C2008/628, Transcript of Proceedings [2008] AIRCTrans 790 (4 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19421-1

COMMISSIONER WILLIAMS

C2008/628

s.496(1) - Application for order against industrial action (federal system).

Total Marine Services Pty Ltd
and
Maritime Union of Australia, The
(C2008/628)





Perth

9.28AM, FRIDAY, 21 NOVEMBER 2008

PN1

MR M LLEWELLYN: If it pleases the Commission MR M D LLEWELLYN on behalf of Total Marine Services.

PN2

THE COMMISSIONER: Thank you, Mr Llewellyn.

PN3

MR EDMONDS: I seek leave to appear in front of you today, sir.

PN4

THE COMMISSIONER: I assume there is no concern about Mr Edmonds appearance Mr Llewellyn?

PN5

MR LLEWELLYN: No, sir.

PN6

THE COMMISSIONER: Leave is granted Mr Edmonds.

PN7

MR EDMONDS: Thank you, sir.

PN8

THE COMMISSIONER: Mr Llewellyn if you could explain the application please.

PN9

MR LLEWELLYN: Sir, the application was made yesterday afternoon, following confirmation from the vessel the Lewek Emerald. The crew of the Lewek Emerald were refusing to sail the vessel unless a payment of a PAB was made. PAB refers to an allowance contained in clause 28(b) of the Total Marine Services Integrated Ratings Cooks, Caterers and Seafarers Agreement 2006-2009, and it is agreement AG847602 print no, PR970377.

PN10

The payment they claim was for a period of six days they were engaged on a project in Vietnam back in September of this year. I will not go through all of the discussions that occurred on the day, needless to say that at the point the vessel was due to sail the employees refused. The employees informed us that was under the direction of Mr Cain, state secretary. We then were instructed by our client.

PN11

MR EDMONDS: Of course, sir, we would say that this evidence should go in through a witness sir, not from the bar table.

PN12

THE COMMISSIONER: I understand Mr Edmonds, thank you.

PN13

MR LLEWELLYN: It is not evidence yet. Our client then instructed us that they were willing to make a payment to allow the vessel to sail. The crew insisted that be given to the crew in writing, a copy of which I have if the Commissioner so requires it. At the conclusion of that the vessel sailed at about 20.35 last night. The issue we have at this point in time is we believe that the direction from our client may well be illegal. The client also has that concern now, and that should we not make the payment, then obviously the vessel is going to stop again given the information from the crew.

PN14

I understand that this morning there has been some discussion between our chief executive officer and Mr Cain, and as a result what our chief executive officer has requested is if this matter can be moved to conciliation. And that the parties be involved in conciliation as to why the union continually refuses to follow the dispute settling procedure. However to do that we would like some commitment off Mr Edmonds, on behalf of his client, that there will be no industrial action taken, or no industrial action threatened on any of the Emask vessels, which the Lewek sloped Emerald and Ebony or Total Marine Services while that process takes place.

PN15

I understand that Mr Cain is currently in Darwin, and the proposal I believe was that Mr Cain, Mr Triggs, myself and Mr Bray and if necessary with the assistance of the Commission, convene a conciliation conference on Mr Cain's return, and discuss some of these matters to see if we cannot avoid having to continually come here through the action of Mr Cain and his members. That is an offer that has been put - asked to be put by our CEO and as I said following the discussion with Mr Cain. I am not sure whether Mr Edmonds has any instructions on it, and I am not sure given the nature of these sorts of proceedings, whether that can occur or not.

PN16

I am in the Commissions hands in that respect, but nevertheless that is what I have been asked to put this morning, and we are prepared to go down that route. We obviously have some concern because we have the Lewek Swift in port this afternoon, and similarly there is a claim for money on that vessel and given the last five or 6 applications that have come before the tribunal regarding money on vessels for TMS, we could probably expect that not to sale. Nevertheless we are happy to go down that process and if that is the arrangements agreed between Mr Cain and Mr Triggs - give it a try and see if we cannot get to some better ground than continually having to come here.

PN17

THE COMMISSIONER: Thanks Mr Llewellyn. Mr Edmonds?

PN18

MR EDMONDS: Yes, sir. I only obtained a copy of the application some fifteen minutes ago. Although I understand it was sent to the national office of the MUA last night, I have only just seen a copy of the application. Obviously the proposition that has been put is a departure from what is contained in the application as well, I wonder if it is possible to have a short adjournment sir, perhaps some ten minutes or so, to take some instructions in relation to those issues?

PN19

THE COMMISSIONER: I am happy to grant that adjournment Mr Edmonds. Mr Llewellyn, perhaps just one question. From what you have said I understand that there is no industrial action currently taking place on the Lewek Emerald

PN20

MR LLEWELLYN: That is correct. It sailed from port last night on the proviso that this email that I have in front of me, was sent to the vessel by our client which just simply says - and it is addressed to the master:

PN21

Paul, as per the discussion the intention of TMS and EMS VMAS

PN22

And that's V M A S

PN23

is to pay the allowance which is currently detaining the vessel. In order not to impact on our clients program, we confirm the payment TMS will be following this further.

PN24

THE COMMISSIONER: Thanks Mr Llewellyn.

PN25

MR LLEWELLYN: On that basis they sailed the vessel last night.

PN26

THE COMMISSIONER: So there is no industrial action currently taking place?

PN27

MR LLEWELLYN: That is correct.

PN28

THE COMMISSIONER: Thank you. Could I perhaps just make this observation? There is very limited capacity under this legislation under an application of this nature for conciliation, in the traditional sense, to occur. So in that sense I am not able to conduct conciliation under this application Mr Llewellyn. Having said that, there are other options under the legislation which the company might avail it self of. That a fresh application might be able to be made under the agreement for instance, which may assist the Commission being involved, if that is what the parties are desirous of?

PN29

If there is to be some discussions between the parties, the Commission is obviously available if that is going to be of any assistance to people, under whatever applications they bring forward. Whether it is myself of another Commission member, those avenues are something perhaps the company should look at Mr Llewellyn. Mr Edmonds I will allow you fifteen minutes to allow you to have a chat and take some instructions.

PN30

MR LLEWELLYN: Perhaps before that occurs. My further instructions were if we could not conciliate under this matter - which I suspected the answer I got would be the answer I got, was that it may be that we seek application to adjourn the matter and take this to get further legal advise on it. If we can not get a commitment from the other side that we are not going to have another vessel jacked up today, then we will be looking at either re-filing or adjourning this matter to seek a court order that covers all of the Emask vessels and perhaps all of TMS business.

PN31

Given that we are in a position at the moment where we are going to have to advise the crew we believe the payments would be illegal and the crew may also be docked a days pay for the bans they have had in place. We believe that will reinstitute the industrial action, given that the direction from the crew is that if we don’t pay the money, they will not operate the vessel.

PN32

THE COMMISSIONER: Thanks Mr Llewellyn. Can I just say to you again, what actions the company wants to take and what applications it might file outside of this application, it is free to do whatever it wants and take legal advise. The issue of an adjournment is also problematic given this applications predicated on there being industrial action occurring on the Lewek Emerald, and self evidently that is no longer the case.

PN33

MR LLEWELLYN: Or threatened.

PN34

THE COMMISSIONER: Well, that is something we have not had a discussion about.

PN35

MR LLEWELLYN: I understand.

PN36

THE COMMISSIONER: We will adjourn for fifteen minutes, and we will resume after that and see what your position is Mr Edmonds.

<SHORT ADJOURNMENT [9.37AM]

PN37

THE COMMISSIONER: Mr Edmonds, you have had an opportunity I gather, to take some instructions over the adjournment?

PN38

MR EDMONDS: Yes, sir I have had that opportunity sir. I suppose the position I can put to the Commission is that I suppose it is our view that this application ought to be withdrawn or dismissed, that the foundation for this application, no longer exists. One of the advantages I suppose, of the new legislation in regard to these matters is that it is possible to apply and have these matters listed at very short notice if needs be. We say that if there is any concern on behalf of the employer that industrial action may occur, then that is their avenue and that is appropriate in the circumstances. In any event I am instructed, sir, to put that it is the MUA's intention to comply with the Act.

PN39

That I suppose deals with this application. With regard to the matters in dispute, sir, we are happy to attempt to resolve them informally between the parties first. If no resolution can be reached in relation to those matters in dispute, then an application can be made to the Commission to seek the assistance of the Commission to resolve those matters in dispute, under the auspices of the agreement itself. There would be no impediment or jurisdictional impediment we think, to that occurring; in any event it is not our intention to raise any jurisdictional impediment to conciliation taking place, through the Commission if that is necessary. I trust that that deals with this matter sir.

PN40

THE COMMISSIONER: Thank you, Mr Edmonds.

PN41

MR EDMONDS: Thank you, sir.

PN42

THE COMMISSIONER: Mr Llewellyn?

PN43

MR LLEWELLYN: Thank you, sir. While it does not give the commitment we sought, that was that they would abide by the dispute settlement procedure, I guess by extension Mr Edmonds contention, they intend to comply with the Act - also include the agreement. I guess from our perspective, the position that I have been asked to put is simply that we did have industrial action occur at 8 o'clock last night, our desire is to solve it by - or to try and resolve it by conciliation, in or out of the Commission. My understanding is that Mr Cain and Mr Trigg spoke within the last ten minutes and that will take place early next week.

PN44

I have discussed with my CEO that it can not be done under this application - this is the advice I gave him, so we are happy at this point in time to simply withdraw this application and make another if we have to. Obviously seeking it listed on extremely short notice given that the effect of that vessel sailing last night, could have ….. our costs of up to half a million dollars. If we can not resolve it by conciliation under the dispute settling procedure, then obviously another application will be brought under the dispute settling powers of the Commission.

PN45

THE COMMISSIONER: Thank you, Mr Llewellyn. I think as you indicated earlier, you might take legal advice as to whether other applications more broadly can be pursued. That is a matter for your selves; I will make no observation on that. Given the application is to be withdrawn, on that basis we will adjourn these proceedings and close the file.

PN46

I obviously urge the parties to resolve whatever underlying concerns there are between you, because ultimately if there is going to be a pattern of conduct that is brought before the Commission, that can have consequences in terms of the nature of orders that are issued and so forth. I only make that as a general observation without having any evidence before me to make any findings as to what has transpired here or in other circumstances. So again, I just urge the parties to see if these matters can be resolved rather than having to pursue further applications along this line Mr Llewellyn, Mr Edmonds and Mr Tracey. On that basis the Commission is adjourned.

<ADJOURNED ACCORDINGLY [10.03AM]