TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1035228-1
VICE PRESIDENT WATSON
AM2012/326, AM2012/348
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Application by Fair Work Australia
(AM2012/326, AM2012/348)
Seagoing Industry Award 2010
(ODN AM2008/41)
[MA000122 Print PR991100]]
Sydney
10.12AM, WEDNESDAY, 5 DECEMBER 2012
Continued from 16/10/2012
PN255
THE VICE PRESIDENT: Are there any changes in appearances?
PN256
MR N. KEATS: Yes, your Honour. My name is Keats. I appear for the Maritime Union of Australia in this matter now.
PN257
THE VICE PRESIDENT: Mr Keats. I think everyone else looks very familiar to me.
PN258
MS ZEITZ: I may just need to vary my appearance I think, your Honour. Thank you for your indulgence and the slightly later start. I don't appear for INCO or ANL in relation to the proceedings as they are ongoing.
PN259
THE VICE PRESIDENT: Thank you.
PN260
MS S. CERCHE: I'm Sarah Cerche, and I appear for the Australian Shipowners Association. It was represented by Mr Meehan at the last hearing.
PN261
THE VICE PRESIDENT: Thank you, Ms Cerche. Who's been elected to commence. Mr Keats?
PN262
MR KEATS: Probably passes to me, your Honour. I've handed to your associate and circulated to all the other parties some proposed draft orders, your Honour. I was wondering whether you had those with you.
PN263
THE VICE PRESIDENT: Yes. The draft orders are single page relating to clause 24.
PN264
MR KEATS: That's correct, your Honour.
PN265
THE VICE PRESIDENT: I mark that exhibit MUA3.
EXHIBIT #MUA3 DRAFT ORDERS
MR KEATS: Thank you, your Honour. Before sort of delving into the substance of the matter, I'd just like to explain the genesis of that document. You might recall at the directions telephone conference back on 15 November, Ms Tredwell who is acting for the Cement Industry Federation and the National Bulk Commodities Group indicated that if two amendments were made to what was then MUA2 as an exhibit in the proceedings, that they would be in a position that they wouldn't oppose the application by the MUA. This document adopts the two changes sought there. Then there was further discussions with the Australian Shipowners Association to delete a "all other classifications" provision that was in MUA2. That has been deleted, and I understand that on that basis, the Australian Shipowners Association is content to not oppose the application as well in the terms of MUA3.
PN267
Your Honour would have also received hopefully correspondence from the Shipping Australia Ltd from 3 December. That was uploaded on the web page last night, which indicates that Shipping Australia is not going to be present at the hearing today, but wishes to advise that in relation to this application, and its matter number is given, we have no objection to that proposal on the basis of the attachment. If you look at the attachment, your Honour, you'll find there a copy of what is now MUA3 in the proceedings.
PN268
THE VICE PRESIDENT: Yes, that correspondence is on the file.
PN269
MR KEATS: While, if you like, I'm doing a roll call of people's positions, I received correspondence from the Australian Metals and Mines Association which I'll hand up. It's in these terms:
PN270
We thank you for providing the amended draft order. At this stage AMMA has not been able to identify any members whose operational costs would be likely to increase as a result of the variations sought to the Seagoing Industry Award 2010. Therefore while AMMA does not consent to or support the MUA's variation application, it will not actively oppose an order in the terms attached.
PN271
Could I tender that?
PN272
THE VICE PRESIDENT: I'll mark that letter exhibit MUA4.
EXHIBIT #MUA4 LETTER FROM AUSTRALIAN METALS AND MINERALS ASSOCIATION
MR KEATS: I think that fairly leaves, of those at the bar table, Ms Zeitz's clients who, if I could put it in these terms, don't oppose the insertion of the classifications, but wish to say something about the rates that have been proposed, and I don't understand the AMOU to have any issue with the application, although they haven't formally put their position to us.
PN274
MR GIBIAN: Your Honour, perhaps if I could just indicate, just with respect to the position of the AMOU, I think we made clear that we don't think there ought be a Part B in the award at all, and this variation is sought to Part B of the award. However so far as the substance of the variation which is sought, it does not apply or have effect to the members of the AMOU. So we have nothing to say about it.
PN275
THE VICE PRESIDENT: Thank you. You also wish to rely on the statement of Mr Summers?
PN276
MR KEATS: Both his original statement of 24 October, your Honour, and his supplementary statement which I've handed to your associate this morning.
PN277
THE VICE PRESIDENT: Yes. Neither of those statements have been admitted into evidence as yet?
PN278
MR KEATS: That is correct.
PN279
THE VICE PRESIDENT: Does any party wish to cross-examine Mr Summers?
PN280
MS ZEITZ: It may be that this can be resolved. This is in relation to the second matter, the one that's been provided this morning. In our correspondence, we indicated that we understood the wiper and deck boy classifications to be trainee classifications. If that can be clarified without the need to call Mr Summers, that would resolve the matter.
PN281
MR KEATS: If I can just take a moment, your Honour.
PN282
THE VICE PRESIDENT: Yes.
PN283
MR KEATS: Your Honour, thank you for that indulgence. Consistent with what we put in paragraph 11J and K, we accept that they are trainees. That's of his first statement of 24 October.
PN284
THE VICE PRESIDENT: Trainee greaser or oilman.
PN285
MR KEATS: In the case of a deck boy, it's a seafarer in their first 12 months at sea. Could Mr Summers be excused then, your Honour.
PN286
THE VICE PRESIDENT: Yes. If there's no objection, I'll admit the two statements of Mr Summers into evidence. I'll mark the first statement exhibit MUA5, and the supplementary statement exhibit MUA6.
EXHIBIT #MUA5 STATEMENT OF MR SUMMERS
EXHIBIT #MUA6 SUPPLEMENTARY STATEMENT OF MR SUMMERS
MR KEATS: Thank you, your Honour. Your Honour, you will recall that the reason why we're all here is that there's a review being undertaken of modern awards as required by item 6 of schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009, and as part of that review, when the matter was last before your Honour, my client the MUA tendered a document that became MUA2 as a proposed variation to clause 24 of this award. We say that it is necessary, for the reasons I'll develop, that the variation be made to achieve the modern award's objective, and to ensure that the award is effectively operating without anomalies or technical problems; particularly in this case problems arising out of the original award modernisation process.
PN288
I think it's worthwhile just taking a moment to remind everyone about how we got here, and that is back in 22 May 2009, the predecessor to this tribunal published as part of the award modernisation process and exposure draft of this award, and at that time it did not contain the Part B for the obvious reason that at that point in time, the Fair Work Act did not apply to permit vessels. That all changed on 1 July 2009, and you might recall you were taken to these matters by Mr Meehan on the last occasion, and he took you to the Fair Work Amendment Regulations 2009 (No 1), and that's the first time that this Fair Work Act applied to permit ships as described in that regulation.
PN289
What followed, as was set out by Mr Meehan, is that on 17 August 2009, the then minister, Ms Gillard, for employment and workplace relations amended the award modernisation request of the president of the predecessor to this tribunal to importantly - and I'll just read one paragraph of it, and it's item 47. You were provided with a full copy on the last occasion by Mr Meehan:
PN290
When creating a modern award covering the maritime industry, the commission should ensure that the modern award covers employers on licensed, permit or majority-crewed Australian ships as defined in item 1 of schedule 2 of the Fair Work Amendment Regulations 2009 (No 1) and their employees.
PN291
What followed is on 22 September 2009, the commission issued an amended exposure draft for the Seagoing Industry Award. In doing so, the full bench said two relevant things. They're at paragraphs 155 and 156 of their decision, which is found at (2009) AIRCFB 865, a copy of which was handed up on the last occasion, but I'll read you the important bits:
PN292
Conscious of the variation to the consolidated request we have decided to divide the award into Part A and Part B. We have tentatively described Part A as applying to non-permit vessels, which are essentially the respondents to the existing award. Part B will apply to permit vessels.
PN293
The specific provisions applicable to Part B vessels will also require substantial consideration. While we will be better informed by the further submissions of interested parties, including in the public consultations in October 2009, our preliminary view is that Part B conditions will need to pay due regard to conditions applying internationally, including what has been referred to as the ITF agreement. We also note that clauses 28 to 35 of the consolidated request govern the manner in which modern award provisions can interact with the NES. Proposals which relate to the effect of the NES on crew covered by Part B of the modern award will need to be framed with those provisions in mind.
PN294
As was the process, a second exposure draft was then issued. It had a Part B, but it had nothing in it. It just had a heading, Part B. There were on conditions, there were no wages. On 4 December 2009, the award was made, and if I could just read about four paragraphs of the decision that are relevant.
PN295
We have decided, for now, to maintain two parts to the award. Part A will apply to all ships other than those operating under a permit and remains unchanged from the exposure draft. Part B will apply to ships operating under the permit system. In all of the circumstances we are not able to make an award that would establish a final set of appropriate conditions for foreign ships operating under the permit system. Notwithstanding the limitations in the material before us we have decided to include some basic conditions in Part B which we consider are consistent with some accepted standards in ITF agreements -
PN296
which I'll just emphasise -
PN297
and which are capable of ready application to permit ships.
PN298
In respect of minimum wages we have set them out as weekly rates and utilised the broad methodology which was used in the award simplification process. We regard the integrated rating as the key classification and we have then maintained established relativities.
PN299
Just emphasise that bit, "established relativities".
PN300
We are conscious that the provisions in Part B have been formulated while the legislative arrangements in relation to permit vessels have not been finalised and, as described earlier, for various reasons there has not been comprehensive consultation or debate on critical issues. For these reasons we have decided that while the modern award will commence on 1 January 2010, Part B will not come into operation until 1 January 2011.
PN301
An additional reason for caution is that permit ships have hitherto never been subject to Australian industrial regulation.
PN302
Finally, we observe that Fair Work Australia will have the power to vary the award to achieve the modern awards objective. The delayed operative date in relation to permit vessels will provide an opportunity for interested parties to better inform Fair Work Australia in this regard. In relation to Part A of the modern award, it must be said that the circumstances attending the making of the award have not been ideal and it is likely that in due course the terms of Part A will also require review.
PN303
MUA3 sets out what the claim is that is sought. It does it in this way, in that for everyone's convenience the bolded classifications are the new ones that are sought to be inserted into the award. So you can see, if you like, the relativity they have been given and then the rate of pay.
PN304
I don't think anyone here complains that it's appropriate that the classification should be inserted. I don't know of anyone making that application, but in case there's any confusion or doubt about it, Mr Summers gives evidence in his statement, which is now MUA5, and he says - I'll just take you through some of the elements of it - paragraph 1, that he is the International Transport Workers Federation Flags of Convenience national coordinator for Australia. In paragraph 5 he says:
PN305
As part of my duties, I inspect vessels that come into Australian ports on a weekly basis. In addition I read reports prepared by my inspectors, contact some volunteers following inspections that they have performed. As part of these inspections, the ITF collects a number of documents including -
PN306
relevantly for now -
PN307
a crew list. This document itemises the classifications of seafarers employed on the vessel and the names of these individuals so employed.
PN308
Then in paragraph 7 in the second sentence - in fairness, I should read all of it:
PN309
This year the Minister for Infrastructure and Transport issued a determination on the Shipping Registration Act that the wages classification set out in what is the ITF uniform TCC collective agreement reset its minimum wages for vessels registered under or on the Australian International Shipping Registry.
PN310
Then importantly says:
PN311
Those classifications -
PN312
ie the ones adopted under the Shipping Registration Act which came from the ITF agreement -
PN313
are the ones employed on vessels operating under permits issued under the Navigation Act, and which now operate under temporary licences issued under the Coastal Trading (Revitalisaing Australian Shipping) Act 2012.
PN314
So there's evidence before this tribunal that these classifications are worked in this part of the industry. If I could start at the bottom of the list, you'll see in MUA3 that at the bottom we ask that the OS - which is the industry nomenclature for ordinary seaman - wiper, deck boy, catering boy, second cook, mess room steward be paid a rate of 638.40 per week. That is what we say is the minimum wage that can be payable to these employees under the Fair Work Act. We derive it by looking at the award, and the award sets out in clause 26 that the ordinary hours of work - and it's worth having a look at, because it's a little unusual for a modern award to say this. It says in very simple terms, "The ordinary hours of work will be eight hours per day from Monday to Friday." So putting aside what the National Employment Standard might say about ordinary hours, Part B says the ordinary hours are 40 hours per week. So what we have done is we've looked at the national minimum wage order which was last issued in print PR062012 which set a minimum wage of $15.96 per hour, and multiplied that by 40 hours to reach the 638.40 that's inserted in that provision.
PN315
Continuing in reverse order, going up the table, there are then the rates for the carpenter, the fitter, repairer, the donkeyman and the electrician, and on the basis of the evidence of Mr Summers in MUA6, we have adopted the grouping and we've grouped those classifications at the same level as the boatswain and the cook, because that's the way the ITF agreement groups them. I've already taken you to the part of the decision where the commission decided to maintain certain relativities when setting the previous rates and what we've sought to do is not disturb those relativities and just get things grouped as they are grouped internationally, because we say that when the full bench was considering this, they said, "We need to have due regard to what's happening internationally under the ITF at the moment."
PN316
Similarly continuing my traverse back up the table, we've grouped the radio officer and the electrical engineer with that of the second officer and the second engineer, because that's what the ITF agreement says. If you're looking for the evidence of Mr Summers, it's paragraph 8 of MUA6 that gives those groupings under the ITF agreement. I then need to return to whether that's then appropriate that we do this. At the beginning of these submissions, I talked about what needs to happen in the review, and I took you in summary terms to part of item 6 of schedule 5. But I'll just read it in full. Item 6 subparagraph (2) says:
PN317
In the review, Fair Work Australia must consider whether the modern awards (a) achieve the modern awards' objective and (b) are operating effectively without anomalies or technical problems arising from the Part XA award modernisation process.
PN318
First things first, as part of the original award modernisation process, the award should have covered all classifications of employees who work on permit ships, now licensed ships. For whatever reason, that didn't happen, and what should happen now in this review is that those classifications need to be inserted into Part B. That would be the only way of ensuring that the technical problems that arose out of the lack of time the parties had to get the award made in light of late changes to legislative provisions, and to solve any anomaly about what these people should be paid, that the classifications be inserted.
PN319
The modern awards objective, that requires the setting of fair and relevant minimum safety net of terms and conditions. That's what section 134 says, but then it says a number of things that you should take into account doing it, but primarily it's a single objective. It's to provide a fair and relevant minimum safety net. Here we say that is achieved in light of what the full bench said by grouping these new classifications the same way they are grouped in the ITF agreement. There's no evidence before this tribunal of any other way of doing it. Unless there's anything further, your Honour, I'd note that the vast majority of the industry participants don't oppose what we seek, and ask that the tribunal make the variation in the terms sought.
PN320
THE VICE PRESIDENT: Thank you, Mr Keats. Anyone who does not oppose the application wish to say anything further?
PN321
MS CERCHE: Your Honour - - -
PN322
THE VICE PRESIDENT: Yes, Ms Cerche.
PN323
MS CERCHE: - - - I might just quickly make a very quick observation, and I do apologise for making it at this late stage. I do recall at the hearing at which you issued the decision - apologies - I believe it was on 16 October, you graciously afforded the parties the opportunities to confer over some wording in the descriptor of the modern awards, and I think the parties came back with the descriptor, "Vessels granted a temporary licence." I've just in the last few days had cause to look at this as a descriptor and review the Coastal Trading (Revitalising Australian Shipping) Act, and it's come to my attention that in fact the applicant who applies for the temporary licence would be the owner, charterer, agent, master of a vessel, and that's under section 28(1) of that act, or 28(1)(b) is a shipper.
PN324
When the minister grants the applications, the minister must determine the number of voyages authorised by the licence. The reason that I draw this to your attention, your Honour, is perhaps the term "vessels granted a temporary licence" isn't quite as clear and precise as it might be, and I know you did afford us the opportunity to confer over this, and I'd invite the others to perhaps give their views, and it may well be that time needs to be considered - this needs to be considered. The ASA thinks vessels operating under a temporary licence may well be a more accurate description of the applicable vessels just on the basis of the licence-granting provisions in the Coastal Trading (Revitalising Australian Shipping) Act. Once again, your Honour, I do apologise for making this observation at this late stage.
PN325
THE VICE PRESIDENT: Thank you, Ms Cerche. The review of the award is ongoing, and given that that matter was the subject of discussions between the parties, I think if you wish to have further discussions with the other parties and endeavour to reach a consent position, I'll provide you with leave to seek a variation - - -
PN326
MS CERCHE: Thank you, your Honour.
PN327
THE VICE PRESIDENT: - - - at an appropriate time. Thank you. Ms Zeitz?
PN328
MS ZEITZ: Thank you, your Honour. Just on that latter point, I note that the application filed by our client actually describes the obligation to make payments in a particular way. That in itself raises that issue. So it may become part of that broader process.
PN329
THE VICE PRESIDENT: Yes.
PN330
MS ZEITZ: I simply foreshadow that. In relation to this application, Mr Keats is quite correct when he says that my clients don't oppose the classifications. Your Honour would be aware from the application that has in fact been filed, however, that the proposed wage rates differ from this current application. So that is a point of contention between the parties, and it's perhaps just an unfortunate product of the timing of the way in which the two matters have been addressed that this particular issue is being dealt with somewhat discretely from our substantive application.
PN331
The basis upon which we submit that the rates of pay proposed are not appropriate - and I'll just go to firstly what we say should apply - in relation to the draft orders, the wiper and deck boy classifications are in fact trainee classifications, and my friend has quite kindly directed me to I think it's MUA5 where the wiper classification is a trainee greaser, and I think it's up to three months of training, and the deck boy classification is up to 12 months of training. If these trainee classifications were to be granted at the rate of pay that is sought, they would in effect be paid more than trainees engaged under Part A, and we say that there needs to be a consistency across the award and on that basis, trainee classifications should appropriately reflect the trainee provisions that apply, and that the rates of pay should also reflect that.
PN332
On that basis we would simply say that we have a period of traineeship which attaches to I think it's age and length of training. That is actually accommodated within the traineeship provisions of the award and we say can be either specifically identified, and we would be happy to have that with respect to these two classifications specifically identified, or alternatively simply referred to schedule B. I suspect the former approach may be less confusing to those organisations that have to attempt to grapple with an Australia industrial relations system if they don't reside with it on a permanent basis.
PN333
THE VICE PRESIDENT: What is the rate do you say should apply if the rates are consistent with Part A?
PN334
MS ZEITZ: We would say that Part A of the award refers to traineeships and training provisions, and we say that should simply similarly apply to - for example, if you look at schedule B, a school leaver highest level of schooling completed plus one year out of school, there are a number of wage rates that can be identified, but they all sit - all of the wage rates, even picking the highest in these provisions, sit well below the wage rate that is proposed for this group of employees for these two classifications.
PN335
THE VICE PRESIDENT: You're not saying that it's appropriate to have all these different levels in Part B, are you?
PN336
MS ZEITZ: No. If your Honour was minded to accept our submission, I'm quite happy for that to be perhaps an in-principle matters that the parties could then confer on what would be an appropriate rate to apply, recognising that it would apply for fixed periods, and the they would of course fall within either the more substantive classifications for which they'd been then trained. You were referred to the full bench decision in this matter and the basis upon which Part B came into effect. The Part B in my submission is a hybrid of the approach in the ITF material that was acknowledged by the full bench, but in terms of classifications, the full bench made quite clear that what it was doing was picking up the integrated rating classification as the key classification, and then using that as the basis for establishing relativities. The integrated rating classification is found only in Australia. So the full bench in introducing Part B hasn't adopted holus bolus the ITF agreement. It has actually in my submission picked up and hybridised those matters. In fact it refers specifically at 165 to including some basic conditions. It does not refer to the minimum wages issue. That's dealt with separately at paragraph 166.
PN337
That brings me to the basis for the issue that has been raised by my clients. The electrician, carpenter, fitter, repairer, donkeyman classifications are all trade classifications, no more, no less. They are trade classifications which are C10 fitter classifications under the Manufacturing and Associated Industries and Occupations Award. They have competencies that attach to them. They require, which I'm sure the tribunal knows very well, apprenticeships to be served, some four years of training to obtain those qualifications. There is nothing remarkable or unusual about that, other than in my submission the place where those rates are then opposed. The effect of this application is to place a carpenter, fitter, repairer, donkeyman, electrician about the C10 rate, and substantially above the C10 rate in the modern award.
PN338
In my submission, the tribunal has now made clear on several occasions that when new classifications are then sought to be introduced into awards, there is a process that needs to be gone through. It is not simply a matter of the parties attending and saying this is something we think is a good idea. Section 157 makes very clear that to vary a modern award minimum wages has to be justified by work value reasons, and work value reasons justifying the amount that employees should be paid - this is at 156(4) - should be paid for doing a particular kind of work, being reasons related to any of the following: the nature of the work, the level of skill or responsibility involved in doing the work, and the conditions under which the work is done.
PN339
The proposal to put the new classifications into this award is not unique. Other similar applications have been made by other parties, and I refer to the Equal Remuneration Case. I have provided an extract from the Equal Remuneration Case. I wasn't going to ask parties or the tribunal to read through the entire document, but at paragraph 260 of that decision, the full bench said:
PN340
Generally speaking minimum rates in one award are not varied, other than in general wage reviews, except on grounds of relative work value. The approach to wage fixation ... involves a strict separation between minimum wages and paid or market rates.
PN341
The ITF agreements are the paid or market rates. No-one has suggested that they're not. It then says at 261:
PN342
Given the basis on which minimum rates are fixed, it is not possible to demonstrate that modern award wages are too low in work value terms by pointing to higher rates -
PN343
and I say also different rates -
PN344
in enterprise agreements, or in awards which clearly do not prescribe minimum rates.
PN345
In my submission, the primary guidance for determining classification rates is to be found in modern awards of this tribunal with comparable or similar classifications, and we say that the Manufacturing and Associated Industries Award is an appropriate award. The reason we say that is because in its coverage at paragraph 4, it specifically identifies maintenance work being performed on ships. It says that it covers repair work done on ships, work done for ship repairs, and general ship work, and it then refers back to applying generally to vessels. So it is not as though there is not a modern award that has not contemplated and addressed the appropriate rates that should be paid for classifications holding certain qualifications performing with respect to ships, and it is a very longstanding historical word which is the Manufacturing and Industries and Occupations Award 2010.
PN346
So our submission is that if rates are to be set for trades positions in Part B, those rates should properly reflect current minimum wages as set by this tribunal for that work. That would be in the case of the carpenter, fitter, repairer, donkeyman, electrician rates, the C10 rate. That in our submission is an unremarkable approach. The electrical engineer, radio officer potentially sits at what we would say is the C5 rate. The reason we say that is because the electrical engineer, if one looks at the Marine Orders, must hold firstly a trade qualification, and that's set out at clause 33 of the Marine Orders Part 3 where it sets out initial types of training, which is either an engineer cadet or approved cadet training course or an engineering tradesman.
PN347
So the Marine Orders that establish the basis upon which people obtain certificates of competency and all of the other qualifications that allow them to serve on vessels quite specifically identifies the trade classification as the foundation classification for engineering classifications in the award. So again we submit that if the classification is to be inserted, the electrical engineer should be placed at the C5 level. It's an appropriate level taking into account the national competency standards that apply, and recognising the level of training, the skills and qualifications of the respective positions. Your Honour, as you will see, the issue between the parties is not one of the appropriateness of the inclusion of the classification, but simply how they are best work value for placement within the classification structure.
PN348
I've referred your Honour to the Equal Remuneration Case. The Master Builders Case, which I'll hand up, in turn helpfully refers to the Public Hospitals Nurses (State) Award (No 4) decision at paragraph 57, and identifies the issues that are relevant to determining work value:
PN349
Work value principle allows for award wages to be increased -
PN350
and we say the same principle applies here -
PN351
if it can be demonstrated that there have been changes in the nature of work, skill and responsibility required or the conditions under which work is performed to such an extent that changes constitute a significant addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification. The principle refers to this as a strict test.
PN352
So in our submission, there being a modern award that has actually established very clearly minimum rates for the trades qualification, minimum rates for the qualifications that sit above that, it's entirely appropriate that that C10 rate be attached to the trade classifications that are now sought to be inserted. That would place the rate, as my rough calculation is - and I'm happy to be corrected on the math - at a rate of $747.16 minimum weekly wage per week. That is the 40-hour rate, and the C5 rate at $869.58 per week.
PN353
THE VICE PRESIDENT: Isn't the chief cook also a base trade equivalent?
PN354
MS ZEITZ: Yes.
PN355
THE VICE PRESIDENT: You don't seek any change to the wage rate that applies to that existing classification?
PN356
MS ZEITZ: This is the dilemma that I referred to earlier on, your Honour, when I said that our application will occur post this one, and there are some issues, we say, about the internal relativities within the classification structure in any event. This goes back to the original award simplification, the conversion from paid rates to minimum rates that occurred at that time, and the way in which that occurred. My recollection is that the integrated rating classification was established, and then for reasons which are not entirely clear, 107.5 per cent of the trade rate was applied, but that's never been entirely clear how that occurred or why - I think it was done by consent - and then the chief integrated rating above that.
PN357
The cook classification appears to have been aligned with the boatswain, chief integrated and chief steward which all appear to carry a value according to how this is structured that sits above what you would call the integrated rating able seaman classification. In my submission they are not strict trade classifications in that sense. It's quite clear that they have been grouped together historically. The basis for those groupings - I don't know if your Honour recalls the massive amount of material that was filed during the original modern award proceedings where that history about all of those classifications and how they came to be grouped was provided to the tribunal. In my submission, however, the anomaly is plain when regard is had to the simple reference to carpenter, fitter, repairer, electrician.
PN358
They are standard trades classifications well-known within the tribunal, and there is a rate that has been determined by the tribunal across a number of modern awards that is the appropriate rate for that classification. How that then interacts with other classifications, it's not a question that I can really answer today other than to say we don't see any value in perpetuating - if there is in fact an anomaly, we don't see any value in it being perpetuated by these being put into that grouping as a matter of convenience.
PN359
THE VICE PRESIDENT: The fairness of the award classification structure would appear to require a consistent approach, would it not?
PN360
MS ZEITZ: Yes.
PN361
THE VICE PRESIDENT: So the submission you're making today is really very much related to relevant parts of the application that would be heard later this month.
PN362
MS ZEITZ: It is, and it also perhaps highlights, your Honour, the very issue that was identified and recognised by the full bench at the time this award was being made, and that is that there was a basis for review, and there was some caution in the full bench's approach at the time in relation to those matters, that it was proceeding to put into the award. They say at 167:
PN363
We are conscious that the provisions in Part B that have been formulated by the legislative arrangements have not bee finalised. Permit ships have never been subject to industrial regulation. We observe that the tribunal will have the power to vary the award to achieve the modern award's objective. The circumstances attending the making of the award -
PN364
this is at 169 -
PN365
have not been ideal, and it is likely that in due course, the terms of Part A will also require review.
PN366
The approach adopted by the full bench itself was - identified very clearly its own reservations about the award it was proposing to make, and what is sought this morning in my submission really highlights the anomaly that is apparent within the classification structure. If the decisions that I've referred to are relied upon, the first point at which - then the ITF agreement, while useful for conditions - and that is what was referred to by the full bench - rates of pay is a different issue entirely. Rates of pay for these classifications have been established by the full bench in other proceedings and other awards.
PN367
Putting the agreement and giving that primacy in circumstances where there is a minimum award rate that can be looked to in my submission is not the appropriate path, and it's more appropriate to identify and maintain consistency across the modern award structure. The effect that that would have would be to place these classifications within the structure, but not grouped. So it would create different levels of wages. It doesn't deny people a weekly rate. It deals with the issue that has been identified as one of major concern, which was a lack of clarity around who was covered and who was able to have the benefit of Part B in terms of employees undertaking work on ships. The inclusion of the classifications addresses that issue. It is simply in our submission how does one then value the work and in my submission the work is best valued by reference to well-established standards of the tribunal that have been developed in the framework of national competency standards and well-understood qualification streams.
PN368
The only other decision that I refer to briefly is the Live Performance Award. It's a decision of January 2010 of the full bench. I profess it had some appeal because it was dealing with bingo callers and disc jockeys, which is somewhat different to what we're currently addressing. Relevantly the full bench identified that an application for the inclusion of classifications that have not previously been covered requires pay rates to have properly fixed minimum rates - this is at paragraph 2, and that those rates be suitable for inclusion in the modern award, and the basis for those rates needs to be properly established. We say simple reference to an ITF agreement for these classifications that do exist in other modern awards is not the appropriate starting point.
PN369
Your Honour, I don't propose to go into greater detail at this stage. Some of this will get a rerun when we proceed with our application. So unless you have any questions, I don't know that I can usefully add anything.
PN370
THE VICE PRESIDENT: No. Thank you, Ms Zeitz. Ms Tredwell, did you wish to make any submissions?
PN371
MS TREDWELL: No, your Honour.
PN372
THE VICE PRESIDENT: Mr Keats.
PN373
MR KEATS: The legal chalice comes back to me, your Honour. If I could start first of all with the discussion about the trainees and I think it's probably useful just to try and grapple with what was put by my friend Ms Zeitz. Her proposal as I understand it is that schedule B which picks up the national training wage somehow applies to the vessels to which Part B of the award applies. Do you have a copy of the award with you, your Honour?
PN374
THE VICE PRESIDENT: I do.
PN375
MR KEATS: You'll see schedule B starts on about page 32, and in B.2 there's the definitions, and over on the second page there's the definition of a traineeship and a definition of a trainee. A trainee is defined as, "An employee undertaking a traineeship under a training contract." A traineeship is then defined to mean:
PN376
A system of training that has been approved by the relevant state or territory training authority -
PN377
and I'll just pause there. There's reference to various authorities and earlier definitions, but suffice to say they are ones of Australian states and territories, not other countries -
PN378
which meets the requirements of a training package developed by the relevant industry skills council and endorsed by the National Quality Council and which leads to an AQF certificate level qualification.
PN379
An AQF is a reference to the Australian Qualifications Framework. That's a long way of saying this will have no relevance to these people. These are generally foreign ships flagged in other countries with foreign workers domiciled usually in other countries who would have got their training whilst onboard these vessels, but under programs of other countries, not of Australia. So it's not as simple as just picking up a reference to the National Training Wage Schedule, and that is why we say that doesn't apply here, and what should apply instead is the minimum wage. Besides Ms Zeitz's clients, everyone else considers that's an appropriate way of dealing with the maritime industry.
PN380
The second is the trade qualifications. I hopefully put it as clearly as I could in explaining the genesis of this award, but when we got to Part B, they did two things. They maintained the relativities of what is now Part A for the classifications they put in, but they also looked to the ITF agreement and put in some of the classifications and grouped them at relativities that were already contained in what is now Part A of the award. That's the process the commission has previously adopted, and all we're asking is that that process be extended for consistency of structure of the award in relation to the new classifications. It sounds quite attractive to say that a fitter must be a C10, therefore he gets paid in the C10 rate under the other award. Let's just pause and wind back the clock more than 20 years. We used to have paid rates awards in the Maritime Industry Award. We used to have something called the Maritime Industry Seagoing Award 1999, and as part of the old WRLA Act, we were required to convert that from a paid rates award into a minimum rates award.
PN381
It wasn't just a strict lining up of key classification to the C10 in the old Metals Award, as it then was. There was also an extra component that was added; the nature of the work or the nature of the industry or the type of work performed. It was given various titles depending on the industry you were in, and in this industry, there was a loading given by Wilkes C when he did the conversion of 10 per cent. So there was recognition, and has always been historical recognition, that the people that perform tasks on vessels are treated slightly differently than people that would perform the same task on land. So there should be no difficulty, we submit, in seeing this alleged anomaly between a fitter on land and a fitter at sea on a ship. The same we say applies to each of the other classifications my friend complains about.
PN382
My friend says that part of the genesis of this is her application. She filed an application. It is - I must say I don't have a date on it on the copy I have. It seems to be undated. She doesn't seek to disturb any of the relativities of the classifications that are currently in Part A when pouring them across into Part B. She maintains that whole structure. She leaves the chief cook at the same level, she leaves the same groupings with the integrated ratings, assistant steward and catering attendant. What she does do in that application though is give them aggregate salaries, and we'll get to that when that application gets heard, and the gives weekly rates for the electrical engineer, the electrician, the fitter, the repairer and the carpenter, and then includes the all other crew members classification which we've walked away from in this application today. So it's not that she's actually attacking the entire structure in the application as you might have assumed from the way she put forward the anomaly argument to you today.
PN383
We say there's nothing that has been said about the application that should affect it being made by the tribunal. I should pause and I suppose consider some of the case law that my friend has taken you to. You will recall that the Equal Remuneration Case was about in line with the equal remuneration principle that people should be paid greater wages. It was not a case about that they should be reclassified, and it was not a case, as it turned out, about creating a new classification. It was a comparison between work performed between two groups and whether or not the rates were properly set.
PN384
THE VICE PRESIDENT: I think there was ancillary applications in relation to the actual wage rates as distinct from the equal remuneration order sat on the top of the award rates.
PN385
MR KEATS: That's right, but it was for additional payments, if you like, on a weekly basis as opposed to a new classification, as I remember it.
PN386
THE VICE PRESIDENT: I think aspects of the classifications were reviewed in the course of considering the application for an equal remuneration order, given that it sat on top of the award, that there were some questions as to the appropriate classifications and wage rates in the award itself that also came into the proceedings. It might be those aspects that are dealt with in these relevant extracts.
PN387
MR KEATS: I'm indebted to your Honour. You're probably in a better position than I, because you sat on the hearing of that case. My point being though, your Honour, is that here we are putting new classifications into the award, and we're doing it on the basis of an understood and accepted international grouping of relativities. We're not here saying that you should pick up the rate of pay sitting in the ITF agreement, and bring that across and put it into the award. We are simply saying this is how internationally they are accepted as being grouped together by the wider shipping community. So that's what should be applied here because these are essentially international ships working in the international community. Unless there's anything further, I'd ask that the variation be granted.
PN388
THE VICE PRESIDENT: Thank you, Mr Keats. I can indicate that I consider it consistent with the principles for reviewing the award under schedule 5 of the Transitional Act that the classification structure reflect all relevant classifications of employees, and the insertion of classifications is something that I would be disposed to adopt. As far as the wage rates are concerned, I would propose to reserve consideration of those, and it does appear to me that, perhaps consistent with a cautious approach in relation to this part previously, I should consider related applications in relation to the classification structure and wage rates before determining the wage rates to attach to the new classifications and where they fit within the structure. So I will reserve consideration of that matter pending the hearing of the application that has been made by Ms Zeitz's clients. Mr Keats?
PN389
MR KEATS: Your Honour, can I request - when this matter was asked to be listed, we expressed some urgency in rates being inserted - that while that deliberation occur, you insert the minimum wage until that consideration can be finished, because it may take some time, at least until next year, until Ms Zeitz's application is determined.
PN390
THE VICE PRESIDENT: I'll give consideration to that, Mr Keats.
PN391
MR KEATS: Thank you, your Honour.
PN392
THE VICE PRESIDENT: Mr Gibian.
PN393
MR GIBIAN: Thank you, your Honour. My clients filed an application on 16 November to vary the award, the variation being to clause 17.5 of the award dealing with rest breaks in summary. A copy of the proposed variation had early been circulated between the interested parties. Subsequent to 16 November, my client had endeavoured to ascertain from other parties whether there was consent or otherwise to that position. As I understand it, Ms Zeitz's clients, the Bulk Commodities Group, the MUA, the AIMPE have all indicated that they have no objection to the variation which we sought. We hadn't received any opposition as such, although I understand the Shipowners' Association has not an objection to the principle behind the variation, but a concern as to the consistency between the variation sought and the marine order, but perhaps I'll come to that in a moment.
PN394
The Shipping Australia, as we understand it, sent correspondence to the tribunal yesterday, which we only became aware of when it appeared on the web site, expressing a similar view, although not articulating the basis upon which there was said to be an absence of consistency. Your Honour, can I explain the purpose of the variation which is sought. It is to remove an anomaly from the modern award, which has arisen out of the repeal of the relevant marine order and its replacement with a new marine order which occurred earlier this year. Can I firstly take your Honour to the clause 17.5 of the award as it presently exists. It's on page 22 of the award.
PN395
THE VICE PRESIDENT: Yes.
PN396
MR GIBIAN: Your Honour will see that clause 17.5 is headed Avoidance of Physical Exhaustion, and then under (a) there's a heading Employees Assigned to Watchkeeper Duties, and certain minimum rest periods are set out in (i), (ii) and (iii), the principal provision being that there must be a minimum of 10 hours of rest in any 24-hour period, and that that be taken to no more than two periods, one of which must be at least six hours in length. Your Honour will then see in (b) - 17.5 - there's a reference to the provision for other employees not covered by 17.5(a). The substance of those provisions with respect to the rest periods to be provided to other employees appear to us to be, although there is some difference in the wording, substantially the same in their effect, and your Honour will see in (i) under 17.5(b) that there's a similar provision for a minimum of 10 hours of rest in any 24-hour period, and that those rest periods be divided in no more than two - that that rest be divided into no more than two periods, one of which must be at least six hours in length.
PN397
Your Honour, that existing provision appears to owe its existence to the Marine Orders as they previously existed. Can I just hand to your Honour a copy of Marine Orders, Part 28 Issue 3, and Marine Orders, Part 28, Issue 4. If I could firstly take your Honour to Marine Orders, Part 28, Issue 3 which should be the first document that I handed to your Honour. I don't know whether your Honour wishes to mark these.
PN398
THE VICE PRESIDENT: Yes, I will mark that exhibit G2, and I'll mark issue 4 exhibit G3.
EXHIBIT #G3 MARINE ORDERS, PART 28, ISSUE 3
EXHIBIT #G4 MARINE ORDERS, PART 28, ISSUE 4
MR GIBIAN: If I can take your Honour firstly to Marine Orders, Part 28, Issue 3, and to page 4 of that document, towards the bottom of that page, the bottom half of that page, there is a reference under point 6 to Fitness for Duty, and at 6.2 Minimum Rest Periods, and your Honour will see that provision is there made at 6.2.1 which requires that:
PN400
All persons who are assigned to duty as an officer in charge of a watch or forming part of a watch must be provided with a minimum of 10 hours' rest period in any 24-hour period.
PN401
And the provision about dealing with the way in which the hours of rest may be divided is at 6.2.2, and at 6.2.3 there's a provision for those provisions - those arrangements need not apply in the case of an emergency drill or other overriding operational condition, and over the page at clause 6.2.4, there was at that point provision for a minimum rest period of 10 hours to be reduced, subject to the restrictions that are there set out. Going back to the award, your Honour will see that those are the matters that are essentially reflected in (i), (ii) and (iii) in both (a) and (b) of clause 17.5 of the award.
PN402
Can I take your Honour then to Marine Order 28, Issue 4 which was marked as exhibit G3. Your Honour will see on the first page of that document that it's recorded that the order was made under the relevant provision of the Navigation Act on 2 April this year. If I could turn to page 3 of that document, your Honour will see that in clause 2, the order is to commence on 15 April 2012, and at clause 3, it's indicated that Marine Orders, Part 28, Issue 3 is repealed. Can I just refer to the definitions provision which is on page 4 at clause 6, and your Honour will see there the second definition is that of seafarer which is defined to mean a seaman as defined in subsection (6)(i) of the Navigation Act, or the master of a ship. The rest provisions are found on page 6 of that document, and your Honour will see at point 3 on that page, there's a heading Division 3, Standards for Watchkeeping, and at clause 12, clause 12 sets out the circumstance in which the division applies.
PN403
The rest periods are set out at clause 14, which is headed Minimum Hours of Rest, and your Honour will see clause 14.1 now provides that the minimum hours of rest for a seafarer must be 10 hours in any 24-hours and 77 hours in any seven days. Clause 14.2 requires that the minimum hours of rest may be divided into two periods of which one period must be at least six hours, and clause 14.3 now provides that the interval between consecutive periods of rest must not exceed 14 hours. Consequently your Honour will see there's been some change to the minimum rest break provisions required under the Marine Orders. What my client has endeavoured to do is reflect that in an amendment to the provisions contained in clause 17.5. Does your Honour have the application - - -
PN404
THE VICE PRESIDENT: I do.
PN405
MR GIBIAN: - - - of 16 November? Attachment 1 to the application sets out the terms of the variation which is sought. As these things sometimes are, it's necessary to read it together with clause 17.5 as it presently exists perhaps to understand it. Your Honour will see firstly that there's a proposal that the variation seeks to alter the heading to read Minimum Hours of Rest, and to alter the heading of clause 17.5(a) to replace the words, "Employees assigned to watchkeeping duties with minimum hours of rest for a seafarer must be". Your Honour, the purpose of that is to simply have a single clause rather than a largely repetitive provision dealing with watchkeeping duties and other employees. As your Honour has seen, the existing provision in 17.5 contains substantially the same minimum rest periods for all employees, just divided for reasons which are not particularly clear into two parts.
PN406
THE VICE PRESIDENT: Which version is plain English?
PN407
MR GIBIAN: I'm sorry?
PN408
THE VICE PRESIDENT: Which version is plain English?
PN409
MR GIBIAN: I'm not sure any of them are plain English, but the variation does simplify it I think. The substance of the provisions there contained for all employees are reflective of the Marine Orders provisions that previously existed as exemplified in Issue 3 of Marine Orders, Part 28, to which I've take your Honour. Those provisions on their face apply to watchkeeping or persons involved in keeping watch, but have been applied in the award to all employees, albeit in separate part. We simply put that as one provision to reflect the change that has occurred in the marine orders.
PN410
Your Honour will then see in item 3 of attachment 1 to the application that what we've endeavoured to do is then delete (i) which contained the old hours of rest provisions from the Marine Orders and replace that with a new (i) which essentially rolls up clause 14.1 to 14.3 of the Marine Order into a single provision, making provision for a minimum period of 10 hours in any 24 hours, and 77 hours in any seven days, and as to the manner in which that can be broken, and to the requirement that the period between consecutive periods of rest are not exceeding a period of 14 hours.
PN411
The variation would leave intact (ii) in clause 17.5(a). Clause 17.5(a)(iii) would be deleted as it presently exists. It reflects a provision for reducing rest periods, which was previously contained in the earlier Marine Order which is not contained in the current version, and simply replaced by a definition of "seafarer" in accordance with the provision contained in Marine Order 28, Issue 4. Clause 17.5(b) then becomes unnecessary and can be deleted and with appropriate renumbering of 17.5(c). That is in short what we seek. To the extent that we understand there to be a complaint as to consistency between the Marine Order 28, Issue 4, and what we've sought as a variation, we understand that or we've been informed that that is based at least in part upon clause 15 of the Marine Order. Does your Honour have Marine Order 28, Issue 4, exhibit G3?
PN412
THE VICE PRESIDENT: Yes.
PN413
MR GIBIAN: I took your Honour to page 6 and clause 14 which sets out the minimum periods of rest at the bottom of that page. If your Honour goes over to page 7, your Honour will see that clause 15 at the top of that page is headed Exemptions From Minimum Hours of Rest, and provides that:
PN414
The operator of a ship may apply to AMSA -
PN415
so the Australian Maritime Safety Authority -
PN416
PN417
We have not included that provision in the variation that we seek to the modern award. We have done so because the present provisions of the award do not and have never made provision for exceptions to the minimum hours provisions in any way, and no party has sought that that be included in the award. I'd also note that the hours of rest provisions within Part B, which do reflect in substance the current Marine Order, do not contain any such provision, and your Honour will see those on page 45 of the award at clause 28, which at 28.1 makes provision for the minimum hours of rest to be 10 hours in any 24-hour period, and 77 hours in any seven-day period, and no provision is made for an exception to those arrangements irrespective of the operation of the Marine Order.
PN418
In short, the existing provisions of 17.5 reflect the old Marine Orders to the extent that they deal with rest breaks and rest periods. Those provisions have been repealed. The provision ought be varied to reflect the new Marine Order 28, Issue 4, to the extent that that provision contains minimum rest breaks which are binding upon operators of ships. Unless there's anything further, your Honour.
PN419
THE VICE PRESIDENT: Thank you, Mr Gibian. Mr Keats?
PN420
MR KEATS: The MUA supports the application by the AMOU.
PN421
THE VICE PRESIDENT: Thank you. Ms Cerche.
PN422
MS CERCHE: Thank you, your Honour. Would your Honour mind if I make submissions from here rather than from the lectern. I seem to have made myself at home.
PN423
THE VICE PRESIDENT: If you're comfortable there, you certainly can remain.
PN424
MS CERCHE: Thank you, your Honour. Mr Gibian articulated that we were not opposed to the variation in principle in that we certainly agree that there should be consistency between the provisions of Marine Order, Part 28, Issue 4 and any clause that refers to those provisions in the modern award. We've been instructed by our members that when looking for hours of work and rest, they would certainly look to the Marine Order issued by the Australian Maritime Safety Authority to determine what their obligations are in that respect, and I think some were actually surprised to find it in the modern award. I suppose that's neither here nor there, but the important point is that many operators will see Marine Orders, Part 28, as the principal instrument by which the hours of rest for seafarers are regulated.
PN425
Mr Gibian has drawn you to Marine Order 28, Issue 4, and in particular clause 15, and that's the exemption from minimum hours of work and rest. That provision is not reflected in the proposed variation put forward by the AMOU in its application, and I do note that ground 4 of the AMOU's application was for the variation to bring the Seagoing Industry Award into line with the Marine Order. I won't repeat the totality of that ground, but we consider that this particular provision creates an inconsistency between what the provisions of a Marine Order are and what the provisions of the award are.
PN426
Mr Gibian has turned you to the exemptions for minimum hours of rest, and I think he noted that there were not any - no operators had applied for an insertion of an exemption in the award previously. I've just referred to Marine Orders 28, Issue 3, which I think your Honour has a copy of, and I'm not sure that actually contains the provision for operators to apply for an exemption. Certainly the hours of work and rest were different in this Marine Order, but there doesn't seem to be, to me, the ability to apply to the Australian Maritime Safety Authority for an exemption, but I'm happy to be corrected if I have got that wrong.
PN427
Your Honour, the exemption refers to - the ability to apply for an exemption must be made in line with the STCW Code - sorry, the Standards Training and Certificate for Watchkeepers Code. The relevant provisions of that - I actually have a copy here, but unfortunately I don't have enough for everyone. I've got a few copies, and if I might just hand that up, which gives you an indication of the ability - sorry, the maximum ability to which exemptions might be granted. Your Honour, that provision of the International Convention which these Marine Orders are seeking to bring into force in Australia National Regulation is set out clearly, and it does allow for minor derogations to the hours of rest for seafarers, and this particularly relates to seafarers keeping a watch in certain circumstances. I think the operative provision might be clause 9 onwards, which talks about that.
PN428
Your Honour, if I could just conclude in saying, as I've put, the ASA certainly doesn't have any objection to a variation which would bring the clause in the modern award wholly into line with Marine Order 28, Issue 4. In fact we think that's probably desirable so that there is no possibility of operators complying with one and not the other, but we're just not sure that the variation proposed by the Australian Maritime Officers Union in this form achieves that. We don't think it's very far off, if I might make that comment, but we might like to have further discussions to see if this might not be resolved rather quickly. Thank you, your Honour.
PN429
THE VICE PRESIDENT: Ms Cerche. Do you think that your concerns may be resolved by a very brief reference with words such as "unless an operator obtains an exception to the Marine Orders" or something of that nature.
PN430
MS CERCHE: Something of that nature might alleviate our concerns. Certainly it will ensure that there's consistency and there's no danger of operators inadvertently falling into breach of the modern award when they are in fact complying with the Marine Order, because as I said, that is the principal instrument to which they will look for their obligations.
PN431
THE VICE PRESIDENT: What is the status of the STCW Code?
PN432
MS CERCHE: Mr Gibian, would you like - sorry, the STCW Code is an International Convention which Australia has ratified. In Manilla June 2010 I think it was, there was a change to the hours of work and rest provisions in that code, and I handed your Honour a copy of those. So it is an International Convention which Australia implements domestically through Marine Orders, your Honour. I hope that's an appropriate explanation.
PN433
THE VICE PRESIDENT: Thank you. I might mark that exhibit C1.
EXHIBIT #C1 STCW CODE
MS CERCHE: Thank you.
PN435
THE VICE PRESIDENT: Ms Zeitz or Ms Tredwell?
PN436
MS ZEITZ: Our client has no difficulty with the application, your Honour. For clarity it may be useful to have a reference to clause 15 of the Marine Order. I notice that subplacitum (ii) remains in tact which reflects what I understand to be clause 16 of the Marine Order. So it may be that it could be usefully dropped into matters of reference.
PN437
MS TREDWELL: I might just also indicate, your Honour, we have no objection to the proposed amendments, but as Ms Zeitz says, it might make sense to make a reference to clause 15.
PN438
THE VICE PRESIDENT: Yes. Mr Gibian.
PN439
MR GIBIAN: Thank you, your Honour. I don't know there's too much I need to say. Perhaps just for your Honour's information apart from anything else, these provisions have been in the award in addition to being in the Marine Orders historically because the Marine Orders apply to operators who are required to ensure these arrangements. The employers of persons on ships might not be an operator, albeit that the operator is separately required to ensure that the requirements of the Marine Orders are applied. They might be shipping agents, employers and the like, and that's the reasons why they've been in the award as well.
PN440
With respect to the STCW Code, as has been said, it's an International Convention to which Australia is party. Certainly the Marine Orders intend to give effect to that convention. With respect to the exemption provisions, perhaps not necessarily entirely at one with the convention, that is it's a domestic legal instrument made under the Navigation Act which the government is able to determine the contents of separately from the agreement itself, and in that regard, there is a difference in that there is only an exception to the minimum rest period provisions if there is approval of the exemption given following application to AMSA. There's no automatic provision. AMSA says it will have regard to the circumstances in which, under the convention, such an exemption may apply, but there is a requirement for prior approval of AMSA before any such exemption to the minimum rest break provisions could apply, which is a distinction from the convention itself.
PN441
As we understand the situation, there doesn't appear, so far as anyone here present is concerned, to be any objection to the variation being sought, the only issue being whether words of the nature that your Honour mentioned ought be added at the outset. We don't embrace that because it's never been part of the award structure, and we would have - - -
PN442
THE VICE PRESIDENT: Were the exception provisions part of the previous marine orders?
PN443
MR GIBIAN: No, they were not, your Honour. I don't know that we can say that too strongly, but we think really that a party, if they thought that that was necessary, ought to have made application to vary the award in those terms, and that has not happened, but if your Honour is attracted to that idea, that would resolve any issue that exists, as we understand it, between the parties.
PN444
THE VICE PRESIDENT: Thank you, Mr Gibian. I can indicate in relation to this application that I believe that it is consistent with the provisions relating to the review of awards because it brings into line the award provisions with changes to the Marine Orders since the award was made. I consider that to be a desirable change, and consistent with the modern award's objective that the variation be made. I would prefer, however, that it is clear that the award provision is entirely consistent with the Marine Order, and without setting out the entirety of the exception provision from a Marine Order, I believe there should be some brief exclusion in the terms of the order that is issued, and I would ask Mr Gibian if you could propose a draft which reflects that position perhaps in consultation with those that have raised that position here today. That to my mind doesn't alter the substance of the application, but simply ensures that there is no room for confusion or any inconsistency between the two instruments.
PN445
MR GIBIAN: Thank you, your Honour. We'll do that.
PN446
THE VICE PRESIDENT: Thank you, Mr Gibian. Anything further that anyone wishes to raise today? Thank you very much. We'll now adjourn the proceedings.
<ADJOURNED INDEFINITELY [11.46AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #MUA3 DRAFT ORDERS PN266
EXHIBIT #MUA4 LETTER FROM AUSTRALIAN METALS AND MINERALS ASSOCIATION PN273
EXHIBIT #MUA5 STATEMENT OF MR SUMMERS PN287
EXHIBIT #MUA6 SUPPLEMENTARY STATEMENT OF MR SUMMERS PN287
EXHIBIT #G3 MARINE ORDERS, PART 28, ISSUE 3 PN399
EXHIBIT #G4 MARINE ORDERS, PART 28, ISSUE 4 PN399
EXHIBIT #C1 STCW CODE PN434