C2008/2508, Transcript of Proceedings [2008] AIRCTrans 267 (10 June 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18559-1

COMMISSIONER RAFFAELLI

C2008/2508

s.496(1) - Appl’n for order against industrial action (federal system).
Sydney Ferries Corporation
and
Australian Institute of Marine and Power Engineers, The
(C2008/2508)

MELBOURNE

4.14PM, TUESDAY, 27 MAY 2008

MR R GOOT: I seek leave to appear, together with MR T SAUNDERS, for Sydney Ferries Corporation. I can indicate to you, Commissioner, that we have served the application on AIMPE and that we understand that your office has notified AIMPE of the time of the hearing this afternoon. My instructing solicitor has just rung Mr Andrew Williamson from AIMPE, but has not been able to speak to him and is waiting to hear from him; my instructing solicitor having given his mobile telephone number. But we thought that the time appointed having been and gone, the proceedings should commence.

THE COMMISSIONER: Yes, well leave is granted Mr Goot. Yes, proceed. We will deal with the absence of the other side later but there probably are preliminary matters that we can deal with.

MR GOOT: We certainly can do that.

THE COMMISSIONER: I take it - sorry, Mr Goot - I take it that Mr Saunders’s phone is on?

MR GOOT: Mr Arthur’s phone is on, yes it is, and you will hear it ring and he will go outside to answer it.

THE COMMISSIONER: Yes. Right, thank you.

MR GOOT: Thank you.

THE COMMISSIONER: Mr Arthur, sorry, yes.

MR GOOT: That’s all right. Mr Commissioner, you have the application, the Form R17. The situation can be summarised as follows. You are familiar with the industrial instruments or the industrial instrument that governs the employment of the members of AIMPE employed by Sydney Ferries Corporation. There is an industrial agreement which is marked FM1 to the affidavit of Marie Rice, spelt H-r-y-c-e. That industrial agreement has passed its nominal expiry date, which was in March, I think, 2007. It expired on 31 July 2007.

THE COMMISSIONER: Yes.

MR GOOT: Within that agreement clause 11, which appears on page 15, deals with rostering arrangements and clause 11.4.3 provides that:

SFC shall provide 28 days’ notice to employees of a roster change, where such changes shall result in a majority of engineers subjected to change.

On 2 May of this year, SFC gave notice to the members of AIMPE of a changed roster that was going to be introduced on and from Monday 2 June 2008. The evidence of that advice, Commissioner, is at paragraph 43 on page 8 of Ms Hryce’s affidavit.

THE COMMISSIONER: Yes.

MR GOOT: She annexes a form of the letter that was sent to the various employees, at annexure A of the affidavit. Now as Ms Hryce makes clear in her affidavit, Commissioner, and you’ll be familiar with this, what my client did was to introduce crew based rosters from 2 June 2008. Crew based rosters assign a number of crews to a particular vessel, or small number of vessels, and roster those crews to work a specific group of shifts, which are confined to that vessel or small group of vessels.

This is in contradistinction to the existing roster system, where the master, the engineer, and one or more general purpose hands work on and off vessels at different times on different days that even have different meal breaks. The introduction of crew based rosters is something that SFC has been trying to achieve for some time, but was made even more urgent following the report by Brett Walker of senior counsel, who was the special commissioner in a special commission of inquiry into Sydney Ferries.

He reported on 31 October 2007. This is dealt with in Ms Hryce’s affidavit at paragraph 19, and he said at page 207 of his report:

Crew based rostering is essential to improving and maintaining the safe and reliable operations of SFC. Vessels should generally be crewed by masters, engineers and deckhands who are familiar with the vessel, each other and the procedures to be followed.

You, Commissioner, will know that a considerable period of time was spent in between 2006 and 2007 in negotiation between Sydney Ferries and various unions, including AIMPE, trying to achieve a new roster system. That culminated, Commissioner, as you are well aware, in your ..... to arbitrate the claim; a decision of course that was upheld by a Full Bench of the Commission.

The rosters that are to be introduced on 2 June 2008 are not the rosters which were subject to discussions over the last two years but they contain elements obviously of these rosters, in that they are crew based. Following discussions and the implementation by the various unions of the dispute resolution procedures in each of the agreements, there have been discussions. That is all dealt with in paragraphs 46 to 50 of Ms Hryce’s affidavit, insofar as it relates to AIMPE; 51 to 53 insofar as it relates to AMOU; and 61 and following, insofar as it relates to MUA.

There are a number of annexures as well, but I can cut to the chase, Commissioner, by saying that in response to the notification by Sydney Ferries that on and from 2 June 2008 the crew based rosters would operate. In response to that each of the MUA and the AMOU have said to us, that is to my client, that staff will continue to work under the current rosters and will not work under the new rosters, the crew based rosters, from 2 June 2008.

The evidence as to AIMPE’s attitude is in the affidavit of Mr Mole, which we have forwarded to you. He is the general manager operations for Sydney Ferries Corporation. He gave certain instructions to Mr Henry, who in turn gave certain instructions to Ms Brown to contact the members of AIMPE employed by Sydney Ferries, to inform them that she was calling, “To confirm arrangements for your new roster which starts on Monday 2nd June” and to advise them when their new shift, the first shift, would take place.

She then recorded the outcome of those telephone conversations in a document which is exhibited to Mr Mole’s affidavit as DM1, which is a spreadsheet comprising a number of pages, commencing at page numbered 11 and concluding at page number 16. You will see, Commissioner, that she has in her handwriting written adjacent to each of the employees their responses or, if they weren’t available, the fact that they weren’t available. Not available is N/A.

There are other initials like L/M, which means left a message. There’s notes that people are long-term absent or on leave or that sort of thing, but you will see that there are also a number of entries, a large number of entries, in which the employee indicates that the new roster had been received by the employee, but that the employee was staying on the existing roster awaiting union advice; or that the employee had received the roster and was staying in the existing line ..... union and information of that sort.

We say that each of those notations represents a decision by the employee concerned not to work the new rosters on and from 2 June and represents, we say, involvement by AIMPE in reaching that conclusion, because of the reference to union advice; being that this was part of a concerted approach to Sydney Ferries Corporation’s attempt to implement crew based rosters on and from 2 June 2008.

That of course constitutes industrial action for the purpose of section 420 of the Act and in particular, 420(a)(b) which reads, as you Commissioner are well aware:

The performance of work by an employee in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on or a delay in the performance of work.

We rely on the second limb of (a). (b):

A ban limitation or restriction on the performance of work by an employee or an acceptance of or rostering for work by an employee.

We rely on that definition as well. Clearly, the employer here, Sydney Ferries Corporation, is entitled to change the rosters. The agreement only limits that change by nominating a period of time that has to be given before the change is implemented. In the case of this particular change, which affects the majority of persons employed under the agreement, a majority of engineers subjected to change, the time stipulated by clause 11.4.3 of the agreement is 28 days.

As I say, and as Ms Hryce testifies, the notice was given on 2 May 2008, to be implemented on 2 June 2008. So that we say that you, Commissioner, can be reasonably satisfied in terms of section 496 of the Act, that action by an employee or employees that is not protected action is threatened and pending or probable, or is being organised. We say that is made out

As to whether it is protected action or not, the nominal expiry date of the agreement having passed, we rely on the evidence of Ms Hryce. Just pardon me, Commissioner. I’ve read this evidence so know it exists but I’m having difficulty laying my hands on it. It’s in the application Commissioner.

THE COMMISSIONER: Yes.

MR GOOT: It’s in the ..... supporting the application in paragraph 6. The action is not protected because firstly, no notice of protected action has been given pursuant to section 441 of the Act. Secondly, the threatened industrial action has not been authorised by a protected action ballot, pursuant to section 478 of the Act. Thirdly, the threatened industrial action is not being taken in support of, or to advance claims made in respect of the proposed collective agreement between SFC and AIMPE, pursuant to section 435 of the Act.

That is, none of the statutory exclusions to 496(1) apply and there is therefore no impediment to, and the Commission must, make an order that the industrial action stop, not occur and not be organised. We seek an order from the Commission today.

THE COMMISSIONER: Yes. Mr Goot, two things. We will get to the absence of the other side.

MR GOOT: Yes.

THE COMMISSIONER: But should I admit as evidence, unchallenged, the statements or affidavits of Mr Mole and Ms Hryce?

MR GOOT: Yes. I tender firstly the affidavit of Ms Hryce, together with the annexures and the documents exhibited to that affidavit.

THE COMMISSIONER: Yes.

EXHIBIT #SFC1 AFFIDAVIT OF MS HRYCE, TOGETHER WITH ANNEXURES AND DOCUMENTS

MR GOOT: Secondly, I tender the affidavit of Dennis Mole, sworn today, and the documents annexed to and exhibited to that affidavit.

THE COMMISSIONER: Yes, thank you.

EXHIBIT #SFC2 AFFIDAVIT OF DENNIS MOLE, SWORN 27/05/2008 TOGETHER WITH ANNEXURES

MR GOOT: If the Commission pleases.

THE COMMISSIONER: Remind me of what Mr Arthur has been doing?

MR GOOT: Mr Arthur has done the following things. Firstly, he earlier today faxed to Andrew Williamson at AIMPE a letter enclosing the application for order. Secondly, he notified AIMPE by calling Mr Williamson and leaving a message for him that the matter had been listed for hearing this afternoon at 4 o’clock.

Thirdly, he has left another message, most recently at about five to four, for Mr Williamson to ring him. Sorry, I stand corrected. Ms Hryce telephoned Mr Williamson at or about 4 o’clock this afternoon, requesting that he ring her as to whether he was attending today or not. Mr Arthur has subsequently been in contact with Ms Hryce and Mr Williamson has not rung Ms Hryce, in response to either of her telephone calls.

THE COMMISSIONER: Yes, okay. In respect of your proposed order.

MR GOOT: Yes.

THE COMMISSIONER: We are aware of the TWU matter.

MR GOOT: Yes.

THE COMMISSIONER: Sorry?

MR GOOT: I remember that.

THE COMMISSIONER: Yes.

MR GOOT: I remember that too.

THE COMMISSIONER: You ask that the Commission make a finding, first of all, that industrial action by employees of Sydney Ferries Corporation or the relevant employees bound by this - the employees of SFC covered by the Outer Harbour Engineers Agreement.

MR GOOT: Yes.

THE COMMISSIONER: That industrial action by them is threatened, impending or probable.

MR GOOT: Yes.

THE COMMISSIONER: Is it your position - I think it is - that the industrial action is being organised by AIMPE, its officers, agents including Mr Williamson?

MR GOOT: Correct.

THE COMMISSIONER: Right, and in respect of the order, ought not it say that employees must not take any industrial action and that AIMPE, its officers, delegates, agents, including Mr Williamson, must not organise, aid, abet, procure, induce, advise or authorise any employee to engage in any industrial action?

MR GOOT: Just one moment, Commissioner.

THE COMMISSIONER: Yes.

MR GOOT: Yes, as to the first, if you look at order 4F for Freddie, it is in these terms:

Each employee must not organise, engage in, or threaten to organise or engage in any industrial action to which this order applies.

THE COMMISSIONER: Right.

MR GOOT: As to the second aspect that you raised, Commissioner, I’m sorry I was distracted and I didn’t get it, but if you would be kind enough to repeat that aspect? I see. I think my junior was listening much more attentively and it relates to order 4A.

THE COMMISSIONER: Yes.

MR GOOT: Yes, sorry, order 4A I think satisfies the second inquiry that you raised, Commissioner. The first subparagraph of order 4:

AIMPE and its officers delegates, employees, and agents including Mr Williamson must stop, not organise and not recommence any industrial action, not organise, aid, abet, direct, procure, induce, advise or authorise any employee to engage in any industrial action.

THE COMMISSIONER: Look, sorry, Mr Goot, it’s my error. I took employees to mean employees of SFC. You’re saying employees are employees of AIMPE?

MR GOOT: No, the employees are defined in paragraph 2A(iii) as all employees of SFC who are covered by the relevant agreement, and who are members or are eligible to be members of AIMPE.

THE COMMISSIONER: But is there evidence that the employees themselves are in any way organising, aiding, abetting, directing or procuring et cetera industrial action, or organising it?

MR GOOT: As opposed to?

THE COMMISSIONER: As opposed to the union, its delegates and its agents.

MR GOOT: Yes.

THE COMMISSIONER: But the employees are covered in F, you say.

MR GOOT: Yes.

THE COMMISSIONER: “Each employee must not organise, engage in or threaten to organise or engage in any industrial action”.

MR GOOT: Okay.

THE COMMISSIONER: I see.

MR GOOT: Yes, that’s right. That’s where employees are dealt with and in (a) that’s where the union is dealt with.

THE COMMISSIONER: Yes.

MR GOOT: Commissioner, I think the point you raise is valid. If I can ask you to go to paragraph 4F for Freddie.

THE COMMISSIONER: Yes.

MR GOOT: Delete the word “organise” where first appearing.

THE COMMISSIONER: Yes.

MR GOOT: Delete the word “organise or” where second appearing.

THE COMMISSIONER: Yes.

MR GOOT: That will mean that it’s really a prohibition on engaging or threatening to engage in industrial action, and leaves aside organisation of the industrial action by employees.

THE COMMISSIONER: Yes.

MR GOOT: Because I don’t believe that there is evidence that the employees are organising industrial action.

THE COMMISSIONER: Yes.

MR GOOT: That will cure that problem.

THE COMMISSIONER: As to A, and assuming employees are employees of AIMPE, just like the agents and delegates are.

MR GOOT: Yes.

THE COMMISSIONER: Is there evidence that they would themselves partake in any industrial action?

MR GOOT: Yes, because Mr Williamson is - sorry, the delegates are employees of SFC, capital E.

THE COMMISSIONER: Yes.

MR GOOT: They might also be the agents of the union.

THE COMMISSIONER: Yes.

MR GOOT: Some of their officers are employees of SFC, capital E.

THE COMMISSIONER: But they would be covered by F.

MR GOOT: Yes, that’s true.

THE COMMISSIONER: Yes, thank you, Mr Goot.

MR GOOT: Yes, thank you.

THE COMMISSIONER: Yes, I’ve listened to the submissions in this matter. I should have indicated that the matter was brought on with some urgency but that urgency was occasioned not simply because of the information in the notification, but because the Commission is duty bound to list these matters as soon as is practicable.

I take it that if there’s any discomfort, it’s for the Commission itself. But my records show that the notification was sent out by the registrar at 2.39 pm this afternoon for a 4 o’clock meeting; that the Australian Institute of Marine and Power Engineers were notified in the sense that the fax number advised is the one that we know of and appears in Mr Arthur’s documents.

I’m also aware that the location of the officers of AIMPE, and probably the workplace of its employees - and by workplace I mean workplace of its members, which could be in and around the Port Botany or the Port Jackson areas - that they are not so distant that there is an inability or any kind of suggestion of unreasonableness in what is about an hour and a half notice of a hearing. That in the context of an earlier advice from the respondent, that they were applying for orders .

Thus in my view the respondent has been notified of these proceedings. It was done in a reasonable manner and they have failed to appear and consequently the Commission proceeds in their absence. It has heard the evidence, unchallenged, of Ms Hryce and of Mr Mole, and the submissions of senior counsel. In the light of what is put before the Commission, and noting the definitions of industrial action found at section 420 and the requirements of section 496, I’m satisfied that there the requirements of persons being under agreements, or Federally covered or some such that I won’t detail any more, are satisfied. Of course I’m also satisfied on the basis that there is no protected action on foot that would somehow exclude this application. I rely on what you have put, Mr Goot, and note that that was in the application at paragraph 6.

I’m therefore satisfied in making findings that in my view employees of Sydney Ferries Corporation are threatening industrial action or are - sorry, I will rephrase that to be consistent with the Act. I’m satisfied that industrial action by employees of Sydney Ferries Corporation is threatened, impending or probable and in that regard I rely on what specifically has been said in the evidence of Mr Mole, which reports the response given by a number of employees of the corporation.

I’m also satisfied, from the same source, that AIMPE and its officers, including Mr Williamson, are organising industrial action concerning Sydney Ferries Corporation. As a consequence I propose, and am left with no alternative but to issue the order in terms that have been proposed by the notifier. It will be identical except that it will say at 4, “No industrial action”. It will say that - - -

MR GOOT: 4F I think it was.

THE COMMISSIONER: It will say at 4A that AIMPE and its officers, delegates and its employees and agents, including Mr Williamson, will not organise any industrial action and must not organise, aid, abet, direct, procure, induce, advise or authorise any employee to engage in any industrial action.

The order will continue and at F will say each employee - and that is employee as defined as an employee of SFC - - must not engage in or threaten to engage in any industrial action to which this order applies.

The order shall come into force at 5 pm on Tuesday 27 May 2008 and will remain in force for a period of one month. On that basis, these proceedings are adjourned and the order will issue shortly. Thank you.

MR GOOT: If the Commission pleases.

<ADJOURNED INDEFINITELY [4.50PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SFC1 AFFIDAVIT OF MS HRYCE, TOGETHER WITH ANNEXURES AND DOCUMENTS PN40
EXHIBIT #SFC2 AFFIDAVIT OF DENNIS MOLE, SWORN 27/05/2008 TOGETHER WITH ANNEXURES PN42