THE COMMISSIONER: Yes.
PN437
MR BYRNE: Mr Olsen, I've just provided you with a copy of a statement. Is that a copy of a statement that you've prepared yourself?---It is.
PN438
Is it a true and correct statement, Mr Olsen? Is it a true and correct statement?---It is.
PN439
Can I take you through the statement. You've indicated at paragraph 1 that you're a federal vice president of the Australian Institute of Marine and Power Engineers, AIMPE, and have primary portfolio responsibility within AIMPE for the negotiation of the offshore oil and gas sector agreements, is that correct?---Yes.
PN440
You state in paragraph 2 that you've been the WA branch secretary since 1990 with continuing responsibilities for the offshore oil and gas sector of the industry since about 1992, is that correct?---Yes.
PN441
You state in paragraph 3 that you've been responsible for the negotiation of agreements with TMS since about 1992, is that correct?---That's correct.
PN442
You state in paragraph 4 there have been a number of occasions when TMS has won contracts of the dredging sector of the maritime industry including 97 in Geelong, 1999 in Dampier and 2002 in Geraldton, is that correct?---That's correct.
PN443
You then state in paragraph 5 that you recall that on each occasion that TMS has secured a contract to man a dredge in Australia the AIMPE and TMS have held discussions about these arrangements, and you state that you're mindful that TMS has on at least three occasions manned and operated a dredge or dredges in Australian ports, is that correct?---That's correct.
PN444
Then at paragraph 6 you say on each of these occasions TMS has requested some of its permanent offshore oil and gas employees to temporarily move from working in the offshore sector to working in the dredge sector for part or all of the duration of the dredge project, is that correct?---That's correct.
**** PHILIP CHARLES OLSEN XN MR BYRNE
PN445
At paragraph 7 you state that you've held discussions with representatives of TMS to clarify the arrangements, you say these discussions were pivotal to the permanent employees in respect of the manning operations of the dredge project, this was because the employees and their union need assurance that no employee will suffer a diminution of their conditions of employment. Is that correct?---That is correct.
PN446
At paragraph 8 you then state that on each occasion AIMPE and TMS were able to reach an understanding that where an employee agrees
to the company's request to transfer temporarily to a dredge contract then dredge industry rates of pay will apply as will dredge
industry leave, however the understanding reached between the parties is that there will be no other disadvantageous outcome for
the employee as a result of a temporary transfer to dredging work. Is that correct?
---That's correct.
PN447
At paragraph 9 you say that these terms were agreed on a handshake between AIMPE and TMS prior to each of its forays into the dredging sector. Is that correct?---That's correct.
PN448
Can you recall who it was that was involved in those handshake agreements that you refer to in paragraph 9?---Certainly in the first instance Mr Meadowcroft, that’s I’m referring now to Geelong and in the subsequent occasions Mr Richards and probably, Mr Meadowcroft as well, but certainly Mr Richards.
PN449
Thank you, in paragraph 10 you state on 6 September 2006 at about 1100 hours you spoke by phone with Mr Richards. You say that Mr Richards had been the person representing TMS in the discussions referred to in paragraph 7, 8 and 9 above, is that correct?---That’s correct.
PN450
In paragraph 11 you state in that conversation of 6 September 2006, you say that he agreed and confirmed that those arrangements referred to in paragraph 7, 8 and 9, were indeed put in place prior to the Geraldton dredging contract and you state that Mr Richards agreed that if we didn’t reach that understanding of no disadvantage, no employee would transfer across is that correct?---That’s correct.
PN451
Paragraph 12 you state that in your conversation of 6 September 2006 with Mr Richards he agreed and confirmed that there was an intention of the parties that a host of offshore provisions from the Total Marine Services Pty Ltd, Australian Institute of Marine and Power Engineers certified agreement 2002 2005, would continue to apply to permanent employees temporarily working in dredging, including the provision of compensation for loss of certificate of competency, is that correct?---That’s correct.
**** PHILIP CHARLES OLSEN XN MR BYRNE
PN452
In paragraph 13 you state that Mr Maynard was one of the AIMPE members who volunteered to a temporary transfer to the Geraldton dredging project while subject to the Total Marine Services Pty Ltd Australian Institute of Marine Power Engineers 1999 certified agreement. You also state that this agreement was the agreement contained – covering TMS engineers prior to the 2002 2005 agreement and contains a provision for compensation loss of certificate of competency in like terms to the 2002 2005 agreement, is that correct?---Yes, that’s correct.
PN453
Then finally in paragraph 14 you state that the commitment by TMS to the no disadvantage provision when transferring temporarily from
offshore to
dredging contemplates the conditions in the existing agreement and its replacement applying, apart from dredging pay rates and leave
conditions, is that correct?---That’s correct.
PN454
Thank you Mr Olsen.
THE COMMISSIONER: We will mark that.
EXHIBIT #AIMPE 6
<CROSS-EXAMINATION BY MR LLEWELLYN [11.14AM]
PN456
MR LLEWELLYN: Now whilst I think you said you’ve been doing the agreement since 1992, the offshore industry?---Paragraph 2 and 3 I refer to that yes.
PN457
Right and you’ve done that with Total Marine and it’s predecessor companies? I’m not sure whether it was still Total Marine in 1992?---If you give me a name of those predecessor companies, I’ll be able to either affirm or tell you whether my memory doesn’t recall that.
PN458
I just recall looking on ASX it was called Mermaid or something or other, anyway. Can I just ask in terms of all of the certified agreements including the 2002 agreement, that only applied to the oil and gas sector?---You – I don’t have the agreement in front of me – but you could draw a conclusion that it’s a bit wider ranging by virtue of the clause that refers to other vessels, I’m sure you are familiar with clause as was Mr Byrne, could probably call it up if it’s appropriate.
PN459
Your evidence was that you negotiated it, did you negotiate it to be wider than the oil and gas sector?---That could be a conclusion drawn.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN460
No I didn’t ask you if you could draw that conclusion, I said, did you negotiate to be wider than the oil and gas sector?---Yes, I believe that was at that other clause to which I refer.
PN461
AIMPE is very pedantic when it comes to the agreements and what wording goes in it, aren’t you?---I don’t agree with that statement.
PN462
Well Mr Olsen, you’ve just done 365 days where the master had to be referred to as small m master, you wanted to remove all reference to company and put employer in the agreement, you wanted to make sure all the vessels were covered under the agreement, didn’t you?---That’s completely irrelevant in my view.
PN463
Perhaps if I can have the witness shown the copy of the 2002 2005 certified agreement, I’ve got a copy for the Commission in case you haven’t got one.
PN464
THE COMMISSIONER: I have, it’s attachment 1, isn’t it?
PN465
MR BYRNE: Yes, sir.
PN466
THE COMMISSIONER: What I don’t have and somebody will give me a copy of in due course, is the 1999.
PN467
MR LLEWELLYN: I will do that.
PN468
THE COMMISSIONER: Well I will need a copy of that in due course, yes.
PN469
MR LLEWELLYN: Perhaps at the same time - I can do that now – Mr Olsen can I just take you to the scope provisions?---Which agreement are you referring to now?
PN470
The currently the 2002 2005 agreement you referred to in paragraph 12 and that your advocate has referred to in his submissions and putting arguably applying. This agreement is binding on the union and members thereof, applies in respect of self propelled vessels operated by Total Marine Services Pty Ltd, got that?---I do.
PN471
At the time this agreement was made, did Total Marine Services operate vessels?
---To the best of my knowledge they did.
PN472
Total provided total support over those vessels?---I don’t carry that information around in my memory.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN473
And engaged in connection with the Australian Offshore oil and gas operations and includes vessels to which Total Marine Services is contracted to supply marine labour – that’s the scope isn’t it?---That’s what it says.
PN474
That Total Marine also contracts to supply labour to vessels in the oil and gas operations?---No.
PN475
They don’t operate?---No it doesn’t say that at all.
PN476
No I didn’t ask what it said, I said Total Marine contracts marine labour to vessels it doesn’t operate, doesn’t it?---Total Marine’s commercial arrangements I’m not party to.
PN477
So you don’t know that we provide people on drilling rigs, we don’t operate vessels that are owned by other people and operated by other people and we supply crew, you don’t know any of that?---I’m aware from time to time Total Marine provide crews to vessels, including self propelled drilling rigs and non propelled drilling rigs and jack ups in the offshore oil and gas industry.
PN478
That they don’t operate? Perhaps if I can take you to what a definition of a vessel is under the agreement Mr Olsen. It is on the page immediately before that. It means:
PN479
A self propelled vessel that may but is not limited to being used in navigation construction or drilling, includes a ship, barge, drilling vessel or rig, crane vessel, floating construction facility, tug boat, support vessel, supply vessel, stand by emergency vessel, pipe laying vessel, dive support vessel, lighter or like vessels or any vessel used in offshore and gas operations.
PN480
That’s fairly specific isn’t it?---That’s what it says.
PN481
That’s the definitions you would have insisted going into the agreement?
---Mr Llewellyn will be aware that when we negotiate agreements we insist on a lot of things, but we don’t always get what
we insist on. That is the agreed definitions is my understanding of it.
PN482
So that’s the agreed definition of what vessels are in terms of scope of this agreement?---This agreement I believe if you go to the front cover, was certified in accordance with the Act, I think that’s an indication that it’s an agreed position of the parties.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN483
So when we look at vessels in the scope provision, it refers to vessels used in the gas and oil operations?---I don’t necessarily draw that conclusion.
PN484
So your evidence is then that this agreement applies to all dredging projects as well done by Total Marine or any other vessel operator that’s party to the agreement?---No, you shouldn’t put words in my mouth. My understanding is that according to the scope and application which you’ve just read that it includes vessels to which Total Marine Services Pty Ltd is contracted to supply marine labour full stop.
PN485
How does the agreement define a vessel then, Mr Olsen?---You just read it out.
PN486
Right and does that include dredges?---In my view, it may.
PN487
So dredges are working in the oil and gas industry are they?---Sometimes.
PN488
In the case of Mr Maynard was it working in the oil and gas industry?---You would have to refresh my memory as to the magnitude, the timing, the area of the contract, et cetera, as to whether or not that was the case.
PN489
Isn’t that in your witness statement, 2002 Geraldton, Mr Olsen can’t you remember that far back?---I find the sarcasm rather disturbing and uncomfortable and I reject those sorts of comments from Mr Llewellyn. I can certainly remember as far back as 2002 and I can remember further back than that. But if Mr Llewellyn has a question for me please put and I’ll do my best to answer.
PN490
I did put the question to you, you said it depends on the area. What I pointed out in your witness statement you’ve already pointed to - - -?---No, you made a sarcastic comment about my recall.
PN491
Well come on Mr Olsen you’ve negotiated the agreement since 1992 and you are giving evidence that’s a blatant lie?---Are
you accusing me of lying
Mr Llewellyn?
PN492
That’s correct.
PN493
THE COMMISSIONER: It is not appropriate to make accusations like that of a witness. You might ask and you might get answers from him and you might put something to him, but only after the answer is revealed that he’s perhaps not telling the truth. But at this stage there’s nothing before me that would suggest that. You did make a sarcastic remark Mr Llewellyn. Mr Olsen you’ve been around long enough not to be particularly offended but anyway both of you, particularly you Mr Llewellyn ask questions appropriately and you’ll get straight answers I’m sure?---I will comply with the instructions to the best of my ability.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN494
MR LLEWELLYN: Mr Olsen do you recall if that scope is the same as it has been in previous agreements?---Do I recall?
PN495
If the scope provision in the 1999 agreement is in similar terms?---Well there will be a scope provision, I will have to refer to it, whether it’s in similar terms I - - -
PN496
5.1?---There would appear to be an extra paragraph in the later agreement.
PN497
Right but in terms of the clause that I took you to originally, 5.1 it’s in the same terms?---Yes.
PN498
Again the definition of a vessel is in the same terms?---Yes.
PN499
It defines vessels as being those vessels in the oil and offshore oil and gas operations?---That’s what it says.
PN500
Now your evidence is that following the conference before the Commission in September last year, you then contacted Mr Richards to shore up whether you had an agreement prior to that, that’s correct isn’t it?---No, it’s not correct. I make no mentions of a conference or the words shoring up.
PN501
Well let’s deal with the date then shall we Mr Olsen. On 6 September following a conference in this Commission you contacted Mr Richards to put that question to him, did you not?---I contacted Mr Richards on 6 September in accordance with my statement at paragraph 12.
PN502
Right so it wasn’t after a conference in the Commission here then?---Well it was after a lot of things.
PN503
Yes, was it after - - -?---Whatever happened before 6 September then this was after that.
PN504
Right so your evidence is that what’s contained in 7, 8 and 9 you confirmed with Mr Richards in 2006?---I believe that’s what my statement says.
PN505
Okay and your statement says that AIMPE negotiated on behalf of its employees, sorry on behalf of its members that all of the agreement would apply is that correct, prior to each dredge job starting?---I’m not sure I understand the question.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN506
Your witness statement says that in 1997, 1998 and 2002 you reached the position with Total Marine Services that said the pay rates
for dredging will apply, but all other terms and conditions for the offshore, oil and gas agreements will
apply?---No, that’s not the case.
PN507
What is the case?---All other conditions save pay and leave.
PN508
Isn’t that what I just said, apart from pay and leave, all of the conditions of the offshore agreement would continue to apply?---You omitted to say leave, you said pay.
PN509
Sorry, so pay and leave, what does leave include then?---Beg your pardon?
PN510
What did the leave include? All leave or just leave?---Leave.
PN511
So long service, accrued leave, sick leave?---No, not in my view.
PN512
Well that’s why I asked you what it meant, well perhaps if I ask it a different way. What parts of the offshore agreement continued to apply?---All parts except leave and salary.
PN513
So did all the allowances continue to apply?---Yes.
PN514
So Mr Maynard should have received his medical allowance in 2000?---If he was entitled to it under the offshore, yes, that’s my view.
PN515
If he hadn’t received it, AIMPE would have pursued that for him if that was the agreement wouldn’t you?---If Mr Maynard sought the assistance of AIMPE in pursuing an entitlement we would have done so.
PN516
I wonder if I could have the witness shown AIMPE 3 please? Mr Olsen have you ever seen that letter before?---I don’t recall I have.
PN517
That letter doesn’t say that all the terms and conditions of AIMPE Total Marine Services Engineer officers agreement applies does it?---It nominates three conditions.
PN518
And only those three conditions, doesn’t it?---No, it doesn’t exclude the others.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN519
Does it include them?---It doesn’t exclude them I said.
PN520
Whilst you are engaged under the terms and conditions of Total Marine Services Geelong Dredging enterprise agreement we confirm you will continue to receive the following benefits under the AIMPE Total Marine Services engineers and officers agreement and it names those three benefits. Doesn’t say you will continue to receive any other benefits does it?---It’s silent on other benefits.
PN521
Can I have the witness shown AIMPE 4 please? Same thing?---No, it’s not the same at all, there’s a different date signed by a different person, it’s on a different letterhead.
PN522
So Total Marine has changed it’s letterhead and the letter is written by Mr Nunn as opposed to Mr Meadowcroft but it relates
to the 2002 project where you say there was an agreement to apply to the entire agreement apart from pay and leave?---Mr Maynard
was not instrumental in negotiating the agreement which we say applies and I would argue that it is beyond the scope of Mr Maynard
or
Mr Nunn or in fact, Mr Meadowcroft to draw a conclusion about the application of that agreement without all parties taking part in
those discussions.
PN523
So are you saying that Mr Maynard’s not capable of negotiating his own contractual benefit?---Yes.
PN524
Thank you, can I have the witness shown TMS 2 thanks. I think that deals with the 1998 dredging project you gave evidence about. Again a letter in similar terms?---Similar.
PN525
It is a different paper, different signature, but the conditions that apply are to continue to apply to Mr Maynard while he’s on the dredger, the same three are they not?---That’s what it says.
PN526
AIMPE haven’t seen fit to the need to challenge any of that over that period of time?---Those three exhibits you’ve just shown me addressed to Mr Maynard, they are not addressed to me or the union, neither are they coped to me or the union. Had they been copied to the union or addressed to me, we may well have challenged that statement.
PN527
That’s not what I asked you though. You haven’t challenged, or Mr Maynard hasn’t asked you to challenge it on his behalf has he?---I suggest one of the reasons we are here is simply because he has challenged it.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN528
What four years later?---In respect to – well - - -
PN529
Six years later?---Well you’ve asked me to comment on certain issues, if you want to discuss the timing I’m happy to do that.
PN530
Right in April 1997 after the receipt of this letter, did Mr Maynard ask you to take the matter up for him?---I beg your pardon.
PN531
In April, or in 1997 – let’s take the whole year – in 1997 after receipt of this letter did Mr Maynard ask you to take up the conditions he’d be employed on the Volvox Delta were any different to what was contained in this letter?---I don’t recall.
PN532
In December 1998 or all of 1999, did Mr Maynard ask you to take up with him that the terms and conditions while he was on the Leonardo and the Volvox were any different to what’s contained in the letter under Ms Vivian’s signature?---I can’t recall whether he did or he didn’t.
PN533
Again in 2002, in the year 2002, did Mr Maynard ask you to take that up for him?
---I can’t recall whether he did or he didn’t.
PN534
But you recall that you had an agreement with TMS that you confirmed in September 2006, but you can’t recall if you had any issue with that agreement back in the years that you made it?---That I believe is what I just said.
PN535
All right now in terms of insurance for sickness and accident Mr Olsen can you remember when that became a part of AIMPE’s agreements?---No.
PN536
I’m sure I gave you a copy of the 1998 agreement originally. Yes, I don’t think that’s applying for the other one sorry, I hadn’t picked it up that it was in there until a minute ago.
PN537
THE COMMISSIONER: What’s this?
PN538
MR LLEWELLYN: It’s the 1998 agreement.
PN539
THE COMMISSIONER: That only went for a year did it, or so?
PN540
MR LLEWELLYN: Yes, it appears that way. It’s probably less than a year if I go by the dates. It’s print T15 –
sorry print document Q6511, it was served on
17 September 1998 and came into force on 15 September and remained in force until 30 June 1999.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN541
So Mr Olsen you would have negotiated this agreement I guess?---I certainly would have had a hand in it, but simply because this agreement contains a clause about insurance, does not necessarily mean the agreement prior to this one didn’t. This may well have been the first instance of it, but I have no reference to the previous agreements.
PN542
Perhaps if I can assist you with that, do you recall that the award used to carry a provision for insurance for accident not illness? That’s the off shore oil and gas award, or the predecessor award to that which is the supply vessel award?---I’ll take your word for that.
PN543
It only referred to accident and not illness. In 1998 the provision clause 28 which was where Total Marine provide insurance or loss of salary for each engineer, officer who was unable to commence duty by either accident, or is on leave due to illness. I will take you through to the 1999 agreement and again it’s in relation to the Nav Act which is commonly now referred to as PI?---I’m sorry you’ve lost me a bit there.
PN544
Clause 26 in the 1999 agreement?---Yes.
PN545
Total Marine Services will provide for pay for insurance loss of salary for each engineer where an engineer officer is unable to commence scheduled duty due to an accident incurred on leave or due to illness, I think that’s what is referred to colloquially as the PI insurance?---It might be by you, but it’s not by us.
PN546
What’s it referred to by you?---Sickness and accident.
PN547
But it’s in addition for what’s received under the Nav Act which is where you are sick and come off the vessel isn’t it?---Navigation Act doesn’t apply to in my view but I’m not a legal person but I understood that if people were on leave the Nav Act had no application.
PN548
That’s right the 2002 agreement which was certified in May 2003 the provisions were inserted into the superannuation clauses that Total Marine was to take out salary continuance insurance for employees ill or injured not work related?---My understanding is that that is for casuals.
PN549
What so permanent employees don’t get it?---They get it by virtue of the fact that it’s a part of the AIMPE superannuation plan, but my understanding is that there was no such provision in the maritime officers superannuation trust plan.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN550
That is not what I asked you. Let’s deal with that then shall we Mr Olsen. Are you saying - - -?---Well what did you ask me?
PN551
Well hang on, are you saying that permanent employees of Total Marine who aren’t a member of the AIMPE fund don’t get sickness and accident cover, that’s what you negotiated?---Sickness and accident cover on leave?
PN552
Well both the PI and sickness and accident under the super provisions, is that what you negotiated?---No, they are separate issues you can’t marry them.
PN553
Well let’s deal with the super provisions first shall we?---I’ll deal with the ones you like to deal with Mr Llewellyn.
PN554
Is it your evidence that when you negotiated the superannuation clauses, only those permanent employees of Total Marine that were part of the AIMPE fund received sickness and accident cover?---You cannot extract that part of the fund and opt out, that is part of the fund, whether or not you choose to be that part of the fund or not.
PN555
That’s not what I asked you either Mr Olsen?---I’m trying to explain to you, obviously you don’t have an understanding of how the fund works, I’m trying to explain to the Commission and you, how it works.
PN556
That’s the question I asked you?---Well what’s the question?
PN557
You make the statement - - -?---What’s the question? Repeat the question please?
PN558
I’ll wait until you are finished talking. You make the statement that it only applied to casual employees, permanent employees got it as part of their benefit to the AIMPE super fund?---That’s my belief.
PN559
Now what I’m asking you if Total Marine have other permanent employees who aren’t members of the AIMPE super do they get salary continuance insurance? Is that what you negotiated or is it only limited to people who become members of the AIMPE fund?---In my view it is constrained to those members of the AIMPE fund. If members choose to be members of other funds, then they will be subject to the terms and conditions of that fund.
PN560
Could you have a look at 20.1.3?---Beg your pardon?
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN561
20.1.3?---In which agreement?
PN562
2005 agreement?---Yes.
PN563
Doesn’t it say individual permanent employees in most will also get salary continuance insurance covered by the employee – cover employees who are injured and not at work, Total Marine will take it out – last sentence?---No, that refers the insurance clause. It says not work related.
PN564
So what, we have to supply three months insurance do we?---Beg your pardon?
PN565
We only have to supply three months insurance to your members under that provision?---In addition, as you’ve said, the last sentence, in addition, in addition, Total Marine will take out salary continuance insurance to cover employees if ill or injured not work related.
PN566
Yes?---In my view that refers to the insurance provision of those who get sick or injured whilst on leave.
PN567
So that’s the three months pay nothing more?---That’s three months.
PN568
So both in paragraph 20.1.1 and 20.1.3 both dealing with permanent employees, your evidence is that the additional insurance you sought, was in fact the insurance they already had?---20.1.3 does not deal purely with permanent employees, because it refers to the Maritime Officers superannuation trust fund which was set up exclusively for casuals.
PN569
I’m happy to do this all day, if you really want to. At the choice of the permanent employee, does it relate to any other type of employee Mr Olsen?---Which paragraph?
PN570
MR BYRNE: Commissioner, may I observe that Mr Maynard was not in the MOST plan and this is not germane to the matter before the Commission today.
PN571
THE COMMISSIONER: No, I’ll allow the question.
PN572
MR LLEWELLYN: Yes, thank you. Sorry Mr Olsen if you are having difficulty, let’s work through the provisions from top to bottom.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN573
20.1.1 you would agree relates only to permanent employees, correct?---Yes.
PN574
Right which it says they may join the Total Marine superannuation fund, they define contribution, accumulation fund in which Total Marine contributes an amount of 13 per cent. In addition Total Marine Services will take out salary continuance insurance to cover the employees who are injured and not work related?---Correct that’s what it says.
PN575
Is it your evidence that that insurance only relates to the PI payments or the sick and accident for three months, that’s contained elsewhere in the agreement?---In addition Total Marine will take out salary continuance to cover employees if ill or injured not work related, in my view relates to the three months insurance for employees who get sick or injured whilst on leave.
PN576
So it’s a duplication of a later provision isn’t it?---It would appear.
PN577
I guess you would have the same view of 20.1.3 then?---In respect of the?
PN578
Permanent employees that choose to be part of the MOST fund?---Well that’s a provision that they can choose.
PN579
In respect of casual employees then they receive an extra half a per cent of salary paid into superannuation in lieu of the salary continuance is that right?---That’s my understanding.
PN580
So your understanding of that when you negotiated it is that no casual employee is entitled to salary continuance if they can’t make a crew change?---No, no, that’s a misinterpretation of the provision. Salary continuance applies to persons who are members of AIMPE fund and salary continuance commences 90 days after they are unable to commence the duty period. It wouldn’t apply to a casual by virtue of the fact that they no longer work for the employee when they are on leave they are normally terminated. So and Mr Llewellyn might not recall because I do not believe he was party to these negotiations at the time, but the union’s view was that the company ought to ensure casual employees in a like manner under the superannuation fund that they insured permanent employees, the employer’s position was that it was cost prohibitive and it was on a sliding scale depending on the age of the employee and therefore would be administratively impossible. So the compromise position was that an additional percentage to be paid to the employee to allow them to take out their own insurance if they felt the need to do that. That’s my understanding of the difference between the permanent employees in the AIMPE fund and casuals who are or others who choose the MOST fund which doesn’t have an inbuilt provision for temporary and total salary continuance. Now that’s my understanding of it.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN581
Except for the fact Mr Olsen a permanent employees under the MOST fund don’t get an extra amount paid to them, do they?---I thought they did.
PN582
That’s not what your agreement says?---I could just Mr Llewellyn there are a lot of things in the agreement that don’t get paid and a lot of things which do get paid which are in the agreement. My understanding is that those additional payments to members who chose the MOST fund would fail irrespective of the status of their employment. That’s my understanding of the intent of the agreement, it might not specifically say that in the words, but there is another factor which I’m sure Mr Llewellyn would be aware of and that is what is the intent of the parties when they negotiate these clauses. The intent in my view was to offer choice of fund ie an accumulation fund or a defined benefit fund. Where members chose the accumulation fund, ie the MOST fund they would also benefit by having the additional payment that would enable them to take out temporary but total salary continuance if they so choose.
PN583
So the evidence you gave earlier which said it was in lieu of the sickness and accident and insurance contained elsewhere in the agreement wasn’t correct, is that right, are you now recanting that?---You will have to remind me and you obviously got much clearer recall than me, but I don’t believe that was what I said.
PN584
Well Mr Olsen if I can remind you in relation to 20.1.1 what you said to me was that the salary continuance insurance was in lieu of the provision that was contained later in the agreement and it wasn’t until I got down to casuals and you realised what a hole you’d dug for yourself, that casuals wouldn’t get PI payments if that was the case?---I object to the tone of Mr Llewellyn.
PN585
Do you reject the evidence?---I’m not digging a hole for myself or for him, or for anybody else, I’m doing my best to recall the environment that prevailed and the intent of the agreement in putting together these clauses. If my explanation doesn’t fit Mr Llewellyn’s interpretation, then I make no apologies for that. I’m not digging a hole, if I did dig a hole, it would be big enough for all of us I can assure you Mr Llewellyn you would be in there with me.
PN586
Okay when you gave evidence on 20.1.1 and I am happy for the transcript checked, what you said is, it is in lieu of other insurance later in the agreement and only members of the AIMPE fund had salary continuance as such?---I think the Commission ought to be aware of the difference of the two natures of this insurance. One is to ensure personnel if they are unable to return to work at a scheduled swing duty period, due to being injured or becoming ill, when they are on leave. That clearly does not apply to casual employees. That is not the intent of the agreement that it would apply to casual employees because casual employees once they finish their duty period are free agents and are no longer in the employ of the employer. So the sickness and accident insurance in respect of when you are on leave, applies solely in my view to permanent employees. The temporary but total salary continuance applies to – applies unequivocally to members of the AIMPE superannuation plan because it is part of the plan. It does not apply to the MOST irrespective of their status of employment as either casual or permanent. The extra payment as we negotiated as I said before and I’ll repeat again, was as a response to the rejection of our initial claim that the employer would take out, or would pay into the fund a level of payment to allow the fund to take out that cover, now that was unacceptable to the employers.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN587
Pay into which fund?---MOST and to take out insurance outside of the fund and to provide temporary and total salary continuance was according to the employers too expensive and could not be administered because of the different costs structures depending on the age and therefore the additional payment as I said before, was to allow the individual to take out their own insurance if they so choose.
PN588
Mr Olsen, do you have the 1999 agreement in front of you?---Yes.
PN589
Can I ask you to turn to clause 16?---Yes.
PN590
That’s the superannuation provisions?---That’s what it is yes.
PN591
Can you see anywhere in that clause where there’s salary continuance for insurance to be taken out as part of the super?---No.
PN592
Did sickness and accident insurance still apply to casuals at that stage?---Beg your pardon?
PN593
Did sickness and accident insurance that a casual couldn’t make his crew change apply to him at that stage?---In my view the sickness and accident, if you got sick or injured on leave, never applies to casual employees.
PN594
So if we had a casual engaged for a period of three months, he had one hit and then got injured and couldn’t attend his second hit, he shouldn’t be paid salary continuance?---I believe now Mr Llewellyn you are getting into the area of interpretation of a number of clauses in the agreement and they may or may not be subject to dispute matters. Casual employees as you are well aware have the right to terminate their employment at the end of each duty cycle and we all know in the real world that some choose to continue their employment and it’s convenient for some employers to go down that track, especially when there’s a severe shortage of skilled personnel, a lot of employers don’t want their casuals to become free agents at the end of their duty cycle. So they maintain them on the books as, if you like, Clayton’s permanent employees. In my view if a casual employee found himself in that situation, that he was receiving regular fortnightly payments to his bank account and there was an anticipation from the employee, the casual employee and an anticipation by the employer that the casual would return to work at a certain time, that being, five weeks after he’d commenced his period of leave or four weeks if he’s in Bass Strait. If that were the case and that casual employee got sick or injured on leave and could not return to work, in my view there would be a good case for him to make a claim in respect of the sickness and accident. But that in my view is an exceptional circumstance but notwithstanding that I believe there’d be a good basis for that employee to make a claim. But generally speaking the sickness and accident provision applies to permanent employees who are on regular cycles on and off and ongoing employment with the company. I believe that’s the intent of the agreement and that’s the practicalities of it in my view.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN595
I can happily go out with a notice to all our casual employees and say Phil Olsen said sickness and accident insurance doesn’t
apply to casual employees?---No, because I didn’t say that. You would be misinterpreting what I just said
because - - -
PN596
Mr Olsen you’ve put yourself out as the person - - -?---No, you would be misinterpreting what I just said Mr Llewellyn because I said to you and I outlined the situation, where in my view there would be a substantial basis to make a claim. I didn’t simply say that any casual employee who was in ongoing employment with you would not have an entitlement and if you go out and say that then you are misinterpreting what I just said. I don’t know whether you didn’t listen to me or you are choosing not to hear me, but I was very clear in my view that I qualified my statement by saying that if a casual employee was permanently on the books ie - - -
PN597
Did you say permanently I think you said - - -?---I think I said if he was getting regular payments, regular fortnightly payments to his bank account there was an anticipation that he would return to work, and he got sick and couldn’t I believe that would be a good basis for a claim.
PN598
All right Mr Olsen - - -?---That’s what I said.
PN599
How long is regular and permanent?
PN600
MR BYRNE: Commissioner, I object again on the grounds that Mr Maynard was a permanent employee this insistence on exploring an issue that is unrelated to the claim before the Commission is irrelevant. If Mr Llewellyn’s purpose is to challenge Mr Olsen’s credibility as a person who has negotiated these agreements, I think he’s done enough in that area, he needs to get back to the issue before the Commission or else we will still be talking about esoteric issues about casuals in the off shore industry at 5 o’clock this evening and we won’t have dealt with the matter that is before the Commission.
PN601
MR LLEWELLYN: Well let’s deal with the application that is before the Commission. The application is one, if the agreement applies and whether the Commission actually has jurisdiction to be here in any event, the second part of it is a claim that Mr Maynard wasn’t in receipt of sickness and accident benefits provided by Total Marine Services under the superannuation clauses. Now Mr Olsen has given evidence initially that that section that related salary continuance really related to a provision later in the agreement, which is clause 31 think for memory, which is what he described as sickness and accident insurance from the previous agreements. He said the AIMPE fund members get something better than that.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN602
The MOST fund people don’t get the sickness and accident insurance, or it’s in lieu of it, and when he got down to casuals,
until we started to delve into it, what he was saying is now a casual who is regular gets the insurance, despite the fact that he
gets half a per cent extra in pay as well. We are trying to establish what the insurance was. Now we know what it was because we
took out the policy under the agreement. Now Mr Olsen is either having difficulty remembering what was negotiated or is trying to
avoid it or colour it. Now I’m entitled to pursue that line of questioning because it is the very issue that my friend raises
that
Mr Maynard is entitled to.
PN603
THE COMMISSIONER: Yes, you are entitled to but we were getting bogged down with casuals and then the definition of casuals. I took Mr Olsen’s evidence to say that if a person was a casual that de facto was utilised over a period of time. That is, they regularly came back et cetera, if they were injured or got sick while they were on leave they have a strong case to have access to a benefit. If on the other hand they are casuals in the term that courts used to think of casuals, and that is virtually at the end of each day, off they go and the next day they start again, it may not apply, they may not have – I think that’s all he said. Now then you are trying to pin him down to well when does the old fashioned casual become a de facto permanent employee, well what’s the relevance of that?
PN604
MR LLEWELLYN: With respect sir the question I put to Mr Olsen was a three month period. In this jurisdiction a casual is considered a casual for 12 months. Now all I asked Mr Olsen is that - - -
PN605
THE COMMISSIONER: What jurisdiction are you talking about?
PN606
MR LLEWELLYN: The State Industrial Relations Commission.
PN607
THE COMMISSIONER: What part of the jurisdiction?
PN608
MR LLEWELLYN: Termination for employment for a start, it’s systematic for a 12 month period.
PN609
THE COMMISSIONER: But that’s defined by statute for a particular part of the Act, I don’t think the Commission or the courts would accept that that’s a definition of a casual, because if that was the case, the Parliament could change that any time it sits.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN610
MR LLEWELLYN: Don’t they?
PN611
THE COMMISSIONER: Well that’s the problem we have.
PN612
MR LLEWELLYN: All right so perhaps if I put it in these terms.
PN613
Mr Olsen do I understand your evidence to be that the insurance provisions contained in 20.1.1 of the 2002 agreement or 2003 agreement I should say 21.3 and 21.4 was in lieu of the sickness and accident in clause 32?---No.
PN614
All right do I understand your evidence to be that it’s in addition to what’s in clause 32?---I need to articulate a view about that to define or determine that there are two different classes of employee which are treated in two separate ways.
PN615
Mr Olsen, it’s a simple question?---No, it’s not.
PN616
THE COMMISSIONER: No, have you any – yes go ahead.
PN617
MR LLEWELLYN: Carry on?---It’s a complex question and I am not prepared to provide an interpretation which goes to the coverage in a similar manner of all nature of employees because that’s not what the agreement contemplates and Mr Llewellyn will well know that we were in this place not so long ago debating certain provisions for an employee who’d been with Total Marine Services as a casual for some 11 or 12 years. So in respect of determining that after 12 months that someone has an automatic entitlement has not been upheld by the behaviour of this employer.
PN618
Well again that’s not the question I asked?---I know that’s not the question you asked and I’m trying - - -
PN619
Please try and answer?---I’m trying to answer it but I cannot answer your question by lumping all employees into the same basket because they are treated differently in respect of this matter.
PN620
That’s not what I asked you either Mr Olsen, what I asked you is a simple question. The provision in clause 20.1 that says in addition Total Marine Services will take out salary continuance insurance to cover employees if ill or injured and not work related - - -?---Which agreement?
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN621
In the 2003 agreement?---I don’t have a 2003 agreement.
PN622
Don’t you have one that was registered in May 2003?---2003, 20.1 talks about Total Marine shall make available to employees superannuation coverage.
PN623
20.1.1 again the last sentence where it starts off, in addition?---Yes, I can read that.
PN624
Does that insurance, is that insurance related to or in lieu of what is contained in clause 32 or is it in addition to what is contained in clause 32?---No it’s not in lieu of it at all.
PN625
So it’s in addition to it?---No, it’s not in addition to it either, they are separate issues.
PN626
Doesn’t in addition to relate to being separate? You have the three months?---In addition 20.1.1 if you try to make a literal
interpretation of the wording in
addition - - -
PN627
I’m not asking you a question of law.
PN628
THE COMMISSIONER: Let him finish I don’t think he finished that, go ahead Mr Olsen?---In addition to what was said in the first sentence, ie that permanent employees may join the Total Marine Services defined contribution fund, in which Total Marine will contribute 13 per cent. In addition Total Marine will take out salary continuance insurance to cover employees if ill or injured not work related. Now in my view that insurance salary continuance insurance, not work related, clearly says that it is the insurance that you get sick or ill whilst you are on leave, which is the three months insurance to cover people who cannot return to work at a scheduled on duty period. The reason for that is because the insurance, the temporary but total salary continuance which is provided for in the superannuation fund, does not commence until three months after the person makes a claim. So it became obvious to all the parties that there was a gap where people might be without income for a period of three months and that’s why we took out that – or that’s why we negotiated and the employer agreed to cover people for that interim period of three months if they got sick or injured whilst on leave and were unable to return to work at a scheduled on duty period. Now that’s my understanding of what 20.1.1 means.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN629
MR LLEWELLYN: So that was the insurance in clause 32 then?---That’s right.
PN630
Which is the three months insurance?---That’s my belief.
PN631
That insurance wasn’t there prior to this agreement, is that right?---I don’t know.
PN632
Well Mr Olsen you negotiated you just gave evidence that that insurance was put there - - -?---Well I mean - - -
PN633
So it covered the three month AIMPE fund?---Well I mean that’s either a matter of fact or it isn’t, we can establish that, one way or another whether it was there or not, I don’t have to form a view about it. It is a matter of fact.
PN634
You negotiated the agreement you gave evidence to that effect, was it there before this agreement or not?---We can refer to the other agreements and we’ll find out, I don’t have to form a view about whether it was there or not. It is simply a matter of fact that it was either there or it wasn’t. You’ve got all the agreements in front of you. I’m sure you can refer to the appropriate agreement and advise the Commission whether or not it was there.
PN635
The report to your members is that that insurance covered them for three months is fine?---I beg your pardon.
PN636
That insurance in 20.1.1 covers them for the three months in clause 32 and nothing else?---That insurance, that sentence at the end of 20.1.1 refers to the three months insurance cover for the period if they are unfortunate enough to still be unable to return to work, they would make a claim on their superannuation fund.
PN637
If they are in the MOST fund they can’t do that?---That’s why there’s the additional payment to allow them to take out their own insurance.
PN638
So there’s more money paid on top of that again to get an insurance policy that goes longer than three months?---The money that is paid is outlined in the agreement which you have in front of you.
PN639
You just said it’s a bit more insurance, is that to top up the three months to go longer than three months?---I’m not aware that there’s any.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN640
Is that what the claim was by AIMPE?---The claim was to have a temporary and total salary continuance to cover all employees especially those in the MOST which didn’t have it, the employer said that was cost prohibitive and therefore a payment was made to enable individual employees to take out their own insurance, if they so choose to do so.
PN641
That’s not what the agreement says though does it Mr Olsen?---But that was the intent of the agreement Mr Llewellyn, that was the intent of the parties
PN642
I don’t see any point in pursuing this. Mr Olsen we can call other evidence about the negotiations of the agreement Mr Olsen obviously can’t recall it?---If you want to put something to me I will advise you whether or not I can recall it, you don’t have to put a conclusion about that I can tell you.
PN643
I will put it to you in these terms Mr Olsen. Clause 20 was increased in the 2003 agreement, or the agreement registered in May 2003?---Clause 20 of which agreement?
PN644
I just told you that, the agreement was registered in 2003, the additional sickness and accident, or salary continuance insurance was to extend beyond the three months and it was to be taken out by the employer?---No, that’s not the intent.
PN645
In all cases other than casuals who would receive the additional .5 per cent to enable them to take out their own?---No.
PN646
And the claim from the unions generally, and this is all the unions, was to get sickness cover or sickness and accident cover beyond the three months for all members?---No, that’s not true because we already have it.
PN647
What everybody in AIMPE has it do they?---Everybody who is a member of our fund, if – and we promote our fund as the fund of choice, one of the reasons being because it has a temporary and total salary continuance after three months, if members choose as is their right in accordance with the law, if members choose another fund then it is up to them to make a decision about how they will manage their affairs if they find themselves unable to return to work for a long period of time.
PN648
Right so what you are saying is you negotiated this agreement in 2002 2003, with a view that anyone that joined the AIMPE super fund would get salary continuance and anyone that didn’t join the AIMPE fund could whistle and not get anything?---No, that’s not true.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN649
Well what did they get?---Whatever they were able to negotiate with the fund they chose to join.
PN650
The contribution was increased by how much to do that?---Nothing.
PN651
Nothing, so the words in the agreement – it doesn’t matter I will leave it, I will call other evidence obviously Mr Olsen is not going to be truthful about what he negotiated?---I beg your pardon.
PN652
You heard me?---I object to that Mr Commissioner – most strongly I object to that about being untruthful most strongly.
PN653
THE COMMISSIONER: Yes, I think that’s unfair Mr Llewellyn.
PN654
MR LLEWELLYN: Well we’ll see what other evidence that’s called.
PN655
THE COMMISSIONER: I’m interested in this and I hear you are not getting an answer from Mr Olsen that perhaps you want and I’m not saying you – he is right and you’re wrong, but to say look I’ll leave it I’ll have to get other evidence, you know, do what you want you can do that, but then to say you are not being truthful I don’t know – at this stage there is no evidence and nothing close to suggesting that Mr Olsen has not been truthful to the Commission. One day it may be that after all that, you’ll be able to make a submission like that, but I don’t think you could at this stage and you certainly can’t say it to a witness. I mean he’s got, he’s under obligation to talk, but he also has to have some protection. I think you overstepped the mark.
PN656
I said before Mr Olsen is not an innocent walking down the street, he’s been in these things before, but – so I don’t think he’s overly offended but he is still a witness and I don’t think you should be saying that to him when – neither – he doesn’t seem to have been tripped up in anything no one can suggest to me that he said something happened in January and you’ve just given him a letter that says that is absolutely not true. So I don’t think it’s fair, so if you want to ask him more questions, but I’m not pressing you on that.
PN657
MR LLEWELLYN: I’ll leave it sir, if someone hangs themselves out to be the person who has negotiated all the agreements and can’t recall what he negotiated that’s fine.
**** PHILIP CHARLES OLSEN XXN MR LLEWELLYN
PN658
THE COMMISSIONER: Well that’s a fair comment, yes, okay. Yes, Mr Byrne.
<RE-EXAMINATION BY MR BYRNE [12.10PM]
PN659
MR BYRNE: I just want to clarify a couple of points. Mr Olsen you said that you’d been – you were elected secretary of the AIMPE since 1990, can I ask you Mr Llewellyn asked you a large number of questions about the superannuation issue. Have you been in the AIMPE plan for the duration of your employment by AIMPE?---I have.
PN660
MR LLEWELLYN: I haven’t asked Mr Olsen about the AIMPE plan. I asked him about the – look if you want to start that game – this is a farce.
PN661
THE COMMISSIONER: Mr Llewellyn there is a very significant point which is whether or not which is your primary point, whether or not the certified agreement applies to Mr Maynard. As we move on to the operation of the AIMPE fund which we seemed to have got bogged down in, you might think it’s – well you’ve gone down that path, I’m still to understand how relevant that is. It is relevant to the final thing about the merit of it, but the jurisdictional question certainly doesn’t and there’s a rule – sorry?
PN662
MR LLEWELLYN: Well the cross-examination the provisions in the certified agreement I dealt with nothing about the conditions in
the AIMPE fund.
Mr Olsen obviously wanted to keep going down that path, but not once did I ask him anything about the conditions he received in the
AIMPE fund, not once, because it’s irrelevant.
PN663
THE COMMISSIONER: Yes.
PN664
MR LLEWELLYN: Now my learned friend now wants to pursue that in re-examination when it wasn’t cross-examined on. All I’m pointing out is that he doesn’t have that ability. If he wanted to go down what was in the AIMPE fund he had examination in chief, and he could have dealt with it and then I would have had to deal with it in cross-examination. He is now seeking to rescue what he hasn’t covered.
PN665
THE COMMISSIONER: Mr Byrne what do you say about that?
PN666
MR BYRNE: My submission sir, is that Mr Llewellyn asked a range of questions which I regarded as irrelevant but which dealt with a large number of aspects of superannuation. He did in fact, and the transcript will record that he asked questions about AIMPE superannuation plan of Mr Olsen. I was merely trying to identify whether Mr Olsen had particular personal knowledge of the plan so that I could then ask him what his understanding of the temporary salary continuance under the AIMPE plan was.
**** PHILIP CHARLES OLSEN RXN MR BYRNE
PN667
THE COMMISSIONER: Yes, I will allow that question. Yes get to it.
PN668
MR BYRNE: So I was qualifying the witness his experience in the AIMPE plan in order to ask about temporary salary continuance.
PN669
THE COMMISSIONER: Yes, we might after you’ve asked that I might if it’s appropriate we might allow Mr Llewellyn some questions following that, that might sort of even it up a bit but go ahead.
PN670
MR BYRNE: I’ll ask that question again.
PN671
Have you been in AIMPE plan since you commenced employment which you state was in 1990 with AIMPE?---Yes, I have.
PN672
Are you aware of the salary continuance provisions of the superannuation plan that you have been a member of since 1990?---I am aware of those.
PN673
Can you describe those terms for the Commission?---My understanding is both by virtue of the fact of being a member of the plan and my experience with members of the union making claims is that if an employee or member is unable to return to work due to ongoing illness or injury, then he or she may make a claim on the plan for temporary but total salary continuance, subject to medical examination that may or may not be approved. If it’s approved my experience has been it will generally go on for 12 months if the person is that ill. After 12 months my experience has been that there will be a reassessment and it may extend or it may be terminated and a decision made by the insurer to pay out of the fund. I have no personal experience, I’ve not made a claim myself in respect of the temporary but total salary continuance, but I am aware of it and I’m conscious of a number of members who have made a claim because I’ve been involved in helping them to process those claims
PN674
So could I ask you just to repeat again for the Commission the qualifying period and the maximum duration of the temporary salary continuance under the AIMPE plan?---I thought that it was 12 months subject to review at the end of 12 months but I could be wrong that’s been my experience with some members who have made a claim under the plan that generally if their illness extends to 12 months, they will be reviewed from time to time by the plan Doctor, by the insurer’s Doctor, and the plan, the insurer will form a view about whether or not the payment will continue. I always had the view and I formed that view only by my experience with members who have made claims, that after 12 months there is a very thorough review of their condition and subject to medical examination, the plan may extend further but may be terminated with a subsequent pay out of their superannuation per se. Now I’m not a superannuation expert and as I said I’ve never made a claim personally but that’s my understanding of how the plan works fundamentally in respect of temporary but total salary continuance.
**** PHILIP CHARLES OLSEN RXN MR BYRNE
PN675
Thank you.
PN676
THE COMMISSIONER: Mr Llewellyn do you wish to ask anything?
PN677
MR LLEWELLYN: No sir.
PN678
THE COMMISSIONER: Yes, thank you Mr Llewellyn you are excused?---I have to catch a plane so I would ask that I be excused for the rest of the day.
Yes, you are excused.
<THE WITNESS WITHDREW [12.17PM]
PN680
THE COMMISSIONER: Is that my copy of the 1998 agreement or is that your copy?
PN681
MR LLEWELLYN: Sir I’m happy for you to hang on to it, I actually made three copies, I didn’t think I would need a third copy of that one.
PN682
THE COMMISSIONER: But you’ve got a copy?
PN683
MR LLEWELLYN: Yes, I’m happy for you to hang on to that.
PN684
THE COMMISSIONER: Yes, that’s the 1998. Yes Mr Byrne?
PN685
MR BYRNE: Commissioner before I proceed, can I just indicate to you that I understand that Mr Richards is now on a plane but I think he’ll still be in Malayasia but will be on the ground at 3 pm our time, here now, West Australian time, so if the Commission wants to proceed on the basis of a phone contact with Mr Richards then that will be possible from 3 o’clock. Mr Meadowcroft indicated as I said earlier, that he is coming back from Adelaide and will not be available until 3.30 pm this afternoon. So just in terms of programming those are the timing – the availability issues for both of the summons issues.
PN686
THE COMMISSIONER: You seek to examine them don’t you Mr Llewellyn?
PN687
MR LLEWELLYN: Absolutely.
PN688
THE COMMISSIONER: Is it acceptable to do it by phone, I mean it would be recorded?
PN689
MR LLEWELLYN: Other than I can’t show Mr Richards documents.
PN690
THE COMMISSIONER: But you could relate them to him?
PN691
MR LLEWELLYN: I could and I informed my friend yesterday when I received the stat dec at 2 o’clock yesterday afternoon unless Mr Richards is here to give evidence so I can put the documents to him.
PN692
THE COMMISSIONER: Yes.
PN693
MR LLEWELLYN: Some of them contain his handwriting which I think I’ve deciphered but I’m not sure. It’s a bit difficult to decipher that over a phone, I mean if my learned friend wanted him as a witness he should have made sure he was here.
PN694
THE COMMISSIONER: Well I think both of them have attempted to be here, I don’t think we can be too critical of that as it’s turned out. Does this mean we really can’t do anything until about then?
PN695
MR BYRNE: I can certainly make some comments on the submissions of Total Marine.
PN696
THE COMMISSIONER: Yes, but – well in the absence of those two witnesses you can, can you?
PN697
MR BYRNE: Yes, I can make some comments on the submissions that have been filed.
PN698
THE COMMISSIONER: Yes, all right, will you be long or should we adjourn. We should push on should we?
PN699
MR BYRNE: I’m in your hands.
PN700
THE COMMISSIONER: We’ll press on and we’ll adjourn at one, is that – and then we’ll find out how to contact – you’ve got the phone numbers and everything have you?
PN701
MR BYRNE: That’s right.
PN702
THE COMMISSIONER: We’ll adjourn for five minutes I just want to make sure how we do the phone hook ups, we’ll adjourn for five minutes.
<SHORT ADJOURNMENT [12.22PM]
<RESUMED [12.32PM]
PN703
THE COMMISSIONER: Yes, Mr Byrne?
PN704
MR BYRNE: Yes thank you Commissioner, the submissions received from - - -
PN705
MR LLEWELLYN: Perhaps could I ask a question and perhaps propose a course of travel? I understand there are two issues we are arguing today, the first obviously being whether there is a jurisdiction before the Commission to be here in the first place. In light of my friend’s difficulty with witnesses I’m wondering if that matter can be dealt with first? I mean the need if we need to carry on following.
PN706
THE COMMISSIONER: Well that’s my directions asked the parties to address all the issues because there were so many that if we deal with one, and they win on it we then have to come back to you for the next, it’s a stop start thing – or if they lose, but I won’t necessarily be able to determine that as we go along, so that’s my - - -
PN707
MR LLEWELLYN: I just thought I’d ask to save time.
PN708
THE COMMISSIONER: I know.
PN709
MR LLEWELLYN: It would cut a day out of the hearing hopefully.
PN710
THE COMMISSIONER: Yes, Mr Byrne?
PN711
MR BYRNE: We did attempt to address all of the issues that the Commission raised in our written submissions including the issue of whether and which agreement applied. We have taken part of the evidence yes, as to which agreement applies and whether it applies and certainly the summonses that have been issued were sought in order that we gave fuller evidence to the Commission, particularly about that point. So yes, it is somewhat disadvantageous to us that those witnesses are not available, but they do run businesses and where they are taken out of Western Australia, so we need to proceed, or else we need to adjourn the whole proceedings until another day.
PN712
As I said before the adjournment just now, I understand Mr Richards will be available by telephone from 3 o’clock western time and that Mr Meadowcroft is returning from South Australia and will be back in Perth this afternoon and so I presume that means he is in the air as we speak almost, or maybe boarding shortly. He is travelling from Adelaide to Perth this afternoon and that we should be able to get him here late this afternoon, 3.30 or thereabouts.
PN713
THE COMMISSIONER: Yes.
PN714
MR BYRNE: So what I was going to proceed to do was to make some responses to the submission of Total Marine Services Pty Ltd. The written submissions that were provided to the Commission pursuant to the directions issued 28 December last.
PN715
THE COMMISSIONER: Yes.
PN716
MR BYRNE: Point (2) of those submissions is a point that has been raised this morning in cross-examination as well. That is the point that Mr Maynard has never performed work covered by the agreement in that he was employed on a dredging project known as the Geraldton dredging project. There is a sea service summary attached which has vessel dates and so forth that relate to period from 2000 to 2003. We have a general view that is important in relation to this matter and that is that Mr Maynard was a permanent employee of Total Marine Services Pty Ltd. His service history with the company has also been subject to evidence this morning, both evidence from Mr Maynard himself and additional exhibits that have been provided, including for instance, the sea service testimonial that is exhibit TMS1.
PN717
It is clear from that document and indeed from the attachment the sea service appendix (1) to the company’s submission in this matter that Mr Maynard has spent significant period of his employment history with Total Marine Services working on vessels that operate in the offshore oil and gas sector. He has also spent some time, not the majority of his time, but some time, as a marine engineer on vessels that are involved in dredging projects. Point (2) in the submissions is that the company’s point is that Mr Maynard last worked on a dredge the Nina in the Geraldton dredge project prior to going off work due to his physical problems.
PN718
The emphasis that I’ve placed on the issue of the application of the personal illness and accident insurance provisions that were paid, those payments were paid to Mr Maynard, the emphasis that I’ve placed on this, is because the place where those entitlements arise is in the offshore agreements, the line of offshore agreements that Mr Llewellyn was asking Mr Olsen about, the 1998, 1999, 2002 or 2003, or however you describe it, whether you go by its title or its date of certification. It is not a feature of dredge industry agreements or dredge company agreements or unregistered dredge agreements.
PN719
I make this point in our submission that the dredge agreement as a provision has 10 days sick leave more akin to a shore based operation or indeed to our tugboat industry agreements, but not to our offshore agreements. That is a provision that applies to the people who work in the offshore industry. Our submission is - - -
PN720
THE COMMISSIONER: Is this because AMSA doesn’t control dredges you don’t have that loss of certificate danger?
PN721
MR BYRNE: Historically there were two types of dredges, one are non propelled dredges and the other are self propelled dredges. For self propelled dredges you do need to have certificated personnel. Dredging has been a cyclical industry and at various times there’s been nothing happening in dredging at all. Just at the moment we are actually, you know in terms of historical, in the last year or two and expected for the next year or two there is a lot of work in dredging sector because of the capital expansion of the export ports facilitate the resources boom and all of that.
PN722
But there have been long periods over the last two or three decades where there has been virtually no dredging antipathy at all. The offshore industry has also been cyclical and they have not always been in sync and in fact sometimes they have been out of sync those two cycles, the dredging industry cycle a much lower level of activity. The offshore industry is cyclical too but at a much higher level of activity.
PN723
And at least one of the explanations for Total seeking a contract to work in the dredge sector was to ensure that they maintained a critical mass, if you like, for operational purposes, to keep their whole business running at a time when low oil prices meant low exploration and low activity levels in the offshore and the gas sector, so it was obviously in their interests and in the employees' interests to maintain continuing employment.
PN724
There was a mutual interest between Total and employees that Total could gain dredging contracts from a time when it didn't necessarily have a lot of work going in the oil and gas sector, but our point is that Mr Maynard was a permanent employee, had been a long-term employee since September 91 with Total Marine, was treated as a permanent employee. He was flexible. He did move backwards and forwards between the two sectors, but he did so because he had an understanding and assurances, verbal though they may have been, that certain conditions would apply.
PN725
We have seen evidence this morning, it is now in evidence as exhibit material with AIMPE titles and with TMS titles of letters which provide that certain benefits, specified benefits of the offshore agreements will apply at different times. Long service leave, severance and superannuation are the three that are specified in what seems to be a TMS form letter that's modified from time to time as required, project to project, but it is our submission that there were additional undertakings and that those additional undertakings as verbal undertakings were that the personnel would not be disadvantaged and in identifying that Mr Maynard was paid for personal illness insurance payments for three months until he was able to qualify for salary continuance payments under the insurance provisions of the superannuation scheme is an indicator that the company is actually abiding by those verbal agreements.
PN726
THE COMMISSIONER: Just remind me of one thing. Things have moved from how this was last year and in 2005. Remind me, that three-month accident period, that's the one that you have conceded would if you were successful with the application of the loss of competency, that would be deducted because that is a payment of that ilk. I am right, aren't I?
PN727
MR BYRNE: Correct, sir.
PN728
THE COMMISSIONER: It's after that, after the three months, does the benefit he's gotten from the AIMPE fund, does that provide the exclusion? You say no and Mr Llewellyn says yes. That's the way, isn't it?
PN729
MR BYRNE: Correct. That is what we have said. We have said that we concede that the payment that was made to him by Total Marine in relation to personal illness insurance should - that should be deducted off his entitlement under the losses certificate clause. We've said that up front. The company's view is he's not been entitled to the losses certificate clause because they say he was working in dredging and not offshore.
PN730
We say in response to point 2 of the Total submissions that although, yes, The Nina was the last vessel that he was on, he was a long-term permanent employee who worked flexibly for the company on the understanding that he would not be disadvantaged, he would not lose any of his offshore conditions and that the actions of the company confirm that because they've provided him with those offshore conditions and did so even though his last vessel was a dredge.
PN731
At point 7 of the Total Marine submissions, the company says that the submissions by AIMPE are seeking to rely on two premises, first that the 2003 agreement applies to the employment of Mr Maynard. The second is that there was an agreement with the AIMPE or Mr Maynard that the terms of the 2003 agreement would apply to him whilst employed on the dredging project. We do say that the scope clause in the 2002-2005 agreement certified in 2003 is broader than just the simple offshore oil and gas sector, the last set of words after the semi-colon, 5.1, that is those words:
PN732
And includes vessels to which Total Marine Services Pty Ltd is contracted to supply maritime labour -
PN733
can and should be read broadly, particularly in light of the fact that the company has made verbal agreements that the benefits, the entitlements provided by the agreement will apply to them and do move to other vessels where Total Marine is the labour supplier and the fact that the vessels definition in clause 3 of that agreement enumerates a number of offshore oil and gas industry vessels does not exclude the possibility that an employee of Total Marine Services may work on other vessels. The definition reads:
PN734
Vessel means a self-propelled vessel that may, but is not limited to, be used in navigation, construction or drilling and includes a ship -
PN735
then the list proceeds. We submit that that's not an exclusive definition. It includes all of the following, it does not necessarily on its own terms exclude other vessels which may be operating in dredging projects where, for instance, there will be sometimes vessels shuffling backwards and forwards, not actually dredges, but copper barges and so forth or rock dumpers as was described this morning and, indeed, rock dumpers can be used in offshore oil and gas projects.
PN736
There's a spectrum of projects. For instance, in a pipeline project there may be some dredging which might be oil and gas industry related, then there might be some rock dumping on top of the pipes to shield the pipes from future damage by dragging anchors and so forth and that rock dumping may be done for oil and gas industry purposes, so people can work on different types of vessels for different types of purposes, but our contention, our core contention and if the Commission finds against us, it will be a serious blow to us, but our core contention is that the company undertook that the individual employees would not be disadvantaged, would not lose any benefits they would otherwise have had if they had remained in the oil and gas, the pure oil and gas sector.
PN737
THE COMMISSIONER: Mr Byrne, I'm just troubled by - not troubled, but it's significant, the definition of vessel in clause 3, it seems to - it says it may and is not limited to the following vessels and then it says:
PN738
Or any other vessel used in offshore oil and gas operations.
PN739
You're saying that all those preceding words, you're saying that even with that, it could still apply outside of the oil and gas?
PN740
MR BYRNE: I was saying that the definition in and of itself did not preclude the application of the agreement to a wider type of vessel, because it's an inclusive, not an exclusive list.
PN741
THE COMMISSIONER: I'm sure there's an answer to this, but you wonder why anyone bothered to define vessel if that's the case and why they even mention offshore oil and gas, if you say it could apply beyond oil and gas. It could apply to a whole range of vessels no-one has ever thought of, yes, that's right, but isn't it all within the offshore oil and gas which, of course, is the whole genesis of this agreement?
PN742
MR BYRNE: The original agreement was drawn up and I think Mr Llewellyn has indicated that those definitions have not changed in the sequence of agreements, so that's historically their derivation, but I'm just making the point that the words are not exclusive, they're inclusive and we will need our other witnesses who have been summonsed to take this matter further. There are verbal agreements which extend the application of the agreement, the certified agreement, to the permanent employees who are prepared to temporarily move to other projects.
PN743
THE COMMISSIONER: Although there's an argument that ancillary documents might colour - might assist the Commission in interpreting a provision, so if someone comes along and says what this means is this or this is identical to another provision found somewhere else and that was interpreted by the Federal Court or by the Commission as meaning this, that would assist, but even if the evidence of the two witnesses remains as it is and Mr Llewellyn ultimately just has to surrender and say, well - in the end, that can't actually be - that's evidence of how the agreement was applied, it may not necessarily be evidence of what the agreement is. It's a convenient, that's not a pejorative word, it's a convenient and perhaps a fair way of dealing with employees. There might be an answer to say, well, that might be nice, but it still ain't the agreement.
PN744
MR BYRNE: Yes, I understand and Mr Llewellyn's submissions do address that issue at a later stage and I will come to that as well.
PN745
THE COMMISSIONER: Yes. Anyway, I see the point.
PN746
MR BYRNE: From paragraph 21, the company's submissions deal with a case called Leigh Carpenter v Caroma Manufacturing Pty Ltd.
PN747
THE COMMISSIONER: Sorry, should we adjourn now?
PN748
MR BYRNE: Yes, that probably would be a convenient time, sir, yes.
PN749
THE COMMISSIONER: Do these people know we're going to be ringing them?
PN750
MR BYRNE: I understand Mr Richards does and I understand that Mr Meadowcroft is awaiting a further call to hear whether he should come here this afternoon or tomorrow morning.
PN751
THE COMMISSIONER: Well, tomorrow morning is difficult for us, so I think we'd like to press on this afternoon, but you could warn either of them that we'll probably call them, maybe one at 4 o'clock and the other one at three. I don't know how long Mr Llewellyn will be with them.
PN752
MR BYRNE: It would be more sensible I think to program Mr Richards first by telephone and check that Mr Meadowcroft can make it here in person by four.
PN753
THE COMMISSIONER: That would be good. Mr Llewellyn.
PN754
MR LLEWELLYN: Do I understand we're not proceeding tomorrow?
PN755
THE COMMISSIONER: No, they weren't. I am anxious to get the evidence in. You've both put in comprehensive submissions. If it's necessary, if we've got time, we can do it today, but if it's necessary to put further submissions in writing in the light of what you've heard or to enhance what you think are the points, I think that will probably be the better way to deal with it than have another hearing or come back for basically you to repeat what is in the documents that you've already got. I think Mr Byrne is utilising the available time to respond to your document, but it may very well be that's not the last we will hear from him.
PN756
MR LLEWELLYN: That's fine. For some unknown reason, I put both days in my diary and I knew Mr Byrne would take up most of today and I was actually lining people up for tomorrow.
PN757
THE COMMISSIONER: You haven't got witnesses tomorrow, have you?
PN758
MR LLEWELLYN: Well, I haven't now apparently, but I will have to talk to them and see if I can do it today, although if Mr Meadowcroft is not going to be here until 4 o'clock, depending on how late you're sitting, I think that might be difficult today, anyway. In terms of Mr Meadowcroft, I don't know what his evidence is going to be, other than what I've seen in the stat dec - - -
PN759
THE COMMISSIONER: That is what his evidence is going to be, other than what you can get out of him.
PN760
MR LLEWELLYN: What I may take him to, yes, that's correct.
PN761
THE COMMISSIONER: I didn't even know you were going to have witnesses.
PN762
MR LLEWELLYN: A lot of it depended on what we got in submissions. Some of that is a result of what I received yesterday. Certainly, in light of Mr Olsen's evidence, I will be talking to AMMA, to bring their records down of what the union claimed and perhaps then we can get some veracity on what was said.
PN763
THE COMMISSIONER: All I can say is we can't sit tomorrow. If at the end of it we've dealt with these two witnesses and we can proceed with submissions in writing, we will do that. If on the other hand you think it's absolutely necessary for you to still call some further evidence, then we might stand the matter over and if we can deal with that evidence by video, good and well. If you still think it needs - that's never as good as face to face, that just makes further extension of the matter, but, anyway, we will worry about that when we get to it.
PN764
MR LLEWELLYN: As I said, for some reason I put both days in my diary.
PN765
THE COMMISSIONER: It may well be that some of the material you seek to adduce from the witnesses Mr Byrne may not actually have great objections to. He might put his own interpretation on them, but facts are - it will be different from that. Anyway, we will adjourn. We will resume at 2 o'clock.
<LUNCHEON ADJOURNMENT [1.01PM]
<RESUMED [2.12PM]
PN766
THE COMMISSIONER: Yes, Mr Byrne.
MR BYRNE: We've had another change to the scheduling arrangements, this time a favourable one. My earlier information about flights from Adelaide was astray. I took the wrong end of the stick there and Mr Meadowcroft is already back in Perth and is now in the body of the court room, ready to take the stand, so I will call Mr Meadowcroft.
<RAYMOND DOUGLAS MEADOWCROFT, AFFIRMED [2.13PM]
<EXAMINATION-IN-CHIEF BY MR BYRNE
PN768
MR BYRNE: Thank you, Mr Meadowcroft. I think everybody has a copy of your statutory declaration. I just notice that you gave a
Winthrop address when you were sworn, but in your statutory declaration you provided an Applecross address. Perhaps you might just
like to explain that to the Commission?
---Certainly. The Applecross address is my business address and my Winthrop address is my home address.
PN769
Can I take you to your statutory declaration and just ask you to confirm for the Commission that this is a declaration that you've drawn up yourself?---It is, yes.
PN770
And that it's true and correct in all respects?---It is.
PN771
You indicated at paragraph 1 of your declaration that you were manager of Total Marine Services from July 1990 to July 2004, is that correct?---I commenced employment with TMS in 1990. I became general manager of the business in 1996. Prior to that, I was in a management role with the company.
PN772
You've also indicated prior experience in the industry in paragraph 2 of your declaration. You say that they were all in the Australian offshore oil and gas industry and that it goes back to 1979. Is that correct?---That is correct, yes.
PN773
In the second part of that paragraph you indicate that you were employed by Lombardo Marine. Were they your employer from 1979 to 1990?---I left Lombardo in 1988, so I was employed with them from 1979 to 1988.
PN774
In paragraph 3 of your declaration you indicate that you secured a number of contracts in the dredging industry, including dredging at the Port of Geelong in 1997, Dampier in 1999 and Geraldton in 2002. Is that correct?---That is correct.
PN775
Then at paragraph 4 you say:
PN776
Mindful of the need to man up these dredging vessels with experienced and suitably certificated seafarers and to retain our core of permanent officers, TMS approached AIMPE with a proposal to bring engineer officers permanently employed by TMS in the offshore oil and gas sector temporarily into the dredging regime.
PN777
Can you indicate to the Commission whether that approach was prior to each of the three projects that you mentioned in paragraph 3?---It was certainly prior to the original Geelong job and was the case from memory with Geraldton and my recollection and understanding is that once we had this agreement in place, that we basically honoured that as we went through, but, yes, we certainly made that approach and reached that understanding. Whether we did it on each independent occasion, I can't confirm, but it was our clear understanding.
**** RAYMOND DOUGLAS MEADOWCROFT XN MR BYRNE
PN778
You go on to say in paragraph 5 that you proposed that an engineer officer employed in the offshore sector and willing to transfer to the dredging contracts, you would continue to enjoy all conditions as per the offshore agreement save for salary and leave. Is that correct?---That is correct.
PN779
Did you then implement that agreement subsequently?---We had an oral agreement. I can't confirm, I believe there was some exchange with some individuals with correspondence, but I don't have access to that. I cannot confirm it, but there was certainly - again, that was the intent of what we agreed and what we were going to do.
PN780
I will come back and show you an exhibit that's been placed in evidence earlier on today about that, but I will do that later on. At paragraph 6 you indicate that you negotiated dredging agreements to cover these contracts:
PN781
As it would be necessary for TMS to recruit a number of engineers and others to fill positions on these dredgers.
PN782
Can you indicate for the Commission the numbers involved there, the numbers that you needed to recruit or the percentages?---I would estimate that we probably recruited and it's an estimation only, probably 80 per cent of our dredging staff with probably - and again, it's some time ago, probably 20 to 25 per cent of our existing staff we moved over, but I would as an estimate probably indicate 80 per cent of recruits.
PN783
Just for abundant clarity, your point 6 means the negotiated dredging agreements covered those personnel that you recruited?---Absolutely.
PN784
In paragraph 7 you indicate that your unawareness of certain seafarers who relied almost exclusively you say on the dredging industry
for employment, are those the personnel that you recruited as you just advised in relation to paragraph 6?
---That's correct, yes.
PN785
So they were experienced dredging industry personnel?---Yes, they were, yes.
PN786
You then go on to say in paragraph 8 that:
PN787
TMS was aware that its offshore agreement in clause 5.1 may have provided for employment in areas other than the offshore sector, ie. and includes vessels to which Total Marine Services Pty Ltd is contracted to supply maritime labour. We believe a separate dredging agreement was in the best interests of all parties.
**** RAYMOND DOUGLAS MEADOWCROFT XN MR BYRNE
PN788
Can I ask you to explain to the Commission the first sentence there in paragraph 8 of your statement?---Well, certainly. Dredging has always been separate to I guess our oil and gas business and to remain price competitive and to assist our clients, it was always intended that we would negotiate separate dredging agreements as we do today with our new business and we didn't believe that that actually referred to dredging. Dredging is a completely separate business and one that we always continue and at the time, the industry was running under separate agreements, so, yes, we didn't think that applied.
PN789
Going to paragraph 9, you indicate that:
PN790
To offer security and assurance to our permanent employees, TMS agreed by way of a verbal undertaking with AIMPE that all offshore agreement conditions would prevail whilst these employees were employed on dredging works.
PN791
Were you a person who gave such verbal undertakings?---I did, yes.
PN792
Can you indicate to the Commission who you made those undertakings to?---That was in discussion with Phil Olsen.
PN793
At paragraph 10 you indicate that you can say that:
PN794
The terms and conditions of the loss of certificate of competency scheme was a part of the terms and conditions which would apply to permanent employees transferring to the dredging sector.
PN795
Does that paragraph, paragraph 10 and that statement I've just read refer to the verbal undertaking you mention in paragraph 9?---It does, yes.
PN796
You then state that:
PN797
As the then manager of Total Marine Services, I state unequivocally that it was the intent of TMS and the AIMPE that all offshore enterprise agreement conditions would apply to permanent employees in the Geraldton dredging project, except for salary and leave which was as per the dredging industry.
PN798
?---That is correct.
**** RAYMOND DOUGLAS MEADOWCROFT XN MR BYRNE
PN799
How did you ensure the implementation of the verbal agreement that you had with Mr Olsen?---I guess it was to ensure as I understood we had insurance covers in place, our - - -
PN800
Sorry, ensure, how did you make sure that your admin personnel carried out the verbal agreement that you had?---It was given - well, it would have been given by us, it would have been a direction given to our people and our personnel with the likes of severance, et cetera, would have been continued on through our business. I can't give you an exact instruction that I gave, but it was accepted and it was knowledge that that is what was to happen.
PN801
You then state at paragraph 12 that you confirmed that:
PN802
These arrangements applied to Mr Greg Maynard.
PN803
So just by way of clarification, that means that the verbal agreement to extend the offshore oil and gas agreement conditions was to apply to Mr Maynard?---That's correct.
PN804
When he was working on dredging projects?---Correct. He was a permanent employee.
PN805
Can I ask you particularly about the condition, the terms of employment that are known as personal illness and injury insurance?---Yes.
PN806
Did you make that available to employees, the other employees who were from the dredging industry and recruited specifically for dredging projects?---I would have to look at the agreement that we had in place for our new employees. If it wasn't in our agreement, then they wouldn't have been entitled to it.
PN807
Do you recall it applying to the personnel, the permanent employees from the offshore oil and gas sector who transferred across to dredging?---That was the intent. Again, that was a condition that they were employed under.
PN808
Can I ask that the witness be shown exhibit AIMPE3? Mr Meadowcroft, can I ask you to just read that letter, a single page letter, just quickly?---Read it out?
PN809
No, just read it to yourself?---Yes.
**** RAYMOND DOUGLAS MEADOWCROFT XN MR BYRNE
PN810
Given what you've just said to the Commission, that the intention of your agreement with Mr Olsen, the verbal agreement with Mr Olsen was that all of the offshore oil and gas conditions except salary and leave should apply, can you indicate to the Commission why this letter that you wrote to Mr Maynard in the context of the Geelong dredging agreement specifies three conditions?---I guess the intent of the letter was to outline to our permanents and in this case Mr Maynard that he would continue to enjoy his conditions from the oil and gas industry in which he was employed and I guess they were the main - the three headline items. Loss of certificate, et cetera, there's a number of other benefits, I guess, which probably aren't included as headline items, but that was the intent, to let him know that our agreement with the union, in fact, he would continue to enjoy his conditions.
PN811
So by listing those three, you were not excluding the other conditions. You were just highlighting three particular important ones?---Absolutely not. I think these were probably the three most relevant at the time so, no, not at all.
PN812
Can I ask that the witness also be shown exhibit AIMPE4? Take a minute to read that as well?---Yes.
PN813
You'll see that it's remarkably similar to the letter that you wrote some years previously?---Yes.
PN814
You were still manager at that time, I think general manager you said still in 2002 when this letter was written. Do you recall speaking with Mr Nunn about this letter?---Not specifically, I don't.
PN815
Do you recall speaking with Mr Nunn about the general issue of the application of the AIMPE Total Marine Services Engineers Agreement, the offshore agreement, to your permanent employees if they went to the Geraldton project?---No. Again, I can't recall. I'm sure there was discussion. I can't recall it personally, but it was again we were working on the intent of the agreement we had in place and I had nothing to indicate that that arrangement had changed at all.
PN816
So can you indicate to the Commission if your understanding was that the verbal agreement was still in place?---That was the intent, absolutely.
PN817
Thank you.
**** RAYMOND DOUGLAS MEADOWCROFT XN MR BYRNE
PN818
THE COMMISSIONER: Mr Llewellyn.
<CROSS-EXAMINATION BY MR LLEWELLYN [2.31PM]
PN819
MR LLEWELLYN: Mr Meadowcroft, I understand from your statutory declaration in paragraph 8 when you said it was TMSs view that the
certified agreement with the wording includes vessels to which Total Marine Services contractors supply marine labour means vessels
other than the oil and gas sector?
---Sorry? Yes.
PN820
Is that your understanding, that the agreement extends beyond the oil and gas sector?---Yes, it does. There is potential to negotiate as I understand it different arrangements.
PN821
No, no, that's not what I'm asking. The certified agreement - well, let's get the history. Were you involved in the negotiations of any of the certified agreements?---I was, yes.
PN822
Can you tell me which ones?---Not the exact dates of them.
PN823
No, no, can you remember which agreements?---I was involved in I guess the decade of the 90s into probably I think the last one was 2002.
PN824
Do you remember doing the 2002 agreement?---Not specifically. I remember being in a number of negotiations.
PN825
Can I ask you, in your time at Total Marine did you ever apply the agreement, that's the Total Marine Offshore Agreement, to a vessel outside the offshore industry?---Recalling that at the moment, no, I can't give a definitive answer on that. It's quite possible we would have, but to give you an exact detail here, I couldn't do that.
PN826
In terms of each of the dredging projects that you were involved in, there were separate agreements negotiated with those with AIMPE
as one of the parties?
---Correct.
PN827
And they were to cover the dredging project itself?---That's correct.
PN828
AIMPEs concern was that full-time employees could lose their accruals if they go over to that project?---Correct, and entitlements.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN829
Now, employees such as Mr Maynard, Mr Maynard was engaged by Total Marine Services as a marine engineer?---Correct.
PN830
The contracts of employment you had with your marine engineers, was there any restriction on Total Marine about where you could use
them as a marine engineer?
---Not to my knowledge.
PN831
So if you wanted to put Mr Maynard on a dredge, there was nothing preventing you from doing that?---No, I don't think there would be, as long as we applied the terms and conditions of that agreement.
PN832
Of which agreement, the dredging agreement?---No, no, of his oil and gas agreement.
PN833
Where does it say in there that applies to a dredge?---Well, it doesn't, but as a permanent employee, we would not disadvantage him to help us and if I could just give a little bit of history, the reason we got into this situation is because through these times of dredging contracts, the company didn't necessarily have enough work for all of its employees and this was a way that we could avoid terminating our permanent employees and at the same time having to pick up an entirely new workforce which we discussed earlier was part of the dredging agreement or part of the dredging industry, so it was a way for us as a company to keep our permanent employees employed.
PN834
I understand that. Mr Maynard was employed as an engineer, as a marine engineer. You could use him anywhere you needed a marine engineer as a full-time employee?---We could.
PN835
So just because there was no work on an oil and gas boat as a permanent didn't mean you couldn't use him as a permanent on any other boat or any other contract for that matter you needed a marine engineer?---We could, yes, we could.
PN836
I am just wondering if I could have the witness shown exhibit TMS2, I think it is. Is that a letter under Ms Vivien's signature?---That is, yes.
PN837
That's in the same terms as the other two letters?---Yes.
PN838
I've spoken to both Ms Vivien and Mr Nunn about their instructions and they say that they were told to issue those letters and the only issues were the accrual issues, long service leave, severance, that sort of thing?---No. As I keep saying, the intent and they are the headline items, because they were probably seen as the most relevant at the time, but the intent was for the permanent employees to take their entitlements.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN839
Can I ask, then, on the first letter, Mr Meadowcroft, which is under your
signature - - -
PN840
THE COMMISSIONER: Wait a second, Mr Llewellyn. We took them back. We didn't think we'd need them again.
PN841
MR LLEWELLYN: That's all right. They all say the same thing, anyway?---I've got it there, yes.
PN842
In terms of the first one you did in April 1997?---Yes.
PN843
If the intent was simply to honour everything other than pay and leave, why didn't the letter say that?---Because it's a broad brush letter. In hindsight, we probably wouldn't be sitting here if it did, but the intent was where I sat that we would not disadvantage our permanent employees at the time.
PN844
So they would have got other benefits like medical insurance?---Yes. They should have continued all their insurances. There were no insurances cancelled or deferred.
PN845
All their payments for travel days, all that sort of stuff?---Their payment for duty leave and travel also would have been incorporated under their dredging agreement. Their actual payment of salaries was in accordance with the dredging agreement that we negotiated.
PN846
And the allowances?---They would have received the allowances in the dredging agreement.
PN847
And not in the offshore agreement?---They shouldn't have received any allowances in the offshore agreement.
PN848
Even if they weren't in the dredging agreement?---No, because they were getting shared accommodation as part of the dredging agreement.
PN849
But they weren't getting medical insurance payments?---We continued our insurance on all our permanent people.
PN850
If you remember in 2000, you introduced medical payments in lieu of the old construction allowance where everyone got medical insurance payment per fortnight to give private health cover?---Well, the 97 was prior to that and it would appear the letters after there were copied, so I wouldn't have - the intent would not have been to take that payment off them if that was the case, but I can't recall all the entitlements under the dredging agreement either. I don't have that in front of me, but the intent was payments would be in accordance with the dredging agreement, terms and conditions for want of a better word, would be in accordance with what they were existing experiencing, if that makes sense, superannuation, worker's comp.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN851
The only documents you reflect that in are the letters to Mr Maynard? There's nothing you can point to - - -?---No, there was a verbal understanding and there was these letters written.
PN852
You say those letters don't mean what they say they mean?---No, I didn't say that at all.
PN853
They mean something more than what they say?---No, they say what they say, but they're a broad brush letter and the agreement given and the understanding given with AIMPE, because to not allow us to terminate permanent employees, that we would look after the people. Now, we did not highlight each individual item because things like this are never - you don't foresee that this is going to happen.
PN854
I guess the point I make is you didn't have to highlight the items. You only had to date - the whole agreement applies apart from pay and leave?---Well, I'll take your advice on letter writing.
PN855
Now, under the terms of the 2002 agreement, I just wonder if I can have the witness given a copy of the 2002. It might make life easier. Have you still got a copy, sir?
PN856
THE COMMISSIONER: Yes.
PN857
MR LLEWELLYN: Are you familiar with that agreement?---Yes, I've seen this agreement.
PN858
Can I just ask you to turn to clause 20, superannuation?---Yes.
PN859
Mr Meadowcroft, I will ask you to look at two clauses at the moment which is 20.1.1 and 20.1.3?---Yes.
PN860
The last sentence of each of those reads:
PN861
In addition, Total Marine Services will take out salary continuous insurance covering employees if ill or injured, not work related.
PN862
?---Yes.
PN863
Can you recall what that was, what insurance it was?---It was in the event of - yes, from memory it's after 90 days, if people suffer an injury or an illness and the intent of that is and still is today, as I understand it, that they get the 75 per cent personal accident/ illness and this is a benefit through their superannuation that would kick in if they were still unfit or injured or sick.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN864
So if I can take you to clause 32 of the same agreement, I will try and give you the whole of both pages, if I can?---Yes.
PN865
Clause 32 is the 90 day one you're talking about?---Yes.
PN866
So that covers you at 75 per cent of your salary for the first 90 days?---Correct.
PN867
Then the provisions in clause 20 take over from that?---Correct.
PN868
Do you know where that claim came from for those provisions?---For the?
PN869
For the additional insurance in those provisions?---Under 32?
PN870
Under 20, sorry, clause 20?---I understand they were probably a union claim.
PN871
Was that consistent across the three unions?---To my recollection, yes.
PN872
Can I have the witness shown the 99 agreement as well? If I can just ask you to flick to clause 16 of that which is your super provisions?---Yes.
PN873
Or, actually, just for the sake of completeness, if I can just ask you to flick to 26 first?---Yes.
PN874
That's what the industry refers to as PI insurance, is it not?---Yes.
PN875
Which is personal injury which covers you for injury or illness if you can't make a crew change for the first 90 days?---Yes.
PN876
If I can just ask you to go to the super provision?---Sorry, that was 19?
PN877
Clause 16?---Yes.
PN878
Under those provisions there was no additional super or no additional insurance?
---No.
PN879
Can I just take you to 16.1.2?---Yes.
PN880
Contributions in the current level to 13 per cent of actual salary in three equal instalments from the date of certification of the agreement, 9.9 from the date of certification, November 2000 to 11.4 and 2001 to 13 per cent?---Yes.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN881
And that applied across the board to everybody?---Again, to engineers, yes.
PN882
To everybody in this agreement?---Yes.
PN883
So that was regardless of whether you were in the most fund - TMSs super fund? I don't know whether you had one then?---No. We were in the industry fund.
PN884
Or employees could actually be in the AIMPE central fund?---And that's where our people were, yes.
PN885
So, Mr Meadowcroft, do you have any recollection of how you went from 13 per cent to 14 per cent in 2002 for the AIMPE fund?---Yes, that was I believe to cover the disability, the insurance component from memory.
PN886
That's the amount over three months?---Yes, yes, correct.
PN887
That was applied equally across the board to all employees?---To our permanent people as I understand it, yes.
PN888
And the casual employees as I understand in 20.1.4 received an extra half a per cent in super to cover that insurance premium?---Correct.
PN889
Was Mr Olsen involved in those negotiations?---Yes, he would have been, yes. I'm sure he would, yes.
PN890
He would have been the one carrying the claims for AIMPE?---Either Mr Olsen or Mr Christiansen.
PN891
Do you know who else from Total Marine would have been involved in those negotiations?---In 2002 - - -
PN892
Probably up to 2003, given the registration date?---Possibly myself to a degree, but probably more Peter Richards, but again I'd need to be - but we would have been - and possibly at that stage, we were sold in 2002, Stuart McLean could have also been involved.
PN893
In terms of negotiations for these certified agreements that covered TMS, they were conducted by TMS on their own or as part of an industry group?---No, as part of - as an industry group.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN894
Who were the other players in those negotiations?---Farstad, Tidewater, Swy Pacific, Mermaid Marine and I don't even think Bagwan were around in those days, so they were the major players.
PN895
Who chaired all that or assisted the vessel operators with that?---Australian Mines and Metals Association.
PN896
From your recollection, is 2002 the first time that insurance was put into the agreement?---The additional insurance?
PN897
Yes?---I understand it was, yes.
PN898
That insurance was specifically to cover people who were unable to work due to illness or injury after the three months of PI?---As I understand it, yes.
PN899
Is that how Total Marine applied it?---Well, we went and certainly paid that insurance, so, yes.
PN900
You paid that insurance for people that were in the Total Marine super fund and for people that were in the MOST fund?---Yes.
PN901
You paid an extra amount into the AIMPE fund to cover the cost of that?
---Correct.
PN902
So in terms of where you sat then as the general manager of Total Marine Services, was it your view the company was providing illness and injury insurance to its employees?---It was, yes.
PN903
For how long, do you know? What was the period of cover?---I think it was two years.
PN904
If I can just ask you quickly to have a look at the definitions, or first if I can take you to clause 5 of the certified agreement, the 2002-2005 agreement, looking at 5.1 at the moment which says:
PN905
The agreement is binding on the union and members thereof and upon Total Marine Services as it applies in respect of self-propelled vessels operated by Total Marine Services Ltd; and engaged in or in connection with the Australian offshore oil and gas operations; and includes vessels to which Total Marine Services is contracted to the supply of maritime labour.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN906
Can I just ask you in each of those areas, in those days did Total Marine operate self-propelled vessels in the oil and gas sector?---Yes, they did.
PN907
Can you tell me if there's a difference between operating a vessel in the oil and gas sector and simply contracted to supply maritime labour to a vessel?---As far as labour goes, it's the same. I mean, there is a difference, running your own fleet of ships and providing labour to being a body shop, absolutely.
PN908
Essentially the difference is if you operate a vessel, you're required to have safety management systems that apply to the vessel?---Correct.
PN909
Whereas if you man a vessel that is operated by somebody else, you operate under all of their safety management systems?---And then you provide a bridging document to pick up anything they don't have.
PN910
But as far as control of the vessel, that is up to the client, not up to - - -?---That is correct.
PN911
That's one of the things that's changed over the history of this industry, hasn't it?
---No. In what way?
PN912
Perhaps if I can go back to the original award, given that you've been here for this long?---Yes, don't remind me.
PN913
In 1970 - the earlier award for this industry was the Offshore Support Vessels Award. That's correct, isn't it?---Yes. We had a number of them, yes.
PN914
That was subsequently expanded to include vessels where Total Marine or where the industry has supplied contracted labour, when drilling
rigs were introduced?
---Yes, propelled drilling rigs, yes, and drill ships, yes.
PN915
And they were first put into the award as an addendum or appendix to the award?
---A schedule, yes.
PN916
The definition was then expanded to include vessels contracted to supply maritime labour, because you didn't operate the drilling rig?---No. That's right. I mean, in the early days we provided a lot of men.
PN917
In all respects, do you understand that scope provision to be the same as the maritime - sorry, the Maritime Offshore Oil and Gas Award?---Being the - you've just lost me there.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN918
Sorry. I will put it to you this way, Mr Meadowcroft. The Offshore Oil and Gas Award 2003 which is the simplified award also has a scope clause that says this award shall apply in respect of propelled vessels as defined in schedule 6 which isn't good because that's simply a seismic vessel?---Yes.
PN919
Operated by the employees/employers engaged in connection with the oil and gas operations and includes vessels to which the respondent company is contracted to supply maritime labour, so it's the same definition out of the award that's been brought into the agreement?---Yes.
PN920
Similarly, if I ask you to look at the page immediately before that where it goes to what a vessel is and it defines a vessel under this agreement as a self-propelled vessel that may but is not limited to the use of navigation, construction, drilling and includes a ship, barge, drilling vessel or rig, crane vessel, floating production facility, tugboat, support vessel, supply vessel, standby emergency vessel, pipe lay vessel, die support vessel, lighter or like vessels or any other vessel used in the offshore oil and gas operations?---Right.
PN921
And that's the same definition that's in the award?---As I understand it.
PN922
Where do you see dredges fit into that definition?---They don't.
PN923
Unless they were working in the oil and gas industry?---Yes, and there would be - to my knowledge they would still negotiate a separate agreement.
PN924
Just to clear up one thing, the Arnsteen, you're familiar with that vessel?---I am.
PN925
That's a rock dumper?---Correct.
PN926
Do you know whether that's worked under the oil and gas award?---It has.
PN927
Has it worked under the dredging award?---I don't believe it has.
PN928
Can you recall if Total Marine ever worked it under the dredging award?---I don't believe we did. She worked in Geelong. No, I don't believe we did.
PN929
Mr Meadowcroft, can you tell me in terms of what you've said earlier about engineers where you've agreed with Mr Olsen to apply the offshore agreement as I put it, you've now got your own offshore agreement with Offshore Marine Services?---Correct.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN930
That was negotiated with AIMPE?---Yes.
PN931
The original one you registered was negotiated and registered in November 2004?
---Yes.
PN932
I wonder if I could have the witness shown a copy of that document, please? Can you recognise that document?---I do.
PN933
Again, the scope clause is exactly the same?---Yes, I would imagine it is, yes.
PN934
As are the definitions?---Yes.
PN935
And you've never sought to apply this to the dredging industry?---I negotiated a separate agreement.
PN936
That was always negotiated with AIMPE?---It is.
PN937
Or any other union that was on it?---Yes.
PN938
But for the purposes of this hearing AIMPE?---Certainly.
PN939
And AIMPE have never come to you and said, well, the Offshore Marine Agreement applies to a dredging project?---No, they haven't.
PN940
And at LMS, do you apply that agreement to any of your employees currently?
---If I've got any permanent employees going to Port Hedland, I would.
PN941
Apply the terms of the agreement?---I would pay them in accordance with the dredging agreement, but I would give them the terms and conditions and I would seek not to disadvantage them for the sake of doing something for the business.
PN942
If you have a dispute arise on your current project and I understand unfortunately you've had a couple, is that done under the offshore agreement or under the dredging agreement?---It's done through our dredging certified - well, through the agreement we have with the unions.
PN943
Is that registered?---I don't recall that it is registered. I don't believe we did register it in the end. I wasn't actually involved in the detail.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN944
All right, but that's the agreement you apply for disputes?---That's the agreement we apply.
PN945
AIMPE quite happily follow that?---Absolutely.
PN946
They've never come to you and said we should be dealing under the disputes procedure under the Offshore Oil and Gas Agreement for the dredge?---No. We haven't had any dispute with AIMPE on that project.
PN947
Even in your time at TMS, did you ever have any dispute with AIMPE on a dredge project at TMS?---Not that I can recall, probably more with their comrades down the road we had a couple, but not directly with AIMPE we didn't, no.
PN948
Mr Meadowcroft, you left Total Marine as I understand it in July 2003, is that right?---2004.
PN949
Was Mr Maynard working for you at that stage?---I believe he would have been, yes.
PN950
Can I have the witness shown TMS3, please? Mr Meadowcroft, you've got a print-out from the Total Marine payroll system. Given your previous association, you're probably familiar with it. If I put to you that Mr Maynard hasn't worked for Total Marine since April 2003, would that ring a bell for you?---No, not at all.
PN951
Are you aware that he went on two years' salary continuance?---No, I can't recall that.
PN952
If I put to you that employment did in fact go on two years' salary continuance apparently under the terms of the AIMPE super fund, it was one of the conditions held over, is your view that two years' salary continuance would have been the insurance paid for by Total Marine?---It would have been, yes. It would be my understanding, without knowing the detail.
PN953
In terms of the AIMPE fund, given your evidence that the 2002 certified agreement applied, I'm not saying I agree with that at the moment, given that that's your evidence, would that imply that the insurance under the 2002 super provisions also applied?---I think - was that not what we were just talking about?
PN954
Yes?---Well, it would have, yes, it would have been paid for through his super.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN955
Now, are you familiar with the loss of compensation, the loss of certificate?---I'm not an expert on it, but I'm aware of the insurance, yes.
PN956
You would have been around when it came into being?---No, I don't think I'm that old, but I was certainly in the early part, yes.
PN957
1984 is when it came in?---Yes.
PN958
Do you remember why it came in?---It was brought in for seafarers that couldn't revalidate due to medical condition.
PN959
Wasn't there a change in legislation back then that required more stringent medical conditions to be fulfilled by seafarers?---I guess medical conditions have increased dramatically over the last 10 years, so, yes, I wouldn't dispute that.
PN960
And my understanding is the purpose of the scheme when it was brought in as an agreement, this is prior to it being converted to an
award, but the purpose of the scheme when it was brought in by agreement was to make sure people could be parachuted back into another
job or given time to retrain. That's right, isn't it?
---Again, I'm not an expert on it. I knew that there was - we had policy in place and that seafarers, there was panels in place to
judge these claims from memory and people were awarded that weren't fit to go to sea sums of money.
PN961
Yes, and they were people that couldn't get loss of income protection for illness in any other source?---Basically - no, it was just provided as a blanket for your people. People could still have private insurances or other insurance.
PN962
Can I just ask you to look at I think clause 38 in the current agreement, so going to the award, clause 39, sorry, can I just ask
you to have a quick read of 39.4(a)?
---Sorry, which - - -
PN963
Sorry, of the 2002-2005 agreement?---It was different numbering, sorry. 39.4?
PN964
Yes. Have you had a chance to read through that?---Yes.
PN965
So it is:
PN966
Where an officer suffers an illness or injury entitled to any compensation, damages or other benefits, core benefits from his employer and/or third party under any applicable legislation or at common law equity or under any contract, deed or other arrangements, but not including superannuation pension or like deed, scheme or arrangement, benefits include a component referable for loss of earnings and the value of the component shall be deducted from the amount payment to the officer.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN967
And it goes on to further define what the board shan't take into account which is resignation benefits, benefits for total and permanent
incapacity, benefits for retirement on age grounds or early retirement or benefits covering the foregoing concepts, however defined.
Now, in Mr Maynard's case, I put to you that from 2003 until 2005 he was on salary continuance benefits for partial incapacity through
the super fund. Was that a benefit that was provided by Total Marine?
---It was a benefit through our agreement that we took out for all our permanents, yes.
PN968
In his case, where he was a member of the AIMPE fund?---Yes.
PN969
That took the form of an additional payment of one per cent of the AIMPE fund?
---Correct.
PN970
So can I just ask in your opinion at the time, as you were involved in negotiating all these, where Mr Maynard had received that two years of salary continuance, would that be counted as money paid by the employer?---It's money actually not paid by the employer. It's money paid by a fund.
PN971
By insurance?---Well, not actually - well, it's a superannuation fund.
PN972
It's an AIMPE insurance payment?---Well, AIMPE insurance fund, call it what you want, but it's a payment through his super. It's not a payment that the employer makes.
PN973
But you provided the money to get that?---We took that out as per we have to through our agreement, yes.
PN974
But is that payment for loss of earnings due to illness or injury?---Yes.
PN975
And where that can be deducted from loss of certificate of compensation, is that your view that that would be included in the money you deduct from that?---I mean, that's something the board determines, isn't it? I mean, it's not something for me to - - -
PN976
Well, you were around at the time. I'm just asking your view on it at the time?
---My view on it is that loss of certificate is a completely separate insurance and is dealt with completely separate.
**** RAYMOND DOUGLAS MEADOWCROFT XXN MR LLEWELLYN
PN977
So the plan was to give employees at least three years in Mr Maynard's case of loss of income?---No, I don't think there was any intent. I think it's a case by case situation.
PN978
So just let me ask you again before I finish. You're comfortable that the Offshore Oil and Gas Award doesn't apply to any employee engaged in dredging?---No. We certainly, our permanent employees as I've said a number of times here, we don't seek to disadvantage them. If we ask them to go to a project to help us as a company, we look after them and we would take and they would be entitled to their benefits. New employees under that particular project are only provided with the terms and conditions of the agreements that we reach on each project in dredging.
PN979
You're saying that's a contractual benefit, a benefit under the certified agreement?
---It's a benefit we provide as a company.
PN980
Separate to the agreement?---Yes.
PN981
There's no compulsion for you to apply that under the agreement?---No, probably no compulsion, but I think if you just take what was happening at the time that we provided this, it was done to benefit the company so we didn't actually enter a redundancy process and it was there to retain our permanent employees.
PN982
If I remember, in 1998, you were pretty much flat out?---We went through - - -
PN983
TMS had 800 employees?---No, in 96 we lost the Swy work and we actually had more people than business and again I think as we've discussed earlier, there was no long-term planning in our oil and gas industry that there is today, so we actually didn't know what was around the corner.
PN984
In the time you were on the Geraldton dredging project, as I understand it, which is what Mr Maynard was working on, Total Marine I am told at that stage hit something like 800 POBs?---Yes, you probably might find 500 of them were rig workers.
I have nothing further. Thanks.
<RE-EXAMINATION BY MR BYRNE [3.05PM]
PN986
MR BYRNE: Just to traverse a number of subjects, one of which I wasn't really expecting at all and that was - I don't know if there was an exhibit number allocated to it, but Mr Meadowcroft was provided with a copy of the Offshore Marine Services Pty Ltd Australian Institute of Marine and Power Engineers Certified Agreement.
**** RAYMOND DOUGLAS MEADOWCROFT RXN MR BYRNE
PN987
THE COMMISSIONER: I haven't marked any of the agreements. They're not extracts, they're full agreements.
PN988
MR BYRNE: Yes, and Mr Llewellyn asked you some questions about this agreement, that is the LMS 2004-5 agreement and how and whether you would apply its conditions in relation to dredging projects. I don't think he got from you what dredging projects LMS has been involved with. I think the Commission may appreciate some advice from you as to what dredging projects LMS has been involved in?---Been and currently involved in the Fortescue mining/dredging project up in Port Hedland and have been there now since I think June of last year. That job is due to complete probably around May of 2007.
PN989
Yes, and you said to Mr Llewellyn in relation to permanent LMS employees you would pay them dredging rates, but apply these conditions, the certified agreement conditions?---Correct.
PN990
Mr Llewellyn also asked you about during your time with TMS, with Total Marine Services, which of the conditions of the Offshore Oil and Gas Industry Agreement TMS applied while you were manager to personnel, permanent personnel transferring across to dredging. He asked you specifically about allowances and your response was a person would be paid dredging allowances. That seems to be a variation from what you said to him in an earlier comment and what you have in your statutory declaration which was that it was salary and leave. At paragraph 11 in your statement you said that you would apply to permanent employees on the Geraldton dredging project - sorry, that the Offshore Enterprise Agreement conditions would apply to permanent employees on the Geraldton dredging project except for salary and leave which was as per the dredging industry, so in answer to Mr Llewellyn, you modified that by saying that it was salary and allowances, dredging industry salary and allowances?---That is correct and that is probably missing from the stat dec because there are differences and I call allowances shared accommodation which attracts a different payment to what it does, so I see that as part of salary.
PN991
That's what's known in the industry as the hard line allowance?---Correct.
PN992
I think that's a useful clarification. You were asked some questions about the superannuation scheme and in particular the salary continuance insurance issue and you indicated to Mr Llewellyn that your understanding of the words that were added in the 2002-2005 agreement in each of those subclauses was a result of the union claim or the unions, plural?---Yes.
**** RAYMOND DOUGLAS MEADOWCROFT RXN MR BYRNE
PN993
You indicated to Mr Llewellyn that your understanding of the provisions was that the personal illness and injury insurance separate clause operates for 90 days and that the salary continuance cuts in after the 90 days?---Correct.
PN994
Were you responsible for superannuation administration while you were at Total Marine Services?---Not directly, no.
PN995
Do you recall a Mr Gary Matford being financial controller at Total Marine Services while you were a manager?---Yes, Gary was there, yes.
PN996
Was Mr Matford the person responsible for superannuation administration matters at Total Marine Services while you were general manager?---I believe he represented the industry for superannuation.
PN997
Are you aware of a disagreement that took place between AIMPE and a number of companies in the offshore oil and gas sector, including Total Marine Services, but also Stirling Marine Services, Mersk Supply Service Australia Pty Ltd, Pacific Manning Company Pty Ltd about the level of contributions that were required to fund the defined benefits scheme?---Yes, I do recall that.
PN998
Do you recall that that was initiated by a letter from AIMPE superannuation plan secretary dated 9 October 1997?---I can't recall the date or the person, but it was instigated by the union.
PN999
Do you recall that all those companies that I mentioned rejected the request from the AIMPE superannuation plan secretary for an increase in contributions from 13 per cent to 14 per cent?---Yes, that's correct.
PN1000
Do you recall that the companies put to the AIMPE superannuation plan secretary that the AMP demutualisation share issue should be used to fund the actuarial liabilities of the plan?---Yes, I do recall that.
PN1001
You indicated to Mr Llewellyn that your engineering employees were members of - your permanent engineering employees were members of the AIMPE plan. Do you recall if that was the case when you started your employment with Total Marine?---That was the case, yes.
PN1002
Do you recall at any stage studying the conditions of the superannuation plan, the AIMPE superannuation plan at that time when you commenced in 1990?---No.
**** RAYMOND DOUGLAS MEADOWCROFT RXN MR BYRNE
PN1003
So you were not aware then that the contributions that were made by
employers - - -
PN1004
MR LLEWELLYN: My friend can't lead. He's asked the question. The witness has said he's not familiar with it and now he's seeking to put it in another way where he can lead the witness. The witness isn't familiar with the fund. I didn't transverse the fund at all again, but he can't simply say are you familiar with it when he says no.
PN1005
MR BYRNE: I withdraw the question, Commissioner. It's an issue I will return to later on in submissions.
PN1006
You were asked some questions about the Arnsteen. Did you ever visit the Arnsteen?---I went on the Arnsteen once.
PN1007
Do you know where it was that you went on the Arnsteen?---From memory, it was in Dampier.
PN1008
Can you describe the general functions of the vessel?---It's a vessel that's primary function is rock dumping. It goes out, sits above pipelines and drops large amounts of rock on and around the pipeline to stabilise it.
PN1009
Can it be used for other purposes to your knowledge?---I guess it's what you call a multi-purpose vessel. It could be used for diving, it could be used for a number of roles.
PN1010
Thank you. You said in cross-examination that there was a benefit to the company in being able to retain its permanent employees in employment, I think the words you used, so that we did not have to pay redundancy. You mentioned to Mr Llewellyn that in 1996 the company lost Swy work. How many people did TMS make redundant as a result of that loss of work?---I can't recall numbers, Martin, but there was certainly a time where we had been through varying levels of redundancy and had discussions with unions and the like and I guess the choice of words of not paying severance probably should be retention of skill set is probably a better way of putting it and that was our major focus.
PN1011
The redeployment of personnel to dredging projects enabled you to retain your skilled employees in employment?---Correct.
**** RAYMOND DOUGLAS MEADOWCROFT RXN MR BYRNE
PN1012
And so in your mind, that was the rationale for making the verbal undertakings that you made to Mr Olsen?---That's correct.
PN1013
Thank you. Thanks, Mr Meadowcroft.
THE COMMISSIONER: We didn't mark the statement of Mr Meadowcroft, so we'll mark that exhibit AIMPE7.
EXHIBIT #AIMPE7 WITNESS STATEMENT OF RAYMOND DOUGLAS MEADOWCROFT
THE COMMISSIONER: Mr Meadowcroft, you're excused.
<THE WITNESS WITHDREW [3.17PM]
PN1016
MR BYRNE: In light of the time, Commissioner, it may be appropriate to adjourn to the court where we are able to - - -
THE COMMISSIONER: Yes, I am organising the - we will adjourn now.
<SHORT ADJOURNMENT [3.19PM]
<RESUMED [2.40PM]
THE FOLLOWING EVIDENCE WAS CONDUCTED BY TELEPHONE CONFERENCE
<PETER STANLEY RICHARDS, AFFIRMED [2.41PM]
<EXAMINATION-IN-CHIEF BY MR BYRNE
PN1018
MR LLEWELLYN: Just to repeat my earlier objection in terms of being able to put documents to this witness.
PN1019
THE COMMISSIONER: Yes. Well, it might be difficult. We’ll see how we go, Mr Llewellyn. Yes.
PN1020
MR BYRNE: Commissioner, the first thing I was going to do is to establish whether Mr Richards has with him a copy of his statutory declaration?---No I don’t, Martin.
PN1021
That’s going to make this process very difficult then. I can, well, lead you through it, but if you don’t even have it ..... ?---That unfortunately is in the pile of papers and some clothes that I’m still waiting for.
PN1022
Lost luggage?---For the last few days, yes. She’s floating around a bit.
PN1023
THE COMMISSIONER: Yes, wait a second, Mr Richards?---I don’t know if this will help, but what I can do is basically try and remember what I said in there in my stat dec and it won’t be word for word, but it will be basically what I would have put down is in my own statement now. I don’t know whether that will help or no.
PN1024
Yes, Mr Richards, just stop there. Mr Byrne, I think that without labouring the points on all the earlier things, but when it gets down to those critical things you could repeat what he said and ask him. I mean, you did that with - - -
PN1025
MR BYRNE: Yes, with Mr Meadowcroft.
PN1026
THE COMMISSIONER: Okay, so we might be able to. As long as he hears.
PN1027
MR BYRNE: Yes. Mr Richards - - -
PN1028
THE COMMISSIONER: So although his evidence will not, because he hasn’t adopted this statement, it’s not before him,
but his evidence will still be an answer to questions and propositions you put to him, obviously the same with the
cross-examining.
PN1029
MR BYRNE: Yes, although I would make the point that it is a statutory declaration signed and witness. It is not a mere statement.
**** PETER STANLEY RICHARDS XN MR BYRNE
PN1030
THE COMMISSIONER: No, all right. But he’s ..... it’s just a bit somewhat unusual.
PN1031
MR BYRNE: Yes, it’s very unusual. I certainly concede that, but I'll press on and we’ll see how far we - - -
PN1032
THE COMMISSIONER: You should ask him if in fact he did declare what he said he declared on that date by looking at the back thing. That might lead us to somewhere.
PN1033
MR BYRNE: Yes indeed.
PN1034
Okay, Mr Richards, the Commissioner, the company and myself have all got a copy of a statutory declaration which contains a signature which says it was declared at Perth on 2 March 2007 and witnessed by - - - ?---I put who the witness is so you know it’s all true, by a Mr F Field of East Fremantle, (address supplied).
PN1035
Yes, that’s the witness whose name appears under signature which I take to be your signature. Can I just clarify your address. I think when you were sworn you gave a (address supplied) address, but your statutory declaration has a (address supplied) address. Can you explain that difference for the Commission?---A Willetton address?
PN1036
Yes, your address says Unit 2, 7 Augusta Street, Willetton?---That is the business registered address.
PN1037
Thank you?---Registered business address of Total Marine Services Pty Ltd.
PN1038
Thank you, Mr Richards. You say in your statutory declaration that up until November 2006 you were employed in various managerial positions by Total Marine Services Pty Ltd?---Yes, from 1993 to 2006 operations manager for approximately probably nine and a half years, then I was business development manager for TMS and then finally group business development manager for TMS.
PN1039
Thank you. I think you say that you covered those functions in your second paragraph. In your third paragraph you indicate that TMS secured dredge contracts for work in the ports of Geelong and Dampier respectively in 1997 and ‘99?---Yes. In the ‘90s it was Geelong, Dampier and then we went into Geraldton was the last dredging contract I was involved with.
**** PETER STANLEY RICHARDS XN MR BYRNE
PN1040
Yes. That was in 2002, commencing 2002?---Yes, about that, yes.
PN1041
You say at paragraph 5 of your statement that leading up to Geelong and Dampier projects I believe the company’s Ray Meadowcroft handled the employment conditions which were to prevail?---Yes.
PN1042
You then say that your concern was to ensure TMS had a supply of suitably certificated and experienced marine engineers to man the dredge involved in these projects?---That is correct.
PN1043
Your plan was to underpin the dredge manning with your permanent employees and top up the manning with casuals drawn from the roster?---Yes.
PN1044
At clause 8 you say:
PN1045
As our permanent engineers were all employed under the off shore oil and gas industry agreements that existed at the time between TMS and AIMPE and as the conditions of employment under the off shore oil and gas agreements contained a number of provisions which were not in the dredging industry agreements, ie. long service leave, leave accruals, insurances, permanency, redundancy, et cetera, we needed to find a way to attract our permanent engineers to temporarily work on the dredges.
PN1046
?---That is correct.
PN1047
You then go on in paragraph 9 of your statement to say that:
PN1048
TM entered into an agreement with AIMPE that any permanent engineer officer employee working under the off shore oil and gas agreement who volunteered to temporarily transfer to the dredging industry would retain all conditions of employment that they enjoyed under the off shore oil and gas agreement except for salary and leave.
PN1049
?---That is correct.
PN1050
Can you indicate to the Commission now what was the nature of that agreement and who agreed to those terms?---In the earlier, not the Geraldton, the Geelong and Dampier one, Ray Meadowcroft would have held meetings with AIMPE representatives. Phil Olsen, I think, Phil was still, was around then. They made agreement that that would happen and the crews were told that. All the engineer employees transferring across those that were permanent, of course, transferring from off shore agreements to the dredge were told of those arrangement. On occasions I think we might have written letters. I didn’t likewise for the Geraldton one. Occasionally we did letters, but generally it was a verbal and that was what was agreed. Sometimes we sent letters to the employees if they needed them, other times we didn’t. But the full intent was to maintain we had engineers to work on those dredges. The only way we could do that was transfer or second, as you may call it, our permanent engineers to the off shore sector through to the dredge. Full terms and conditions of the off shore agreements was to remain with them other than two items and specifically two items: the wage rate for dredges which was different to the off shore agreement, likewise the leave, accrued leave, duty leave cycle, leave payments were different on the dredges. That was the only two things that the permanent engineers dropped or had a change in their conditions from the off shore. Everything else stayed the same.
**** PETER STANLEY RICHARDS XN MR BYRNE
PN1051
Mr Richards, can I ask you if dredge allowances were paid while they were working on the dredges?---Which allowances?
PN1052
Dredging industry allowances?---Yes.
PN1053
They were paid?---Well, I wasn’t in charge of payroll. I assume they were probably paid.
PN1054
Thank you?---But I do not know. I didn’t have any, I can’t recall any problems where they weren’t paid. I know people have got silly things called radar allowances and things like that, you know.
PN1055
Thank you. At paragraph 10 you indicate that those arrangements were reaffirmed by TMS to AIMPE and confirmed by the parties prior to each dredging project getting underway?---Yes.
PN1056
And then in paragraph 11 you state:
PN1057
I state unequivocally that the provision in the off shore oil and gas agreements known as loss of certificate insurance was one of the conditions to apply to permanent employees temporarily engaged in the dredging industry?---Yes, I do.
PN1058
?---Yes, I do. That was the full intent of the agreements. As I said previously the only things where the permanent employees conditions changed were their rate of pay and the leave that they accrued for a duty day in the dredge Award. Everything else applied. Seniorities, redundancies, loss of certificates, insurances, falling out of the tree when they’re at home, all that applied.
PN1059
Falling out of the tree at home, is that how you describe the personal injury and illness insurance?---Yes, yes. I’m sorry for that for the people, but yes.
PN1060
Thank you. In paragraph 12 of your declaration you say that:
PN1061
There is no doubt in my mind whatsoever that Mr Maynard was to enjoy all the conditions of the off shore oil and gas agreement save for salary and leave including the loss of certificate insurance provision when he agreed to temporarily transfer to the dredging industry including the Geraldton project in 2002.
**** PETER STANLEY RICHARDS XN MR BYRNE
PN1062
?---Like all the permanent engineers that came across they all received the same benefits. That was the intention of the agreement.
PN1063
At 13 of your declaration you state that you had:
PN1064
Authority on behalf of TMS to make these agreements which I and TMS viewed as binding on the parties notwithstanding that these agreements were made orally.
PN1065
?---Yes, I had full authority of management at TMS.
The balance of the declaration I don’t need to take you to. It’s procedural in nature. I don’t have anything further
for you. Mr Llewellyn will now
cross-examine I think?---Okay.
<CROSS-EXAMINATION BY MR LLEWELLYN [2.52PM]
PN1067
MR LLEWELLYN: Mr Richards, you said that Total Marine - - - ?---Hello Mikey.
PN1068
Hello Pete?---Hello Mike.
PN1069
You said that Total Marine occasionally issued letters out to employees to confirm the arrangements that they were under?---Yes. I think from time to time we may have had to have. Probably not all employees, but you know, some of them might have wanted something in writing and I’m sure that we would have fulfilled their request on that.
PN1070
All right. And those letters would have been explanatory that all terms of the agreement applied?---Explanatory? We would have tried to put the full intent across of what was, yes, of what the intent of the agreement was and that was you keep everything other than your salary and your duty leave accruals. I don’t know whether it went in. The letters definitely would not have said clause (a) of the off shore Award remains with it. Clause 2, 3, 4, 5, 6, 7 - that definitely would not have happened.
PN1071
What would it have said, that everything other than wages and leave?---Mike, Mike, I’m getting an old man. You know, it’s 2006. This happened in 2000. I can’t say that 100 per cent.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1072
You know that doesn’t wash with me. You still remember the meetings?---Mike, I can’t remember what I wrote six years ago like you can’t either.
PN1073
I’m not putting that you wrote it. What I’m asking you is that if Total Marine issued a letter - and I’m going back to now the first letter that Mr Meadowcroft issued to Mr Maynard in 1997?---Yes.
PN1074
I can’t show it to you obviously, but I'll read it to you?---Right.
PN1075
Further to our telecom Meadcroft/Maynard on Thursday 17 April 1997 in which we discussed sending you to the Volvox Delta as second engineer we confirmed the following. Whilst you will be engaged under the terms and conditions of the Total Marine Services Geelong Dredging Enterprise Agreement we confirm that you will continue to receive the benefits under the AIMPE/Total Marine Services Engineer Officers Agreement. Long service leave, severance, superannuation. We hope this clarifies the outstanding matters and should you wish to discuss this matter further do not hesitate to contact the undersigned.
PN1076
Which was signed Ray Meadowcroft?---Right. Ray was general manager at that time.
PN1077
All right. So the only thing that he’s included is the long service leave, the severance and the superannuation?---I would
beg to differ and I think
Mr Meadowcroft would have to give evidence on that. I would beg to differ because we never changed anything from one project to the
next project. The intent was everything stayed other than those two items and the leave accrual. That is my understanding and that
is my that I would have given him in the ’99 or 2000, whenever we started the Geraldton project.
PN1078
But I think your evidence was that for the first two in ’97 and ’98
Mr Meadowcroft would have handled that and then the 2002 was the one you handled?---Yes, that's right and I would have followed basically
Ray’s instructions. The company’s instructions are what we’ve done before.
PN1079
So on three occasions, and if I take you - and again, sorry I can’t show you the letters, but they’re in evidence - one in April ’97?---Right.
PN1080
Listed it as only the three items, being long service leave, severance and AIMPE central funds super. In 1998 exactly the same. In 2002 for the Geraldton dredging project under Mr Nunn’s signature exactly the same again. Now, all three letters are identical saying that the only provisions that applied were those three provisions.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1081
THE COMMISSIONER: Sorry, not the only provisions that apply - the provisions that apply.
PN1082
MR LLEWELLYN: All right, sorry, the provisions that apply?---Mike, all I can say is the intent of the agreement is made with the union and it would not have probably only been AIMPE’s right. Other unions were involved in these projects. The full intent was everything stayed. Your seniorities, your redundancies, everything stayed. The only two items that changed was your leave. I don’t know, maybe a taxi fare changed, the taxi allowance.
PN1083
So the other thing - - - ?---But the intent of everything, all your insurances, your superannuation’s, your redundancies, your permanency, your long service leave, right? You break your way from one industry and the other. We had to maintain that to keep the people otherwise we had no crews. That’s the full intent as I read it and that’s what I say.
PN1084
Right. In terms of the engineers that were employed by TMS back in those days, could those engineers be used - and this is marine engineers, sorry - could those marine engineers be used on any vessel that Total Marine had?---Sorry, the engineers? Can you repeat, Mike?
PN1085
Yes. The marine engineers that Total Marine employed back when you were the operations manager, did you have the right to deploy them on any vessel that TMS manned?---Too right.
PN1086
And that would include dredges?---That would include dredges.
PN1087
Now, Mr Richards, there’s a document that Mr Maynard’s put forward that was addressed to you in 2003 which says:
PN1088
Dear Peter, Happy new year. I was hoping to talk to you in the next few days about a couple of matters. A letter confirming that whilst I’m working on the Geraldton dredging project I will continue to receive benefits under the AIMPE officer’s agreement, ie. long service leave, severance, superannuation and health insurance.
PN1089
Do you recall receiving that?---No, I don’t recall it.
PN1090
All right. It’s on Mr Maynard’s file. You’ve noted at the bottom of it:
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1091
Discussed with Greg Maynard -
PN1092
And I think it says, well I know it says LSL which would be long service leave, would that be correct?---LSL means long service leave, yes definitely.
PN1093
Arrangements and then I think it’s got your initial?---What was the one before LSL?
PN1094
Just:
PN1095
Discussed with Greg Maynard LSL.
PN1096
?---Right.
PN1097
Do you specifically remember discussing anything else with Mr Maynard?---Mike no, not really.
PN1098
Right. In terms of Mr - sorry?---Keep going, no.
PN1099
Are you all right?---I think the point is from my position what the intent was. We all know in our jobs, in our industry and in the environment we work in not every i is dotted and not every t is crossed. They’re not even done in - I shouldn’t say this because the Commission is there - in the Industrial Commissions. If we have a look at some of the wording of some of our agreements it’s not even English and unambiguous. But I know for a fact what the intent was between the employer, the employees and the unions, Mike.
PN1100
Right. When did you first discuss this matter with Mr Olsen?---Which, the Maynard one?
PN1101
Yes?---Probably a few weeks ago like I discussed with you after getting a phone call from Phil or we had a phone call whether we didn’t do it during one of the vessel modes that there was an issue coming up, right, to do with it, what was my recollection of it all. I told him what my recollection was like I’ve told you on a number of occasions, what my recollection of the agreements were.
PN1102
Right. Can I just ask you, Mr Richards, were you involved in the negotiations for the 2002 agreement?---2002 agreement?
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1103
The one that was registered in 2003?---The off shore one? The latest one, Mike?
PN1104
No, I did the latest one. The one before that?---Yes.
PN1105
You did that on behalf of Total Marine?---I would have been in Total Marine. I was the, yes. I don’t know whether I attended every meeting, but I know I attended a lot of times.
PN1106
All right. Mr Richards, do you have any recollection of any claims from the unions including AIMPE for salary continuance insurance over and above the 90 days?---No, I don’t recall anything. There may have been, but I can’t remember Mike.
PN1107
Right. You remember - - - ?---Bring out the files and let me read notes.
PN1108
Yes. Well, unfortunately I can’t, you’re not here?---No. I can’t recall, Mike, honestly I can’t.
PN1109
If I put it to you there’s wording in the superannuation provision of the 2002 agreement. It’s at clause 20, superannuation?---Right.
PN1110
Which says that:
PN1111
Permanent employees may joint the Total Marine Services super fund defined contribution accumulation fund in which Total Marine Services Pty Ltd contributes an amount equal to 13 per cent of the employee’s salary. In addition Total Marine Services Pty Ltd will take out salary continuance insurance to cover employees if ill or injured not work related.
PN1112
?---Right, yes, I know they’ve got a salary continuance coverage.
PN1113
Right. Do you know for how long that is?---No. I don’t know whether it’s for one year or 105 weeks, I don’t know Mike.
PN1114
Right. Are you familiar with what’s termed PI payments?---Who?
PN1115
P and I payments?---TPI?
PN1116
P for Peter I for Indigo?---P and I?
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1117
Yes?---Yes.
PN1118
Can you tell me what that is?---P and I is to do with shipping claims if you’re injured on board your ship. Are you talking personal injury?
PN1119
Yes?---Person in injury claims?
PN1120
Yes?---Right, as in personal injury coverage?
PN1121
Yes. So if you - - - ?---Accident, so if you’re hurt at home?
PN1122
Yes, not fit to return to the vessel?---Right. If you’re due to crew change tomorrow to join your ship on a duty cycle and you happen to fall out of your tree today like I said, right, and you can’t make it you ring up the employer and say I can’t make it, I’ve got this injury, or I’ve had this accident, or I’ve got the flu, whatever it may be, I can’t make it tomorrow, then as of tomorrow then you’ll go on personal accident insurance.
PN1123
All right. And do you know how long that’s for?---I think off the top of my head I think it’s maybe 105 weeks and I think it’s roughly 75 per cent of your wage and I don’t know if you have to use up your accrued leave first before it cuts in, but I don’t know without reading the agreements.
PN1124
All right. Well, if I took you to clause 32 of the agreement that says you get 75 per cent of your salary for up to three months,
does that refresh your memory?
---Yes, that could be right, Mike. If it’s in there it’s in there, Mike. I don’t, I can’t remember it clause
by clause like I use to many years ago as an officer manager when you had to know it clause by clause.
PN1125
Do you remember if Total Marine took out additional insurance over and above that on the superannuation?---At the end of the day we went chasing quotes. I think we may have paid extra into the superannuation fund for then the employer to go get it because it was quite difficult to get. There was a huge fluctuation because of the ages and things like that. No one could get a set figure, or no enterprise, not only TMS, but all the operators on what it was going to cost them. Of course we need to know those figures for our bottom lines.
PN1126
Right?---I don’t know. At the end of the day I think we might have paid more into a super fund and then it was up to the individual to go get it. I’m not 100 per cent.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1127
Right. Could I ask you then in terms of your position as the business development manager with Total Marine you use to do quotes?---Yes, I use to do quotes.
PN1128
All right. And you’re familiar with the standard quote sheet?---Still have nightmares over them like you do, mate.
PN1129
Can I just ask you if you recall on a standard quote sheet there’s a provision for superannuation?---Yes and it’s an extra percentage. We don’t have one for personal accident, do we?
PN1130
And there’s another column that says salary continuance?---Yes.
PN1131
Which is salary continuance insurance?---Yes.
PN1132
And for AIMPE that’s considered to be for permanents other than the people in the AIMPE fund. It’s 13 per cent plus an amount for salary continuance?---Can I say it? It’s a commercially sensitive thing, so I assume it’s a yes or no?
PN1133
It doesn’t matter, might as well. Doesn’t give any - - - ?---1.5, I think.
PN1134
All right. And for persons - sorry. In terms of the 2002 agreement - sorry. That salary continuance, Mr Richards, is that over and above the three months they get under the P and I insurance?---I don’t know, Mike. Honestly I don’t know. I thought the guys could go 105 weeks.
PN1135
I’m not disputing that. What I’m asking is the P and I insurance, the three months payment, has been in the agreement for some time. That's correct, isn’t it?---Yes, yes. That’s been there for donkey’s ages.
PN1136
All right. And the addition in the 2002 agreement was the additional salary continuance cover that was put into clause 20, the superannuation
provision?
---Right. If that’s where it went that’s where it went in, but it was for extra coverage for the guys.
PN1137
And that took them up to 105 weeks. That's correct, isn’t it?---Yes.
PN1138
All right. And in the case of people who opted, this is permanent engineers, who opted to be in the AIMPE fund rather than 13 per cent they received 14 per cent. That’s correct, isn’t it?---Yes.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1139
And did that 14 per cent include the salary continuance?---Well, you’d assume so, yes. I would say yes. That’s why we would have given them that extra percentage.
PN1140
Now, Mr Byrne is probably going to get into this, so I'll try and cover it with you. Are you aware of any letters to Total Marine demanding that you increase your provisions in the AIMPE fund to 14 per cent?---I think that’s been talked with AIMPE over the years, none in the last few years since I was BD manager, but before that there’s talks about the differed fund and how it might have needed extra money or contributions put in it to keep it going and that, but only in generalised terms Mike.
PN1141
And from an industrial point of view is it not correct that Total Marine and the other vessel operators disagreed with that?---Yes, we did disagree.
PN1142
And as an industrial settlement it went to 14 per cent on the basis that, and I'll read the provision:
PN1143
This defined benefit fund includes within the 11 per cent the provision of salary continuance insurance for employees ill or injured.
PN1144
And they also got another three per cent productivity payment on top of that 11 per cent, that’s correct?---If that’s what it was, Mike, that’s what would have been agreed by the industry. Total Marine would not have gone out on its limb, Mike.
PN1145
And that was an industrial settlement to cover the provision of sickness and accident funds for all employees in the industry. That's right, isn’t it?---Yes.
PN1146
And that coverage extended to the Maritime Officers Union?---Yes, Fred would have argued the same. Tried to keep everything the same.
PN1147
And do you know where that claim came from?---The claim to increase the superannuation benefit?
PN1148
The claim for salary continuance insurance up to 105 weeks?---No. Well, all I can say is the claim came from all three unions.
PN1149
Now, if I go to Mr Maynard in particular, Mr Richards, are you aware if
Mr Maynard’s performed any work at all for Total Marine under the certified agreement that was registered in May 2003?---Yes,
Mr Maynard worked for us, yes, for a number of years.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1150
Yes. Well, Mr Maynard went off ill in early 2003 according to the records?
---Yes.
PN1151
Did Mr Maynard ever perform work for Total Marine under the terms of the agreement that was certified in 2003?---If he wasn’t - Mike, show me the duty rosters. If he was fit he would have worked. If he was unfit he would not have worked.
PN1152
Perhaps if I can read this to the witness?---I don’t know, Mike, sorry.
PN1153
No, I’ve got an exhibit that’s been placed in which is a print out of the Total Marine payroll records marked TMS3. What they show is that Mr Maynard ceased work on the Nina and Pinta barge or dredge back in the pay period ending 1 April 2003 and he hasn’t worked for the company since. Would that be correct?---That could be correct, yes.
PN1154
And the reason he hasn’t worked for the company since is he hasn’t been fit since that date. That’s also correct?---That would be correct.
PN1155
And over that period of time up until some time in 2005 he was in receipt of salary continuance payments?---If that’s what was applicable that would have, yes. I’d have to verify that.
PN1156
Well, even though AIMPE’s put evidence in or put records in that show that
Mr Maynard received salary continuance payments, both P and I for three months and then salary continuance from the superannuation
provisions of the agreement for a further 100-odd weeks, you wouldn’t disagree with that?---I wouldn’t disagree with
that. I think as an employer if we had not have paid him correctly we would have heard about it and it would have had to have been
rectified.
PN1157
All right. So in terms of things like that where Mr Maynard claimed from you in January 2003 that he should be getting paid the medical subsidy that was agreed in the 2000 agreement while he was on the dredge he never ever received that. So is it your understanding he wasn’t entitled to it?---No.
PN1158
Tell me why he didn’t receive it then?---I don’t think we should go down that path, Mike.
PN1159
Well, you just told me that if he didn’t get what he was entitled to he’d come and see you about it?---Well he would, but you’d better have a look at Total Marine’s payroll system and a few other things.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1160
But you’ve got no recollection of Mr Maynard raising with you that he was owed that money?---Mike, I’m not even privy to the payroll function, how it works and things like that.
PN1161
Right?---Like I’m not privy to personnel records and how it all worked. As an operations manager you did your job and off you went. You did industrial, you know what I mean? I don’t know where we’re leading to, you know?
PN1162
What I’m asking you simply is ..... ?---Sorry, guys. I’m in a ship yard.
PN1163
Mr Richards, has Mr Maynard ever raised with you that he was owed that money?---He may have raised it with us.
PN1164
No, did he ever raise it with you?---I can’t recall 100 per cent whether he raised it with me or whether he didn’t raise it with me. Have you got my old diaries, Mike, out of the office which are still there? And that’s all I could do, was to flick through page after page to see what remarks were made.
PN1165
I'll ring you later and find out where they are because there might be other stuff in there I want?---They’re in the office next door. They’ll be archived in accordance with your quality system.
PN1166
All right. Mr Richards, in terms of the agreements, the oil and gas agreements you’ve negotiated over the years, has it ever been the intention of Total Marine that those agreements would apply outside of the oil and gas industry? So in other words any boat that you manned was it the intention that the agreement could extend to any boat you manned?---No, the intent was when you do an off shore agreement for off shore boats.
PN1167
It only relates to the off shore oil and gas industry?---Yes, yes.
PN1168
Right. Have AIMPE ever sought to include dredges in the Total Marine off shore oil and gas industry agreement?---Another one I don’t know whether they have or they haven’t, Mike.
PN1169
Well, in all the negotiations you’ve attended has it ever been raised?---I can’t recall whether they have raised it or they have not. They might have tried it on, I don’t know. I mean, I probably told them where to go. I don’t know.
**** PETER STANLEY RICHARDS XXN MR LLEWELLYN
PN1170
All right?---I can’t give 100 per cent on that one, my memory’s not that good.
PN1171
No, that’s all right. Well, can you tell me then are dredges currently covered by that agreement?---No. Dredges are covered by their own agreements and I don’t know whether there’s even a current agreement out for the dredging thing. It’s a bit of a nightmare, dredges.
PN1172
That the best I can do without taking up the rest of the day trying to read documents, I’m afraid.
THE COMMISSIONER: Yes. Thank you, Mr Llewellyn. Yes, Mr Byrne.
<RE-EXAMINATION BY MR BYRNE [3.14PM]
PN1174
MR BYRNE: Peter, just a couple of things in re-examination. You made a comment you better look at the payroll functions. Is that meant to mean that the payroll wasn’t always entirely accurate during your period of employment at Total Marine Services?---I think, Mr Byrne, with 99.9 per cent of all employers that employ large numbers of people on various schedules, agreements, awards, that sometimes things do get a little bit mucked up. I’m not implying that anything was done underhanded or anything like that, what I’m implying is sometimes there are mistakes made like in all facets of our businesses.
PN1175
Yes. You were asked about any specific claims that Mr Maynard may have made to you. Do you recall him coming to visit you in March of 2005, which is only a year ago?---There’s been a few.
PN1176
Two years ago, I’m sorry, two years ago?---Set in mind. No, I don’t know whether I’ve seen Greg in 18 months. I think he may have done, Martin, he may have done.
PN1177
Sorry, March 2005, two years ago sorry, Peter?---Well, that’s even more. I can’t recall. He could have done, Martin, he could have done. He could have done. It’s another one like that you guys ask try get and get the dredges covered by the off shore Award. I can’t recall whether you did or you didn’t.
PN1178
Peter, I think we’ll leave it there. We all thank you for your time?---Right, thanks. I’m sorry I couldn’t be
there, but I know it’s an important issue, but I’ve got
some .....
**** PETER STANLEY RICHARDS RXN MR BYRNE
PN1179
THE COMMISSIONER: Right, thank you?---Cheers.
PN1180
THE COMMISSIONER: I think, warts and all, I think it’s appropriate that we can mark that exhibit AIMPE 8. I think he did adopt it. Yes, Mr Byrne, that’s the end of your evidence.
PN1181
MR BYRNE: Yes, indeed.
PN1182
THE COMMISSIONER: Where do we go now?
PN1183
MR BYRNE: So the question is whether I launch into submissions (a) in response to the Total submissions and then (b) in relation to wrapping up.
PN1184
THE COMMISSIONER: We’ll go off the record for a second.
<SHORT ADJOURNMENT [3.19PM]
<RESUMED [3.30PM]
PN1185
THE COMMISSIONER: Yes. The Commission notes the desire by Total Marine to call further witnesses in the light of the witnesses that have been called. Although the Commission was unaware of that I don’t think the process has been disadvantaged because this was only listed for one day and we would have run out of time. So even if Mr Llewellyn had his witnesses here wouldn’t have been able to proceed with them. So it may be that we need to return to that aspect. However, because this emerged as a fundamental question what I propose to do is to adjourn at least to see if a preliminary question can be - well, a preliminary question will need to be determined and that is whether the agreement, whether the Commission has the ability to continue to sit in these proceedings because it’s whether or not the agreement, 2002 to five agreement, apply to Mr Maynard in these circumstances and that might also throw up whether another agreement applied to Mr Maynard in these circumstances.
PN1186
That in itself might be covered by legislative changes as well. Now, that issue should be the subject of fresh or revised submissions. Both of you have touched upon that in your earlier submissions, but there’s been more material and more evidence brought out today. It should be provided to the Commission in writing and the Commission would then issue a decision. Depending on that we will know whether we have got to proceed further or whether that’s the end of the process, at least in this tribunal. What’s time frame do you think, Mr Byrne?
PN1187
MR BYRNE: For the written submissions?
PN1188
THE COMMISSIONER: On that issue.
PN1189
MR BYRNE: I think we should have then quickly. This has been dragging on for quite a while now. I’d certainly like to have them done promptly.
PN1190
THE COMMISSIONER: Yes, but when do you think? Two weeks?
PN1191
MR BYRNE: I’d try and get them done earlier than that, but yes.
PN1192
THE COMMISSIONER: Yes. So we’ll leave it. We won’t issue formal directions. We’ll leave it on the basis that
the institute will provide its submissions on that point within a period of about two weeks and on receipt of that the company is
to provide its response within a period of at least two weeks. If Mr Byrne puts his submissions in within a week then I’m
not suggesting,
Mr Llewellyn, you’re confined to a week. You’ve still got two weeks. But the clock starts ticking from when you get
his. But anyway, we might see it in three weeks.
PN1193
MR LLEWELLYN: Hopefully I won’t be in court like we did last time we got stuck in Singapore.
PN1194
THE COMMISSIONER: All right. So anyway, on that basis these proceedings are now adjourned.
<ADJOURNED ACCORDINGLY [3.34PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #AIMPE1 SUBMISSIONS PN148
GREGORY JOSEPH MAYNARD, AFFIRMED PN173
EXAMINATION-IN-CHIEF BY MR BYRNE PN173
EXHIBIT #AIMPE2 STATEMENT OF GREGORY MAYNARD PN235
EXHIBIT #AIMPE3 LETTER FROM MR MEADOWCROFT, TOTAL MARINE SERVICES DATED 17/04/1997 PN235
EXHIBIT #AIMPE4 LETTER FROM MR NUNN, TOTAL MARINE SERVICES DATED 08/11/2002 PN236
EXHIBIT #AIMPE5 FAX FROM MR MAYNARD TO MR RICHARDS DATED 07/01/2003 PN237
CROSS-EXAMINATION BY MR LLEWELLYN PN238
EXHIBIT #TMS1 TESTIMONIAL TO SEA SERVICE PN258
EXHIBIT #TMS2 LETTER DATED 01/12/1998 PN295
EXHIBIT #TMS3 PRINTOUT OF MR MAYNARD'S LEAVE AND DUTY PERIOD FROM JANUARY 2002 PN379
EXHIBIT #TMS4 PAYROLL RECORDS FOR MR MAYNARD FROM JULY 2003 TO FEBRUARY 2004 PN380
RE-EXAMINATION BY MR BYRNE PN383
THE WITNESS WITHDREW PN432
PHILIP CHARLES OLSEN, AFFIRMED PN434
EXAMINATION-IN-CHIEF BY MR BYRNE PN434
EXHIBIT #AIMPE 6 PN455
CROSS-EXAMINATION BY MR LLEWELLYN PN455
RE-EXAMINATION BY MR BYRNE PN658
THE WITNESS WITHDREW PN679
RAYMOND DOUGLAS MEADOWCROFT, AFFIRMED PN767
EXAMINATION-IN-CHIEF BY MR BYRNE PN767
CROSS-EXAMINATION BY MR LLEWELLYN PN818
RE-EXAMINATION BY MR BYRNE PN985
EXHIBIT #AIMPE7 WITNESS STATEMENT OF RAYMOND DOUGLAS MEADOWCROFT PN1014
THE WITNESS WITHDREW PN1015
PETER STANLEY RICHARDS, AFFIRMED PN1017
EXAMINATION-IN-CHIEF BY MR BYRNE PN1017
CROSS-EXAMINATION BY MR LLEWELLYN PN1066
RE-EXAMINATION BY MR BYRNE PN1173
THE WITNESS WITHDREW PN1179
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