TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049839-1

VICE PRESIDENT WATSON

AM2013/44

s.158 - Application to vary or revoke a modern award

Application by Australian Institute of Marine and Power Engineers, The
(AM2013/44)
Seagoing Industry Award 2010

(ODN AM2008/41)
[MA000122 Print PR991100]]




Sydney

4.32PM, FRIDAY, 14 FEBRUARY 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE VICE PRESIDENT: Any changes in appearances? It would appear not. Mr Keats.

PN2

MR N. KEATS: Your Honour, in this matter we have filed with the commission today a further amended application. It follows further discussions that occurred between the award participants. If I could just address each of the elements of the application, which we ask now be proceeding with by way of a hearing today - - -

PN3

THE VICE PRESIDENT: Yes.

PN4

MR KEATS: - - - and I understand will not be opposed by any party. The application is in two parts. One part deals with changing the coverage of the Seagoing Industry Award 2010 - they’re items 1 and 2. And one part deals with providing classifications and rates of pay, and that is item 3. The application is being made because prior to the end of last year there was an award that was known as the Maritime Industry Research Vessels Award 2000. That being an enterprise instrument, as that expression is known under the transitional legislation, was terminated on 31 December last year because no party sought to have it converted into a modern enterprise award.

PN5

We submit that the modern awards’ objective found in section 134 of the Act sets a requirement on the commission to ensure that modern awards set fair and relevant minimum safety net terms and conditions and that in doing so it should have regard to people that were previously covered by awards of this commission and its predecessor and ensure that just (indistinct) of operation (indistinct) transitional provisions that coverage and otherwise previously set terms and conditions are not lost. With that as the overarching framework I ask you to turn to item 1 of the application.

PN6

You will see there it creates a definition of, “research vessel.” That sets it out as – I will leave the actual words there. They are quite long. That is taken from the coverage clause of the Maritime Industry Research Vessels Award 2000 in clause 4.2 and is in the same terms as appeared there, albeit it has been now made as a separate definition of, “research vessel.” What has then been done to the definition of, “seagoing industry”, which appears in the current Modern Seagoing Award, is to add in the concept of, “research vessel” as an additional type of vessel covered by the award. That bit is not controversial between the parties.

PN7

Item 3 then sets out classifications and rates of pay. There has been some discussion between the parties about that. What the parties submit to your Honour is that the appropriate way of setting these rates of pay and conditions is to start with the rates and the classifications as found in the award that has now been terminated. They were last varied to give effect to the 2005 increases that were awarded by way of – they have had various iterations over time. Annual wage review, to use the current vernacular. And those increases have then been applied to bring it up to date to what the rates would look like, as if those increases had been awarded in the award itself as opposed to being awarded in the Australian Fair Pay and Classification Standards that were created when WorkChoices commenced in 06 and wages were split out of these awards.

PN8

Those rates of pay are by agreement with the parties. I note one error that has just been brought to my attention, that there’s a line of the table that is missing. It has fallen out, obviously, with my cut and pasting between some material that was provided by ASA and myself. It’s a rate of pay per third mate and third engineer. And if I could read it onto the transcript. It provides a minimum salary of $42,294, an aggregate overtime component of $14,860. Bringing an aggregate annual salary of $57,154. I apologise for that. That’s a cut and paste mistake on my part. We say, your Honour, that in granting this application the modern award objective would be met. And would, unless there is anything further, that would be our submissions in support of the application, your Honour.

PN9

THE VICE PRESIDENT: So, Mr Keats, looking at the definition of, “research vessel” am I correct in reading that as a reference to two types of vessels? Firstly, Fisheries Research vessels and secondly, something else – vessels used by the CSIRO, et cetera? Is that the way to read that definition?

PN10

MR KEATS: A little bit more broadly than that. There’s fishing research vessels and vessels used by certain groups or clubs – CSIRO, university or other institutes (indistinct) for a particular purpose. That is for oceanographic research.

PN11

THE VICE PRESIDENT: Yes.

PN12

MR KEATS: But they’re the two groups that fall within - - -

PN13

THE VICE PRESIDENT: So what’s a Fisheries Research vessel?

PN14

MR KEATS: Your Honour, it’s a definition I can’t be too helpful with, unfortunately, in terms of my instructions. It’s the terminology that has been used in the past, is as far as I can take that.

PN15

MR N. NIVEN: I might be able to help you, Vice President.

PN16

THE VICE PRESIDENT: Yes, Mr Niven.

PN17

MR NIVEN: There are some – in particular, some vessels, which, when they are performing fishery research, they might go out to the Great Australian Bite and get some numbers on the size of a particular type of fish that might be the bait fish for tuna or something. And sometimes those vessels can be specific and other times the vessel might be used to do research on an oil field or something. Some vessels are capable of doing both.

PN18

THE VICE PRESIDENT: So would it include a vessel that monitored Japanese whaling vessels, for example?

PN19

MR NIVEN: No. My understanding is that the vessel that has previously done that has been, like, a Customs vessel.

PN20

THE VICE PRESIDENT: Yes. And the Greenpeace vessels that monitor Japanese whaling activities?

PN21

MR NIVEN: I wouldn’t envisage (indistinct) covering the Greenpeace vessels.

PN22

THE VICE PRESIDENT: I just think – and I raise these from a position of complete ignorance about (indistinct) Fisheries Research Vessel, but simply to ensure that there’s - if we’re going to put new terms in the modern award, they’re sufficiently clear that – so people know what’s covered and what isn’t. And some terms that might make sense to – or might - people who are very familiar with the industry might have some idea. Others, who read an award like this and try to understand what it applies to and what it doesn’t and may even have responsibility for enforcing it or responsibility for complying with it, might not readily know whether it applies or not.

PN23

MR NIVEN: If I can give an example of the vessels that I would see this applying to it would include the Aurora Australis, which is currently operated by the Australian Antarctic Division; a new vessel which will be soon arriving on the coast, operated by the CSIRO, which will be known as the Investigator; and currently there’s a vessel called the Southern Supporter, which will soon be departing the coast. But they’re the type of vessels that I would envisage be captured by these definitions.

PN24

THE VICE PRESIDENT: Yes. The Aurora Australis was the vessel recently stuck in Antarctica, was it not?

PN25

MR NIVEN: That’s correct. Yes.

PN26

THE VICE PRESIDENT: And - - -

PN27

MR NIVEN: And it performed multiple roles. It performs a supply function and also performs a research function.

PN28

THE VICE PRESIDENT: And (indistinct)  - - -

PN29

MR NIVEN: And that is why within the definition of, “research vessel” there’s some words about, “which may carry non-maritime personnel engaged in research related activities from time to time.”

PN30

THE VICE PRESIDENT: Yes. If it was - - -

PN31

MR NIVEN: That is given to the scientists, and so forth, onboard (indistinct)

PN32

THE VICE PRESIDENT: If it was looking at ice flows and climate change would that be oceanographic research or not?

PN33

MR J. WYDELL: Sorry, your Honour. Mr Wydell from the AMOU.

PN34

THE VICE PRESIDENT: Yes, Mr Wydell.

PN35

MR WYDELL: If I could just jump in there for a moment. I heard the Aurora Australis mentioned. From my memory, I believe the Aurora Australis has its own award and there was the separate Research Vessels Award that used to cover the old Southern Surveyor and the Southern Supporter. But I think the AA had her own award, from memory, but I would have to check that.

PN36

THE VICE PRESIDENT: Was there any application to modernise it?

PN37

MR WYDELL: I don’t believe there was. No. So (indistinct) probably going to fall into a similar category as this one (indistinct) the old Research Vessels Award.

PN38

MR NIVEN: The current EBAs that cover the Aurora Australis actually recognise the Seagoing Industry Award as being the applicable award.

PN39

THE VICE PRESIDENT: Well, whatever award it was covered by, if it was not subject to an application to modernise it and if it was an enterprise award then it’s probably no longer covered by whatever it (indistinct) covered by and – as there would be a question as to whether this variation picks it up or not. My question – and I’m being Devil’s advocate here. Does it depend on the nature of the research that a ship is undertaking as to whether it’s going to be covered or not?

PN40

MR KEATS: On the plain language being used, yes. It does depend upon what research is being (indistinct)  - - -

PN41

THE VICE PRESIDENT: So it might vary from voyage to voyage.

PN42

MR KEATS: That’s correct.

PN43

MR WYDELL: Again, your Honour, save and except for perhaps the Aurora Australis. If I’m right she had her own award. Then she may not drop in to coverage of research or oceanographic.

PN44

THE VICE PRESIDENT: Why would that follow?

PN45

MR WYDELL: Sorry?

PN46

THE VICE PRESIDENT: Why would that follow?

PN47

MR WYDELL: Because she had her own award. So presumably she’s covered by that at all times and wouldn’t be covered by two awards at once.

PN48

THE VICE PRESIDENT: But didn’t you say it was an enterprise award or was that my assumption?

PN49

MR WYDELL: Look, it may have been an enterprise award but, again, I don’t have it in front of me at the moment. I was just trying to look for it but I can’t put my fingers on it.

PN50

THE VICE PRESIDENT: Well - - -

PN51

MR NIVEN: Sorry, Vice President, I actually do have a copy of it and it was previously called the Research and Supply Vessel (Aurora Australis) Award 1998.

PN52

THE VICE PRESIDENT: And if there was no application to modernise that award then it ceased to apply.

PN53

MR WYDELL: That’s right.

PN54

MR NIVEN: That’s right.

PN55

THE VICE PRESIDENT: So it may or may not fall within the modern award depending on the nature of the research that it undertakes from time and time and that that might vary from voyage to voyage.

PN56

MR WYDELL: Perhaps there should be another application, your Honour, to correct that anomaly. At least insofar as (indistinct) it says, “research and supply.” Well, maybe, “supply” is not covered by, “research” and there should be an additional coverage put in there.

PN57

THE VICE PRESIDENT: Well, the other question I had related to the salary clause, Mr Keats. How does the structure of these salaries and the fixation of them compare to the existing salary structures under the award?

PN58

MR KEATS: In which respect, your Honour?

PN59

THE VICE PRESIDENT: Pardon?

PN60

MR KEATS: In which respect?

PN61

THE VICE PRESIDENT: Well, is there a work value relationship between the salary for a Master under this research vessel definition and the salary for a Master (indistinct) categories?

PN62

MR KEATS: There was, back in 2005, an internal relativity. That was between each of the classifications within the new table that’s sought to be put in. Naturally that internal relativity has been flattened by the nature of the increases that have been awarded over time but it went through that usual process of converting a paid rates award into a minimum rates award with setting a classification with a relativity (indistinct) C10 and then of building up an internal relativity in between all the other classifications. And that’s percentage as it was in December 2005 set out in the table that’s in clause 15.1 of the Terminated Award. There isn’t a relativity between the table for research vessels and any of the other tables (indistinct) what’s currently in the Seagoing Award.

PN63

THE VICE PRESIDENT: But there has been a proper conversion of paid rates to minimum rates - - -

PN64

MR KEATS: Correct.

PN65

THE VICE PRESIDENT: - - - under the enterprise award that is now lapsed.

PN66

MR KEATS: Yes.

PN67

THE VICE PRESIDENT: And these salaries, including the aggregate overtime component, come from that minimum rates award?

PN68

MR KEATS: They do.

PN69

THE VICE PRESIDENT: And there’s no change in any of those salaries with the making of this variation (indistinct) simply transfer the cost.

PN70

MR KEATS: It’s as I said before, your Honour, in that the rates of pay were stripped out of the award and made pay scales. Those pay scales have never been published.

PN71

THE VICE PRESIDENT: Yes.

PN72

MR KEATS: So we’ve adopted the process that’s been adopted in the previous maritime matters with these overtime components, of how you apply the increases. That was what the subject of the discussion in the last week was, about how that would be done, and we’ve then applied those increases. Because there isn’t a document that we could go to that was published and they’re just inserted across. We had to apply those increases to it.

PN73

THE VICE PRESIDENT: But in terms of structure and in terms of formulating the actual amounts, it follows the approach that was adopted in relation to the Seagoing Award.

PN74

MR KEATS: That’s correct. In this case the overtime component was 26 percent of the aggregate annual salary. Which is in keeping with how things are, that there’s a percentage set between the components.

PN75

THE VICE PRESIDENT: Yes. Thank you. Thank you, Mr Keats. Mr Wydell, do you wish to say anything further?

PN76

MR WYDELL: No.

PN77

THE VICE PRESIDENT: Thank you. And Ms Cerche?

PN78

MS S. CERCHE: No. Thank you, your Honour. That’s (indistinct) what has been discussed (indistinct)

PN79

THE VICE PRESIDENT: So these variations are all agreed on behalf of the employers that will be affected by the variation?

PN80

MS CERCHE: Well, your Honour, the potential employers at the ASA (indistinct) are aware of have been advised of these potential wage rates and they’re comfortable with the process of firstly, the change of technician and secondly, the wage rates, provided that it was basically an insertion of what applied under the old Research Vessel Award that would be inserted into the new Seagoing Industry Modern Award.

PN81

THE VICE PRESIDENT: Yes. Thank you. Well, Mr Keats, I’m satisfied with the responses you’ve given me in relation to the classifications. There may be a need to file an amended draft order to reflect the omitted classifications and there may be some desirability in conferring further about the definition of, “research vessel” (indistinct) the exchange that occurred. I’m content to allow you to file an amended order, copying in the other parties represented today, after further discussions between the parties and any further amendment.

PN82

MR KEATS: Thank you, your Honour.

PN83

THE VICE PRESIDENT: Is that an appropriate course?

PN84

MR KEATS: That’s an appropriate course.

PN85

THE VICE PRESIDENT: Yes. Very well. I thank the parties for the constructive efforts in developing appropriate changes reflect the lapsing of the enterprise award or awards and I’m broadly satisfied that the variation should be approved, given the terms of the Act, but I will defer making an order pending further attention of the parties to the definition of, “research vessel.” And I will make the order on receipt of an amended draft from you, Mr Keats.

PN86

MR KEATS: Certainly, your Honour.

PN87

THE VICE PRESIDENT: Thank you. We will adjourn the proceedings.

PN88

MR KEATS: Thank you, your Honour.

PN89

THE ASSOCIATE: Please all stand.

PN90

MR NIVEN: Thank you, your Honour.

PN91

THE ASSOCIATE: This matter is adjourned.

<ADJOURNED INDEFINITELY [4.53PM]