C2007/3505, Transcript of Proceedings [2007] AIRCTrans 673 (11 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17834-1

COMMISSIONER BLAIR

C2007/3505

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Sugar Australia Pty Ltd
and
The Australian Workers’ Union
(C2007/3505)

MELBOURNE

9.06AM, FRIDAY, 23 NOVEMBER 2007

Continued from 25/9/2007

Hearing continuing

PN142

MR S MCCARTHY: If the Commission pleases I appear this morning for the company. With me to my far left is MS A RYAN and to my immediate left is MR A CASTAGNINI.

PN143

MR C WINTER: If the Commission pleases I appear on behalf of the Australian Workers Union and with me is MR J MASTRANDONAKIS and MR R DOYLE.

PN144

THE COMMISSIONER: Mr McCarthy?

PN145

MR MCCARTHY: Commissioner, firstly I would like to thank you on behalf of the party for agreement to list this matter so urgently and it is with regret that we're back here and having to get some matters that we've urgently comes here. It seems like the drama continues. When we were last before you we were arguing about the question of what was the future destiny of nine then stevedore employees which at that stage it appeared that five would become redundant, four would move in to the refinery operations of the business. Those - and the debate at that stage was in those four employees who were to continue with us, and move in to the refinery operations whether or not the company was entitled to then ask other refinery - existing refinery employees to help out on occasions when the four previous stevedores moving in the refinery were unable to operate the conveyors and the front end loaders in order to get the raw sugar from the wharf in to the refinery after - in the future that was unloaded by the new self unloading ships.

PN146

You made a recommendation on that occasion to the effect that the remaining refinery employees should, after proper training and with appropriate safety agree to go along with the company and help out with the conveying operating and front end loading work, when the four previous stevedore employees were not available to do that. That recommendation was sadly rejected by the refinery employees but nonetheless life had to move on and so we've not chosen to come back here at this stage to make an issue of - or we did not choose to come back and make an issue of it at that stage, given the fact that we still have our four previous stevedore employees moving in to our refinery - they could do that work and in accordance with the second part of the recommendation, the issue of what would happen in to the future with the remaining refinery employees, would be the subject of negotiations between the parties next year in relation to their enterprise agreement. Do you want a copy of your recommendation?

PN147

THE COMMISSIONER: No I've got that.

PN148

MR MCCARTHY: So as I say life has marched on. I did misrepresent one fact which I'd like to correct - there's probably several in the notice but I was trying to do it without access directly to the management representative but I think - so in life moving on, what we have is now the five stevedores who are leaving have now signed deeds of settlement and release and they're about to go - I think I said they had gone. I think the truth is that they're about to go on Saturday. Sorry
7 December, so they're apparently all very happy to the extent that one can be but they're going, all signed off. They will get their redundancy. As of next Monday the four previous stevedore employees join the refinery team. Saturday - I apologise - as of Saturday, join the refinery team. They've now been moved off day work and on to a 12 hour shift roster - continuous 12 hour shifts.

PN149

They will be starting on what we regard to be for a whole lot of reasons
- including making sure there's no drama with their remuneration in to the future
- a very generous package of an annualised salary of $91,000 plus their superannuation. They've all been provided with appropriate letters of appointment. At least one has signed that letter of appointment accepting that so here we are on the verge literally and if it's Saturday, we are one day away from them starting in this new role. This weekend a sugar ship arrives. The cranes have been removed by the way so this will be a ship unloaded no longer by our own stevedores, using our own cranes, it will be a self unloading ship, the cranes being operated by the MUA as I understand it and that ship will unload the raw sugar material on to our site.

PN150

It will be fed in to a hopper which will drop down on to a conveyor and we have our conveyor operating requirements. That conveyor will then be operated to feed the raw material in to the refinery. What we've been told by Mr Rod Doyle in the last 48 hours - Mr Rod Doyle who is here present on my far right - who is the site MU AWU delegate - is essentially that if the company doesn't pay the employees involved in operating the conveyors, the ship discharge allowance that used to be paid to the crane operators in the past at the site, if it doesn't pay them that allowance while they're operating the conveyors, then the conveyors will not be operated. They will effectively go on strike. They will refuse to do the work. In addition to that we've also been told that the union would consider, at least through - in Mr Rod Doyle's version of life - the union will consider also approaching the MUA and request them to boycott operating the ship cranes and unloading the ship and that this whole plan is going to kick off right from the start as of Monday morning shift which is at our understanding to be the anticipated time for the commencement of the unloading of the ship.

PN151

Perhaps if I could just make this observation now about the position of the four employees, previously stevedored in the refinery. I've mentioned that they've all had their letters of appointment distributed to them for their new positions and one at least has signed. Perhaps I could hand up a copy for your information. Commissioner I don't intend to drag you all the way through this letter of appointment. Quite frankly when I got shown it this morning I thought that there's probably only two paragraphs that I need to direct you to in the first instance because I think they tell the story. If on the front covering letter
- accompanying letter, which is the appointment letter, I could read you the very first paragraph and it reads:

PN152

In line with the company's decision to decommission the cranes we confirm your transition from the position of stevedore to refinery operator initially as front end load, liquid loader and the wharf conveyor operator within the Yarraville Refinery.

PN153

That description of a transitional position of front end loader, liquid loader and wharf conveyor operator is then repeated on the very last page under the new refinery job description November 2007. To my mind, almost staggeringly, what is being - four employees now taking up an appointment as a refinery operator initially as a front end load, liquid loader and wharf conveyor operator - we're now being told are going to refuse to operate the wharf conveyor which will effectively result then of course, the refinery grinding to a halt and the whole business producing nothing. The damages involved in that would be significant but let's put that aside for a moment.

PN154

Is this debate and fight about and with these four employees - it's the company's understanding that the answer is no it's not believe it or not - in that as the company understands it, these four guys in the sense have become the meat in the sandwich. As we understand it they've been put upon to support this action, but what it's really about is, yes sure, they will happily take the money if the company can be squeezed to pay it, but what it's really also about is queuing up the refinery operators to make sure that they can get the old ship under discharge allowance, if and when they're ever asked to step in and help out with the operator of the conveyors and the front end loading work. So there's no doubt we do have a direct industrial threat.

PN155

Let's put aside for the moment the illegalities of all of that under the Act although it's very important - we have that direct industrial threat involving these four people. However standing behind that threat is another event and that is the question of what in the future the other refinery employees would expect to get as an when and if they were ever asked to help out with operating the conveyors. We have in my view, one level, a continuation of the kind of argument and issues and related issues we've been here before about. What has happened, we now have four employees who as we understand it, have agreed to in principle, and are accepting their new appoints. We are on the eve of them commencing in those positions. We're now being told they won't be doing their work and they won't be doing their work if we don't come up with some more money.

PN156

The money that they want us to come up with is an oral, long standing allowance, paid to the previous crane attendant - crane operators on the waterfront ..... for a list of reasons that is set out in appendix C of the current agreement and if by any chance - do you have access to that agreement? The ..... enterprise agreement.

PN157

THE COMMISSIONER: Is that the one certified by Commissioner Hingley on 22 December 05 - - -

PN158

MR MCCARTHY: ..... yes.

PN159

THE COMMISSIONER: Yes.

PN160

MR MCCARTHY: If I could ask you to turn almost right to the back, the page number I have is page 79.

PN161

THE COMMISSIONER: What clause number?

PN162

MR MCCARTHY: Sorry, it's appendix C, so it's right towards the back of the document.

PN163

THE COMMISSIONER: The pages I've got aren't numbered I'm sorry. Keep going, I'll find it. Addendum to crane drivers agreement? Is that what it's headed?

PN164

MR MCCARTHY: It's the actual crane drivers agreement itself.

PN165

MR CASTAGNINI: Flip back about three pages before the addendum.

PN166

MR MCCARTHY: In a file with appendix D called crane drivers agreement - - -

PN167

THE COMMISSIONER: Got it.

PN168

MR MCCARTHY: Sorry about that. What this - this is the old arrangement, operated for many, many years. The situation is it really sets out in point form - I suppose you could call them the disabilities or the circumstances that surrounded the justification for the payment of the allowance in the past to people who were
- except when ships were in to be unloaded - were otherwise day workers who were then asked and put upon to say, "Right, I know you're day workers but we've got a ship in so we need to move and you being on day work to you working
12 hour shifts, 24 hours a day, while we get this thing unloaded. So we're going to be asking you, work outside your ordinary hours, come in on weekends, come in on public holidays, be there 24/7 around the clock until we get this thing loaded, unloaded and this is a list of the sort of associated disabilities".

PN169

The situation we have now. No more cranes. No more stevedoring employees and the employees we're talking about as of tomorrow, will in fact be on a 12 hour shift roster, running 24/7 so one of them - the employees we need to do this type of work will already be at work - will already be on site. We are not asking them to incur any of these disabilities. They're not operating the cranes any more. They will only be operating the conveyors. All of the things we've already talked about. Clearly you need only look at the job description on the letters of appointment to realise that at all times it was the intention of the company for this conveying operating work to be part of the new arrangement. The employees themselves as we understand it completely accept that but I think this is an accurate statement - that in a sense they've been muscled in to acting on behalf of the refinery employees and refusing from day one to do the very - one of the core activities of their new position.

PN170

It's not acceptable. It's unlawful. It's contrary to their new appointment. We need it to not happen. We need from the Commission urgently, a very clear and concise recommendation telling these employees not to carry out this threat of unlawful industrial action and from our perspective Commissioner, we would also be asking for you to set down on another appropriate day at your convenience a time for the hearing of this matter so that in accordance with the disputes procedure, you can now go to the next step in this matter that's been dragging on for way too long, and quite frankly now that this threat has got completely out of hand - and that is to arbitrate the dispute that is before you that clearly conciliation is not working, even the Commission's good recommendation on the last occasions has not worked - it was rejected out of hand and there's no reason to think that these guys are going to change their behaviours. Thank you Commissioner.

PN171

THE COMMISSIONER: Thank you Mr McCarthy. Yes Mr Winter.

PN172

MR MASTRANDONAKIS: Thank you Commissioner.

PN173

THE COMMISSIONER: You've changed?

PN174

MR MASTRANDONAKIS: Sorry.

PN175

THE COMMISSIONER: That's all right, I'm not fussed.

PN176

MR MASTRANDONAKIS: Commissioner there's a few issues that
Mr McCarthy has brought to your attention and I suppose for everybody's clarification, it's the issue of the remaining stevedores not being integrated in to the refinery team therefore the refinery team not performing the front end loader duties and also the second, which I presume is a bit more urgent issue as
Mr McCarthy outlined is the issue of the discharge of the ship which on my understanding I think is tomorrow at 11 o'clock that it will be coming to the Yarraman site.

PN177

Commissioner, I might say there is no official notice or threat from out behalf that we will be taking any industrial action. There was some discontent amongst our members in regards to this issue and we haven't at any stage ourselves informed the company that we will be taking any industrial action or putting any bans on. The issue about the ship discharge Commissioner is quite complicated and it has to do probably with the fact that we are still in the middle of an enterprise agreement negotiation that expires in March. Now I did bring to the attention last time that one of the reasons that we are before you here is because of that confusion caused by employees who seek to on one hand negotiate a new agreement and on the other hand feel that the company is trying to change their job description and put extra duties on to them prior to that agreement's expiry date.

PN178

THE COMMISSIONER: Wasn't that covered in the recommendation at the Commission issue?

PN179

MR MASTRANDONAKIS: Yes correct. For that issue of the front end loader Commissioner.

PN180

THE COMMISSIONER: Right.

PN181

MR MASTRANDONAKIS: In regards to this issue, again we're back to that sort of thought where employees feel it's an issue where they have fought for in the past and have achieved in their previous agreements, but the company's interpretation now is well, although it is your agreement, we feel that you can't be part of it any more because your duties have changed. Now Commissioner, I might say from our point of view and maybe so you can understand, this ship discharge was not paid only to crane drivers. It was paid to all stevedores while working on that ship and I'm happy to be corrected on this, but my information is that even employees who were working on conveyors or front end loaders were still getting paid the ship discharge.

PN182

The employees whoa re to remain now as refinery team, the ex stevedores, are going to - will be operating a conveyor and will be doing front end loading, which in the past had attracted the ship discharge allowance. I suppose the company's argument that it was only for crane drivers, cranes that don't exist any more, it should disappear. I don't see it as being a logical argument. As you can see on appendix C and I won't torture you through all the points, but there are quite a few points - my Latin's a bit out but I think it's 15 - there's about 15 ,points that refer to the discharge disability. Now our argument is that although some of them have to do with the issues the company raises because the cranes are not there any more, there's a number of them that will still exist.

PN183

The discharge disability allowance was not put basically only bed these people worked weekends or because they worked overtime. There's quite a few other issues. If I can bring them to your attention - point I suppose eight, says:

PN184

Recognition of the need to completely recover sugar and gypsum from ships.

PN185

Point 7 says:

PN186

Recognition of the need for quick discharge of ships -

PN187

Point 12 says:

PN188

Willingness to discharge ship if a fitter or electrician isn't available -

PN189

And it goes on and on, so our argument is Commissioner that although, yes some things have changed and the cranes do not exist any more, apart from - a lot of sections of this disability allowance that are still there will continue even though the cranes don't exist any more and the stevedores/refinery employees shall still be performing those duties as requested by the company and as outlined in the enterprise agreement. I might also bring to your attention Commissioner that at this stage there is another group of employees who the company might consider irrelevant but we consider very relevant, which are the maintenance employees who are employed by Transfield.

PN190

They continue at this stage - and we have had no further information about this
- to receive discharge allowance although those employees are on 12 hour shifts. We can't see why our members should be treated differently. There's a couple of things that I try to find a solution to. This is the first time we actually saw the proposed contract to these new employees. Now my understanding is not all of them have accepted at the moment. I know one of them has and that's the signed copy that you have Commissioner. The other three have spoken to us this morning. They are apprehensive about signing anything. We informed them that as soon as we have a look at their contract we can inform them accordingly. Now unfortunately we haven't had that contract purely based on the fact that the company decided to do it within the last two days, just because of the fact that a ship is coming on the weekend.

PN191

Those employees are still apprehensive about signing that contract, although they have accepted to continue employment with sugar at this stage. There are some issues that they might like to bring up with us and I was just very quickly reading through that and we will probably have to report back to them about it. The issue about the front end loader Commissioner, I do agree it's a continuing issue. The refinery employees at this stage, after several talks, have amongst themselves voted to continue as they are. They do not with to be part of the company's proposal, but having said that, we already have had one meeting with the company - one consultative committee meeting with the company to discuss the agreement and those issues that we're here before you today, will be discussed and are discussed during those negotiations.

PN192

I feel that we are at a point now where maybe for this weekend my proposal would be that the company could just continue paying these four employees as per normal which is overtime rates and a ship discharge and once we go through the particulars of their contracts and everybody's happy with the proposed contract, then hopefully the next ship that comes in we won't have that issue but I do feel it's a bit premature that we should push these people aside, when they were probably asked to do it by today, without having the ability to view those contracts and advise them accordingly. The company still has the capacity to pay those employees on their normal wage rate although they're trying to avoid the fact of paying the ship discharge allowance.

PN193

Our view is this Commissioner, we understand that there have been some major changes down in the stevedore area. We understand that there is a new agreement that will be coming up for negotiation and during that agreement there's new classifications ..... classifications that are being drawn up and we understand that the company's view and may I say, our view is, that there will be quite a bit of reform in the Yarraville plant but having said that our members and the union feels that we don't like the fact that the company is trying to push reform and failing to recognise that some of these issues have been in an agreement. We are in the middle of the process of trying to reach a new agreement and we would like the company to respect that and also respect the fact that employees do not wish to lose any conditions - any - that they have fought for, for a large number of years to achieve. So I just might leave it at that Commissioner.

PN194

THE COMMISSIONER: The company says that Mr Doyle is the person who's made the comments that the ship won't be unloaded and unless the allowance is
- the discharge allowance is paid and the company also makes the assertion that really the stevedores that are transferring to the refinery group are simply the meat in the sandwich. That the whole exercise is an attempt to get the refinery workers paid the discharge allowance as well. What do you say?

PN195

MR DOYLE: The first part - going back to the original part of it. We have a copy of the job descriptions of June 2007 which they were led to believe were going to be the expectations of the new refinery role when the guys came in to the - may I just read the Act to you. One paragraph of it:

PN196

The expectation will be that absences from work apart from annual leave will initially be covered by the use of pre paid flex time by either of the two other people in this role who are off shift at the time of the absence. This will apply until the people in this role, which is the stevedore role, learn other refinery job skills and are then able to cover other refinery jobs and vice versa. Annual leave will be rostered with the balance of the refinery team and coverage provided by the team to spare operator when available, otherwise other arrangements will be made.

PN197

That just goes on to show you that initially these guys were to cover themselves until they were trained up in refinery and then the refinery guys could be trained up to do their job. That's the first point. On the second part of it, what Steven said before was that these guys are required to - the ship discharge is paid because these guys are required to drop everything and go and do the ship - for the ship discharge - the guys have a 12 month copy in advance of when the ships are coming in so they have a fair idea of when that ship is coming in so they don't have to drop anything and in that appendix C of the crane drivers agreement, seven of those points are still valid and one of the main points I think is that whether he needs to work weekends, week days, RDO's or public holidays when required - even though they're still going to be on a 12 hour shift - they're still going to have to do that.

PN198

Recognition of disruptions to domestic and social life. A perfect example of that
- people who work 12 hour shifts - this is a very valid point - still have to miss out on anniversaries, birthdays, all other things because they're working 12 hour shifts. As Mr Mastrandonakis said before, our maintenance people are still going to be continued to be paid this ship discharge. The ship's really not self unloading at the moment. It's going to be operated by the MUA which will be using the ship's cranes. The word stevedore means:

PN199

Loading and unloading or storing of the goods from a vessel. Discharging or storing of goods from a vessel.

PN200

The way this system operates is that the MUA will put it on to the Sugar Australia hopper which then our belts - which will then run up to the conveyors - the conveyors are still operated by the front end loader drivers so it is really still part of a stevedoring operation and as it was pointed out, even previously these guys on the front end loader drivers were paid shift discharge whilst the ship was in port which will still be the case over the coming future of the time and it was paid to all employees - the ship discharge was paid to all employees who had anything to do with the ship and it's still in our agreement and I just think that it's fair that if something is in the agreement it can't be just taken out of the agreement without any consultation.

PN201

MR MASTRANDONAKIS: I might attempt to answer your question Commissioner.

PN202

THE COMMISSIONER: Yes.

PN203

MR MASTRANDONAKIS: Yes the fact is that there have been some remarks made and we accept that although I might say there have been done in an atmosphere of I suppose a bit of - a problematic atmosphere I suppose where employees felt that they had to advise the company how strong they felt about this issue. Now in regards to the refinery employees, those are comments that have been made as well but our view is this - we don't see that this is an issue directly leading to that. We see it as an issue that whoever is in that area of stevedoring at that time or the wharf - sorry I should change it - the wharf area at that time
- any refinery employee subsequently should be getting that ship discharge allowance, so yes it might flow on to some people. We don't think from my understanding, that it will happen straight away because it will be a while before there's a rotating system where everybody can go on the wharf area. At the moment we're only talking about these four employees who are there. I'm not quite sure if that kind of clarifies it a bit.

PN204

THE COMMISSIONER: Thank you. Mr McCarthy?

PN205

MR MCCARTHY: Thank you Commissioner. Perhaps I'll deal briefly upon the comment by Mr Doyle first and that is he referred back to the even in June and the job descriptions then as were being proposed by the company and about what would be the situation in the future. I think he was talking about how, at that stage, the proposition would be that the stevedores would in a sense cover themselves as to on those occasions where a previous stevedore and now in the refinery but not yet trained up to be a refinery employee, wasn't available then you would call in one of the other now new refinery employees to cover for them. That's all fine and that I'm sure was true back in June. Of course that has absolutely nothing to do with it, nor is it a reflection of the facts - events and issues before you in September when you in fact issued the recommendation you did.

PN206

The world has moved on by then and perhaps this is part of the problem
- Mr Doyle and some of the members appear not to be capable of moving on - and that needs to be accepted and addressed by Mr Doyle and his members, that the world has moved on. The proposition put by Mr Doyle is that some of the disabilities set out in the list of grounds justifying the payment of the ship discharge allowance are still there. For example they're still going to be required to work on weekends, on public holidays - that is a complete twist of the reality of the situation. Again the need to move on is where we used to be talking about people who were day workers, we're now talking about people who are going to be continuous 12 hour shift workers.

PN207

The very nature of being on a continuous rolling 12 hour shift roster, is you will work weekends. You will work public holidays. Irrespective of whether there's a ship in or not - that is part of what's going to go on in their working life in the future. These four employees have chosen to agree to become 12 hour shift employees. Nobody's forced them to do this so therefore these associated issues about disruption to the family, they've all sat back and said, "Look I've got a couple of choices here because the cranes are disappearing. The stevedoring work is going off this site. I've got a couple of choices here. I can become redundant or I can become a refinery employee on a 12 hour shift roster and an annualised salary", and they've chosen the latter and we appreciate that they did and we're glad that they did.

PN208

If you have a look at the kind of remuneration differences we're talking about - I think the annual salary or wage of the employees is a base figure previous to this is about 52 and a half thousand dollars. We're now going to have a guaranteed income stream for these guys of $91,000. All of these - and there's been no doubt as in these discussions - the company have made it clear that it has erred towards the side of generosity in these - setting these figures, so that the employees themselves don't feel in any way, shape or form disadvantaged. I suppose really what we're having a discussion about is are these guys or are they guys not becoming 12 shift roster employees working in the refinery and at least on a transitional basis going to utilise their previous stevedoring skills to help the company out to get the sugar in to the place.

PN209

The message we're getting is mixed I've got to say in that the message we get from the four employees involved is, "Yes no problem". The proposition for example put here that, "Oh we've only just seen this letter of appointment for the first time. This is all news to us", from the company's perspective - and I've just been told this - that the situation that we're talking about, set out and described in this letter of appointment, is an unchanged scenario over months of discussion. It is not something that's suddenly just got dumped on someone yesterdays afternoon. It is news to the company that the other three are apprehensive about it. It's not news to the company that the refinery employees are unhappy about being asked to do something else. That's not news to this Tribunal either.

PN210

It's not news to this company that they might want something for it. After all
- and that's not news to this Tribunal - after all that was part of the subject in a sense you almost anticipate from your last recommendation about these issues being sorted out during the EBA negotiations. That these employees are about to unload - sorry these employees are about to operate the conveyor in association with the MUA unloading a sugar ship, a self loader, for the first time starting as of tomorrow and not being paid the ship discharge allowance for the first time, is really in our view what's going here. In other words, they've worked out that if they allow these employees to start doing the work that they're supposed to be doing under their new employment arrangements without being paid the ship discharge allowance for the first time, that's the beginning of the end of their claim.

PN211

I believe that's what's really going on here. They're saying, "You let it happen once and this company will say that's the way it is, that's the deal." So what they're really saying is, "No, no we can't allow a ship to be discharged without the payment of that allowance. Irrespective of what's in this letter of appointment or what these employees are agreeing to or what's compensated for under their new arrangement and their annualised salary. We're not going to let it happen because the minute you let it happen then we start losing our claim."

PN212

THE COMMISSIONER: What's the timeframe in between the ship arriving Saturday, Sunday and the next ship arrival?

PN213

MR MCCARTHY: I might get Mr Castagnini to answer that.

PN214

MR CASTAGNINI: The ship's roster at the moment is very dynamic due to the crane works. Probably about four days so we're going to be having quite a few in succession just to catch up for during the crane works we didn't have any ships arrive for about two or three weeks.

PN215

THE COMMISSIONER: So another ship would be expected to arrive some time Wednesday, Thursday next week?

PN216

MR CASTAGNINI: The schedule has been hard to - CSR shipping based in Sydney are the one's who organise the schedule but at the moment it would be late next week is our expectation.

PN217

THE COMMISSIONER: Right and it's been said by the union - I think Mr Doyle - that maintenance employees that are employed by Transfield I think he said - get the allowance - discharge allowance. Is that right?

PN218

MR CASTAGNINI: They've got a different EBA. A different - - -

PN219

THE COMMISSIONER: A different employer?

PN220

MR CASTAGNINI: Different reasons for why they get their payment and that's coming under review and that company's got a position to go forward to remove that allowance as well.

PN221

THE COMMISSIONER: Right and the inference also was that not only crane drivers got it, but other employees of the company directly - of CSR - put aside Transfield - got the allowance.

PN222

MR CASTAGNINI: The only people getting the allowance were the stevedores.

PN223

MR DOYLE: Anybody at work who had anything to do with the raw store - the ship - at any time a ship was in port - or the conveyors - were paid the ship discharge and may I reiterate what Mr McCarthy said to me that that paragraph I read to you he quoted it was some time back. It is still in the new job offer. That same paragraph is still in the new job offer.

PN224

MR CASTAGNINI: I'll just reiterate Rod, the only people who ever got paid that allowance were stevedores.

PN225

MR DOYLE: I reiterate that sir - I - - -

PN226

THE COMMISSIONER: A lot of reiterating.

PN227

MR CASTAGNINI: It wasn't just stevedores Commissioner. Any person from the refinery, packing station, bran sugar, that went and worked, had anything to do with the stevedoring whilst a ship was in were paid the ship discharge, front end loader drivers, cleaners, anybody.

PN228

MR MCCARTHY: What they're not going to let happen is that situation change but the company's understanding is it's only stevedores that have got it. That's where we're at.

PN229

THE COMMISSIONER: How many of the stevedores are expected to be working over the weekend with the ship - the old stevedores?

PN230

MR CASTAGNINI: One or two 12 hour shifts. So all four - - -

PN231

THE COMMISSIONER: Over the two days four of them will be working at some point?

PN232

MR CASTAGNINI: Yes.

PN233

THE COMMISSIONER: Thanks. What the Commission will do is set this matter down for one o'clock next Thursday 29 November for a report back. In the interim the Commission would strongly recommend that for this period only - this period only - the four stevedores that are rostered on over the coming weekend are to be paid the discharge allowance. No one else - no one else. That is a directive plea of CSR Sugar Australia - is to be paid the discharge allowance. The union will advise the Commission by midday today that there will be no disruption to the operations regarding the discharging of the ship. If there is any disruption at all, the Commission will convene on the weekend and issue appropriate orders that will be referred to the Federal Court. If the matter in the interim also, the union and the company are to talk about and reach an agreement on, the letter of offer to the four stevedoring employees.

PN234

If the Commission is advised on Thursday that no agreement has been reached
- and let me say the Commission's view at this point is that what is being claimed by the refinery workers is an extra claim in breach of clause 42 of their enterprise agreement. The Commission understands that negotiations are occurring about a new agreement and that's where this issue should be dealt with in those negotiations. It is not to be part of some industrial campaign to try and get it now. If the Commission is advised by Thursday at the report back, that the matter is not settled in the interim and that the parties are prepared to negotiate the matter leading up to the new agreement it will contemplate what orders it shall issue. Now is that abundantly clear?

PN235

MR MASTRANDONAKIS: Commissioner may I just say something? Commissioner if we could just ask, is it possible maybe along the lines of your previous recommendation - - -

PN236

THE COMMISSIONER: Which was rejected I understand. Same as the
- Mr McCarthy has said - and the Commission's not used to having its recommendations rejected. In fact it gets pretty pissed off about that.

PN237

MR MASTRANDONAKIS: I understand Commissioner. We will do our best to make sure that employees understand that.

PN238

THE COMMISSIONER: Well let me make it very clear. The Commission's recommendations aren't up for a vote.

PN239

MR MASTRANDONAKIS: I understand that Commissioner but may I ask in order to try and sort of find a solution to this issue, would it be possible even to add to this recommendation that this issue will be dealt with, as you said in the agreement - in the current negotiations - and I understand in your previous recommendation you did say that the issue of employees performing extra duties of front end loader, should be seen as a claim by the union for something during the - - -

PN240

THE COMMISSIONER: During the negotiations, yes.

PN241

MR MASTRANDONAKIS: - - - the negotiations, yes so if we can treat this as the same matter - - -

PN242

THE COMMISSIONER: No, what's been put now is that there is a claim now for the payment now - not as part of any negotiations leading up to the new enterprise agreement.

PN243

MR MASTRANDONAKIS: I understand.

PN244

THE COMMISSIONER: Do you understand the difference? There's a very subtle difference but - well it's not subtle actually - it's as subtle as a piece of four by two smacking you between the eyes, "Give us the money now, whilst negotiations are still going on." It's not going to happen and the only reason that the Commission is recommending that it be paid to the four stevedoring employees is to ensure that the ship is unloaded on this weekend, that's the only reason. If there was another week, there would be no recommendation in those terms at all.

PN245

MR MASTRANDONAKIS: So what I'm trying to say Commissioner - I'm sorry, maybe I'm not making myself clear - is that if we had a recommendation from the Commission saying that the issue of the ship disability allowance will be negotiated as part of the enterprise agreement and the Commission's view is that these employees will be seeking compensation for the loss of it, the same way as you outlined in the previous recommendation, that employees who will be required to perform front end loader duties will be seeking an extra claim - - -

PN246

THE COMMISSIONER: I thought that was implicit in the last agreement.

PN247

MR MASTRANDONAKIS: That's fine, I'm just - - -

PN248

THE COMMISSIONER: - - - in the last recommendation sorry - that it's part of the enterprise negotiations. How that is made up is for the parties to determine in the negotiating process.

PN249

MR MASTRANDONAKIS: As long as we have an understanding that's - - -

PN250

MR WINTER: As long as the company is clear on that. We want the company to acknowledge that if these allowances disappear in the short term that they will be part of the negotiation process of the EBA negotiations and we'd like them to acknowledge that that's the case.

PN251

THE COMMISSIONER: Well they can acknowledge that and I expect that they would - that it's part of the negotiating process. I don't expect them to acknowledge that they're going to come to an agreement - - -

PN252

MR WINTER: Yes but as long as they acknowledge that they're prepared to discuss those and consider that as part of the new EBA.

PN253

MR CASTAGNINI: It was acknowledged at our first kick off consultative meeting last week.

PN254

THE COMMISSIONER: All right, fine.

PN255

MR DOYLE: Commissioner, there was never any intent of the refinery to ask for this extra money. It was for the people that were doing their job. Stevedoring employees only, it was never the intent of the refinery workers to ask for this money so there might be somewhat of a misunderstanding here.

PN256

THE COMMISSIONER: It may not have been their intent but I'm sure that they wouldn't knock it back if it happened to flow.

PN257

MR DOYLE: Well they can't actually get it because they're not actually involved in it. It's only the four stevedores that are actually running the conveyors so there's been no intent of the refinery operators to ask for this and we reiterate we would like this to be part of the new negotiations in some conversations down the track further, if it can be agreed upon.

PN258

THE COMMISSIONER: Sure, and that's the whole thing - if it can be agreed upon as part of the negotiations.

PN259

MR DOYLE: One more thing is the next ship will follow virtually back to back so can we have a recommendation of the next ship as well because before we leave the next ship might be here as well.

PN260

THE COMMISSIONER: Don't push your luck.

PN261

MR DOYLE: Well what happens to the next ship?

PN262

THE COMMISSIONER: Well then maybe I might call the matter back on before Thursday, so really the crack is on the parties. All right?

PN263

MR DOYLE: I just wanted to know what would happen in the - - -

PN264

THE COMMISSIONER: I'm a customer focussed Commissioner, I get the parties quickly if I can. All right?

PN265

MR DOYLE: Thank you.

PN266

THE COMMISSIONER: Mr McCarthy?

PN267

MR MCCARTHY: Only one more thing Commissioner. I have been asked by the company to put on record - and I can understand why - for the information that the union and their members that the approximate estimate figure of demurrage costs per day are at a minimum of $30,000.

PN268

THE COMMISSIONER: Sure, all right, thank you. Yes?

PN269

MR MASTRANDONAKIS: Commissioner, sorry can I maybe just - there's just one more issue and this relates to what you did mention in our previous discussions about the remaining employees. If I can just indulge everybody for a couple of minutes regarding one employee at the moment - one stevedore who did originally accept a position to remain within the refinery team but since then has had trouble accepting that and has changed his mind. We have put in a request to the company to consider that - they are considering it. We would probably just like to find out where that person stands. He's one of those employees that we did outline before - - -

PN270

THE COMMISSIONER: Right, yes.

PN271

MR MASTRANDONAKIS: Non English speaking background, of old age, that sort of thing and I think he's come to the conclusion that he will have difficulties remaining - - -

PN272

THE COMMISSIONER: So he wants a package?

PN273

MR MASTRANDONAKIS: Yes Commissioner.

PN274

THE COMMISSIONER: Yes.

PN275

MR CASTAGNINI: Initially the intent from that employee was to remain so he signed up and saying he wants to stay has since now signed an application, put on record that he would like to go and it's currently under review.

PN276

THE COMMISSIONER: Right and when is a decision likely?

PN277

MR CASTAGNINI: I would expect probably in the next couple of weeks.

PN278

THE COMMISSIONER: Where does that leave him in terms of the up and coming weekend?

PN279

MR CASTAGNINI: He's happy to start work this weekend on 12 hour shifts, acknowledging that that's on the basis that it's under review.

PN280

THE COMMISSIONER: It doesn't prejudice his claim.

PN281

MR CASTAGNINI: No.

PN282

THE COMMISSIONER: Is that your understanding?

PN283

MR MASTRANDONAKIS: Yes that's fine Commissioner.

PN284

THE COMMISSIONER: Well maybe that if the company can sort of speed up the process in looking at his particular circumstances that might help.

PN285

MR DOYLE: Commissioner, the other guys are ..... are leaving on 7 December and I think if possible you would like that to be brought to the same time as them?

PN286

THE COMMISSIONER: Well that's - if the company as I said can speed up the process, that may help. All right, the Commission will see you next Thursday at
1 pm. thank you.

<ADJOURNED UNTIL THURSDAY 29 NOVEMBER 2007 [9.58AM]