AG2012/936, Transcript of Proceedings [2012] FWATrans 369 (11 April 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033241-1

DEPUTY PRESIDENT SAMS

AG2012/936

s.185 - Application for approval of a single-enterprise agreement

SeaRoad Shipping Pty Ltd
and
Maritime Union of Australia, The
(AG2012/936)





Sydney

9.45AM, TUESDAY, 3 APRIL 2012

PN1

THE DEPUTY PRESIDENT: Could I have the appearances.

PN2

MR L. SMITH: Lachlan Smith, appearing on behalf of SeaRoad Shipping.

PN3

MR A. JACKA: Good morning, your Honour. Jacka, initial A. I'm appearing for the Maritime Union of Australia.

PN4

THE DEPUTY PRESIDENT: Thank you. Well, this is an application lodged by the company. Why should Fair Work Australia approve this agreement, Mr Smith?

PN5

MR SMITH: Thank you, sir. Just by way of background, I was appointed as a bargaining agent by SeaRoad Shipping back on 1 December 2010 in relation to a number of their enterprise agreements which were expiry in 2010 and 11. I'd firstly like to thank Fair Work Australia for accommodating a request in terms of the listing of this matter around some unavailability over the next few weeks. This particular agreement which is the subject of this application, was finalised between employees represented by the Maritime Union of Australia and employed by SeaRoad Shipping, and it replaces a 2006 agreement which nominally expired in 2009 but which had, by agreement between the parties, been extended for an additional 12 months to May 2010 with an additional salary increase applying in 2009.

PN6

After what turned out to be fairly lengthy negotiations which included the conduct of a protected action ballot, an agreement was reached between the parties in late January this year. The agreement was circulated to all employees who it was intended to cover, with a letter dated 27 January 2012, a copy of which is at attachment 2 to the employer declaration of support. As some of those employees were on a four-week leave swing, a timetable was established for consideration of the agreement and return of the ballot papers. That was set out in that letter.

PN7

The appointed returning officer opened the returned ballot papers in the presence of one of the employee representatives on 27 February 2012, and the agreement was approved by 25 of the 26 employees who voted on the agreement. An application for approval was filed on 26 March 2012, which obviously is outside the time frame for filing in accordance with section 185(3)(a). I understand the MUA have today sent some details through to yourself about some of the reasons behind that particular delay. The company was provided with a signed copy of the agreement on 22 March and it was subsequently lodged on the 26th, as I said.

PN8

I'd submit that the parties have used their best endeavours to meet the statutory requirements and although my colleague will probably have some more to say on this, certainly on behalf of the applicant, I would request that Fair Work Australia exercise the discretion available to it under section 183(3)(b) to extend the period for filing appropriately. I'd also just note that the originally signed and filed copy of the agreement inadvertently included a page with a part of the salary tables cropped, which removed some of the digits from the right-hand column. As a result, a replacement copy of the agreement was duly signed by the parties and filed on 28 March; so we'd ask that that be the copy of record, so to speak.

PN9

As to the specific requirements of the Act in relation to the bargaining process and the content of the agreement, I'd draw your attention firstly to attachment 1 of the employer's statement which is an example of the bargaining rights notice required under section 173 of the Act. That was sent to all employees intended to be covered by the agreement at the time that the parties agreed to meet to commence negotiations back in July 2010.

PN10

The employer's statement - and it's attachment 2 - is presented as evidence that the agreement was circulated to employees as required under section 180 and that that notice included details of how the voting process was to be conducted, as provided in subsection (3), and the explanatory material about the key features of the agreement as provided in subsection (5). I'd also note that an MUA official and the MUA delegates on the vessels were involved in explaining the content of the agreement to the crew so that the agreement itself is substantially in the form of previous agreements that the parties have signed. I would hope that material is sufficient to enable Fair Work Australia to determine that the agreement has been genuinely agreed to by the employees it covers.

PN11

The coverage of the agreement reflects historical factors in the industry and Fair Work Australia has already approved agreements covering the officers and engineers employed by the company, so I'd also submit that the requirements of section 186(3) have been appropriately met in terms of the employees covered by the agreement. I'd further submit that the agreement contains no discriminatory terms, no objectionable terms within the meaning of the Act, no terms which relate to unfair dismissal or that are inconsistent with the Act's provisions in relation to industrial action, or which go to issues of right of entry.

PN12

As to the provisions of the agreement that go to issues covered by the National Employment Standards, as noted in the employer's statement there are no terms that seek to exclude the NES, although I think it's probably worth noting that the provisions in relation to personal leave in clauses 15.6 and 15.7 of the agreement, apply on top of the leave factors set out in clauses 15.2 and 15.3, which in itself is in excess of the award leave factor. That award leave factor is noted in clause 19.1 of the agreement Seagoing Industry Award 2010 as satisfying the requirements of the NES in relation to personal leave. Similarly, that award leave factor is accepted as meeting the NES requirements in relation to annual leave and hours of work.

PN13

The long service leave provisions in clause 15.9 seek to preserve arrangements previously applying under the Industry Award, but clearly acknowledge that where those arrangements are inconsistent with the NES, the NES provisions shall apply. The agreement contains a disputes resolution procedure at schedule 1, a flexibility term in clause 16 and a consultation term in clause 11. Just going to the better off overall test, I'd point out that the year one salaries applicable from year one of this agreement are in excess of 60 per cent above the rates currently contained in the award and with further increases of 5 per cent applicable in 2011, and again next month.

PN14

In addition to that, there are service increments which give employees access to salaries up to 6 per cent in advance of the base rates. As of next month, a chief integrated rating, for example, on the year six increment will receive a salary roughly 90 per cent ahead of the current award rate. Additionally, as already noted, the leave factor under this agreement is marginally in advance of the award rate, effectively giving employees additional paid leave than that which would apply under the award, plus there are the additional arrangements in relation to personal leave that I've referred to.

PN15

Without going to the rest of the rest of the agreement, I'd submit that the agreement clearly passes the better off overall test. In conclusion, I'd hope that the material covered in this submission along the material provided in the application and the employer's statement in support and the Maritime Union's statement in support, would enable Fair Work Australia to determine that the requirements of the Act have been met and that the agreement should be approved. I would accordingly ask that it be so approved.

PN16

THE DEPUTY PRESIDENT: The increases that flow from 2 May 2010 and 2 May last year, have they already been paid?

PN17

MR SMITH: No, they haven't. I spoke to the company on Friday. They were in the process of calculating them. The process is in train, if you like, to make the back payments. There is a considerable amount of back pay about to flow.

PN18

THE DEPUTY PRESIDENT: Yes, I'll say.

PN19

MR SMITH: And another increase due early next month, as well.

PN20

THE DEPUTY PRESIDENT: Yes. I did note, and you did mention, that the negotiations took a considerable period of time. Is there any particular reason why that is so or just a robust exchange?

PN21

MR SMITH: The usual scheduling issues of finding mutually acceptable dates for both parties to meet. There were some initial points of difference that proved a little difficult to get over. As I said, it did get to the stage of a protected action ballot, but eventually we reached an accommodation.

PN22

THE DEPUTY PRESIDENT: Was there any protected action?

PN23

MR SMITH: No, it didn't get to that stage.

PN24

THE DEPUTY PRESIDENT: All right. Thank you.

PN25

MR SMITH: Thank you.

PN26

THE DEPUTY PRESIDENT: Mr Jacka?

PN27

MR JACKA: Thank you, your Honour. The Maritime Union of Australia is a bargaining representative for the agreement in accordance with section 176(1)(b) of Fair Work Act 2009. My friend has pointed out that the agreement was submitted after the 14-day time frame and early this morning we filed a letter seeking for Fair Work Australia to exercise its discretion under section 185(3)(b) of the Fair Work Act to approve the agreement. I have a copy of that letter - - -

PN28

THE DEPUTY PRESIDENT: I have it.

PN29

MR JACKA: Yes. Thank you.

PN30

THE DEPUTY PRESIDENT: Well, for the purposes of section 185(3)(b) of the Act, I propose to extend the time for filing of this application to 26 March 2012. In the exercise of my discretion, I consider it would be fair to do so.

PN31

MR JACKA: Thank you, your Honour. Also subject to our form F18 and pursuant to section 183 of the Fair Work Act, we'd seek to be covered by the agreement.

PN32

THE DEPUTY PRESIDENT: Were you involved in the negotiations?

PN33

MR JACKA: No, I wasn't, your Honour.

PN34

THE DEPUTY PRESIDENT: Having heard the submissions of the parties and upon reviewing the preapproval process documentation, and the terms of the agreement itself, I am satisfied that all the requirements of the Act - in particular sections 180, 186, 187 and 188 - have been satisfied. I am further satisfied that the agreement has been genuinely entered into by the employees to be covered by the agreement, noting the overwhelming support for the agreement in the approval process.

PN35

I further note and accept the submissions of the parties that the agreement more than satisfies the better off overall test when compared to the relevant awards, and that increases in rates of pay are significantly in advance of those contained in the awards. The agreement also provides for 5 per cent wage increases that occur on 2 May anniversary of the agreement's nominal term and that there are other benefits and improvements in terms and conditions which are more beneficial than those contained in the relevant reference instrument.

PN36

For the purposes of section 54 of the Act, I approve a single-enterprise agreement to be known as the SeaRoad Shipping - MUA Bass Strait Enterprise Agreement 2012, with an operative date of 10 April 2012 and a nominal expiry date of 2 May 2014, and in doing so note that there are to be significant back pay adjustments in accordance with the agreement of the parties as recorded in the pay rates at clause 13. I shall publish a short decision in due course, merely reaffirming what I've indicated to you on the record, but you can be assured that Fair Work Australia has approved this agreement. I now adjourn.

<ADJOURNED INDEFINITELY [9.58AM]