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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Ports, Harbours and Enclosed Water Vessels Award 2010, the Seagoing Industry Award 2010, and the Marine Towage Award 2010






VICE PRESIDENT HATCHER:  Can I take the appearances please starting in Sydney.


MR A HOWELL:  Yes, your Honour.  Your Honour, Howell, H-o-w-e-l-l, initial A, appearing on behalf of the Maritime Union of Australia this time.


VICE PRESIDENT HATCHER:  Thank you.  Mr Herbert.


MR E HERBERT:  Yes, your Honour.  Herbert, initial A, I appear on behalf of Sea Swift Pty Ltd.


VICE PRESIDENT HATCHER:  Is that all the appearances in Sydney?  Yes, right.  Melbourne, Ms Mansini.


MS A MANSINI:  Yes, thank you.  Mansini, initial A, from AMMA.


VICE PRESIDENT HATCHER:  Yes, all right.  Who else appears in Melbourne?


MS S CERSHE:  Thank you, your Honour.  It's Cershe, initial S, from MIAL.


VICE PRESIDENT HATCHER:  Just for my information, Ms Cershe, what does MIAL stand for?


MS CERSHE:  Maritime Industry Australia Limited.


VICE PRESIDENT HATCHER:  Right, thank you.  Mr Neilson you appear for AIMPE.


MR N NIBEN:  Yes, it's Niben, N-i-b-e-n, initial N.


VICE PRESIDENT HATCHER:  Yes, sorry, I misread that, thank you.  Is that all the appearances in Melbourne?




VICE PRESIDENT HATCHER:  Right.  Moving further west in Adelaide, appearances in Adelaide?


MS M HII:  Ms Hii, H-i-i, initial M, appearing on behalf of Sea Link Travel Group.


VICE PRESIDENT HATCHER:  Right, thank you.  Then finally in Perth?


MS L D'ASCIANIO:  D'Ascianio, initial L, from AMMA on behalf of Svitzer Australia Pty Ltd.




MR D WHITE:  White, initial D, appearing on behalf of the WA Inshore Boating Alliance.


VICE PRESIDENT HATCHER:  Right, thank you.  So does any party oppose any other party being represented by lawyers in the proceeding?




VICE PRESIDENT HATCHER:  No, all right well we'll grant permission to any lawyers who have sought to appear in the proceedings.  Now who would like to go first.  Mr Howell?


MR HOWELL:  Your Honour, thank you.  Your Honour, I should just clarify one matter.  I had earlier in these proceedings entered an appearance on behalf of the AMOU.  I've not entered an appearance on behalf of that organisation this morning.  I just wanted to make sure that that was clear.




MR HOWELL:  Your Honour, my client's filed some written submissions and a bundle of supporting material yesterday in which my client opposes the foreshadowed amalgamation of the three industry awards; the Seagoing Award, the Marine Towage Award and if I might describe it in this way the Enclosed Waters Award, and otherwise proposes an alternate drafting mechanism to address the issue that had been identified by the Full Bench in its decision of February of this year, dealing with the coverage of those three instruments.


Your Honour, the submissions are lengthy, they're detailed.  I'll endeavour not to repeat them but before I start can I make two corrections to them.




MR HOWELL:  They're typographical and it's really just to make sure that the (indistinct) doesn't get confused by what's happened.  Paragraph 34, you'll see at the end of the paragraph these words "for those cover", those words should be deleted.  There's not a rest of that sentence, it's just something that just happened in the drafting and a similar issue has arisen in the drafting at paragraph 76.  There's a subclause (iv) in the first subparagraph (a).  That should be deleted.


VICE PRESIDENT HATCHER:  Sorry, where is that?


MR HOWELL:  So it's paragraph 76, you'll see under paragraph 76 there are four subparagraphs including subparagraph (a), subparagraph (a) has three separately - sorry, four separately numbered subparagraphs (i) to (iv), delete (iv).


VICE PRESIDENT HATCHER:  So removed (iv) do we?


MR HOWELL:  (iv).




MR HOWELL:  Thank you.  Your Honour, my client's opposed to the - can I deal separately with the question of amalgamating these three instruments and the alternate proposal which is advanced by the MUA.  Firstly, as to the amalgamation, we say it's neither necessary or appropriate to amalgamate the three awards because to do so will, in our respect submission, not facilitate the achievement of the modern awards objective. Relevantly a simple, easy to understand stable and sustainable modern award system that removes any unnecessary overlapping of coverage.


What the Full Bench should in my client's respectful submission do is make the Marine Towage Award in the form of the determination which was published on 30 June, not make the Seagoing Award and the Enclosed Waters Award in the form contemplated by the earlier determinations and adopt the ultimate submission, which will advance shortly.  The union's ultimate position briefly stated is to remove the exclusionary provisions that prevent overlapping coverage between Marine Towing, Seagoing and Enclosed Waters so that what I've characterised in the written submissions as the usual interaction rule, which applies generally across all of the modern awards where more than one award covers an employer's operations can effectively operate.  Because we see that as the central vice arising out of what the Full Bench earlier in these proceedings.


If your Honours adopt that approach - - -


VICE PRESIDENT HATCHER:  So if we go to the Seagoing Award - - -


MR HOWELL:  Yes, your Honour.


VICE PRESIDENT HATCHER:  - - - just tell us specifically what you want to do.


MR HOWELL:  In the Seagoing Award itself, I can do this conveniently your Honour by handing up the bundle of material in its written form and I'll take you to schedules that we've put in an annotated form of the Seagoing coverage clause.  If your Honours can turn to schedule A, to the submissions that were filed, which I think should be at the front of the bundle, behind the first tab marked Scheduling.




MR HOWELL:  You'll see there my client has prepared some drafts.  If you compare schedule A.


VICE PRESIDENT HATCHER:  Sorry, which was that?


MR HOWELL:  In schedule A you'll see there's draft determinations for Seagoing and Enclosed Waters and then you'll see there's a draft of existing seagoing industry coverage clause marked up to identify the changes we propose.  And in short there's deletions of references to the Marine Towage Award and the Enclosed Waters Award in clause 4.4 exclusions of the current form of the Seagoing Award.  The effect of that would then be, clause 4.1 would identify the substantive coverage:


This industry award covers employers which are engaged in the seagoing industry and their employees and classifications listed in -


and so.  Seagoing industry definitions set out at the top of that page for the Full Bench's convenience. Where there is more than one instrument which is capable of covering an employer's operation one would fall down to clause 4.5, which is the standard clause appearing in all modern awards or essentially all modern awards, which looks to the classification which is most appropriate to the work performed and the environment in which the employee normally performs the work, to identify which of the three overlapping modern awards would potentially apply.


VICE PRESIDENT HATCHER:  How does that help?


MR HOWELL:  The short answer to the problem is - the short answer to that question, your Honour, is these industries are well understood and don't generally overlap in practice.  It's why historically before the modern seagoing awards you had MISA, which covered the entirety of the sea port, is now the seagoing award.  You had the Towage Award which covered what was in substance the towage industry.  You have now the Enclosed Waters Award which captured a litany of other instruments but for the purposes of considering whether to amalgamate them, the seagoing industry, the towage industry, they've always been separate, distinct, well understood and had materially different terms and conditions which applied.  Which means - - -


VICE PRESIDENT HATCHER:  These awards tend to be products of historic union coverage, don't they, rather than any clear delineation of genuine industries?


MR HOWELL:  Your Honour, I don't know that that's necessarily correct when it comes to Towage and Seagoing.  The litany of instruments which went into making up the - what is now the Enclosed Waters Award, that may be right in some respects but I'm not sure that it's an accurate characterisation of the history of all of the instruments which ultimately went into making these three modern awards.


DEPUTY PRESIDENT GOOLEY:  But isn't the issue that occurred and the issue that we were trying to solve in relation to Sea Swift, was that in the old Seagoing Award it applied to specific boats and in fact you put up a proposal for the Seagoing Award to apply to vessels, not the industry of the employer but to certain vessels.  Vessels that the were - I think it's the language that's used in the current award, you know, cargo vessels blah blah blah that go outside of that.  But they were vessels, they weren't the industry of the employer and as I - and the towing one obviously applied to particular kinds of towing vessels and not the industry of the employer.  The ports, harbours and enclosed waters awards that you put up was to cover one, those vessels that operated within Ports, Harbours and Enclosed Waters Award and then a catch all for any other boat that wasn't a cargo vessel that was covered by the Seagoing Award.


Then what happened with the drafting of it which was that the Full Bench then drafted it so that it suddenly caught up with the notion of the industry of the employer.  Isn't a possible solution to give effect to the decision we made, which was that if you operate - it's not the question of whether if you've got a, as we did with Sea Swift, a multi-vessel business that the award that covers those vessels should be the award most relevant to those vessels.  Well, to be frank, for the Seagoing Industry Award really instead of it being the industry it's actually the vessels that trade as cargo vessels, passenger vessels or operator's research vessels who will then in the course of such trade or operation proceed to sea on voyages outside.  So if we confined the scope of the Seagoing Award to those vessels, limited the scope of the Towage Award to the towage vessels and then just left the Ports, Harbours and Enclosed Waters Award to capture everything else, where would the problem be?


MR HOWELL:  That was, your Honour, the submission we put up in opposition to the submissions then advanced by Sea Swift which would lead to no change in the coverage.  We're endeavouring to come to grips with the absence of the capacity for overlapping coverage so that the relevant safety net can apply to the relevant part of a multifaceted business.  I'm happy to embrace what your Honour said because that's exactly what we said the first time round and the only difficulty for me then is that it involves revisiting the Full Bench's earlier decision.


To answer your Honour's question about how that would apply in the proposal which my client is advancing, a vessel going to sea by itself couldn't usefully be used to delineate an industry, in my respectful submission.  One requires more.  There are, for the reasons which I've outlined in the written submissions, segments of what might otherwise be described as vessels going to sea that can be identified historically and in operation.  Generally the businesses which operate X type of vessel in X environment, whether it be seagoing industry as defined, towage industry as defined or enclosed waters, they generally operate only that type of vessel.


Indeed, Sea Swift's evidence below - well, not below, Sea Swift's evidence earlier in these proceedings was that they are unique.  And again that reflects the broad historical coverage of seagoing here, towage here and miscellaneous other things, which is why I say in the submissions the Enclosed Waters Award history's a little bit more complicated than the others.  But the point being, they are clearly identifiable, discreet parts of the industry which generally don't overlap.  So when one asks the question well if I'm on a cargo vessel which is less than 19,000 tonnes it's easy to identify if I'm a general purpose hand, even if you have overlapping coverage of these three instruments.  Which classifications go and which award would cover me?


So if we're dealing with a problem which is presented by a multifaceted business, having regard to the existing coverage provisions, the problem is the exclusivity.  So that the whole of the predominant character of the employer's business defines and confines the modern award that applies to the whole of the business regardless of the parts of that multifaceted business. You fix that problem, given the limited scope of it as disclosed in the evidence of these proceedings, by making sure that the three instruments can cover the employer's business and like the usual interaction law applies, that which looks - that which provides the best match between the classification and the environment in which the person works, you use that delineation to identify which is the particular instrument which covers the particular employment of the relevant employee.


When you come to look at the operation of that usual interaction rule in these industries, the classification itself is not - that is to say to look at the label of master or engineer or general purpose hand or integrated rating is not of great assistance.  What is of assistance is the environment in which it works, and that's what's in part reflected in the classification scale; i.e. dry cargo vessel of zero to 19,000 tonnes, research vessel et cetera, and otherwise reflected in the industry definition.  So if you were going to sea on a vessel extending beyond the limits of any port, harbour or bay, you're working on a dry cargo vessel of up to 19,000 tonnes, the environment and the classification for a general purpose hand would clearly by the seagoing.


If you're on a tug and barge combination and you go to sea, well again theoretically you could be covered by seagoing.  You're on a vessel which is carrying cargo, you're extended beyond the limits of any one state, but when you come to look at the usual interaction rule it's plain. The environment in which this person usually works is on a tug and barge combination which has the specific award which is intended to cover that particular employment.  So it's one of the reasons why my client says amalgamating these instruments - I mean I suppose in one respect the devil's in the detail a bit but simply amalgamating these instruments doesn't actually address the problem of ensuring that the relevant safety net applies to the relevant employment.


VICE PRESIDENT HATCHER:  Well, I mean if they were amalgamated on your scenario there would be no issue of crossing award boundaries, you'd have appropriate classification to cover someone working in the tug and barge combination and that would apply no matter where they went and what they did.


MR HOWELL:  Theoretically I would have to - you know, at the level of simple principle sure, one can say that but the modern award's objective requires that any awards, the product of these proceedings, are simple, easy to understand, stable and sustainable.  Now it's difficult to make submissions of this kind in the absence of an exposure draft but the instrument that your Honour is contemplating will have to have schedules which are in substance the same as the existing terms and conditions in each of the three separate awards as forming part of that omnibus instrument.




MR HOWELL:  Because the conditions simply don't match.  There is almost no - almost no commonality in the conditions.  Now that's not an exaggeration to say that.  Everything from the way in which wages are structured, ordinary hours of work are structured, breaks are structured, allowances are structured, leave is structured, everything in particular and unique to these different industries and they do not have regular commonality or - not even the definitions match.  So you'd have to have a definition of vessel to cover seagoing, a different definition of vessel to cover tug and barge and a different definition of vessel again to cover ports and harbours.


VICE PRESIDENT HATCHER:  For example, why would conditions for an engineer on a tug be radically different for an engineer on a private ferry?  They might currently be different but why should they be different?


MR HOWELL:  Because no one's advanced a work value case to suggest that they should change in these proceedings is the immediate answer.


VICE PRESIDENT HATCHER:  If we start with a blank sheet of paper, why would they have different conditions?  Radically different conditions?


MR HOWELL:  Well, with respect, your Honour's presenting a hypothetical scenario which doesn't exist.  They do exist, there are differences in conditions and the Act regulates what we can and can't do in the context of these proceedings.  The reason I'm answering the question is because it just doesn't - in this way is it just doesn't assist, with respect your Honour.  I mean to change the wages and conditions requires a work value case, that's what the Act says, and we haven't got a work value case presented by any party in these proceedings.  Indeed, to the extent a work value case was endeavoured to be pursued by Seat Swift earlier in these proceedings the majority of the Full Bench rejected it quite properly, in my respectful submission, because it wasn't properly advanced.  That's the position in which we find ourselves.  So the question that your Honour is asking me, with respect, doesn't actually assist.


VICE PRESIDENT HATCHER:  What you said is correct about wages, it's not correct about conditions.


MR HOWELL:  To the extent that the remuneration and the conditions don't overlap, that would probably be right but again, one would need to know the environment in which the ferry is working to draw a comparison for a - between a small ferry or a ferry and a tug and barge operation.


VICE PRESIDENT HATCHER:  So if you take this example of the construction award, you're covered by the same award whether you're doing a renovation down the road or you're living in a camp out in the Pilbara building a mine.  These problems aren't insoluble.


MR HOWELL:  Well, true, the problems aren't insoluble but the point that we're addressing here this morning was the proposal which was addressed by the Full Bench, which was to amalgamate these instruments.  We can only deal with it at this point at the level of principle because we've not seen how the Full Bench might be minded to do that.  From my client's perspective, when you take into consideration the modern award's objective, of course acknowledging that there's no specific prohibitions other than the way in which one has to approach work value questions, and one has to engage in a balancing exercise to deal with all of the modern award's objectives to ensure that they're met in whatever the product of this review is, what is really of concern is to ensure that it's simple, easy to understand, stable and sustainable.  And from my client's perspective that can best be achieved by doing as limited violence to the original scheme created out of - scheme awards created out of the award modernisation process as is possible.  Because that's what will best be understood in industry, and otherwise addressing the specific concern which the Full Bench had earlier identified, making sure that the correct safety net can apply to the correct part of the relevant business.


As to, you know, the theoretical proposition that if you want to amalgamate these things together doesn't it really just invite us to do precisely the same thing in a slightly different form.  Well, theoretically yes, but what that doesn't address is the practical ramifications of it, so that people will now have to go to a different instrument to try and consider, for the purposes of bargaining and the purposes of identification of (indistinct) conditions, what instrument and then re-understand that instrument.  What we're needing to achieve here can be done by a much more simple drafting mechanism.  The instrument that would be the product of the drafting mechanism that we have invited the Full Bench to embrace will be much more simple and easy to understand than a detailed, laborious - laborious.  A detailed, unworldly instrument of the kind that could necessarily flow if you were to amalgamate the three instruments in accordance with the relevant principles.  It just isn't a blank sheet.


So in essence, your Honour, my client opposes the amalgamation of the instruments because they are discreet sectors, that's what informed the history, it's why they were created.  These instruments were created in the way that they were as part of the award modernisation process.  Secondly - - -


VICE PRESIDENT HATCHER:  Well, to a large extent they're all in - to a large extent, not in entirety, to a large extent they're all in one union.  That is your client embraces membership across all three awards.


MR HOWELL:  Short of standing on a land mine, I'm not sure that I can answer that question directly.  I'm sure that the other two unions would strongly oppose that and so - oppose that view.


VICE PRESIDENT HATCHER:  Well, there's engineers across all three awards which would be covered by MUA.


MR HOWELL:  Which would be covered by AIMPE by not necessarily the MUA - - -


VICE PRESIDENT HATCHER:  Which would be deckhands across all three awards that would be covered by the MUA.


MR HOWELL:  Absolutely, without a doubt.  The same could be said for Maritime Officers Union dealing with masters.


VICE PRESIDENT HATCHER:  So their interests aren't that distinct that they can't be represented by the same union across all three awards.


MR HOWELL:  We've not advanced that as a reason for resisting the amalgamation.  It's the discreet parts of the industry which operate in a manner best reflected by discreet industry awards.  I mean that's why they were - it reflects what happened before award modernisation, it's why it happened in award modernisation.  It's why I suspect you'll hear from all of the industry participants saying leave it as it is. It's just going to create a significant level of confusion, which as I say would not otherwise assist to achieve the modern award's objective.  Especially when there is a more simple solution to address the specific bias which the Full Bench earlier identified.


That's in essence what I wanted to say.  It's otherwise reflected in the written submission which we rely upon, unless there's some specific question which the Full Bench might have for me then I'm content to leave it at that.


VICE PRESIDENT HATCHER:  Thank you.  Mr Herbert.


MR HERBERT:  Thank you, your Honour.  Your Honour, my client's put on a proposal for the - which was based on the Exposure Drafts that had then been released, with some very minor amendments which dealt with clarity of the definitional material in two of the awards and otherwise in relation to the Towage Award has accepted the draft.  That was my client's response to the material that was put forward for commentary.  Since that time the suggestion of amalgamation of the awards has come forward.  My client has absolutely no fixed view about that.




MR HERBERT:  No fixed view.




MR HERBERT:  No fixed view about that.  The matter was - essentially I think their attitude can be described as they're all ears about any such proposal. Could I say that the matters that have been canvassed with my learned friend about the separateness of the sectors of the industry up to this point and their different origins, and the MUA submission appears to be to maintain those distinctions.  The difficulty with that is that the one of the things that drove the Sea Swift application was that they are essentially as we speak reasonably unique, in that they have operations across two and probably three of the awards, which is unusual but not unprecedented.


It demonstrated in fact what might be the merit in the proposal, with respect, that has been put in relation to the potential amalgamation because it really becomes - became a bit of a lottery as to which award covered different parts of the operation as was all ventilated before the Full Bench.  The only thing worse than that, in my submission, would be the MUA proposal that this Full Bench deliberately set up an overlap between the two awards, consciously set up an overlap between the two awards as is being proposed by the MUA in their submissions and then allow the parties to sort it out as it were in the Commission or in the market place.  Which means there would be a constant moving feast in relation to applications for a determination by somebody followed by various appeals presumably, as to whether the environment et cetera in which the work has been done warrants the coverage of one award or another in circumstances where an overlap has existed by a conscious decision of the Commission, rather than by an unavoidable set of circumstances.


That, in my submission, would be possibly the worst of all worlds.  Certainly, the question of amalgamating all of the awards and thereby there being no issue about exclusion from one or the other and the sorts of happenstance exclusions that were troubling Sea Swift and which generated the original application for the siloing of the award coverage, if it is possible to draft an award and as your Honour points out these things are done in other industries, which can result in the migration of the existing arbitration conditions across into a single award without the matter being used as a way to move to the highest common denominator and thereby create significant increases in conditions without there being any commensurate change in the work that is to be done.


If that could all be done with the blank sheet of paper that your Honour referred to then my client certainly would have no issue with that, and would have no issue with the - would certainly be probably fairly pleased with the idea that the migration from one award to the other by the various complicated circumstances that currently exist and that are proposed can be eliminated from the system, and that they can be treated as being under the one award because the permutations and combinations and what they do in the marine industry are probably not closed.  They are in a part of Australia with developing economic circumstances that may require them to adopt and adapt to other methods of sea transport in that part of the world which may not currently be foreshadowed in some of the material or might cross two awards and create difficulties again.


The only concern that I could see about that, with respect, would be that if one was to make a single award that covered the three current areas which are covered by the three current awards, one would need to be fairly careful as indicated earlier not to just replicate the problem a little further down the award by having a set of complicated definitions that were required in order to distinguish one set of conditions from the other, within the scope of the award.  One example with which I am familiar of course is the meat industry award which in fact three pre-existing awards were collapsed into one award to make the current meat industry award.  Those three awards that were collapsed covered different sectors of the industry and there was a significant amount of effort devoted to ensuring that the resulting award maintained the distinctions between some of the differential conditions that applied in those three sectors and that the three sectors differential conditions were maintained in the resulting award.  It was simply an A + B + C amalgamation of those awards and eliminated any difficulties that might be associated with facilities that crossed the boundaries of those awards previously.


That is a clear, fairly obvious example where it has been done but that care needs to be taken to ensure that you're not just replicating the problem in terms of the internal structures of the award as distinct from the existence of separate awards.  But all in all, and again we had very little if no detail at all what was - what might have been proposed by the Full Bench and what has passed this morning has been fairly useful in terms of formulating a position.  But with the caveat in relation to the maintenance of the current conditions which apply to those - for the time being at least, the current conditions that apply and with always understanding that there may be a rationalisation of those conditions in the future for the reasons that your Honour has pointed out, that it may well be that differential conditions for an engineer, for example, which exist and the two products are a product of history rather than of any analysis of the actual work value of the work being done, and that if one brings these three awards together there might be - that might be an appropriate vehicle for subsequent rationalisation of those differences, as to whether they have any substance, other than historical.


VICE PRESIDENT HATCHER:  Has there ever been a proper work value assessment of the pay rates in any of these three awards?


MR HERBERT:  Not that I'm aware of but that's - I don't have a deep understanding of the long history of this award, but not for a significant period of time.  In the course of the preparation for the primary proceedings we were unable to find where that had been done in any detail.  Certainly not across the three awards, and it may be because the three awards were a product of the award modernisation in any event, and they drew together dozens and dozens of state based and federal maritime awards around the country, and one would think that because they were essentially all new and a product of the state based systems that didn't necessarily have that sort of work value system attached to them in their state origins, the answer is probably no.


So there's not been any attempt, that I'm aware of, for there to be a true rationalisation of those conditions but rather there was a drawing together into groups from their origins and then they were simply, as the award modernisation process tended to do, they were put there as a reflection of the existing conditions gathered together from those three sources without there being much by way of cross-reference as between the awards as to whether there was appropriate relativities between what would in many cases be very similar classifications.  It would - - -


DEPUTY PRESIDENT GOOLEY:  I think the closest we got to it was when they converted from the pay rates awards to the minimum rates award and I think most of it was done by consent.


MR HERBERT:  Yes, that's so, your Honour.  I think that was the history of it.  There was a lot of consenting went on to avoid arbitration.  I think Fogarty C was very good at that, getting the parties to agree on things they might otherwise not have agreed on, and threaten them with the - and Wilks C I'm told was there - had been involved as well but it would appear that that exercise has not been done.  On its face one could see the sense of harbour, towage and marine contract towage and the engineer on a tug, the conditions under which the work is being performed prima facie would appear to be very similar, and if the wage  rates aren't similar then there may be questions to be asked as to why that is so.


That's not an exercise that we were brave enough to try and do in the course of the very minimalist application that was brought, we were simply seeking to silo the condition so that the blatant anomaly as between the awards could be rectified, we weren't brave enough to suggest it probably would have well beyond the remit of the Commission in any event in the proceedings that we were conducting or seeking to have conducted that we would amalgamate all of the awards that's now being proposed but having heard now a little bit more detail on what may be the shape of such a proposal then my client would have - would wish to participate in the potential preparation of such an award or certainly making submissions in relation to an Exposure Draft whichever way the Commission might proceed if that is what is decided to be done. But having said that, there's no trenched opposition to that course.


The only other observations we make are those that I made when I first got to my feet that if none of that finds favour with the Commission then the submissions we make on the original Exposure Drafts were very minimalist and only went to definitions, and we have nothing more to add other than to say that the MUA proposal would be the worse of all worlds.


DEPUTY PRESIDENT GOOLEY:  Mr Herbert, what do you say to the MUA's submission that the draft determination, even with the change in the definition of vessels that you propose in your submission would actually leave some employees award free?


MR HERBERT:  Well, that's not as we see it.  We don't accept what they say about that.


DEPUTY PRESIDENT GOOLEY:  Other than saying you don't accept it, I just wondered if you'd like to explain to me why.


MR HERBERT:  I must confess I tried to follow the bouncing ball of the multifaceted questionnaire and I got a little bit lost in how that was so.  I'm not too sure that I fully understood what was being said, but we certainly - on the analysis that we did at the time that we made the submissions that we did that we don't think there's anybody who is currently covered by the three awards who's been left out of that, and the changes that we've made as we say were intended to ensure that the siloing that we sought in the original proceeding was - which the Full Bench essentially said should occur did occur.


We don't see there are any vessels but if there are vessels which are left out, that would be a very, very minor amendment to what we propose rather than their Armageddon measure of throwing everybody into the one pond and letting in effect the parties sort it out on a case by case basis down the track.  That would mean, of course, that no employer in Sea Swift's position could go into enterprise bargaining knowing for sure what their BOOT situation was in relation to the various aspects of their business, because they wouldn't know for sure until they got a determination from some authority whether they were covered by one award or the other, and that would require a determination under - - -


DEPUTY PRESIDENT GOOLEY:  But won't Sea Swift be in the position with the notion of the splitting of the awards because it is a multi-award employer, that the BOOT will be applied against all three awards.


MR HERBERT:  The BOOT will be applied as against the various compartments of their business.


DEPUTY PRESIDENT GOOLEY:  Well, that's if they do a - the agreement that they brought before the Commission wasn't compartmentalised.  It was to cover their business.


MR HERBERT:  Yes, that's so.


DEPUTY PRESIDENT GOOLEY:  So if they brought forward such an agreement again it would be BOOTed against the three awards.


MR HERBERT:  If the - there is an agreement under manufacturer as we speak and if the awards are compartmentalised in the way that we have suggested, and one of the difficulties in finalising that is that we haven't yet have final orders in the proceedings to achieve that outcome.  The awards are still as they were.  But if the awards are compartmentalised as we sought then their agreement can easily reflect that, so that employees - there is not a significant amount - there is some but not a significant amount of transfer of employees between the various compartments of their business as we speak, and they can in that way dissect their business so as to apply the BOOT to various parts of, dependent on which award it is that applies to that part of.  That's the way as I understand it they're dealing with the matter, and that's the way they would need to be able to explain that to the Commission when they bring their new agreement forward for certification.  Unless there's any further, your Honour, that's Sea Swift's view of the matter.


VICE PRESIDENT HATCHER:  Thank you.  So we'll go to Melbourne next.  Ms Mansini.


MS MANSINI:  Thank you, your Honour.  In summary - and we filed a short submission late yesterday but I will just summarise the position of AMMA on behalf of its members.  We have members covered by each of the three awards with an interest in each.  Our submissions are limited to this question of amalgamation and coverage.  In essence, we don't oppose the Full Bench decision or its finding of 24 February, in that the concept of an employer being able to be covered by multiple awards doesn't offend the industry, but the question of amalgamation similar to the MUA, we are concerned about the precise detail of that in that there might be some unintended consequence of an amalgamated award.


In that respect, we would you know respectfully request the opportunity to consult further with our members about the detail of what an amalgamation would actually look like.  But perhaps to assist in terms of some of the submissions made and some of the questions of the Bench this morning, in our industry and right across these three sectors where vessels are involved it often is necessary to define coverage by reference not just to the vessel but also the function that it performs.  That usually will have a bearing on the type of work, the length of the shift and therefore appropriate remuneration and other conditions, including because the type of vessel will have, you know, a certain number of people on it, a certain number of people sharing the workload or otherwise, but also the duration of its journeys and the nature of the work, whether it's heavy work or lighter word.


So they're just some examples where it's not just the work performed but also the environment that's important, and the way the awards are currently drafted in terms of their coverage, they do provide for that distinction and allow for that. So that would be something I would imagine, subject to further consultation with our members we'd be keen to preserve and keep those delineations clear.


I guess another issue which was highlighted in our submissions in terms of any amalgamation proposed, our members have got - and we've done some initial analysis and identified quite a few examples. They've got enterprise agreements already in place that incorporate the existing awards, so any amalgamation collapsing of, you know, consolidation of existing conditions would have an immediate operational impact for quite a number of our members, in terms of not just remuneration but, you know, working days, hours, breaks, that sort of thing.  In that respect, the towage industry does stand out as being quite different in terms of two (indistinct) systems and other sort of peculiarity that are really unique to that industry and in my experience I've not seen in any other industry.  So that would be something that would concern us.


VICE PRESIDENT HATCHER:  Ms Mansini, just - - -


MS MANSINI:  If there was to be some sort of - - -


VICE PRESIDENT HATCHER:  Just so I understand that, can you give us some examples of agreements so we can look at those clauses?  That is do they incorporate the applicable award as at the relevant time, not the applicable award as at some fixed date?


MS MANSINI:  Well, on the examples that I've been provided with and I'm sorry I don't have a list in front of me but the examples that I looked at in preparation for this proceeding, they're incorporated without limitation as to the date.  So I suppose there's potentially an argument about whether it was as at the date the agreement was made or, you know, as amended from time to time.


VICE PRESIDENT HATCHER:  Could you send us a notice identifying some examples of that so that we can look at them?


MS MANSINI:  Absolutely, I will do that.  I suppose that could be resolved by way of some sort of transitional period or some other mechanism to allow operations to adopt, but of course then there's commercial and contractual arrangements, all of which are contingent on things like working hours and shifts and breaks.  So I'm just foreshadowing that that subject to further consultation would be a major problem for our industry.


The last thing that might be worth offering is I think that the issue with the award free employees may be that the ports and harbours award appears to be a catch all award.  So where the others don't apply it would, and I'm not sure whether that's what the MUA was flagging that perhaps they can address the Bench about that separately.  In summary, really what we ask is we respectfully request a program in order to address the concept of amalgamation if it is to be considered further, following today's proceedings so that we can consult with our members and we would also respectfully request the opportunity to address the Bench on the MUA's proposed drafting. I haven't had the opportunity to take instructions or consult with the members about that drafting, but it may be that indeed it is a logical course to achieve the objective, as the Full Bench determined on 24 February.


VICE PRESIDENT HATCHER:  Ms Mansini, if, and obviously it's a big if, we decided to go down this path what would be the likely course would be as follows, that we simply have a decision in principle, the Commission would then put together an Exposure Draft simply as a starting point, and then the parties either directly or in conference with a member of the Commission would then work on that draft to hopefully reach a consensus, about it and any final issues could be arbitrated.  So there's no sense that if, and again a big if, we went down that party the parties wouldn't have a full opportunity to participate in the development of the single award.  Was it just - - -


MS MANSINI:  Thank you, we would appreciate that and we would  just foreshadow, as I think Mr Herbert really said, that would be potentially require a fair bit of evidence and material in order to consult about the - and eventually hopefully agree on an Exposure Draft.


VICE PRESIDENT HATCHER:  Yes, all right.  Ms Cershe.


MS CERSHE:  Yes, thank you, your Honour.


VICE PRESIDENT HATCHER:  Ms Cershe, if it's easier to remain seated you may do so.  In fact it's probably easier so that you stay close to the microphone.


MS CERSHE:  Yes, you're probably right, your Honour.  So MIL is an industry peak body representing vessel owners and operators and employs labour across the maritime industry, and our members have an interest in and are involved in the industries covered by the Seagoing Industry Award, the Ports, Harbours and Enclosed Water Vessel Award and the Marine Towage Award.  Thank you for the further explanations that we've heard this morning in relation to some preliminary views of the Full Bench about what a proposed amalgamated award would look like.  My instructions are obviously based on the statement issued by the Bench on, I think it was 8 November, and it's our view that - our preliminary view that we don't support the amalgamation of the Seagoing Industry Ward and the Ports, Harbours and Enclosed Water Vessels Award as part of these proceedings.  It then follows that we also don't support the proposal to amalgamate the Marine Toward Award.


I am mindful that there is a lot of parties interested today.  I'm happy to go through briefly the reasons why we don't support that now if you would like.  I'm just mindful that we do have a few people who are interested, so if it's easier for the Bench I can just keep my patter dry on those issues and we can hear from other parties.  Likewise, I'm very happy to proceed.


VICE PRESIDENT HATCHER:  I think you should just proceed, Ms Cershe, and say what you want to say.


MS CERSHE:  Certainly.  MIL's position is at the time the awards were as was stated in the Full Bench decision as part of the determination of preliminary issues, on 17 March 2014, in conducting the review the Commission will have regard to the historical context application to each award.  Award made as a result of the award modernisation process conducted by the former ARC under part 10A of the Workplace Relations Act would deem to be modern awards for the purposes of the Fair Work Act and it refers to item 4, schedule 5 of the Transition Act.  Implicit in this is the legislative acceptance that at the time they were made the modern awards now being reviewed were consistent with the modern award objectives.  The reference for this decision is 2014 FWCFB 1788.


VICE PRESIDENT HATCHER:  So Ms Cershe, I think you can assume we're fairly knowledgeable about those general principles.




VICE PRESIDENT HATCHER:  I'm more concerned about what specifically you want to say about these three awards.


MS CERSHE:  Certainly.  I suppose subject to the clarification around coverage, which was the outcome of the Full Bench proceedings in (indistinct), it's MIL's view that the awards continue to meet the modern award's objective.  I note that the MUA has provided substantial written submissions in relation to the historical award modernisation process and the interrogation of the various coverage issues between what were then made as part of the award modernisation process.  I have intended to go through those briefly but I think that there's probably limited value in my doing that given that they're contained in the written submissions.


In terms of the industries in which these three awards apply, our submission is they are markedly different in terms of how the industries operate and the work performed in them, and if I just give an example relating to one of the key terms and conditions in the awards, which is the leave.  An obvious example of how leave is calculated under the Seagoing Industry Award, and this gives full effect to the NES entitlements is that it is accrued on the basis of duty on board a vessel, and it's accrued at the rate of 0.926 days without loss of pay.  When you turn then to the Ports, Harbours and Enclosed Water Vessel Award, the leave here is in accordance with the NES, and by contrast the Marine Towage Award operates on a roster system where you determine a number of duties rostered as non-duty days; 168 days to be non-duty with 140 days of those, as far as practical, to be predictable.


Now I think this represents the distinct difference across the three industries in which these awards operate.  The seagoing industry historically has covered vessels where workers sleep, enjoy their recreational time on board the vessel.  Now that's not the case generally in the ports - what was described as the port services industry, now covered by the Ports, Harbours and Enclosed Water Vessels Award.  Nor the Marine Towage Award, which is a 24/6 operation which generally occurs in 12 hour shifts.  So the nature of the work performed and the way it is performed is markedly different across the three awards.


Our principal concern is to amalgamate the three awards would do nothing to address the concern that was identified in the Sea Swift decision, which we actually think can be fairly easily done in the way that was suggested by Sea Swift on 6 July 2017.  It's our respectful submission, your Honour, that these - such is the differences across these three industries that they do warrant their own separate award, however obviously if the Commission is minded to amalgamate the awards like the other parties, we certainly are interested in ensuring that the terms and conditions, as they're reflected do not revert to the highest common denominator, but appropriately reflect the work performed and the industries that they are performed in.  Thank you.


VICE PRESIDENT HATCHER:  Thank you.  Mr Niben.


MR NIBEN:  Yes, if the Commission pleases.  Representing Australian Institute of Marine Power Engineers, we represent the marine engineers which I note have been raised in some of the examples today.  The position of AIMPE is to oppose the proposal to amalgamate the three awards.  Similar to the previous submissions AIMPE is of the view that the operations of each award are significantly different to each other.  There are significant differences between the terms and conditions of employment under each award, specifically in relation to major issues - major matters such as the wages, the allowances, the leave provisions, the hours of work, the breaks and the types of employment.


The terms and conditions represent the different nature of the difference industries and it is our submission that there can be no reconciling the differences.  For example, it would be our submission that there can't be part-time or casual work on a seagoing vessel when you can't go home. As the previous submission mentioned that the recreation time is enjoyed on the vessel.  The different awards reflect this.  The Ports, Harbours Award and the Marine Towage Award are, if you can characterise them, as day work arrangements, even though they apply over a 24 hour period, and the Seagoing Industry Award is based on arrangements around living on board arrangements. The two crew system, the differing leave arrangements, the hours of work and the structure of the shifts on board and the various duties.


The awards also or the various industries tend to operate with different types of vessels. The different types of vessels have - from an engineering point of view contain different types of machinery, and this is reflected in the classifications.  On a tug boat there is one engineer who's responsible for all of the operating equipment.  On a seagoing vessel you have a number of different engines, generators and different equipment and you have a hierarchy of engineers from the chief engineer, first engineer, second engineer, third engineer, and so forth.  So the types of work that they do it is - are different, depending on the work of the vessel.


We also say that the structure of the allowances and the structure of the wages reflect these differences, being the live on board arrangements or for the allowances in the Ports, Harbours and Marine Towage Award, where living on board overnight is considered to be the exception.  Contrasting that to the Seagoing Industry Award where it is normally the rule.


VICE PRESIDENT HATCHER:  Why would an engineer on a tug board have a different minimum rate of pay than the engineer on a private harbour ferry?


MR NIBEN:  It reflects the different hours of work and the different leave arrangements, your Honour.


VICE PRESIDENT HATCHER:  How do leave and hours of work affect the minimum base rate of pay for 38 hours?


MR NIBEN:  I think that both awards, I'd have to check but I think they're actually based on different hours.


VICE PRESIDENT HATCHER:  You mean a different weekly - - -


MR NIBEN:  But it's based on the - the wages and the classifications within the classification of say a chief engineer compared to a third engineer, is based on qualifications and those - and those qualifications enable you to work on different size machinery, and also different distances from the shore, where you can have responsibility for that machinery.  So it's a difference, your Honour, of working on a truck engine compared to a ship engine.  The size of the plant, the size of the engines are completely different, and the level of knowledge and responsibility around those operating machinery is reflected within the wages of the award, and I think reflects the minimum wages.


So your Honour, we also agree with the submissions that have been made that amalgamating the three awards would potentially give rise to unforeseen anomalies and potential confusion operating within the award.


VICE PRESIDENT HATCHER:  Sorry, just going back to this point about hours.  So I'm looking at the Ports and Harbours Award, I'm just having trouble in clause 18 identifying what the weekly hours are.


MR NIBEN:  Well, within the Seagoing Award there's no span - - -


VICE PRESIDENT HATCHER:  Just starting with the Ports and Harbours Award, clause 18.




VICE PRESIDENT HATCHER:  I mean on one - I mean unless I'm missing something, on one view 18.2 may mean a 40 hour week.


MR HOWELL:  Your Honour, 10.2 deals with full-time employment and they can be switched.


VICE PRESIDENT HATCHER:  What was it? 10.2.


MR HOWELL:  Thirty-eight hour week and towage is 35 hours which is in clause 10.1 of towage.


VICE PRESIDENT HATCHER:  Right, thank you.  And Seagoing is what?


MR HOWELL:  Seagoing is theoretically 38 hours which is in 10.2 but you'd see that the wage structures are built on the idea that someone works 27 weeks each year, seven days a week, 10 hours a day. So the aggregated wage actually, which is the ordinary minimum rate, is built on the assumption it's reflected in clause 13 of that award.  But it's why I say, it's why I said earlier - - -




MR HOWELL:  Sorry, just one thing.  It's the reason I said earlier on that the assumption which your Honour makes about minimum rates being the only thing which is affected by a work value requirement, in these industries just isn't right.  Historically there is connections between various features and conditions - - -


VICE PRESIDENT HATCHER:  Mr Howell, we'll come back to this.


MR HOWELL:  Sorry, your Honour.


VICE PRESIDENT HATCHER:  I don't want to interrupt Mr Niben.  So Mr Niben.


MR NIBEN:  Yes, sorry.  The wages in the Ports and Harbours are again based on hours and overtime.




MR NIBEN:  We're as in the - and there's an emphasis between the span between 6 am and 6 pm and a 10 break after 18 hours.  Now in the seagoing industry there's no span and the emphasis is on the minimum hours of rest.  Well, 10 hours in any 24 and 77 in any seven.  So that's a significant difference in the construction of those arrangements.


VICE PRESIDENT HATCHER:  Mr Niben, are you finished?


MR NIBEN:  Yes, your Honour, unless you have any more questions.


DEPUTY PRESIDENT GOOLEY:  Mr Niben, what does AIMPE say in relation to the draft determination and the critic mounted by the MUA in relation to that draft determination, and the proposed amendments to it put forward by Sea Swift?


MR NIBEN:  We would need to see the - - -


DEPUTY PRESIDENT GOOLEY:  Mr Niben, they've been on the website for about six months.


MR NIBEN:  Yes, we've looked at those and we were comfortable with the original exposures.


DEPUTY PRESIDENT GOOLEY:  Yes, I understood that but I just wonder - - -


MR NIBEN:  We would prefer the MUA suggestions. So that would be the one that we're not opposed to.




VICE PRESIDENT HATCHER:  So we'll go to Adelaide.  Ms Hii.


MS HII:  Thank you, it's Ms Hii on behalf of Sea Link.  I might keep it brief because one, my instructions are limited and also I don't wish to repeat too much of what has already been said.  But in essence Sea Link opposes the proposal to amalgamate the three awards.  We feel that the operations that fall under each of the three are considerably different, especially having regard to Sea Link's operations.


VICE PRESIDENT HATCHER:  Ms Hii, just because I'm a bit new to this, can you give me a very brief summary of what Sea Link does?


MS HII:  Apologies.  So Sea Link has a number of different operations around Australia. Some of those include the passenger ferry service and vehicle ferry service between Cape Jarvis and South Australia and Kangaroo Island.  That's very much a day service, the trip is about 45 minutes one way.  And similar - - -


VICE PRESIDENT HATCHER:  That's the Seagoing Award is it?


MS HII:  That one is under the Seagoing Award, yes, we have an interest in all three awards.  There's also a similar water taxi service between Cleveland and Stradbroke Island in South Eastern Queensland.  That one is a 20 minute trip and a similar vehicle ferry service in those two places of similar distance - sorry, 45 minute, 50 minute trip. That one is Ports and Harbours Award.  And other operations around Australia that are similar but fall within either Ports and Harbours for the Seagoing Award.  Sea Link also has various operations that fall under other awards, such as the Marine Tourism and Charter Vessels Award and Passenger Transport but obviously those are outside the scope of these proceedings.


VICE PRESIDENT HATCHER:  That's all right, thank you.


MS HII:  So basically - - -


DEPUTY PRESIDENT GOOLEY:  Can I just - sorry.  Just to be clear, the ferry that runs between Cape Jarvis and Kangaroo Island and the service that runs between - to Stradbroke Island, how are they different such that they warrant different award coverage?


MS HII:  The ferry that operates in South Australia between Cape Jarvis and Kangaroo Island, that body of water is classified - it's call the Backstairs Passage and it's not - it's basically open waters so it falls within the Seagoing Award because it's neither a port, harbour or enclosed.


DEPUTY PRESIDENT GOOLEY:  I appreciate why it's covered by that award but I just wondered what was different in the operation of those two vessels that would warrant different award coverage.


MS HII:  This is an issue that Sea Link has struggled to manage because there are not very many key differences between those operations and it's purely the characterisation of the Backstairs Passage as open waters that brings it within the Seagoing Award.


MR HERBERT:  Can I assist, your Honour.  The Cleveland Stradbroke Island ferry - - -


DEPUTY PRESIDENT GOOLEY:  It's in closed waters.


MR HERBERT:  It's in very much closed waters.


DEPUTY PRESIDENT GOOLEY:  Yes, I understand why it's different.  I understand why one's under one award and one's under the other award but the very issue that we're grappling with is you've got two ferries basically doing the same job - - -


MR HERBERT:  The operations as I understand them are essentially identical except for where they are conducted.


MS HII:  That's right, your Honours.


VICE PRESIDENT HATCHER:  Mr Hii, having regard to that discussion, wouldn't it be easier if - for your client if those two similar operations were conducted under the same award?


MS HII:  Yes, it would and that's one of the reasons why we, in addition to opposing the amalgamation, we would tend to agree with the reasons put forward by the MUA in particular the suggestion, the amended draft determinations that remove the exclusion area provisions, because that is - those exclusions are basically what makes the South Australian ferry service get caught, in our view, inappropriately under the Seagoing Award.


VICE PRESIDENT HATCHER:  Yes, all right.  Thank you.


MS HII:  Thank you.  Essentially, we opposed the amalgamation because of the lack of synergy between the various terms and conditions across the three awards arriving out of the very different environments and industries that those awards were intended to cover.  Without repeating too much of what has already been said, we would agree with the example put forward in respect to annual leave, hours of work and the way that the rates are structured because all those things fall out of the necessary differences of the structure of the shifts and the work environment that applies across the three areas, including the differences in like the length of the journeys, the type of vessel used and obviously the body of water that the vessel travels in.


If the Full Bench is minded to go down the path of an amalgamation, we would certainly appreciate the opportunity to make submissions and lead evidence in respect to any substantive issues that arise, and by that we would also tend to agree with the proposition put forward by the MUA in respect to - that in any merged award there would need to be that necessary delineation between the particular industries anyway, perhaps dealt with by schedules like it has been in other awards.  That might be more complicated than is necessary.


VICE PRESIDENT HATCHER:  Right, anything further?


MS HII:  No.


VICE PRESIDENT HATCHER:  Right, thank you.


MS HII:  Thank you.


VICE PRESIDENT HATCHER:  So we'll go to Perth.  Ms D'Ascianio.


MS D'ASCIANIO:  Yes, D'Ascianio, thank you, your Honour.  I'm here today from AMMA but on behalf of Svitzer Australia Pty Ltd.




MS D'ASCIANIO:  Svitzer is the largest marine towage operator in Australia at this point in time with up to 1000 employees at any point in time, operating across some 35 ports.  We did late yesterday afternoon file a very brief preliminary outline of submissions.




MS D'ASCIANIO:  But in essence Svitzer opposes the amalgamation of the awards.  A lot of the reasons have already been mentioned by the parties appearing before me and in essence we agree with the reasons or the submissions of the parties including AMMA, MUA, AIMPE, MIAL and Sea Link about the distinct differences between these subsectors of the marine industry which are covered by the three different awards.


Obviously Svitzer's operations are for the most part underpinned by the Marine Towage Award, so it's chief interest is in that award, but it does have some business in the lines industry space, which is covered by Ports, Harbours and Enclosed Water Vessels Award.  Also as mentioned in the submissions, some of Svitzer's operations rely on the services of other proprietors, for example, marine pilotage, which is covered by again the Enclosed Water Vessels Award, the Ports, Harbours Award I should say.  So any impact or any changes to the conditions which may result from an amalgamation would impact on Svitzer in a number of different ways.


As has been mentioned by some of the parties appearing before us, obviously the nature of any proposed amalgamation would depend upon how it is proposed I think.  The Bench mentioned that an Exposure Draft would be circulated to interested parties and there's be an opportunity to participate in the discussions and the proceedings about what a proposed amalgamated award would look like, and of course Svitzer would seek to be involved in that if the amalgamation does in fact proceed.  So at this stage the amalgamation is opposed on the basis that there is an assumption that a number of the quite bespoke and distinct conditions that are enjoyed from the marine towage industry would potentially be lost, and that is a concern to Svitzer.  Its commercial arrangements and its operations very much depend upon some of the specific conditions that are allowed in the Marine Towage Industry Award.


VICE PRESIDENT HATCHER:  Ms D'Ascianio, you said that marine pilotage is covered by the Ports, Harbours and Enclosed Water Vessels Award.


MS D'ASCIANIO:  That's my understanding.


VICE PRESIDENT HATCHER:  I'm just having trouble following that.  I can't see a classification for that.


MR HOWELL:  Sorry, your Honour, there won't be a classification but it reflects the nature of the industry which is described as the Ports, Harbours and Enclosed Water Vessel Industry Award.  The classification is simply master engineer et cetera,  but the industry captures the persons who would operate those vessels. So the master which is in substance what the pilot was - - -


VICE PRESIDENT HATCHER:  Well, the pilot because the master of the vessel when he's on the vessel, or when she's on it.


MR HOWELL:  That's right.


VICE PRESIDENT HATCHER:  I understand, thank you.  Sorry, Ms D'Ascianio, anything further?


MS D'ASCIANIO:  No, nothing further thank you, your Honour.




MR WHITE:  Thank you, your Honour.  I act for the WA Inshore Boating Alliance.  That alliance comprises a number of inshore boating operators with their business primarily based in WA who are covered the Ports Award. Today we're instructed to oppose the proposed amalgamation of the three awards and request further time to consider any proposed draft determination in light of today's proceeding and provided written inspections in respect of any of those draft determination.  It's the position of the alliance that given there's almost unanimous views opposing the proposed amalgamation of the awards put forward today that it doesn't appear appropriate to amalgamate the modern awards, and the notion should simply not proceed any further.


In the event the Full Bench forms a different preliminary view then the alliance requests the opportunity to make further submissions in respect of the proposed amalgamation.  In brief, the alliance opposes the propose amalgamation for the following key reasons; the creation of the three separate modern awards was a result of significant industry consultation and submissions as part of the award modernisation proceedings in 2009.  The three separate modern awards that we've heard today all contain significantly different terms and conditions of employment that reflect the particular nature of the work on board different vessels, even such as different engines that reflect the wages and those working environments.  These awards all contain different hours of work, allowances and annual leave arrangements reflecting the nature of the work performed in those different industries.


If the amalgamation of the awards was proposed and it did proceed, it's likely that in the alliance's view that there are two possible outcomes if a single amalgamated award was determined.  Number one, terms and conditions for existing inshore boating operators under the current ports award would change, resulting in increased costs and possible restrictions on flexible working arrangements; i.e. the application of the highest common denominator that we've heard today.  Or secondly, the one single amalgamated award would contain certain carve outs of terms and conditions of employment applicable to the types of different operations or vessels that will create a significant drafting exercise and likely to result in confusions as to rights and entitlements of employees under that single amalgamated award.


The alliance participants all currently work under existing commercial contracts with a number of ports and resources project operators in WA, that rely on the terms of the current ports award to inform their current operations or their enterprise agreements that they've entered into.  The proposed amalgamation poses a significant threat to inshore boating companies existing operations and this includes possible increase in costs, flexibility of working arrangements and other restrictions placed on their business to current deliver on their existing commercial contracts.  The Alliance believes that for these reasons the proposed amalgamation of the awards would not meet the modern awards objectives set out in section 134(1) of the Fair Work Act for the following reasons:


(1) Contrary to section 134(1)(f) there is likely to be a significant impact on the current inshore boating operations, including a reduction in productivity, increase in employment costs and greater regulatory (indistinct), and secondly, contrary to section 134(1)(g) the proposed amalgamation would not result in simpler, easy to understand, more stable or sustainable modern award system that avoids any unnecessary overlap of awards.


The current pattern of modern award covered reflected in these three separate maritime awards in the descriptors is appropriate and reflects a consent position of merely the industry participants that were in the modern - award modernisation process in 2009, and appears to be also remaining that view today.  We urge the Full Bench not to proceed any further with the proposed amalgamation of the modern awards.


In anticipation of the question regarding the MUA's proposed draft determination that was put forward, if I could just seek one clarification as to how I would understand this application on my client's.  That would be if they performed say 98 per cent of their work in harbour limits but they were required from time to time to travel outside of the port, then that time that they're required to travel outside of the port the employees then effectively would be subject to the Seagoing Industry Award.  Is that the correct interpretation of what the MUA's proposing?


VICE PRESIDENT HATCHER:  Well, I'm not going to answer that question.  Assuming it is, can you make your submission?


MR WHITE:  Assuming that is then we would not support that particular position.  That's all, thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr White, can you give us some information about the type of work the Alliance's members do and what awards cover them currently?


MR WHITE:  Yes, the Alliance members primarily do line boat operating, pilot boat operations and also anchor handling activities.  All of those activities occur within harbour limits.  They're done with belt and smaller vessels and they often have a master and a deckhand and from time to time, depending on the type of vessel, they may require an engineer.  But it's on very small type of vessels and it's all confined within the port minutes.  These are the type of employees that go to work in the morning, they perform their duties, they have their break and they go home at night.  They often live around the port area.  They commute to the port, they're not required to stay overnight on the vessels in any sense, and we believe that's why the ports award is reflective of the type of industry and appropriate to remain covering those type of employees at this point.


VICE PRESIDENT HATCHER:  Right, thank you.  Mr Howell, I get the sense you have the urge to say something additional.


MR HOWELL:  I suppose the first thing I should show you is in answer to my friend's inquiry would they be covered by the seagoing to the 2 per cent of work that they perform outside of the vessel as otherwise operating generally operating within a port and harbour, I think the short answer is no on our proposal because the operation of the vessel would be wholly and substantially within a port harbour related body of water and therefore captured within that industry.  Therefore most likely it would be, given the environment in which the work's performed - not most likely without doubt that would be the instrument that would cover the relevant work performed.


That really highlights the point that my client is seeking to advance by its alternate proposal.  Your Honours have heard everyone from the industry opposes the concept of amalgamation for essentially the same reason.  These industry segments - - -


VICE PRESIDENT HATCHER:  Mr Herbert's indicating he's agnostic.


MR HOWELL:  Well, he can be agnostic but the residue, other than the unique operator that is Sea Swift, the residue of the industry across the country is saying to this Full Bench these conditions are not, to use your Honour's illustration, a product of old union coverage.  They really do reflect the different nature of the industries, reflected in the industry definitions.




MR HOWELL:  Beg your Honour's pardon?




MR HOWELL:  Yes, your Honour, what about Sea Link?


VICE PRESIDENT HATCHER:  Well, they seem to do identical work under two different awards.  Why is that?


MR HOWELL:  Because one is seagoing and one is not.


VICE PRESIDENT HATCHER:  What's the difference?


MR HOWELL:  Well, your Honour, in order to - - -


DEPUTY PRESIDENT GOOLEY:  Well, what's the difference when Ports, Harbours also deal with vessels that go to sea?


MR HOWELL:  Ports, Harbours deals with vessels that go to sea that are not cargo vessels, not research vessels - - -


DEPUTY PRESIDENT GOOLEY:  Not passenger vessels.


MR HOWELL:  Again I come back to what's in paragraph 64 of the submissions that we advanced which reflects what the industry is saying.  In substance, the existing terms and conditions arise from substantially different operating environments, the different nature of the vessels which operate in those different environments and the working conditions of workers that arise on those vessels and in those environments.  So to carry through the illustration, the learned Vice President asked the question well what's the difference between a ferry operator and a tug and barge operator.  All right, well what ferry?




MR HOWELL:  Sorry, your Honour?


VICE PRESIDENT HATCHER:  An engineer was the question.  An engineer on a ferry.


MR HOWELL:  All right, but again which ferry?  Are we talking about a ferry which crosses Sydney Harbour or are we talking about a ferry which goes to sea for an extended journey.  The point, your Honour, is - - -


VICE PRESIDENT HATCHER:  What ferries go to see for extended journeys?


MR HOWELL:  Well, it depends on what you call a ferry for starters but one could characterise a vessel which travels between the southern parts of - the mainland of Australia and Tasmania as being a ferry, depending on its size, depending on what it carries.  That could be characterised as a ferry.  They market themselves as ferries.  They transport persons and vehicles and cargo.  What sort of ferry?  The point is the delineations that are reflected in the instruments reflect the operating environments and the vessels which operate in those operating environments, and they've existed for many years.  They are well understood in the industry.  Smashing them together does nothing more than potentially create problems and the drafting exercise that would be required to ensure that what are really very different terms and conditions don't cross pollinate, for want of a better way to describe it.  They really are different industries created in that way for very good reason.


Schedule B to the written - to illustrate that, schedule B to the written submissions summarises the key conditions and I won't waste the Full Bench's time walking through it.  The Full Bench can read but you will see in each of the material respects, the terms and conditions are very different and they do reflect the different operating environment.  Wages is one, the minimum wages rates is one which has been canvassed.  The minimum wage rate in the seagoing is very different and is formulated very differently to that which applies in ports and harbours and that which applies in towage.


Now my learned friend for the engineers referred to the towage industry by and large being a day operator and the terms and conditions reflect that.  Well, that's not necessarily right.  There's also within the towage industry what's call a special voyage which is a beast of a particular kind and again accommodates the idea that vessels of that kind will from time to time be engaged on a journey at sea for an extended period.  Again, the terms and conditions really do reflect the different nature of the industries, and I'd encourage the Full Bench to have a look at schedule B before it makes a formal determination of whether or not it would be appropriate to amalgamate these three instruments.




MR HERBERT:  Can I raise one point and that follows on from what I mentioned earlier about the fact that Sea Swift are hopefully at the cusp of concluding an agreement after a very long period of waiting for this issue to be resolved.  If the Full Bench, and adopting that big if that your Honour referred to before, were to go down the path of commissioning an Exposure Draft discussion et cetera, might I respectfully suggest that in the interim - - -


DEPUTY PRESIDENT GOOLEY:  You still want us to do the draft determination to give effect to the decision that's already been made.


MR HERBERT:  I couldn't have put it any better, your Honour.  Because Sea Swift is still, as it were, at sixes and sevens about the proper application of the BOOT test given that the awards still mean what they - the Full Bench determined they shouldn't be, and as I understand it the award - I'm sorry, the agreement is as I say very close to being able to be presented to the Commission but we don't have a resolution in the matter.  If a making of a new award is in prospect, that sounds like a fairly lengthy exercise and that might severely prejudice the situation with Sea Swift.


Can I also add that of those who are opposed and those who are, as your Honour put it, agnostic, my client's agnostic because as I indicated earlier they weren't (indistinct) instructions sure about what it all meant.  Having taken instructions from them and having heard what's been said today they're getting - I imagine on my instructions they'll be getting less agnostic by the minute for that.


VICE PRESIDENT HATCHER:  In which direction?  Believer or unbeliever.


MR HERBERT:  As a believer, as a new believer, as a convert, your Honour.  But can I say Sea Swift as you've heard probably the only operation that is really severely affected by the disparity between the awards because it actually has significant operations in two different parts of the industry.  Sea Link from what we hear they have a number of different operations but their ferry operations that were mentioned are the same but are in two different awards, and that's as has been pointed out is a bit odd or essentially the same.  That's a bit off but Sea Swift is the one most affected by this difficulty and the one which as we stand here I'm instructed to indicate that supports in principle the amalgamation of the award which could have a very significant effect in dampening down a number of the issues which caused it to bring on this application in the first place, and caused it to erase the question initially when it sought to have an agreement certified based on a BOOT test, based on the ports award, ports, harbours award because all of its little landing barges that were running between the islands and Torres Strait that were said to be covered by the ports, harbours award.  If they were running round the southern end of Morton Bay near the Sea Link ferry, they'd be covered by the ports, harbours award but if they're going around the Torres Strait they're covered by the Seagoing Award.  Now that was the original debate which caused an agreement to be rejected because they were covered through open waters for part of their journey and then they were determined to be involved in the Seagoing Award. That's an issue which severely effects the Sea Swift operations more than perhaps anyone else in Australia.


COMMISSIONER CAMBRIDGE:  It's the same thing with Sea Link though isn't it?  The two examples given by Sea Link is exactly the same example.


MR HERBERT:  Yes.  They have a similar thing.  I suspect Sea Swift's operations are on a larger scale than the Sea Link operations. I don't pretend to be totally familiar with them but they're on a larger scale and they also have a marine towage business which of course makes the problem even more complicated.  It's a three sided problem in that respect.  In that way it's a contingent support for such a proposal that, in my submission, should carry some weight.


VICE PRESIDENT HATCHER:  Well, if there's nothing further we'll reserve our decision on the matter and advise the parties in due course.


MR HOWELL:  Your Honour, there is one thing I just say in reply to what Mr Herbert was just saying.  The thing which caused - it's dealt with in the written submissions but very briefly because your Honour hadn't had involvement in the earlier proceedings.  The issue that gave rise to Sea Swift's applications in this award modernisation process initially was not just the little vessels that run around the Torres Strait with respect. The issue that arose in the proceedings which my learned friend referred relating to the earlier enterprise agreement came about because unlike most operators in the industry, this particular employer Sea Swift decided to have all of its vessels under the one employing banner, for want of a better way to describe it, so that the single employer didn't focus upon an industry delineated in the way that you've heard this morning.  That's why we complained in the proceedings before your Honours originally that what they were essentially seeking to do through the award modernisation process fashion a BOOT for itself.  That's in essence what my learned friend was saying a moment ago.


The point we make is the issue that arose for Sea Swift was that the whole predominant character of its business determined the exclusive operation of the award, and that was the Seagoing Award.  The reason it had the whole predominant character of its business characterised in that way was not the little boats that run around the Torres Strait, it's because the bulk of its work is line haul vessels which run up and down the coast, that the bulk of its earnings and the bulk of its carriage is done by line haul vessels which run up the coast and fishery management vessels which sit out in the middle of nowhere for seasons at a time to enable - it was prawn fisheries I think was from memory.  It wasn't just the little boats, that wasn't the problem which was presented in those earlier proceedings.


MR HERBERT:  Well, I was there, you weren't.


MR HOWELL:  That was what led to the small ships - - -


VICE PRESIDENT HATCHER:  Thank you.  We'll now reserve our decision and we'll adjourn.


MR HOWELL:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                         [12.41 PM]