AM2016/5, Transcript of Proceedings [2017] FWCTrans 48 (30 January 2017)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

COMMISSIONER CAMBRIDGE

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2016/5)

Ports, Harbours and Enclosed Water Vessels Award 2010

Sydney

10.07 AM, TUESDAY, 29 NOVEMBER 2016

PN1

THE COMMISSIONER: Good morning. We are on record, so we might start with the appearances in the matter, please.

PN2

MR N NIVEN: If your Honour pleases, I appear for the Australian Institute of Marine and Power Engineers, Niven, initial N. And with me is Christiansen, initial H.

PN3

THE COMMISSIONER: Thank you.

PN4

MS K TREDWELL: If the Commission pleases, Tredwell, initial K, Commissioner. And I appear with Captain Ian Ives of CSL Australia.

PN5

THE COMMISSIONER: Good. Thank you. Have the parties had any discussion about the preferred process for today?

PN6

MR NIVEN: Yes, your Honour. We've had a brief chat and I think we agreed that largely we're in your hands naturally. Our view is that we have the two gentlemen who have made statements with us today, and that AIMPE is of the view that it would assist the Commissioner if those statements were to be part of the evidence considered in relation to the whole matter and therefore we'd be proposing that the two witnesses, you know, be available for examination and cross-examination to get their statements tested and then included as part of the evidence for which submissions could then be drawn from. So that was the way we were thinking that today would proceed. The conference was called for today for two reasons; (1) Mr Henning Christiansen wasn't available on the day of the Full Bench hearing, and also we wanted to try and save time during that two-day hearing for the other substantive matters, so I think that there is some evidence to be called and tested and that perhaps that might be a way forward for today.

PN7

MS TREDWELL: Commissioner, we have a slightly different view. We had intended that, or understood, that the purpose of today was really see how much of a meeting of the minds we had, how close we would be. We didn't anticipate that there would be any calling of evidence. We obviously do have the two gentlemen who have put statements on but I thought that the utility of that would be that we have knowledge in the room in terms of the positions of the parties. So how we had assumed the matter would proceed and the reason I think we initially agreed to have the matter, or to seek that the matter be referred to conference, was to try and get as close as we could to, as I say, a meeting of the minds.

PN8

THE COMMISSIONER: Yes. I think it might be something that second course that we might try and explore first of all. And whether we do that on or off record is something we might need to traverse. The reason being, of course, that ultimately it's a Full Bench that would determine one of these matters and so when a matter is sent off to a single Member of the Bench if we're going to be taking evidence and having sort of arbitrary proceedings we have to be clear as to what we're dealing with and how the single Member might deal with that vis- -vis the other two members of the Full Bench. I might come to a view about all of that and it might be different to the other members of the Bench and that would put us in a very difficult position.

PN9

So I think what we've endeavoured to do whenever we've had one of these matters and a single Member has started to deal with an issue, is for that single Member to informally try and see to what extent you can narrow the matters that are in dispute, and sometimes we get to a point where we may be actually, you know, able to conclude a successful position where everyone agrees. Well, in this case, I think, broadly speaking there's agreement that there should be some introduction of this classification or re-introduction of this classification into the award. It's a question of where it does, and whether it's a single position of just electrician, or electrical engineer or electro, whatever terminology we're going to use and then just if we're going to have a single or we're going to have a couple and where they fit in the scheme of things.

PN10

Now, I've read all the material. I've read the witness statements and I've looked at all of that, and I suppose what I would think we might need to do is perhaps have an informal discussion about the extent to which we might be able to narrow some of these issues in the hope that we might be able to leave as little as possible for the Full Bench to ultimately have to arbitrate, if that's what's necessary, and then I would see, if we still have a discrete question, it may well be that we have to return to the Full Bench proceeding for any formal process dealing with the taking of the evidence and getting cross-examination of those questions, because I think that really has to be done before all three members of the Bench, not just me so to speak. And of course we won't need that if we were magically able to agree on this, and I suppose that's something we really need to discuss in an informal way, I think.

PN11

So what I was going to suggest, unless there's any great objection to it, is we'll probably go off record, and it would really be a case of you people have got all the information and we really need to impart that to me and then for me to make some observations about some of those things, I think, and see where that takes us. And if very quickly we realise well, we're going to have to have an arbitration on this point about the actual rates and whether there's two classifications or a single classification well, okay, and we can try and then formulate the actual points of difference in a very precise way to just give that to the Full Bench. And it may not need a hearing before the Full Bench. It might be that if the parties' respective positions are so well distilled the Full Bench could deal with it on the papers. I don't know. But I think ultimately I couldn't be in a position where I started taking material in evidence and then trying to convince, if you like, the others Members of the Bench that they should follow whatever I was doing. They're independent minds and that's why you have three people on a Full Bench, and so you've got to be a bit careful about how you approach these things.

PN12

Yes, Mr Niven?

PN13

MR NIVEN: Yes, just one further point, and we'll accept that as, I think, the appropriate course for today, Mr Christiansen however wanted to make two amendments to his statement.

PN14

THE COMMISSIONER: All right.

PN15

MR NIVEN: So I'm wondering if perhaps we might do that while we're still on the record? You want to do that?

PN16

THE COMMISSIONER: Yes. Well, we may as well, if that's something we can tidy up formally. Yes.

PN17

MR NIVEN: If I may, sir. At paragraph 11.3, subparagraph (c), I've inadvertently put in a heading, Electrician/Electrical Engineer. It's just a cut and paste error. It doesn't belong there.

PN18

THE COMMISSIONER: Well, those words just shouldn't even be there?

PN19

MR NIVEN: It shouldn't be there.

PN20

THE COMMISSIONER: Okay. All right.

PN21

MR NIVEN: Cross out Electrician/Electrical Engineer.

PN22

THE COMMISSIONER: Yes.

PN23

MR NIVEN: And on the last paragraph on the last page, paragraph 23, where I say:

PN24

I believe the appropriate course of action is part A Australian Ships and Seagoing Award to include the designation of

PN25

That, in fact, should be

PN26

Electrician/Electrical Engineer/Electro-technical Officer.

PN27

I'm suggesting that all are as one. That is, they are an alternate title for essentially the same job role, the same classification as it were, however designated.

PN28

THE COMMISSIONER: So we'd add the words, "Electrician ‑ ‑ ‑

PN29

MR NIVEN: Electrical Engineer.

PN30

THE COMMISSIONER: Electrical Engineer.

PN31

MR NIVEN: Before the words Electro-technical Officer.

PN32

THE COMMISSIONER: All right. I've made that amendment in hand on my copy and the record will show that those are the changes that you seek.

PN33

MR NIVEN: Thank you, sir.

PN34

THE COMMISSIONER: All right. Well, the record will indicate those changes were made to the witness statement of Mr Christiansen. Anything else we want to do formally on record or are we happy to go off record and have this discussion that I've alluded to?

PN35

MR NIVEN: Yes, I'm happy to go off record. Thank you.

PN36

MS TREDWELL: Thank you.

PN37

THE COMMISSIONER: All right. We'll stop the recording there, thanks.

OFF THE RECORD [10.17 AM]

ON THE RECORD [2.06 PM]

PN38

THE COMMISSIONER: During the course of the off record discussions that have occurred in the matter today I'm pleased to be able to record that there's been an agreement in principle reached in order to deal with the introduction of new classifications that deal with the electro-technical officer position.

PN39

What's anticipated from this point forward is that the parties would prepare some joint communication to the Commission indicating the agreed position in terms of what would be proposed as the variation to the award to reflect the agreement that's been broadly reached. I'll then convey that position on to the Full Bench and, I'm not speaking for the Full Bench myself, but I would think that we'd welcome the fact that there's been some accommodation that's been achieved in all of this, and we're looking at then a prospect for there to be the inclusion of some additional terminology in the minimum wage schedules that are contained in the award. And there may also be an additional definition that's been discussed.

PN40

So if the parties could jointly prepare a communication to reflect that, provide it to my Chambers, and then I'll forward that on to the Full Bench and then, in due course, the Full Bench will be in a position to determine the various issues that have emerged in respect of this particular application in the Seagoing Industry Award.

PN41

MR NIVEN: Thank you very much.

PN42

THE COMMISSIONER: Well, I should commend the parties on being able to reach the agreement that's been achieved today. It's been heartening. Is there anything anyone else wants to put on record at this stage at all? No?

PN43

MR NIVEN: Merry Christmas, sir.

PN44

THE COMMISSIONER: Right. Yes, we are getting to that point in the year, aren't we? Yes. All right. And Merry Christmas to you also. So I'm not sure how you might I'm sure, Mr Niven, Ms Tredwell, you'll be able to coordinate a joint communication reflecting these things.

PN45

MS TREDWELL: We will.

PN46

MR NIVEN: Yes, we'll do that.

PN47

THE COMMISSIONER: And then, as I say, we'll just pass that on from that point forward.

PN48

MR NIVEN: Yes.

PN49

THE COMMISSIONER: Once again I commend the parties on being able to reach what I believe is a very sensible outcome. On that basis, the proceedings now stands adjourned.

ADJOURNED INDEFINITELY [2.09 PM]