TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 54877-1
SENIOR DEPUTY PRESIDENT HARRISON
AM2011/27
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Apache Energy Limited & Chevron Australia Pty Ltd and Others
(AM2011/27)
Hydrocarbons Industry (Upstream) Award 2010
(ODN AM2008/44)
[MA000062 Print PR988773]]
Sydney
2.03PM, MONDAY, 27 JUNE 2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY
PN1
THE SENIOR DEPUTY PRESIDENT: I’ll take appearances first in Melbourne.
PN2
MR G. BULL: Thank you, your Honour. I’m Mr Geoff Bull representing the applicants in this matter, the applicants one through to nine.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bull. I’ll take appearances now in Sydney.
PN4
MR M. DE CARNE: Yes, if it please the tribunal, Mr De Carne, initial M., appearing on behalf of the Australian Workers Union.
PN5
THE SENIOR DEPUTY PRESIDENT: Mr De Carne.
PN6
MR G. NOBLE: Your Honour, Noble, initial G., for the AMWU.
PN7
THE SENIOR DEPUTY PRESIDENT: Mr Noble.
PN8
MR A. KENTISH: If it pleases, Kentish, initial A., for the CEPU.
PN9
THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Kentish. I’ve received from each of the unions an indication that the application for variation is opposed so we can talk about that but I thought what we might do is first allow each of you to record on transcript what you think might be useful. We can always come back on to transcript again too but I thought also at some stage we might have a discussion. I’m of two minds as to whether that discussion is most useful off transcript or on transcript. It would really be trying to ascertain whether there’s some room for some sort of settlement of this matter.
PN10
Now, generally if I was confident it was only those parties who are represented who had a real interest in this matter, I would have those sorts of discussions without them being transcribed but we know these applications proceed by way of the work-based notification to parties as to what’s going on and I just wonder whether there might be persons who really are taking a bit of a monitoring or watching brief on this who might have a very real interest should it take a particular route as oppose to some other. So as I say, I am of two minds. If any of you have a strong view about that, let me know.
PN11
Let’s start off by allowing each of you whatever you wish to say and that will certainly be transcribed. So we might start with you, Mr Bull. Obviously you don’t have to repeat what’s in your application and the grounds. I think we’re all aware of that but you might help me, for example, if there have been any discussions that I need to know about or if there’s any currently programmed to see if there’s some agreement that can be reached with the unions.
PN12
MR BULL: Yes, thank you, your Honour. I think there was some discussion with the AWU, Ms Zoe Angus was the name, prior to this application being filed and she advised one of my colleagues that there would be an opposition to the variations sought and, since that date or since the application has been filed there’s been no discussions. I note – recorded the three unions have opposed the amendment as proposed by the employers so we’re yet to see on what grounds they oppose upon. We certainly make the concession that the draft put before the tribunal member was in the form that it finally issued. That’s not in dispute.
PN13
THE SENIOR DEPUTY PRESIDENT: Yes, that was the AMMA draft that was in the form it finally issued, as was the exposure draft, but as your grounds indicate the wording doesn’t seem to have been addressed at all by anyone. So I think we’re all clear on that. Well, what say I start with the unions. Mr De Carne, are you able to indicate the grounds that you’re going to be relying upon to oppose this variation?
PN14
MR DE CARNE: Yes, your Honour. Initially I’d like to say that our position from the outset in March 2009 was as per the wording that’s been released in the exposure draft. That was based on the balancing exercise that we undertook when we redrafted the scope of our awards. Our original position wasn’t for upstream or downstream oil and gas or hydrocarbons industry. As that manifested in the exposure draft, we believe it was properly characterised to balance particular aspects of the awards that were being condensed therein. There have been discussions with AMMA as my friend in Melbourne suggested.
PN15
We think that if we’re going to progress with the application, then we probably need a hearing of the matter. We propose that the application is given two weeks to file some written submissions and then the opposing unions would be given two weeks to file written submissions in response and then perhaps the applicants would then file submissions in reply and we would have a hearing. We won’t be consenting to the application.
PN16
THE SENIOR DEPUTY PRESIDENT: On the basis that that is the clause that – well, I don’t know if it’s the clause you sought. Obviously in your draft it was a different clause than the one that ended up in this award but what was your submission? You were after one award rather than - - -
PN17
MR DE CARNE: The awards are characterised differently in our draft awards, our original drafts, but then there was a revised position and that was in March 2009 and the terms of our clause 14.3 in the award we named the Offshore Oil and Gas Award were very similar to the terms that have ended up in the modern award.
PN18
THE SENIOR DEPUTY PRESIDENT: Well, I’m looking at what – I didn’t bring your draft award but I have retained all of those documents and of course they’re accessible on the award modernisation site but, at least to the extent AMMA has reproduced what your draft was in March 2009, you did importantly use the word “between” as opposed to the word “to” – t-o.
PN19
MR DE CARNE: I don’t believe that’s actually the case. I’ve a copy of the award here in front of me.
PN20
THE SENIOR DEPUTY PRESIDENT: So ground 14 of the AMMA grounds you take issue with, do you?
PN21
MR DE CARNE: We do.
PN22
THE SENIOR DEPUTY PRESIDENT: I see. Well, I had thought that was probably correct. You don’t happen to have a copy of the draft, do you?
PN23
MR DE CARNE: I have one copy. I can hand that up.
PN24
THE SENIOR DEPUTY PRESIDENT: Yes, I think 14.3 in your draft that’s marked March 2009 – I think that looks to be the clause that ultimately went into the award, is it? Let me just have a look. I now can’t recall what the date of the exposure draft was. Does anyone know that off the top of their head?
PN25
MR DE CARNE: It was in May 2009.
PN26
THE SENIOR DEPUTY PRESIDENT: All right. So this preceded the exposure draft, this draft you’ve just given me?
PN27
MR DE CARNE: It did indeed, your Honour.
PN28
THE SENIOR DEPUTY PRESIDENT: I see. Let’s have a look then. Yes, even though the first few words are different, the important words are the same as what was in the exposure draft. I wouldn’t mind making a guess that you may well have, at this stage, picked up the AMMA draft and reproduced it in your draft to the extent it provides for the cost of transport to the designated assembly point within the workplace and return. Yes, I understand that. Now, Mr Bull, do you know where you got the paragraph that you refer to in your paragraph 14, where you got that paragraph from?
PN29
MR BULL: Yes, I must apologise, your Honour. I’m not actually in my office. I’m in Melbourne. I’m normally based in Sydney. So I don’t have the file in front of me but I did have some trouble trying to track all these documents down, but in our submission our paragraph 14 refers to the AWU draft award at subclause 14.12 and I certainly have one in my office which is dated in March 09 and that subclause 14.12 is where we’ve extracted that wording. It’s certainly true that at the end of the day both parties submitted the word as per the draft, exposure draft, should be as it is but we say that at least prior to that at one stage both the AWU and the employers were using wordings which included the word “between” as opposed to “to”. So we can extract that if my friend doesn’t have a copy. I can certainly undertake to provide it to him if he doesn’t have a copy of it on his records.
PN30
THE SENIOR DEPUTY PRESIDENT: Yes, if at some stage then you can let us know which draft that clause 14.12 came out of. Certainly the one Mr De Carne has just given me, Point of Assembly Offshore Work, and it’s a draft dated March 2009. The relevant clause is 14.3(a).
PN31
MR BULL: Yes, I will be returning to Sydney next week so I will be extracting from the file.
PN32
THE SENIOR DEPUTY PRESIDENT: All right, well, we can, if need be, look at that, the relevant of it being that if the AWU did in fact propose the use of the word “between” in one of its drafts and the date at which it proposed the use of that word and then subsequently it reverted to the identification of transportation “to” the designated assembly point, it’s probably useful for us all to revisit that. However, Mr De Carne, I took you off on that tangent there. You referred to the wording that was accepted by you that was in the exposure draft that you did not contest as being a balancing exercise, was it?
PN33
MR DE CARNE: Yes, your Honour, I’ll just explain. The original position, I believe, and as I understand it, was based on a different scope, so once the scope changed so did the consideration of the clauses within the award and I understand that we believed that the AMMA position was similar to our position at that time. We then filed subsequently in the same month, March, this amended award which revisited the scope, revisited the areas of coverage and then again the areas of the award that would be balanced together. So on that basis, we propose having – if we’re going to revisit the matter and we don’t see any need to consent at this point, maybe being informed by some full submissions from the applicants and then response submissions from the unions and embark upon a hearing eventually.
PN34
THE SENIOR DEPUTY PRESIDENT: All right, well, I can come back to that. Thanks. Mr Noble.
PN35
MR NOBLE: Your Honour, I support what my colleague Mr De Carne has said.
PN36
THE SENIOR DEPUTY PRESIDENT: You didn’t put in any drafts, I don’t think, in this, did you? It was the AWU and AMMA.
PN37
MR NOBLE: Yes, not in this one. AWU were leaders in this.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes.
PN39
MR NOBLE: But as we see the application, we have issue obviously as a threshold issue that ambiguity does actually exist. We would maintain that it doesn’t on its face and on that basis the application shouldn’t be considered. We also find it a bit odd that the award has been in existence now for one and a half years and this matter then arises. We know of no disputes where this clause is an issue of substance and, considering the date, your Honour, we feel it may be more appropriate to have this sort of matter dealt with during the 2010 review.
PN40
THE SENIOR DEPUTY PRESIDENT: Thanks. Mr Kentish.
PN41
MR KENTISH: Thank you, your Honour. Other than to support what my friends from the AWU and the AMWU have said, the CEPU’s position is we can’t say very much more. If it pleases.
PN42
THE SENIOR DEPUTY PRESIDENT: All right. Mr De Carne, are you instructed as to whether there are any issues concerning this clause, any claims or any disputation in the industry about this clause?
PN43
MR DE CARNE: I’ve actually only made preliminary investigations but at this stage, no, I don’t know of any disputation.
PN44
THE SENIOR DEPUTY PRESIDENT: Mr Bull, any claims been put on your members for the interpretation which of course you do not support but you wish in your application to make it clear what you believed it should read, but is there any claim in relation to moneys consequent on the interpretation that you don’t like?
PN45
MR BULL: Yes, thank you, your Honour. This was brought to our attention by, I think, two members in particular who were paying close attention to what the provisions were in respect to payment of travel and when they were trying to prevent that one – actually the union and the industry - when they were trying to work out what was paid and what was not paid, well, they read the agreement in a manner that could have meant that some employees employed overseas or in other states of Australia should have the full value of their airfare reimbursed and they contacted us and we advised that wasn’t the intention. We contacted all the rest of the parties.
PN46
So at this point in time nobody is paid the travel rate in the terms that we say is the (indistinct) and certainly in terms that we were told at least the AWU say it should be paid even though there was no added submission put to the tribunal that this dramatic increase in travel allowance was ever brought to their attention or how that would be funded or what it was, but we’re not of the mind to wait. We don’t think it’s proper for the tribunal or any party to wait for a dispute where we end up in an industrial magistrate’s court aiming for the - to travel one - should be paid or not paid. We just think it behoves all parties to rectify what we say is clearly an element that occurred and it can be rectified quite simply. There’s certainly no obligation or needing to wait until 2012. It’s not one of those issues. It’s a mistake that needs to be fixed.
PN47
THE SENIOR DEPUTY PRESIDENT: I don’t know if any of the unions would know the answer to this, and putting to one side enterprise specific arrangements, do any of you any underlying provision that would have entitled employees to be paid for the cost of the trip when they’re residents wherever situated to the point of assembly and return?
PN48
MR DE CARNE: I understand there is one award, your Honour. I think it’s an onshore drilling award, and AWU award, that has similar terminology. I don’t have an award with me to refer to but I understand that there was one award that I can recall sighting at some point but I’d be happy to provide the tribunal with that information at a later date.
PN49
THE SENIOR DEPUTY PRESIDENT: Because I should be quite frank, I was not aware that this was an entitlement. Put to one side any enterprise specific arrangements, this was an entitlement within the industry. So I think it’s only fair for me to make that observation.
PN50
MR DE CARNE: Of course.
PN51
THE SENIOR DEPUTY PRESIDENT: Well, as a relevant discretionary consideration should we get to that stage, but that does not answer what you have foreshadowed, Mr Noble saying – so start at the beginning – there’s no ambiguity and then going to the other issues about what from time to time the parties were contending for. Now, all right, what about a discussion off transcript? Do you have a view about that, Mr Bull?
PN52
MR BULL: I’m happy to talk off transcript.
PN53
THE SENIOR DEPUTY PRESIDENT: Any of the unions have difficulty with that? I think it’s probably something I’m prepared to do in this case because my understanding of the principal parties and those who have showed from time to time more significant interest in this award, they’re all rather represented here today. We’ll go off transcript for a short time.
OFF THE RECORD [2.23PM]
ON THE RECORD [2.31PM]
PN54
THE SENIOR DEPUTY PRESIDENT: … this application and I have indicated that I wish to call it on again for mention and programming in two weeks’ time. We haven’t settled upon a date today but in the next couple of days or so my association will contact each of you and identify a convenient time. I’ll now adjourn.
<ADJOURNED INDEFINITELY [2.32PM]