C2015/5189, Transcript of Proceedings [2015] FWCTrans 520 (16 September 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052385

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COMMISSIONER CAMBRIDGE

C2015/5189
C2015/5189

s.739 - Application to deal with a dispute

Svitzer Australia Pty Ltd

and

Australian Institute of Marine and Power Engineers, The; Maritime Union of Australia, The; Australian Maritime Officers' Union, The

(C2015/5189)

SVITZER Australia Pty Limited and AMOU Towage Enterprise Agreement 2013

Sydney

4.19 PM, THURSDAY, 27 AUGUST 2015

Continued from 26/08/2015

PN234

THE COMMISSIONER: We're on record. Mr Cross.

PN235

MR CROSS: Yes, Commissioner. Just with the report back on the developments in this matter, in particular our matter which involved all of the unions. Overnight there were very constructive discussions between the MUA, the AMOU and my client, an in-principle agreement has been reached for the implementation of the company's proposal. The company and those unions will be implementing that proposal next week. There has been no agreement with the institute and so I've discussed the matter with my learned friend Mr McNally.

PN236

There has been some issue about further negotiations between the parties but obviously there's no one here today, other than from our side of the ledger that could discuss. But my client does have a certain disposition where they see that they have had so many local meetings planned that were not attended by the AIMPE that at this late stage we see very utility in further discussions.

PN237

What the parties, I think, have evolved to then is setting a timetable by which the reasonableness of the company's proposal that will be implemented may be determined by the Commission pursuant to clause 13 of the enterprise agreement, and possible time - if the Commission pleases - possible timetabling of that with an aim to a hearing. So there has been quite significant success with two of the unions but unfortunately not with the institute.

PN238

THE COMMISSIONER: Mr McNally, do you want to say anything?

PN239

MR McNALLY: I certainly do. We have to be honest on reporting back what happened this morning - what happened yesterday afternoon is we - the delegates we had here, and we had two national officials here, went home. I indicated to them that they would have to come back to confer today if needs be, would have to make themselves available on Friday, have to make themselves available on Saturday, have to make themselves available on Monday, have to make themselves available on Tuesday. I sent an email to those representing the employers this morning indicating that we were prepared to confer. I indicated if they wanted to discuss matters with me they could and I gave them my private phone number.

PN240

I had a 40 minute discussion with the representative of the other side this morning. We had a frank exchange of views. Our members are prepared to hop on the next available aeroplane and fly here any time and to get up and report that we can't proceed with the institute because there's no one here in court. It's just deceiving the court. We are available to negotiate with the employers at their convenience as soon as possible, and that's where we're at. A flight from Melbourne, a flight from Brisbane is all that's required.

PN241

THE COMMISSIONER: Mr Coombs, did you want to say anything at all?

PN242

MR COOMBS: Yes, I think that I should. As has already been reported by the applicant's representative, there was - discussion took place after we concluded proceedings here yesterday afternoon. We went to quite late in the night and - both with the - and the party's representative was, as I said, myself representing the AMOU, Paul Garrett and Ian Bray on behalf of the Maritime Union of Australia and senior representatives of the company.

PN243

That has resulted or those discussions resulted in in-principle agreement and that in-principle agreement has been reflected or described in a document that was issued today, drawn up by the company and issued to both the Maritime Union and the AMOU today, 27 August 2015. It goes through a number of matters that I won't go into now, I suspect that the applicant might like to table that document. I only brought one copy with me but look, it's fair to say that the outstanding matters as was reported yesterday now seem to be resolved.

PN244

There's one proviso though and it goes to the definition, I suppose, of in-principle. Basically, I think it's pretty fair to say that the issue that we were most apart on were issues in relation to the Sydney operation. It would be pretty fair to say that our discussions and negotiations last night centred around those issues. As I've said, I believe that we've got a satisfactory conclusion to those matters. However, before we can sign off and make the in-principle agreement an actual agreement, we have organised for a meeting of our membership, the Sydney membership, of the AMOU and MUA to take place at 1300 tomorrow.

PN245

We believe that we'll get a sizeable audience in relation to that. We'll be explaining the matters that were outstanding and the results that were extracted and we hope to get their agreement. If we don't I suspect it could be back here in a forum like this but it's our sincere understanding that we'll be at least able to put a plausible explanation to those agreed and we would think that members might support the conclusions that we came to last night.

PN246

THE COMMISSIONER: Thank you. Mr Garrett, do you want to say anything?

PN247

MR GARRETT: Not too much further than what's been put by Mr Coombs. Effectively, discussions took place last night. There's an in-principle agreement, there's a draft document that's been circulated and we'll be meeting with the members at 1 o'clock to put that document back to the members. There are some lower level implementation issues which needs to be dealt with beyond that in-principle agreement, but basically that document recognises and addresses the macro issues that have been subject to disputation. I think we're on course at this point.

PN248

THE COMMISSIONER: Thank you. It seems to me then that although we've made substantial progress, there's still some problems from AIMPE and we haven't finalised the position in respect to the other two unions, but that's likely presumably to occur tomorrow. That's an improvement but it hasn't got us to the complete position of resolving all of this and as I spoke with both the company and the representatives from AIMPE yesterday in private, and I heard from the various delegates in private about certain concerns I'm anticipating that those concerns haven't disappeared or evaporated.

PN249

What I think at this stage the most appropriate course would be to encourage there to be further communication discussion between the company and AIMPE, as a matter of urgency, and that obviously if something emerges from that which represents a similar sort of in-principle agreemen,t well, all well and good. If it doesn't then I think as was discussed in private, the Commission is quite prepared to entertain the most efficient fast-track determination of any concerns that might remain by way of a hearing. Now just how we program that and how we deal with that may be a little difficult and it's probably a bit premature to actually go into that because there is still some hope here that there could be some resolution of this before Tuesday of next week, in terms of the concerns. If there isn't then I think all the parties would be entitled to put forward their proposition for an expedited hearing of the questions that remain.

PN250

The reason I'm putting it this way is because it may well be that from the MUA and the AMOU perspective, they're not going to be even participants in such a process. I'm not sure, we won't know that for certain. So it then will be a decision for any aggrieved party, whether it's AIMPE or the company or both those two or any combination of any of them, to actually articulate a position for then having the matter proceed to a hearing, and I think that that hearing would involve a proposition which would be in simple terms testing whether the staffing arrangements for the re-organised operation represent a reasonable position or not. That's really the nub of it, I think.

PN251

I'm loathe at this stage, Mr Cross, to necessarily start putting time and dates around all this because it might evaporate, it might disappear by agreement. Or it might be that we'd be compelling people to start doing something that they don't need to do.

PN252

MR CROSS: Well there's two issues that I'd wish to raise with you, Commissioner. The first is that the offers in relation to the ratings and the masters are going out tomorrow, so effectively I am instructed that Friday is the last chance for any resolution with the institute because of the implementation effectively next Monday. So tomorrow is the last chance.

PN253

The second matter I'd wish to raise is this; I had a discussion with Mr McNally as to how we may deal with statements between the parties leading towards a hearing and I indicated that we had taken the step of at least having some preparation done. I can indicate to the Commission that we would be able to get our statements on within a week. If there's apprehension within the Commission that there might be some inconvenience to a party in laying down a timetable now, it all falls on us and we see no inconvenience whatsoever with that. So if the Commission was minded, we're happy for a timetable to be set so that we do not need to come back but I would also agree with the characterisation of what would be considered, which is the reasonableness of what we will be implementing as of next week.

PN254

THE COMMISSIONER: Yes. I think it would be premature to start timetabling frankly.

PN255

MR CROSS: May it please.

PN256

THE COMMISSIONER: So certainly rather than have people necessarily attend here for timetabling purposes, I'd try and facilitate that by way of an exchange of - we could do it by telephone if we had to, to just organise some dates if we were going to be an expedited hearing of all of this. That may not be needed, I don't know, but I think at this stage it's premature. What I'm keen to preserve is the prospect that particularly AIMPE and perhaps the other unions for that matter, don't lose an opportunity to have their case in terms of grievance regarding the staffing levels properly put before the Commission and determined.

PN257

MR CROSS: Yes.

PN258

THE COMMISSIONER: I don't see and I want to stress this, I don't see the anticipated implementation from next Tuesday necessarily, in any way, depriving any of the unions of that opportunity at some point in time shortly after next Tuesday.

PN259

MR CROSS: Yes. I can indicate that we actually took the step of ensuring the chief operating officer attended today, to be able to assist all parties with an explanation of exactly why and how we are doing what we're doing and Mr Risager who's in court today. But - - -

PN260

THE COMMISSIONER: We have to just deal with the circumstances that we're presented with unfortunately, and I'm keen to perhaps let you get on with some more informal discussions with AIMPE, in the hope that there might be some ground there that does lead to some success. But if it doesn't, I think it's very clear that AIMPE or AMOU or MUA will have an opportunity after the implementation to advance a case which says we believe that the staffing arrangements for this operation are unreasonable, and here is why, and we would deal with that. I think that's all I can really do at this stage.

PN261

MR COOMBS: Can I ask for a point of clarification?

PN262

THE COMMISSIONER: Yes.

PN263

MR COOMBS: On the submission that was just made, when our friend said the offers will be going out tomorrow. I presume that you meant offers to new employees. Is that the case? Is that what you were referring to?

PN264

MR CROSS: Yes.

PN265

MR COOMBS: Thank you. That's in accordance with our understanding, I just wanted to - - -

PN266

MR CROSS: Yes, yes.

PN267

MR COOMBS: I just wanted to make sure that that was the case.

PN268

THE COMMISSIONER: Well obviously then I think in the circumstances I can do little else.

PN269

MR McNALLY: Can we indicate that we're prepared to negotiate any time tomorrow, the next day, Sunday we go to church, Monday or Tuesday, on sufficient notice for let people fly from Brisbane and Melbourne, that's all.

PN270

THE COMMISSIONER: As I said a moment ago, I urge that upon the parties. Is there anything further at all?

PN271

MR McNALLY: We request the company to have a conference.

PN272

THE COMMISSIONER: Yes, I can't compel them to do that but I don't see any reason why they wouldn't take up the offer.

PN273

MR McNALLY: I'm sure you can't, but anyway.

PN274

THE COMMISSIONER: Is there anything further at all?

PN275

MR CROSS: Nothing further.

PN276

THE COMMISSIONER: No, on that basis then the proceedings now stand adjourned.

ADJOURNED INDEFINITELY [4.35 PM]