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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052741
COMMISSIONER CAMBRIDGE
C2015/7314
s.418 - Application for an order that industrial action by employees or employers stop etc.
ASP Ship Management Pty Ltd
and
Maritime Union of Australia, The
(C2015/7314)
Sydney
2.07 PM, TUESDAY, 17 NOVEMBER 2015
PN1
THE COMMISSIONER: Good afternoon, I'll take the appearances in the matter please.
PN2
MR R MILLAR: If the Commission pleases, Millar, initial R. I seek permission to appear on behalf of the applicant employer ASP Ship Management Pty Ltd.
PN3
THE COMMISSIONER: Thank you.
PN4
MR A SLEVIN: Good afternoon, Commissioner. Slevin, initial A, and I seek permission to appear for the MUA in the matter. The grounds under the relevant section are the relative representation given that the employer's represented by legal people, but also the complexity of the matter. There's a complex issue arises about the question of whether there is a lawful and reasonable direction to crew the vessel that appears to be the subject of the application.
PN5
THE COMMISSIONER: Yes, well I think we'll deal with permission first. I think there's sufficient basis to satisfy the requirements of section 596 of the Act. I identify that in many cases dealing with applications such as this, there's a degree of complexity and so therefore I think it's appropriate that we formally grant permission for either party to be represented by a lawyer or paid agent. So we've got over that issue.
PN6
MR SLEVIN: Yes, thank you.
PN7
THE COMMISSIONER: How are we going to proceed this afternoon?
PN8
MR MILLAR: Well, Commissioner, my client seeks the making of an order under section 418. The application is relatively self-explanatory I would have thought, in terms of the factual matrix that's relied upon. Shortly before the hearing today, a witness statement was filed of Phillip Alan Jones. Has that reached its way to you, Commissioner?
PN9
THE COMMISSIONER: No.
PN10
MR MILLAR: No. I'm not sure whether it's reached my learned friend?
PN11
MR SLEVIN: No.
PN12
MR MILLAR: No. It was filed with the - I think it was sent by email to your chambers, Commissioner, about 12.30 or thereabouts today but we can hand a copy up. It's a witness statement of Phillip Alan Jones which sets out the factual issues which need to be established for the making of an order. We can hand a copy up and hand a copy to my learned friend. I would have thought that there would be little in here that would take anyone by surprise. It essentially goes to the matters that are dealt with in the application. But perhaps before proceeding further I should give you and my learned friend an opportunity to examine that, Commissioner.
PN13
THE COMMISSIONER: We might need to take a break so everyone can read that.
PN14
MR MILLAR: Yes.
PN15
THE COMMISSIONER: I suppose that was one of the things that - well there were a couple of things that I was intending to raise, that is to what extent there are contested facts in the matter that would be important, now that we've got this witness statement.
PN16
MR MILLAR: Yes, Commissioner.
PN17
THE COMMISSIONER: There's also been some confusion - well I'm confused as to what the industrial instrument is that applies. I've found two documents, neither of which precisely match the name of the agreement which is referred to in the application, and I'm sure there's a plausible and sensible explanation for this. There seems to have been an agreement made back in about June 2013 and another in February this year, and they look very similar but they're not exactly the same. So I want to be on all fours about what instrument underpins the employment here and also the question of service in respect of the individuals. I think my Associate endeavoured to raise this.
PN18
MR MILLAR: Yes, yes, Commissioner. Certainly the instrument, the employment agreement is the ASP Ship Management Pty Ltd Seagoing Ratings Enterprise Agreement 2012. That was approved by Gregory C in Hobart on 27 June 2013. That's the relevant agreement. I can seek instructions on the other one that your search has disclosed but - - -
PN19
THE COMMISSIONER: Well that's not exactly how it's named in the application but I'm - well just the word "Limited" or whether it's abbreviated or not, so that's being pedantic. But if that's the document and everyone's on all fours, I'm content with that. But there's a more recent document which contains exactly the same words, although "Limited" has become "Ltd", and Ltd was in the application but then we've got "(RTN)". I just wanted everyone to be working off the same document.
PN20
MR MILLAR: The later one, the RTV one is Rio Tinto Vessels operated by my client, Commissioner, and that's of no particular relevance to this application.
PN21
THE COMMISSIONER: Good, I'll put that away.
PN22
MR MILLAR: So it's the June 2013 agreement, yes, Commissioner, I take your point about the inconsistency about whether Limited is - - -
PN23
THE COMMISSIONER: Well it's just because it varies between the other one and I was - but anyway, we've straightened it out. If we all know what we're talking about and it's this 27 June 2013 decision and the agreement that's made then, that's fine.
PN24
MR MILLAR: Yes, Commissioner. Then, Commissioner, you've raised the question of service. That's something that Mr Jones has dealt with in his statement albeit fairly briefly in the final three paragraphs. He gives admittedly hearsay evidence but evidence nonetheless of service by hand on the employees concerned by the master on the vessel. The master, Mr Moss, is available by telephone if need be but obviously he's on board the vessel and can't be with us today. So necessarily the evidence that's to be proffered on this issue is hearsay but can be corroborated by telephone with Mr Moss if anything turns on it.
PN25
THE COMMISSIONER: Well often these things can be a bit complicated, particularly because they come on quickly, not as quickly as you might like but as quickly as we can arrange usually. But anyway, perhaps what's more important now is for there to be perhaps a short adjournment and Mr Slevin can have a look at the material. I'll look at it as well and we'll try and make some assessment as to what extent the facts are in dispute and how we might deal with any of those contests.
PN26
MR MILLAR: Yes, Commissioner.
PN27
THE COMMISSIONER: Yes.
PN28
MR MILLAR: Yes, if the Commission pleases.
PN29
THE COMMISSIONER: Mr Slevin, do you have any objection to doing that or is there anything else you want to add at this stage?
PN30
MR SLEVIN: No, I can confirm that we're singing off the same song sheet, that we have the Hobart 27 June 2013, Gregory C agreement and we understand that applies, and an adjournment to read the material is appreciated.
PN31
THE COMMISSIONER: I think - and perhaps then you might have a discussion with Mr Millar about issues as you see them and then we'll resume and see how far we can progress the matter.
PN32
MR SLEVIN: Thank you, Commissioner.
PN33
THE COMMISSIONER: On that basis, we'll adjourn briefly.
SHORT ADJOURNMENT [2.15 PM]
RESUMED [2.47 PM]
PN34
THE COMMISSIONER: Mr Slevin?
PN35
MR SLEVIN: Thank you, Commissioner. I seek an adjournment of the matter for these reasons: there are conversations in the witness statement of Mr Jones that I will need to seek instructions on. They're the conversations in paragraphs 16 and 19. The union would also like to bring evidence opposing the application. The nature of the opposition to the application is that what's occurred is not industrial action, and you will see from the application itself that it appears that the matter that appears to be claimed as being industrial is the refusal to obey a direction to sail the vessel to Singapore, in essence, we gather from the material.
PN36
There's a question and in circumstances where the vessel is no longer in trade, and you'll see from paragraph 10 of the application that the Portland was scheduled to sail from Portland, Victoria to Singapore and thereby depart the Australian trade at 10 am on 14 November 2015. So this is the first question as to whether a lawful direction can be made of employees to carry out work on a vessel that is no longer in trade. And that question arises because the agreement, you'll see, Commissioner, at clause 4 has an application provision that only applies whilst the vessels continue to operate in the trade.
PN37
So this vessel is no longer operating in trade on the face of the application, in trade, and so the agreement wouldn't apply to that voyage. The agreement applies to voyages in Australian waters in the circumstances of this vessel between Kwinana and Portland, and so the agreement then doesn't apply to the voyage that the employees are being directed to undertake. The agreement, I understand, is, and we'll be able to provide evidence of this, I'm instructed, the agreement is incorporated into the terms of contract that the employees had, and so that confinement of the work applies to the contract of employment as well. So there's no legal basis for a direction that this crew sail this vessel to Singapore in these circumstances. So that's the first argument.
PN38
THE COMMISSIONER: Mr Slevin, the agreement isn't vessel specific.
PN39
MR SLEVIN: It is, Commissioner, in terms of schedule 3. So you'll see the agreement refers to the vessels, so go to I read all of this clause 4:
PN40
This agreement relates to the employment arrangements for and work performed by ratings and caterers who may be members of the Maritime Union of Australia and are employed by ASPSM as specified in the schedules to this agreement on the day of lodgement of this agreement pursuant to the provisions of the award. The enterprise employment agreement, the Act and the Navigation Act 1912, and all industry regulations whilst these vessels continue to operate in the trade.
PN41
These vessels are found in the schedules. This vessel is found in schedule 3. You'll see the schedule, if you go to page 34, Commissioner, Objects of the Schedule. The objects of the schedule is to outline specific employment conditions for persons employed and working on the Lindsay Clark and Portland who transferred to ASPSM from Inco Ships. And so the Portland is picked in the schedule that way and is one of the vessels referred to in the application clause, clause 4. And so the agreement confining the work in that way confines the work to the vessel whilst it's in trade.
PN42
THE COMMISSIONER: The vessels. Presumably this might have some force if all of the vessels were no longer in trade.
PN43
MR SLEVIN: No, no, the vessels is a reference to the vessels that the agreement applies to and the schedule identifies those vessels, and so in terms of those on the Portland and their employment that's about the vessel being in trade, so the Portland being in trade, and so the agreement applies.
PN44
THE COMMISSIONER: So you say then that this agreement wouldn't apply in respect of the anticipated voyage to Singapore?
PN45
MR SLEVIN: That's right. So that's ‑ ‑ ‑
PN46
THE COMMISSIONER: That's going to have an impact upon the MUA application under 739, isn't it?
PN47
MR SLEVIN: Well, I don't think so, Commissioner, because the dispute there is about circumstances in circumstances as to the application of those provisions dealing with consultation and redundancy to the employees.
PN48
THE COMMISSIONER: It doesn't apply.
PN49
MR SLEVIN: It's not about the work they're doing. It's about the application of ‑ ‑ ‑
PN50
THE COMMISSIONER: Either it applies or it doesn't apply.
PN51
MR SLEVIN: No, no, well ‑ ‑ ‑
PN52
THE COMMISSIONER: You can't have it applying sometimes and not other times, can you?
PN53
MR SLEVIN: You can.
PN54
THE COMMISSIONER: You can?
PN55
MR SLEVIN: You can have it not applying to a voyage to Singapore.
PN56
THE COMMISSIONER: Right.
PN57
MR SLEVIN: That's the point.
PN58
THE COMMISSIONER: All right. Well, that's what their engaged to do, so ‑ ‑ ‑
PN59
MR SLEVIN: Well, they're not engaged to do that is the point, so you can't direct them to do that. You might have to enter into another engagement with them, another contract of employment with them to conduct that voyage. And so that's the first argument. I'm foreshadowing the argument for you, Commissioner, as you'll see when I get on to the second aspect of the argument, which is lawful and reasonable direction. The direction given on Saturday, and you'll see this from the application as well, was simply in essence, "Get on this ship and sail it to Singapore. I've prepared this ship, get on it, and sail it to Singapore."
PN60
Questions were asked by the employees, I am instructed, Commissioner, and this is what we want to bring evidence to you on, about issues such as well: what's the length of that voyage; what passage is it taking; is it going east coast, west coast; how is it making its way to Singapore; what's the length of stay when we get to Singapore; how will we be repatriated from Singapore back to our homes? Those questions went unanswered on Saturday. It was a case of, "Get on the ship and go to Singapore." We say there's an unreasonable direction to seafarers to simply put them on the vessel, send them off and not provide them with that information beforehand and the reasonableness and further matters may arise as to what passage is taken. It may be that the vessel is going through pirated waters for example, and what arrangements are put in place in terms of that part of the passage. So that's the question of whether the direction was reasonable.
PN61
So that's the case that my client wishes to pursue in response to the application and to do that, now that we see the material that we were provided, we'll need to put some evidence on in that regard.
PN62
THE COMMISSIONER: Yes.
PN63
MR SLEVIN: And so my application is for an adjournment. We believe that we can do that after two days, so if the matter can be adjourned for two days to allow us to put that material together to bring our arguments in response to the application. That's the application, Commissioner.
PN64
THE COMMISSIONER: You've had two days, haven't you?
PN65
MR SLEVIN: We haven't had the material until we got to the hearing.
PN66
THE COMMISSIONER: You had the application, didn't you, on Saturday?
PN67
MR SLEVIN: We had the application. The application is very flimsy. We didn't know what we'd be confronted with here. We now know the full case that we have to meet. We can't anticipate a case. We now know the full case we have to meet which is the statement we now have along with the application that provides an outline of the case being brought, so we haven't had two days to meet all of those matters. We've certainly had time to get instructions as to what the issues are but to consider, now that we have the application, what we need to do we're able to do that, Commissioner.
PN68
THE COMMISSIONER: Mr Millar?
PN69
MR MILLAR: Commissioner, that application is opposed. The MUA has had two days, effectively three days now to prepare its response to this application. There is absolutely nothing in the witness statement of Mr Jones that would come as a surprise. The witness statement simply goes through and establishes the evidentiary basis for the assertions made in the application. There is nothing new or surprising in the content of that statement which compares quite starkly with what my learned friend has said today which contains many new, surprising and entirely novel arguments about why it is that it's said that the union should have an opportunity to put material in response.
PN70
The union has had their opportunity. The Act requires a decision to be made within a very short period of time, two days is contemplated. Unfortunately, of course, with the timing of the industrial action here the notice, having gone in on a Saturday afternoon, events conspired against the prospect of the matter being determined within the two days. But the Act is based upon an assumption that the Commission will act swiftly to make an order of the type contemplated by sections 418 and 420. The luxury of having several days to prepare evidence, which is what my learned friend seems to be seeking, is at odds with the legislative scheme. If they wished to present material which shows that there are reasons why the Commission shouldn't act, then they should have come here today armed with that evidence and ready to run the case.
PN71
The arguments that have been brought as to why it is that the union should have this adjournment, with respect, are entirely unconvincing. When one hears my friend say, "Well, you know, the direction to sail the vessel was not a lawful and reasonable direction", this is what these employees do. They crew this vessel. This vessel is destined for Singapore via Freemantle. It's an entirely unremarkable proposition that the crew should sail the vessel and follow the directions of the Master to set sail. They're refusing to do. It's industrial action. It's industrial action within the terms of the Act. There's no suggestion that this is for any legitimate occupational health and safety type issue.
PN72
It's also abundantly clear what the rationale is for the failure to follow the direction. When one looks at the material and we've annexed some of the press commentary that this matter has attracted, to Mr Jones statement. It's abundantly clear what's going on here, and it's got nothing to do with the contention that this is not a lawful and reasonable direction. Still less does it have anything to do with the suggestion that the crew might be required to sail through pirated waters. They're sailing to Singapore. It's a route that does not attract the hazards that my friend seems to be suggesting would somehow form a legitimate to sailing as directed. It's a straight forward route that's contemplated. The reason for the refusal, on the material before the Commission, has nothing to do with suggestions that, you know, there are unanswered questions about pirated waters and the like. It's got nothing to do with claims of there being an unreasonable or unlawful direction and everything to do with a direction to sail a vessel which has been sold and with the consequence that the positions of the crew are to be made redundant. That's clearly what the issue is, and in that regard the matter is of course on all fours with the Teekay Shipping case that, Commissioner, you'd be well familiar with, and the ‑ ‑ ‑
PN73
THE COMMISSIONER: Alexander Spirit?
PN74
MR MILLAR: Yes. Yes.
PN75
THE COMMISSIONER: And before that I think we had the Jubilee Spirit, the Tangara Spirit. They've sort of lined up now. I'd like to go and board one of these vessels one day just to see what it is that I've been doing.
PN76
MR MILLAR: Well, I'm sure my client and then also the MUA will make note of that wish and hopefully it can be accommodated.
PN77
THE COMMISSIONER: I think that the similarities of the circumstances haven't escaped me, Mr Millar?
PN78
MR MILLAR: It's on all fours with the approach in the Alexander Spirit case. We have the benefit of the observations of the Full Bench in the decision of 17 July this year, and, Commissioner, in that Full Bench decision the Full Bench cited with apparent approval the passage from your decision, Commissioner, where you made reference to this:
PN79
The prospect of sailing the Alexander Spirit to Singapore may, for example, be contemplated in a similar fashion to those vehicle manufacturing workers who assembled the final Falcon and Commodore and Camry.
PN80
Commissioner, that is the point in a nutshell. Whatever else might be said about this the real issue which is driving the conduct here apparently is one which fails to provide any basis to object to the issuing of an order under section 418. This is clearly industrial action. It's clearly not protected industrial action. The order ought properly be made and it ought properly be made today. My friend also relies upon another somewhat novel argument to say that clause 4 of the enterprise agreement restricts the operation of the agreement so that it doesn't apply to the voyage, and the voyage that's now been directed because the vessel concerned will have ceased to operate in the trade. If the vessel has been operated to the ends as directed by ASP Ship Management's client then, in my submission, it's still in the trade. It's still being operated by ASP Ship Management in the trade. In any event the final words of that clause can hardly be, in my submission, intended to operate in the way that my friend suggests. The interpretation that's advanced there is at odds with the operation of clause 14.1 of the agreement which says:
PN81
In accordance with the normal processes of enterprise employment, employment will be in to the fleet and not to an individual ship.
PN82
That's the basis of employment. It's not on a ship specific basis in the way that my friend is contending. Still less is there any basis to say that because the vessel is not operating on a commercial voyage, or is not, for instance, transporting cargo, that somehow it's outside of the scope of the agreement. All sorts of absurd consequences would follow from that suggestion. If a vessel were travelling empty it was not actually transporting cargo the suggestion could be that it's not operating in the trade. Well, in this case, it's simply operating by travelling at the direction of the client, at the direction of Alcoa, to travel to Singapore via Western Australia. It's an unremarkable proposition to say that the crew are required to follow the lawful and reasonable directions of the Master. It's abundantly clear that they are failing to do so.
PN83
So in those circumstances, Commissioner, we press the application for the matter to be determined today. The proper course, in my respectful submission, would be now to hear the evidence of Mr Jones, and for him to be subject to cross-examination. At the conclusion of that I will close the evidentiary case for the applicant. If the respondent truly suggests, if the MUA truly suggests, at that time, that it is prejudiced and needs an adjournment, that is the proper time for the application to be made, but it will similarly be resisted at that point on the basis that they've had their opportunity to call their evidence. The timelines envisaged by the Act are short and require parties to come to the Commission ready to run their arguments. If the Commission pleases.
PN84
THE COMMISSIONER: Can you just perhaps clarify for me whether the aspects of objection to this relating to the arrangements in Singapore and the return to Australia have been clarified and provided to the employees?
PN85
MR MILLAR: Well, a number of issues have been raised. The employees are employed on limited swings, and once the employees have worked their allotted time then they're entitled under the terms of the agreement to be returned, and they will be. The employees, whilst they are working on board the vessel ‑ ‑ ‑
PN86
THE COMMISSIONER: I understand all that.
PN87
MR MILLAR: Yes.
PN88
THE COMMISSIONER: But this is the final voyage and this happened with, I think it might have been the Jubilee Spirit, there was some concern just how belongings and other items and, you know, goods and chattels were going to get back to Australia from Singapore. And, in a practical sense, the employer said, "Look, here's what we're going to do about that. We'll sort that out for you." If that's a problem, it's not a problem in other words.
PN89
MR MILLAR: And that's precisely my client's position. Those issues, if they haven't been sorted out to the satisfaction of the MUA or the crew members, will be sorted out. There's no issue about repatriation of the crew members and their belongings. No issue at all.
PN90
THE COMMISSIONER: Right. Mr Slevin, do you want to say anything about your adjournment request?
PN91
MR SLEVIN: I do. I do. And I have a decision, the CFMEU and Bechtel, deals with the timeframe. Now, my friend seems to have wanted to answer the opposition to the application proper as opposed to the application for adjournment. In terms of the adjournment application is about procedural fairness. Paragraphs 4 to 7 of this Full Bench decision sheds some light on this question of the timeframes in the Act, and that's where the Full Bench says that:
PN92
This morning we asked the parties to deal initially with whether this appeal should be upheld on the basis of procedural fairness grounds alone. We heard from the respondents having read the submissions of the appellants. We note the evidentiary material filed in support of the application, the subject of this appeal, was served on the appellants approximately an hour before the hearing commenced. This included a nine-page affidavit with attachments and a further two-page affidavit. The matters canvassed in this material dealt with issues including whether there was an on-going dispute on health and safety. These issues are matters that must be considered in a section 418 application when deciding whether there is industrial action and whether the industrial action is protected, should stop or should not have occurred or should not be organised. We are satisfied that the filing of these materials one hour before the hearing did not allow the appellant sufficient time to consider the materials to defend the proceedings. In our view Lawrence DP misunderstood the application of the time limit in section 418. It does not require that matters be heard within 48 hours. Rather it requires as far as practicable the Commission to determine application for an order under section 418 within two days after lodgement. For completeness, having regard to the evidence before Lawrence DP we are satisfied that he could not have formed the view on the material before him that any industrial action was being organised by at least two of the organisations that were respondent of the application. In those circumstances the appeal is upheld in all matters and the orders of the Deputy President quashed.
PN93
So the timeframes in the Act must be considered in view of the comments of the Full Bench there. In this proceedings we didn't get the statement until the proceedings had commenced. Now, it was open to the applicant to, it seems, provide this material to us yesterday but they chose to wait until the hearing had commenced, so we seek procedural fairness to address that material now that we know what it is and while it's not lengthy the union is entitled to consider the material and consider what material needs to be put on.
PN94
Now, I've given an outline of the matters that the union wishes to rely upon to oppose the application. I don't seek to run that full argument now, but you can see, Commissioner, that they are matters that you need to consider in considering the application, and to consider them you need some evidence. And you need evidence from employees as to what they were told when the direction was made. The application is about whether industrial action happened on 14 November, and it's about a direction given on 14 November. Evidence needs to be brought as to the nature of what the employees were told on 14 November. It's not a case of now coming along and saying, well, we'll now tell you what the passage will be. We will now tell you what waters will be visited. We will now tell you how we will repatriate you. We will now tell you how long you will stay in Singapore. The question is whether you told the employees that on Saturday and, on my instructions, they did not; whether that direction was reasonable at that time. And that's that question as to whether industrial action happened. And so to go to that and to oppose the application we need to bring evidence of that, and we seek the adjournment to be able to do that.
PN95
In relation to the other matters that were raised, the question of whether it's on all fours with Teekay is a question that I can't respond to because I wasn't involved in Teekay. But certainly on what my friend said there's nothing in the Full Bench decision referred to that gives any indication that any unreasonable direction or unlawful direction was given in those circumstances. It may have a similar factual background but the question is does it have a similar background in terms of the law. What did the agreement say in the Teekay case. We don't know.
PN96
That argument was not presented in that case on the face of the Full Bench decision, and so the question of whether it's on all fours with Teekay is a matter that I would suggest shouldn't be accepted by you, that submission. The other evidence that my friend referred to such as whether the route is straightforward or not is a question of evidence from the Bar table and the union doesn't accept that. There will need to be evidence brought as to that question and so there is good reason, Commissioner, for the union to ask for the adjournment and there is a requirement, in my submission, on the Commission to provide us with that adjournment to provide us with the procedural fairness that we are entitled to in any application made under the Act. They're the submissions of the MUA.
PN97
THE COMMISSIONER: Yes. I note the Full Bench decision in the matter of the CFMEU v Bechtel Construction [2015] FWCFB 5297 and I've carefully considered what the Full Bench had to say in that decision. However I think the circumstances in this matter are substantially different. Certainly they're different to the extent that in this instance the relevant factual position was well established via the service of the application and the grounds contained in the application, which were provided to the MUA on Saturday 14 November. That position is really just reiterated by the witness statement which has been provided today and when one examines that I think the position is relatively plain and unambiguous. So in the circumstances I am not inclined to grant the application for an adjournment. We will proceed on.
PN98
MR MILLAR: Commissioner, I call Phillip Alan Jones.
PN99
THE COMMISSIONER: Thank you.
PN100
THE ASSOCIATE: Please state your full name and address?
MR JONES: Phillip Alan Jones (address supplied).
<PHILLIP ALAN JONES, SWORN [3.19 PM]
EXAMINATION-IN-CHIEF BY MR MILLAR [3.19 PM]
PN102
MR MILLAR: Mr Jones, could you state your full name, address and occupation to the Commissioner?‑‑‑Yes, Phillip Alan Jones, (address supplied).
PN103
And your occupation?‑‑‑IR/HR manager.
PN104
Have you prepared a witness statement for use in this proceeding?‑‑‑I have.
PN105
Is that a witness statement of 26 paragraphs dated 17 November 2015 with four attachments?‑‑‑It is.
PN106
Are the contents of tat statement true and correct in every particular?‑‑‑Yes, they are.
PN107
Do you adopt the contents of that statement in your evidence today?‑‑‑I do.
PN108
I'll tender that, Commissioner.
PN109
THE COMMISSIONER: Is there any objection to its admission?
*** PHILLIP ALAN JONES XN MR MILLAR
PN110
MR SLEVIN: Yes, I object to paragraph 16. It's hearsay. The unfairness of receiving that evidence is that I have no instructions as to those conversations and would be unable to cross‑examine the witness, and paragraph 19 which also refers to a telephone conversation. Well actually, I should say 17 as well falls with 16 and 19 which refers to another telephone conversation and it's a matter that I won't have opportunity to gain instructions about as well.
PN111
MR MILLAR: Commissioner, if I could take those in reverse order. The objection that's taken to paragraph 19 is a telephone discussion with Mark Jones who is an MUA organiser and that's a discussion that took place between the two Mr Joneses, Phillip Jones and Mark Jones. So this witness can give direct evidence about the content of that discussion. Paragraphs 16 and 17 are more problematic. I've already described in opening the difficulties that we have in providing evidence from the master. I readily concede the hearsay nature of that evidence.
PN112
It's not unusual in applications of this type for hearsay evidence to be relied upon, and in any event of course the Commission is not bound by the rules of evidence. If my friend presses the objection and if any serious contest is taken with the content of those paragraphs, the master is able to give that evidence. We can obtain evidence from him albeit with the difficulties that are involved with having him at the other end of the telephone. But that evidence can be adduced from him personally if it is truly in contest. In my respectful submission none of these matters are truly in contest.
PN113
My friend has seen an issue which obviously rises with hearsay evidence being given, but this case doesn't, in my submission, truly turn upon any of the contentions that are contained within paragraph 16 or 17. The true objections that are taken to the orders that are sought, the true objections being taken by the MUA, are related to other matters. There's no contest, in my submission, or there should be no contest about the matters that are set out in 16 and 17. The evidence ought to be admitted and if need be supplemented by direct evidence. But for the time being the evidence ought to go in.
PN114
MR SLEVIN: My friend continues to ignore the submissions I've made as to how we're responding to the application, which is that the direction is not lawful or reasonable, and 16 and 17 go directly to that question and we want to bring evidence about that and I haven't had an opportunity to get instructions about this matter. I've had this statement for an hour or so and so on that basis I press the objection. It's a relevant objection and this is evidence that this witness simply can't give.
*** PHILLIP ALAN JONES XN MR MILLAR
PN115
MR MILLAR: Commissioner, could I respond very briefly to that because I'm somewhat confused as to what objection the union is taking. Are they saying on this point that there was no direction given or are they acknowledging that a direction was given but taking issue with the lawful and reasonable nature of that direction? As I understood what my learned friend had said, they take issue with the lawfulness and reasonableness of the direction to sail the vessel. No one seriously doubts, in my respectful submission, that the master has given a direction for this vessel to set sail and that the crew who are represented by the MUA have refused to follow that direction.
PN116
The issue doesn't truly turn upon whether the direction has been issued. The only matter that my learned friend seemed to rely upon in the description he gave as to the case before was the lawfulness and reasonableness of the direction. We say that issue goes nowhere, but even more of a furphy in this case is whether the direction was given. There's no harm done in the admission of this evidence because it's self-evident that the direction was given that the ship was to sail. The direction has been refused and it would be a waste of time to dwell further upon the issue of whether the direction was given.
PN117
THE COMMISSIONER: Do you want to say anything further, Mr Slevin, about that?
PN118
MR SLEVIN: No, I've made my objection, Commissioner.
PN119
THE COMMISSIONER: Yes. I think I have to treat paragraph 16 very carefully because of course it is just hearsay, and I'm not going to necessarily treat it in a fashion which gives rise to factual conclusions about what was or was not the precise basis upon which objections were made to the vessel sailing. That still seems to me to be something that's a little bit unclear. What is not unclear is that there has been a refusal to do what is necessary to have the vessel sail and that's how it's being treated. So it's not going to be considered to provide anything other than that and so the detail of it I'm not going to necessarily rely upon.
Of course if in particular the redundancy payments to the crews, if they're no longer bound by the agreement that has been proposed then it would just be the NES I suppose. So what I propose to do is, having heard the objections, to admit the material but indicate I'm giving very limited weight to the factual circumstances of detail contained in paragraph 16. On that basis the document is tendered and admitted and becomes exhibit 1. Exhibit 1 is described as the witness statement of Phillip Alan Jones dated 17 November 2015. Exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF PHILLIP ALAN JONES DATED 17/11/2015
PN121
MR MILLAR: Yes, thank you Commissioner.
*** PHILLIP ALAN JONES XN MR MILLAR
PN122
MR SLEVIN: I wonder if I might have a short adjournment to see if I can get some instructions on the cross‑examination of this witness on this statement?
PN123
THE COMMISSIONER: I think that's only reasonable in the circumstances.
PN124
You had nothing further in chief you wanted to ask?
PN125
MR MILLAR: No. No, I don't.
THE COMMISSIONER: No, all right. I think we'll give you 10 or 15 minutes, Mr Slevin, if you want to make a few phone calls or something to that effect to assist your cross‑examination. On that basis we'll adjourn briefly.
<THE WITNESS WITHDREW [3.28 PM]
SHORT ADJOURNMENT [3.28 PM]
RESUMED [3.53 PM]
THE COMMISSIONER: Thank you, Mr Slevin.
<PHILLIP ALAN JONES, RECALLED [3.54 PM]
CROSS-EXAMINATION BY MR SLEVIN [3.54 PM]
PN128
MR SLEVIN: Thank you.
PN129
Mr Jones, in your attachment 2 at 2.1, if you open that up for me. I'll just show you a document. Is that a copy of a pro forma version of the letter you referred to in 2.1 of attachment 2?‑‑‑Sorry, I didn't quite hear that.
PN130
Is that a pro forma version of the letter you referred to in paragraph 2.1 of attachment 2?‑‑‑Yes, that's the letter. Yes.
PN131
I tender that, Commissioner. I don't have a copy. That was provided to me at the Bar table earlier today, or this afternoon.
PN132
MR MILLAR: We have additional copies. I'll make them available, Commissioner.
*** PHILLIP ALAN JONES XXN MR SLEVIN
PN133
THE COMMISSIONER: All right. Do you have them there or do we need to copy it?
PN134
MR MILLAR: we have one extra apparently and so I think we'll probably still need - - -
PN135
THE COMMISSIONER: We could very quickly duck out and make a photocopy. It won't take more than a second. My associate - - -
PN136
MR SLEVIN: I think that works. We end up with three.
PN137
THE COMMISSIONER: If you hand that to my associate we can make a couple of photocopies straight away. It won't take more than a moment. There's a photocopy machine on the other side here somewhere. So we can attend to that. All right, now I've got a photocopy of what the witness has.
PN138
MR SLEVIN: Thank you, Commissioner.
PN139
THE COMMISSIONER: Are you tendering that document?
PN140
MR SLEVIN: I am tendering that document.
PN141
THE COMMISSIONER: I take it there's no objection to its admission?
PN142
MR MILLAR: No. No, Commissioner.
THE COMMISSIONER: The document is tendered and admitted. It becomes exhibit 2 and exhibit 2 is described as a copy of communication dated 13 November 2015 addressed to employees on the MV Portland. Exhibit 2.
EXHIBIT #2 COPY OF COMMUNICATION DATED 13/11/2015 ADDRESSED TO EMPLOYEES ON THE MV PORTLAND
PN144
MR SLEVIN: Mr Jones, you see in that letter there's a sentence:
PN145
As you know the vessel is scheduled to shortly sail for Singapore for handover to the new owner.
*** PHILLIP ALAN JONES XXN MR SLEVIN
PN146
It's the case, isn't it, that that voyage to Singapore did not involve the carriage of passengers; that's correct, isn't it?‑‑‑The carriage of passengers?
PN147
The carriage of - sorry, sorry, the carriage of passengers?‑‑‑What do you mean by passengers?
PN148
Well the purpose of that - - -?‑‑‑Apart from the crew.
PN149
Yes, that's right. So there were no passengers onboard, there was only the crew to be onboard?‑‑‑Yes, that would be right.
PN150
And there was no cargo onboard either was there?‑‑‑No, there wouldn't be any cargo.
PN151
Commissioner, I haven't been able to get any other instructions to ask any other questions of this witness and so that's the cross‑examination of this witness.
PN152
THE COMMISSIONER: Good. Thank you.
Any re‑examination?
RE-EXAMINATION BY MR MILLAR [3.58 PM]
PN154
MR MILLAR: Mr Jones, you were asked some questions about the direction to sail this vessel to Singapore and you were asked questions about whether there were any passengers. Do you have any knowledge about whether the vessel has on other occasions travelled without passengers or cargo to a destination outside of Australia?‑‑‑Yes.
PN155
And what is that knowledge?‑‑‑Well, when the vessel goes to a dry docking in Singapore or other places it would normally leave the coast and travel to those destinations.
PN156
Yes. Thank you, Commissioner.
PN157
THE COMMISSIONER: How long has this vessel been in service?‑‑‑Approximately 25 years.
*** PHILLIP ALAN JONES RXN MR MILLAR
PN158
Yes, and for that time has it almost exclusively done the Western Australian Portland Alumina journey?‑‑‑You might want to ask other people other than me. I've only been in the organisation a couple of years but in my time it's really only gone between Kwinana and Portland.
PN159
Yes?‑‑‑Or - and Bunbury and Portland.
PN160
So you're not aware of it doing other journeys with cargo, are you?‑‑‑Not with cargo.
PN161
No. Right, and so effectively it has been sort of purpose‑built and designed to do this job. Is that right?‑‑‑I'm not sure if the purpose is just to do that job, but it could do other jobs if it needed to.
PN162
Right. Yes, but it hasn't been required to?‑‑‑Not to my - - -
PN163
That you're aware of?‑‑‑Not to my knowledge, no.
PN164
All right. Thank you.
PN165
Anything arising from my questions about that?
PN166
MR SLEVIN: No, Commissioner.
PN167
THE COMMISSIONER: No - or is there?
PN168
MR MILLAR: No. No, Commissioner.
THE COMMISSIONER: All right, thank you for giving your evidence, Mr Jones. You're released and discharged. Thank you.
<THE WITNESS WITHDREW [4.00 PM]
PN170
MR MILLAR: Commissioner, I'm sorry, my instructor has - - -
PN171
THE COMMISSIONER: You've lost your instructing solicitor.
*** PHILLIP ALAN JONES RXN MR MILLAR
PN172
MR MILLAR: I've lost my instructor and he was - - -
PN173
THE COMMISSIONER: He's coming back now I think.
PN174
MR MILLAR: He's coming back now, if I might just have a moment to confer with him. Yes, thank you, Commissioner, that is the case for the applicant.
PN175
THE COMMISSIONER: Yes.
PN176
Mr Slevin?
PN177
MR SLEVIN: We do want to advance the opposition to the application I've described before.
PN178
THE COMMISSIONER: Yes.
PN179
MR SLEVIN: And I do seek an adjournment to be able to bring material to satisfy you that the direction wasn't reasonable and wasn't lawful in terms of the agreement, and that the voyage that is sought by the applicant is not covered by the agreement. So given that that's all the evidence that you have, I'd make the application for the adjournment to be able to bring that evidence.
PN180
THE COMMISSIONER: How long an adjournment would that be for?
PN181
MR SLEVIN: I'll need a statement from one of the employees at least, to say what the direction was, what the questions raised about the direction were and what those responses were.
PN182
THE COMMISSIONER: Yes, but isn't it the case, Mr Slevin, that if they don't fit under that exemption under section 19(2)(c) we really don't get anywhere with that, do we?
PN183
MR SLEVIN: The argument, Commissioner, is in relation to fitting within the definition of industrial action.
PN184
THE COMMISSIONER: Yes.
PN185
MR SLEVIN: In section 19, and whether there was a refusal of work in essence. I'll have to go to the section, if you just give me a moment. So I'm anticipating what subparagraph or subsection will be relied upon in the definition in section 19 and what I anticipate is that it will be said that there was a ban, limitation or restriction on the performance of work by an employee or on the acceptance of, or offering for, work by an employee. The argument that I seek to advance is that the offer of work must be a lawful and reasonable offer.
PN186
So they'll say "We made a direction for them to work" and the direction to work was to prepare the vessel and sail it to Singapore, and we say in response to that, well that wasn't a reasonable and lawful direction so it wasn't work as contemplated by this subsection. Now in the time available I've been able to look at a couple of cases on this and it has been considered as to the question of whether an order can be made in support of a direction to work, where that direction is an unlawful or unreasonable. So what I'm saying is if they can't direct the employees under the agreement to sail to Singapore, then they can't say that when the employees refused to do that they're refusing work.
PN187
THE COMMISSIONER: They've done it before I think when the ship has gone into dry dock.
PN188
MR SLEVIN: That may be the case but it's still in trade at that time. They have decommissioned this vessel.
PN189
THE COMMISSIONER: I understand that argument, Mr Slevin.
PN190
MR SLEVIN: Yes.
PN191
THE COMMISSIONER: But I think there's some - what do we call it?
PN192
MR SLEVIN: And the agreement provides for dry dock.
PN193
THE COMMISSIONER: Revolving doors in that argument if the agreement is not going to operate. If this voyage doesn't cover these employees and that's the point in time when they become redundant and their employment is terminated, that I wouldn't think would help those employees a great deal.
PN194
MR SLEVIN: No I understand the point you're making, Commissioner. But the argument in relation to that is not to do with the work. The argument is to do with the decommissioning is dealt with in the agreement in schedule 3 and it says "If we have no work for you because of decommissioning" - and we say bang, that's happened - "this occurs" and in the circumstances it's voluntary redundancy and it supplements the redundancy clause in the award - in the agreement, rather, and so I understand what you say. We're not saying that the agreement stops. We're saying that the work under the agreement is not this work. If you've got other work under the agreement that's fine and you can be redeployed. But in terms of the contracts of employment and the agreement, the voyage is just not caught by it.
PN195
THE COMMISSIONER: I admire the tenacity of your argument but I'm not sure that I can embrace its validity.
PN196
MR SLEVIN: Well, that's why I'd like to bring some evidence to come along and say - that's the lawful side of it.
PN197
THE COMMISSIONER: Yes.
PN198
MR SLEVIN: And there's probably not a lot of evidence on that aspect of it. There may be in assisting you in interpreting the agreement. The other aspect of the argument is the reasonableness and I'd like to bring evidence on the reasonableness question. On the evidence that you have before you the nature of the direction - - -
PN199
THE COMMISSIONER: You see, really I think from my experience it's really subsection 19(2)(c). You've got to get into the imminent risk to health and safety to be able to sort of say "This is justifiable. Our refusal to do this is justifiable". I'm not sure that saying that "We don't think this is reasonable" is a basis upon which you can take industrial action and somehow or another say that it's therefore protected industrial action.
PN200
MR SLEVIN: But no it's not industrial action at all. It doesn't fit in the definition because the work is not work that these employees can be required to do, and so it's not work for the purposes of these subsections. It's not a question of - I'm not looking for an exemption from industrial action. I'm saying it doesn't fit the definition of industrial action. The refusal was not industrial action and thereby you have no jurisdiction to make the order.
PN201
THE COMMISSIONER: Yes.
PN202
MR SLEVIN: And that's the whether it's lawful or reasonable.
PN203
THE COMMISSIONER: Yes. As I say, I admire the tenacity of the argument but I'm not sure that I can really see that it's likely to provide any validation for a fairly straightforward set of circumstances.
PN204
MR SLEVIN: Well, I'm not asking you to decide the argument now, Commissioner. I can see you're thinking "Well, is there something in the argument?" I'll only be able to bring the evidence and say look, industrial action didn't happen on 14 November for these reasons.
PN205
THE COMMISSIONER: And, Mr Slevin, I have to say this and I'll be blunt about it. If there was something that there was of this nature going to be advanced it could have easily been in an elementary sense prepared before now, shown to the other side, certainly shown to the Commission. It wouldn't need us to go away and do it now. We could have done it yesterday or Sunday, couldn't we?
PN206
MR SLEVIN: There's an assumption there that everyone is available to do that, including those giving advice and then those who need to prepare the statements to - - -
PN207
THE COMMISSIONER: Yes, we're all under these time pressures.
PN208
MR SLEVIN: We are but, you know, they're very short timeframes, I appreciate, but it's Tuesday. The application was made Saturday evening. The argument is not without the need to actually get instructions.
PN209
THE COMMISSIONER: But let's balance all of those things against the fact that we've got a ship which should be sailing and it's tied up in a port.
PN210
MR SLEVIN: We do and if you want to start talking about balance of convenience there's no cargo or passengers being inconvenienced. It's sitting in a port while this argument - and there's nothing been put on by the applicant as to what that's costing them or who knows? It may be sitting there without there being any financial impost. We don't know what he nature of the sail from Alcoa to whoever in Singapore is waiting for it is and how long they'll be waiting.
PN211
THE COMMISSIONER: Yes.
PN212
MR SLEVIN: They may not want the ship until next year. Who knows? So there's no evidence there to support an application to say there's any prejudice to wait the couple of days that we need to be able to come to you and fully prepare this argument about the nature of the refusal and whether it fits within the definition. I know you say you've seen other ships but you haven't seen this agreement or heard this argument before.
PN213
I don't know about those other ships and what those agreements said and what those contracts of employment were, but we do know that in these circumstances we've got this question as to what did the parties mean when they put the words "vessels in trade" as a qualifier on the application of the agreement. We do know from Mr Jones' evidence that this vessel is not in trade any more. His evidence says that. It was in the application and it's now in his statement that he has sworn to before you, so we know it's not in trade and those words are the words that are in the agreement.
PN214
THE COMMISSIONER: What would these people get paid when they did the journey?
PN215
MR SLEVIN: That then becomes a question, and we speculate here but if what the union says is right, well there's a voyage to occur and if there are voyages to occur all of the time then you sit down and you negotiate with your crew as to what they get paid. It may well be resolved in the dispute matter that is extant and hasn't been heard yet. It's a matter that lends itself to an old-fashioned industrial fix, Commissioner, and at the moment what the company is doing is saying "No, we don't want to do that. We want to come down here and get the Commission to order you blokes to go to Singapore".
PN216
THE COMMISSIONER: Yes.
PN217
MR SLEVIN: "When we haven't told you which we're we going or what we've got in place for you".
PN218
THE COMMISSIONER: I think that has been clarified. We're going via Fremantle I think.
PN219
MR SLEVIN: Yes, but I don't know how the passage is worked from there as to - - -
PN220
THE COMMISSIONER: Yes drop off, and the cricket will be finished by then, so.
PN221
MR SLEVIN: Yes.
PN222
THE COMMISSIONER: Well as I say, I admire the tenacity of your argument, Mr Slevin. I'm not inclined to provide for an adjournment for those purposes.
PN223
MR SLEVIN: Very well. All right, in those circumstances and for the record under protest, I have one piece of evidence.
PN224
THE COMMISSIONER: Right.
PN225
MR SLEVIN: That I will rely upon in the submissions that I will make. I referred to a contract of employment earlier today.
PN226
THE COMMISSIONER: Yes.
PN227
MR SLEVIN: I've been provided with this document. I haven't had the opportunity to get instructions from the member of the union who provided it but he is one of the fellows identified in Mr Jones', as being one of the fellows that they wanted to go to Singapore and so I tender that and that's the only evidence I'm able to tender this afternoon, Commissioner.
PN228
THE COMMISSIONER: Yes, any objection to the admission?
PN229
MR MILLAR: No, no objection, Commissioner.
THE COMMISSIONER: Thank you. The document is tendered and admitted and this will become exhibit 3 and exhibit 3 is described as a copy of seafarer's employment agreement dated 12 August 2015. Exhibit 3.
EXHIBIT #3 COPY OF SEAFARER'S EMPLOYMENT AGREEMENT DATED 12/08/2015
PN231
THE COMMISSIONER: Mr Millar?
PN232
MR MILLAR: Yes. Thank you, Commissioner. Commissioner, the requirements of section 418 are made out. The section does not confer a discretion to the Commission if the matters that are dealt with in section 418(1) are made out, and by that I mean that if it appears to the Commission that industrial action is being taken that's not protected industrial action then the Commission must make an order that the action stop. The Commission must make that order. It's not a matter that requires reference to balance of convenience considerations that my learned friend referred to in support of his application for an adjournment. It is simply a fact that if the preconditions are made out then the order must be issued.
PN233
The action here, in my submission, is self-evidently industrial action within the meaning of section 19. There has been a restriction upon the performance of work. The employees are refusing to sail the vessel and the employees are not doing so in circumstances which give rise to protection under the Act. It's not protected industrial action. For those reasons the evidence, in my submission, makes out the contention that an order to stop the industrial action should issue.
PN234
Similarly, the Commission should make an order against the MUA for the - to prevent the industrial action being organised. The material before you makes out the contention that the MUA is involved in the industrial action, in organising the industrial action and an order ought to be made to prevent that organisation. If one looks in particular to attachment 1 to the witness statement of Mr Jones, the entry in the ship's log is quite clear, that the MUA has informed the master that the vessel is in dispute and will not sail the vessel at the departure time, 1000 hours. The MUA members were informed that they were in breach of their EBA in therefore refusing to comply with the lawful command management of the vessel informed.
PN235
Reference should also be made to attachment 2 to the witness statement of Mr Jones. Because quite apart from what was said by the master of the vessel, quite apart from the oral direction to set sail, there was a written direction of which firsthand evidence has been given by Mr Jones to sail the vessel. Attachment 2 is a notice which was issued in the name of Mr Jones on behalf of the applicant, and the direction is contained within port 5;
PN236
You are each directed to immediately return to work and undertake your full range of duties, including preparing and sailing the vessel to Singapore at the next available opportunity as notified by ASP.
PN237
The contention that this is not a lawful and reasonable direction, in my submission, is a resourceful submission. It's a novel submission but it's not a submission that is of any merit. The employees involved, the ratings on the vessel are employed to crew the vessel. They've been directed to sail to Singapore. Yes, it may well be outside of the work that the vessel has normally or as a matter of custom performed in the past but it's still within the scope of the duties which employees in these positions would be expected to perform. There is nothing unlawful or unreasonable about a direction to sail the vessel to Singapore.
PN238
I note that the exhibit which was just tendered by my learned friend, the employment agreement, contains a reference to the employee's passport number and nationality. These are all matters that are quite proper to be provided in an employment agreement for a seafarer but there's nothing remarkable in the contention that an employee should be required to travel internationally.
PN239
The submission of my learned friend that the words at the end of clause 4 should be given some significance, clause 4 of the enterprise agreement, for the vessels to continue to operate in the trade, I already addressed briefly in opening but in my submission quite clearly the vessel is continuing to operate in the trade. To hold to the contrary would suggest that looking at the purpose of the voyage is going to determine the industrial regulation of the voyage, which would be an extraordinary result. If the voyage on my friend's instruction was one which didn't involve the carriage of cargo then my friend says well, it's devoid of industrial regulation. In my submission, that's manifestly not the case.
PN240
The vessel in the present case is not being sailed on some pleasure weekend by the occupants. It's being taken at the direction of the owner of the vessel. My client is providing its crewing services pursuant to its contractual commercial obligations. It is providing those services to the owner of the vessel in the course of my client's business and in the course of the business of the owner of the vessel. The applicant - my client is doing so on commercial terms, he's being paid for the provision of its services. The crew are being paid for the provision of their services. This has the requisite trading character. It's being done commercially. It's not the conduct of a voyage which would fall outside of the application clause.
PN241
In any event, even if the voyage were being conducted in a non-trading or commercial manner, in my submission it would still be subject to the application of the agreement. The agreement applies to the employment of crew members by the company and not on a particular vessel. It applies during the continuation of their engagement within the fleet and is not vessel specific. So to give some construction of clause 4, as my learned friend suggests, which would deprive the employees of industrial regulation under the enterprise agreement for the duration of any voyages don't include the passage of cargo, in my submission, is a construction that's simply not open.
PN242
The agreement applies, the agreement is within its nominal duration, the nominal expiry date hasn't yet arrived. The consequence of that is that the undertaking of industrial action is not protected. The action being undertaken here is within the context of industrial action. The concerns of the crew members and the union on the material before the Commission failed to make out the critical exclusion in section 19 for occupational health and safety matters. There's no sense, there's not even a sniff of that being an issue here. The real issues which have motivated the union and the crew are apparent from the documents before the Commission. For the same reasons as Commissioner you considered to be of significance in the Teekay Shipping case, the conclusion is unavoidable that an order should issue.
PN243
Now in issuing an order the Full Bench has reminded us that there need to be findings made about satisfaction of the various requirements under the legislation and in particular about the conduct of the union, in that case and in this case the MUA, in organising the industrial action. In my submission there is sufficient material available for you to make out the contention that the union was involved in organising the industrial action. The Full Bench, and I'll hand up a copy of Teekay as I've referred to it a number of times and my friend said before that he doesn't have a copy. Sorry, the Full Bench decision.
PN244
In that case, at paragraph 42, the Full Bench stated that;
PN245
We have considered all the materials before the Commission on the evidence of the MUA and the respondent. We accept the respondent's submissions that on the evidence before the Commission the MUA organised, supported and encouraged the industrial action.
PN246
Commissioner, you'll recall that it was a point of criticism in - before the Full Bench that the findings on that point had not been recorded sufficiently at first instance, and the Full Bench had this to say at paragraph 39 of the decision on page 12;
PN247
It is clear that the legislation contemplates a fast track decision. However, notwithstanding the speed of section 418 matters, it is imperative that members of the Commission articulate with some precision how they reach their conclusion, even if it is in short form. Section 418 orders must be properly tailored -
PN248
and the Full Bench goes on. In my submission, there is sufficient material before you to make the findings that are urged upon you. The MUA has been involved in the organisation of the industrial action. This is industrial action within the terms of the Act. It's not protected and for the reasons I have given an order under section 418 should issue.
PN249
I believe with the application a draft order was provided. Has that found its way before you, Commissioner?
PN250
THE COMMISSIONER: Yes, we've got a draft order I think.
PN251
MR MILLAR: Yes. In my submission, the order as filed is properly made. The order is stated to take effect in paragraph 5 from 16 November. Obviously that will need to be changed to today's date. But otherwise the order is properly drafted and ought to issue. If the Commission pleases.
PN252
THE COMMISSIONER: Mr Slevin.
PN253
MR SLEVIN: Thank you, Commissioner. The application under section 418 requires you to be satisfied, or, the test is, that it must appear to you that industrial action by one or more employees, or employers, that is not, or would not, be protected industrial action is happening or is threatened impending or probably or is being organised. In those circumstances if those requirements are met then you must make an order.
PN254
The MUA opposes the making of an order in circumstances here because it's submitted that you cannot form a conclusion that it appears that industrial action is occurring because the evidence doesn't satisfy the definition of industrial action in section 19 of the Act. The part of the definition relied upon by the applicant is the definition in paragraph (b) of subsection (1) of section 19 that a ban limitation, or restriction, on performance of work by an employee on the acceptance of, of offering for work by an employee.
PN255
In submissions my friend has referred to there being a restriction on the performance of work. We say in the circumstances that no restriction has been placed on the performance of work because the direction to sail the vessel, the MV Portland, to Singapore was not, first of all, a lawful direction and, in those circumstances, the employer was not entitled to require the employees to do that work.
PN256
I have already gone to that argument a number of times this afternoon, Commissioner, but I will state it again for the purposes of the final submissions. That argument is that the agreement which regulates the work, which is the ASP Ship Management Pty Ltd Seagoing Ratings Enterprise Agreement 2012, has an application which is found in clause 4 of that agreement which states that:
PN257
This agreement relates to the employment arrangements for and work performed by ratings and caterers who may be members of the Maritime Union of Australia and are employed by ASPSM as specified in the schedule to this agreement on the day of lodgement of this agreement pursuant to the provisions of the award, the enterprise employment agreement, the Act, and the Navigation Act (1912) and all industry regulations whilst these vessels continue to operate in the trade.
PN258
Those words at the end of clause 4 are words of limitation and they go to the vessels that are referred to elsewhere in the agreement. In particular, relevant to this work, it is the vessel MV Portland which is identified in schedule 3 of the agreement. You will see, Commissioner, that at schedule 3 clause 1, 1.1.1, the object of this schedule is to outline specific employment conditions for persons employed and working on the Lindsay Clark and Portland who transferred to ASPSM from Inco ships. So the Portland is caught there.
PN259
So clause 4 of the agreement, picking up the incorporation of the Portland, not the incorporation but the coverage of the Portland, into the application clause should be read that this agreement relates to the employment arrangements for and work performed by ratings and caterer employees who maybe members of the Maritime Union of Australia and are employed by ASPSM on the Portland whilst the Portland continues to operate in the trade.
PN260
In Exhibit 1, which is Mr Jones' statement at paragraph 15 Mr Jones tells the Commission that the MV Portland was scheduled to sail from Portland Victoria to Singapore and thereby depart the Australian trade at 10 am on 14 November 2015. So, this voyage is a voyage occurring after the vessel has departed the Australian trade.
PN261
It's departed the trade that's referred to in clause 4 of the application of the agreement and so it no longer continues to operate in the trade, and so it's not caught by clause 4 of the agreement. So, that voyage by that vessel is not caught by the application of this agreement and this agreement doesn't apply to it.
PN262
My friend didn't avert to this but in argument earlier in the after, Commissioner, you mentioned things like dry docking, there was some evidence about dry docking. The agreement itself provides for dry docking and the dry docking occurs when the ship is being serviced for the purpose of continuing in the trade, so is caught by clause 4, and specific provisions are made in the agreement for those circumstances. The parties have turned their minds to the dry docking circumstance at clause 22 of the agreement.
PN263
The parties have also turned their minds in this agreement to the question of decommissioning. That is referred to in schedule 3 at clause 6, dealing with redundancy. That provision says:
PN264
Redundancy available to employees named in clause 1.1.5 of this schedule. It is the agreed objective of the parties to retain employees in employment and, as such, the parties agree to continue flexible arrangements as necessary. In the event a surplus of employees exists which unable to be managed by any other alternate means, including suitable alternative employment and retraining to other classifications as a consequence of the decommissioning and sale off the coast of a vessel and employees are to be made redundant, offers will be applied across Inco employees engaged on the Lindsay Clark and Portland in descending order of industry seniority on a voluntary basis unless agreed otherwise by the parties.
PN265
So the parties have turned their minds to what occurs when decommissioning happens, which is what's happened with this vessel, and they have turned their mind to say, well, the way that will be dealt with is that we will find work elsewhere, and that will be work under the agreement as well. We may look for alternative employment which may be going to providing work not under the agreement as alternative employment, or the other provisions that are contained in that clause, or that subclause, relating to voluntary redundancies and the like.
PN266
So the parties have turned their mind to these circumstances of decommissioning. They have started by confining the application of the agreement to while the vessel is operating in trade, they've made provisions for dry dock. The vessel is still operating in trade in those circumstances but being serviced, and have then turned their mind to what happens when decommissioning occurs, and what occurs is what is stated in that subclause.
PN267
There is no provision for the type of voyage that is not in trade. There is a definition of trading ship in the Act that is referred to in clause 4 of the agreement, Commissioner, which is the Navigation Act (1912). That definition - unfortunately the way the proceedings have come on I don't have copies of this but the definition is in section 7 of that Act:
PN268
Trading ship means a ship that is used, or being a ship in the course of construction, is intended to be used for or in connection with any business or commercial activity and, without limiting the generality of the foregoing, includes a ship that is used, or being a ship in the course of construction, is intended to be used wholly or principally for (a) the carriage of passengers or cargo for hire or reward -
PN269
Which is the trade that this vessel was engaged in between Kwinana, Bunbury and Portland before it was decommissioned:
PN270
- or the provision of services to ships or shipping whether for reward or otherwise.
PN271
The vessels that you are no doubt familiar with on the north-west shelf, Commissioner, that service the oil platforms and other ships and shipping, the tugs and the service vehicles. There is no carriage of passengers or cargo involved with the journey, or the voyage, that is being required by the respondent and has been since 14 November.
PN272
There is no hire or reward associated with the carriage of passengers or cargo, it is the simple exercise as described in the evidence, being the letter of Mr Jones on 13 November, Exhibit 2:
PN273
The vessel is scheduled to shortly sail to Singapore for handover to the new owner.
PN274
It's a different type of voyage to the voyage caught by the application in this agreement. If that is the case there is no capacity under the agreement for the employer to make the direction that the employees engage upon - the employees do the work of crewing the vessel to Singapore. So that work is not caught by the agreement.
PN275
The question may then arise is it otherwise caught in the employment of these employees? The answer to that question is no it's not because the circumscription of the work in the contract of employment is identical to the agreement. That is because in Exhibit 3, the Seafarer's Employment Agreement, the terms of the contract are made clear and state at (1), the third row of the table at the bottom of the document that is headed Terms of the Contract:
PN276
(1) The current enterprise agreement/collective bargaining agreement shall be considered to be incorporated into and to form part of this contract.
PN277
In those circumstances clause 4 of the agreement operates to circumscribe not only the operation of the regulation under the Act of the agreement but also to circumscribe the contract of employment. In other words, you are employed to perform work on the vessel while the vessel continues to operate in the trade.
PN278
The words "continue in the trade" must be given meaning. The parties have included them in the agreement. If they weren't to be given meaning and to circumscribe the coverage of the agreement then they wouldn't be there. The clause could simply stop at the word "regulations." The words, "whilst these vessels continue to operate in the trade" must have work to do.
PN279
That is the first argument opposing the application on the basis that if it's the case then that the employees cannot be directed to do the work then there can be no industrial action if the employees simply say we're not going to do that because that is not our work. That is the first objection to the application and, in those circumstances, no industrial action, no jurisdiction to make the order.
PN280
To indeed lower that bar there's no appearance of industrial action. You should be satisfied that there does not appear to be industrial action because it appears that this work is not caught by either the agreement or the contract of employment. That is the first aspect of the objection to the application.
PN281
The second aspect is the reasonableness of the direction. As my friend says, you have a copy of the direction given in writing attached to Exhibit 1 dated 14 November. I haven't been able to bring evidence as to the discussions that occurred on 14 November. My instructions are, as I have already indicated, that there were concerns raised by the employees as to that direction in any event, that they weren't told the length of the voyage, what passage would be taken, the length of stay in Singapore when they arrived there, and the repatriation arrangements from Singapore.
PN282
There may well arise from the answer to the second question which has been answered in the witness box today, that they would go via Fremantle. There may be concerns arising from that about health and safety, depending on the nature of the pirated waters policy that the employer has, but we haven't had a chance to develop that argument, given the way the proceedings have run this afternoon.
PN283
There may be other concerns as well that might arise. Requirements for vaccination when travelling to Singapore, whether the employees have been vaccinated, who should pay for the vaccination if vaccination is required, and the like. But in terms of the question of whether there is a safety exclusion we haven't had an opportunity to develop those things in the time available.
PN284
The submissions that we advance at this time, though, are the submissions about the reasonableness of the direction, and I certainly include those matters in the question of the reasonableness of the direction.
PN285
What is put, in short, is that it is unreasonable to direct seafarers to undertake a voyage in circumstances where the length of the voyage has not been provided, the details of the passage of the vessel have not been provided, the length of stay, and the repatriation arrangements in Singapore have not been provided, and there has been no opportunity to consider issues such as pirated waters policies and vaccination requirements.
PN286
We put that submission in relation to the reasonableness of the direction, and those matters are not addressed by attachment 2 to Exhibit 1. They are the submissions made in relation to whether there appears to be industrial action and we submit that your findings should be that there is insufficient in this application to satisfy you that there appears to be industrial action happening as a result of the direction made by the applicant.
PN287
The next issue is the question of the organisation by the MUA. The evidence that is relied upon there we say is insufficient for you to make a finding that there has been any organisation of industrial action by the MUA. My friend simply relies upon the involvement of the MUA in discussions as recorded in attachment 1, which is the document which is a hearsay document that forms part of the business records of the company that the MUA has informed the master that the vessel is in dispute.
PN288
That goes no further than to say that information came about the vessel being in dispute, it does not go so far as to say that the MUA has organised anything at all; whether the refusal to do the work was organised by the MUA is not borne out by those words which are the words relied upon here.
PN289
Reference is also made to media reports, and the nature of media reports as to their veracity is a matter that we would suggest should be borne in mind in whether you are satisfied that the MUA was organising anything. But if you go to the content of these media reports you get statements by MUA officials that outline the circumstances.
PN290
They don't make any admission, or they can't be relied upon as any admission by those officials that they were organising the industrial action. The refusal has been by the employees, that is clear enough, but this evidence doesn't reach the point where the Commission should make a finding that it appears that the MUA was organising any actions by the employees.
PN291
The form of the order, Commissioner, needs to be addressed as well because the order presents itself as one of those pro forma orders that the Full Federal Court railed against in the TWU case that is referred to in the Teekay decision that you have been handed. I think the Teekay decision makes reference to the TWU case at paragraph 21, Transport Workers Union of New South Wales v Australian Industrial Relations Commission and the plurality decision of Justice Grey and North. An extract is set out there at paragraph 21.
PN292
The draft order that has been provided, Commissioner, presents itself as a pro forma, it doesn't describe the industrial action:
PN293
Each employee must immediately stop all industrial action that is happening at the time this order comes into effect, and for the period of this order not engage in or threaten to engage in industrial action.
PN294
So it fails to specify the industrial action. While the Act does say that there doesn't need to be particularisation of the industrial action this order doesn't give those subject to it sufficient notice as to what it is they are being ordered to stop doing, and so it's defective, in my submission, in that regard.
PN295
It includes industrial action - it includes an application that applies to the Maritime Union of Australia, its officers and its delegates at the workplace, without there being a foundation, in the TWU sense, for expanding the order to the people in that very broad category. Then:
PN296
All employees of the applicant who are members or eligible to be members of the MUA and who are currently engaged to work on board the MV Portland.
PN297
The evidence is that there are, I think, 34 employees. There is a list provided in the statement in Exhibit 1, of the actual employees who were directed to do this particular work. So if you do get to the point where you're making an order the application of the order is too broad to meet the evidence as to who is taking industrial action.
PN298
The question of the service of the order, as well, arises Commissioner, as to whether this order, which requires the MUA its officers and its delegates at the workplace, if a copy of this order is sent by facsimile or email to the national secretary.
PN299
So we've got service of the order on all of the officers of the MUA all over the place then on employees if a copy of this order is placed on the noticeboards usually used by ASP for the purposes of communicating with the employees. So the question of the form of the order is also contested by the MUA. Unless there is anything further, Commissioner, they are the submissions of the MUA.
PN300
THE COMMISSIONER: Thank you. Mr Millar?
PN301
MR MILLAR: Commissioner, a few point in response. My friend maintains that the words "in the trade" at the end of paragraph 4, clause 4 of the enterprise agreement, are words of restriction. I have already addressed the Commission on that. It's my submission that the vessel relevantly continues in the trade because it's still being used to - being used at the direction of the owner of the vessel, being crewed by client in its commercial activities and is being operated in the trade.
PN302
In any event, as I have already addressed you on, those words do not, in my submission, operate as words of limitation in the way that my friend has contended. He says that the reference in the witness statement of Mr Jones, in paragraph 15, to the vessel being scheduled to sail from Portland Victoria to Singapore and thereby depart the Australian trade is effectively taking the employment outside of the scope of the agreement.
PN303
In my submission, that is not the case. It's quite clear, I think, from paragraph 15 that that is a reference to the vessel departing the Australian trade once it arrives in Singapore but, in my submission, it doesn't mean that where it is currently berthed is not in trade and where it is currently berthed is outside of the scope of the agreement. It is within the scope of the agreement, it is within trade and the direction that has been given is one which the employees were required to follow.
PN304
Commissioner, even if I am wrong on that and if you accept the contention of my learned friend that the words "in the trade" mean that this vessel, because it's departing effectively on its final voyage for Singapore, if that means that it is no longer in the trade, well, where does that take us? In my submission, it takes the matter nowhere. At most it makes out the quite remarkable contention that the employment of the employees on this leg is not governed by this industrial instrument. That is what my friend seems to be saying.
PN305
Even if that is right and, in my submission, it's manifestly wrong, the employment continues to be governed by this agreement. But even if that were right it doesn't mean that the employees are immune from the making of this order. The order that is being sought under section 418 isn't contingent upon issues to do with the scope of the agreement, it's an unrelated issue.
PN306
How my friend gets there is a much more indirect route. He says, well, this isn't a lawful and reasonable direction and therefore this isn't within the scope of work that's being performed differently or being the subject of bans and subject to section 418.
PN307
In my submission, this isn't a lawful and reasonable direction case, this is a section 418 case, an industrial action, or an unprotected industrial action case; it has nothing to do with lawful and reasonable directions. In any event there was nothing unlawful or unreasonable about a direction that these crew members sail the vessel. It is an unremarkable direction and it's a direction that was given quite properly, quite understandably, to the employees and has clearly not been followed.
PN308
There is no OH&S issue. The talk of not being assured about not sailing in pirated waters, in essence, just makes out the extraordinary nature of the case and the desperate nature of the case that the MUA is clinging to in resisting this application.
PN309
It was a lawful and reasonable direction that was given orally, a lawful and reasonable direction given in writing and it has not been followed and, in those circumstances a right to the order crystallises under the Act and, in my submission, there is nothing that my learned friend has said that in any way detracts from that conclusion.
PN310
My friend has also made some submissions about whether the industrial action here has been organised by the MUA. In my submission there has clearly been a refusal by the employees to perform work and that is enough for the granting of the order against the employees. In terms of the MUA it is in my submission tolerably clear that the MUA has been involved in organising the conduct. If one looks to what the master has recorded it certainly appears that the master was of the view that the MUA was organising the actions.
PN311
More particularly, the direct evidence given, not hearsay evidence but direct evidence given by Mr Jones of what he was told at paragraph 19 of his witness statement is that he received a call from an MUA organiser and that MUA organised, Mr Mark Jones, told him that the crew had decided not to sail the vessel. Now maybe the MUA is dressing it up as, well, this is what the boys have decided. This isn't anything that you can blame us for. But the MUA is acting as the communicator of the decision. The MUA is the conduit through which the decision has passed and been communicated to the employer. The MUA in my submission is quite clearly involved in organising the industrial action. One doesn't need to show that the employees themselves had nothing to do with the decision or were not somehow involved in it to make out the contention that it's been organised by a union.
PN312
In this case the MUA was clearly involved in the decision being taken to impose these bans and that's clear from paragraph 16 which has been received subject to the caveat about it being hearsay. But it doesn't seem to be materially in dispute in my submission that the MUA was involved in the meetings which set up the communication of the decision to not sail the vessel and the MUA told Mr Phil Jones that the vessel would not be sailing and the MUA's involvement was recorded in the ship's log by the master. It has also been the subject of newspaper comment for what it's worth but in my submission is a claim that begs disbelief that the MUA would be saying, well, it's nothing to do with us. They were quite clearly involved in all of this and as much as anything else, the critical evidence that was not contested in cross-examination of Mr Jones that he had been contacted by Mark Jones from the MUA who told him that the crew had decided not to sail the vessel, leaves the MUA clearly involved in the organisation of industrial action and in my submission it is therefore quite properly joined as a party to any orders that are made by the Commission.
PN313
My friend says that, well, the order doesn't specify the industrial action. It is quite clear from section 481 subsection (3) that the order doesn't need to specify the particular industrial action. But my friend says more generally, well, the order is defective because the order doesn't tell them what they have to do. He says that, well, the order is simply not specific enough in terms of the industrial action that's being banned and what action has to be done in order to ensure compliance with the order.
PN314
Commissioner, it is quite clear. The employees, the crew of the vessel, have to sail the vessel as directed. It is not a difficult concept in terms of compliance with the order. It is not the case that this is some convoluted requirement that has been imposed by the Commission where no-one would know what is that's being expected. The expectations of the Commission that this order is granted is simply that the industrial action is to stop. That industrial action is the refusal to sail the vessel. The requirement would be that the employees would be prevented from refusing the sail the vessel. They would have to sail the vessel. And the MUA would be prevented from organising the industrial action which has thus far stopped that occurring.
PN315
It is quite straight-forward. There is no imprecision in the orders that are sought which would have the consequences that my friend submits. My friend also says that, well, this could be served by fax or email on the national secretary of the union and thereby compliance is required by all officers and delegates of the MUA. Well, yes, but again this isn't a difficult concept. This isn't a difficult order to ensure compliance with.
PN316
My friend's point might have more substance if this was an order that would require compliance across the length and breadth of the country on all sorts of other vessels that might not hear about the proceedings in the commission. This is an order that relates to specific conduct on one vessel that is easily complied with. It is not something where my friend can say, well, you know, service by email on the national secretary is going to be require compliance by people in far flung parts of the country who have nothing to do with this. No, it's a specific concentrated issue to deal with the requirement to cease industrial action which is stopping one vessel sailing on one voyage. Service of the orders of the national secretary of the union can involve no injustice or hardship in compliance. Compliance is straight-forward. The industrial action should cease and the union should forthwith desist from organising any further action. If the Commissioner pleases.
PN317
THE COMMISSIONER: Yes. Thank you. I propose to adjourn and I will provide a decision in the matter in approximately half an hour. So if you want to go away and get a cup of coffee, I think approximately half an hour will be the appropriate time for which to return and I'll provide you with my decision.
PN318
MR MILLAR: If the Commissioner pleases.
SHORT ADJOURNMENT [5.09 PM]
RESUMED [6.04 PM]
PN319
THE COMMISSIONER: I am going to provide a decision in the matter. I do not intend to read out the decision. I will summarise it for you. We have hard copies of the document that we will give to you in a moment when I adjourn. In summary, although the decision has been it hasn't been carefully proof-read so I am going go reserve the prospect of making some alteration to it but in substance the decision can be summarised as, the application is granted.
PN320
I am satisfied that the definition of "industrial action" has been met in this instance, that it is not protected industrial action and that the various requirements of section 418 and section 19 of the Act have been met. And therefore the Commission must order that the industrial action will stop. The orders as broadly sought by ASP are to be made and they will be issued. They will operate from 7 pm this evening and as I say, we've got some hard copies of that that we will provide to you shortly when I adjourn.
PN321
The one other matter that I should address is that the same parties are involved in related proceedings in Matter No. C2015/6626 and that matter will be relisted on another day at the convenience of the parties. On that basis now the proceedings stand adjourned.
ADJOURNED INDEFINITELY [6.05 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PHILLIP ALAN JONES, SWORN..................................................................... PN101
EXAMINATION-IN-CHIEF BY MR MILLAR............................................... PN101
EXHIBIT #1 WITNESS STATEMENT OF PHILLIP ALAN JONES DATED 17/11/2015 PN120
THE WITNESS WITHDREW............................................................................ PN126
PHILLIP ALAN JONES, RECALLED............................................................. PN127
CROSS-EXAMINATION BY MR SLEVIN...................................................... PN127
EXHIBIT #2 COPY OF COMMUNICATION DATED 13/11/2015 ADDRESSED TO EMPLOYEES ON THE MV PORTLAND........................................................ PN143
RE-EXAMINATION BY MR MILLAR............................................................ PN153
THE WITNESS WITHDREW............................................................................ PN169
EXHIBIT #3 COPY OF SEAFARER'S EMPLOYMENT AGREEMENT DATED 12/08/2015................................................................................................................................. PN230
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