TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056383
JUSTICE ROSS, PRESIDENT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Ports, Harbours and Enclosed Water Vessels Award 2010
11.03 AM, THURSDAY, 21 JUNE 2018
JUSTICE ROSS: Good morning. Could I have the appearances in Sydney first, please.
MR Z DUNCALFE: If the Commission pleases, Duncalfe, initial Z, for the Australian Workers Union and the AMOU.
MR N KEATS: Your Honour, my name is Keats, initial N, solicitor. I seek your permission or continue my permission to appear for the MUA in this matter.
JUSTICE ROSS: Thank you.
MS N SHAW: Shaw, initial N, for AFEI.
JUSTICE ROSS: Thank you. In Melbourne?
MR N NIVEN: If the Commission pleases, Niven, initial N, for the AIMPE.
JUSTICE ROSS: Thank you. In Perth?
MS S CERCHE: Thank you. If the Commission pleases, it's Cerche, initial S, for Maritime Industry Australia Ltd.
JUSTICE ROSS: Thank you. We published a statement or background paper on 6 June which identifies what the purpose of the conference is and some of the somewhat tortured history of this matter. It was referred to in the group 3 modern award decision that was published in March this year. The short point is to discuss the proposal that is set out in paragraph 26 and to hear from the parties about whether there is any opposition to that, and whether there is any opposition to anything else. In other words, does that resolve this issue now?
Because of the passage of time and as we have been dealing with other things, we just wanted to make sure that there was no other issue in contest. If there was, then we wanted to hear from you about, well, how do you propose we resolve that contest. You know, written submissions, what is the issue, that sort of thing. If we start in Sydney and then we will work our way around the country. Who would like to go first?
MR DUNCALFE: Your Honour, on behalf of the AWU and the AMOU, we believe that the proposed clause 13.3 does resolve - - -
JUSTICE ROSS: 13.2. This is in paragraph 26. Sorry, it is the new 13.3.
MR DUNCALFE: Yes.
JUSTICE ROSS: Yes.
MR DUNCALFE: It would resolve the issue for us. The only thing that I would mention is that the phrase "when working overtime" may be the source of some contention just because in the past we have had parties say that overtime cannot be worked - sorry, shift work cannot be worked on Saturdays and Sundays. Our opinion would be a plainer language approach perhaps with a cross‑reference to clause 7.2, Ordinary Hours, would be preferable, but that's a minor issue.
JUSTICE ROSS: Where would that go if you were to do that?
MR DUNCALFE: I've drafted just quickly words to this effect:
Shift work rates in clause 13.2 are not payable when working outside of ordinary hours. In clause 7.2, the relevant overtime rate is payable instead.
JUSTICE ROSS: So when working outside - - -
MR DUNCALFE: Of ordinary hours.
JUSTICE ROSS: In clause - what was it you mentioned?
MR DUNCALFE: 7.2, but this isn't a do or die issue. It's just an observation.
JUSTICE ROSS: Yes. Well, we might be dying on other issues, so let's see how we go around the room.
MR DUNCALFE: Sure.
JUSTICE ROSS: Mr Keats?
MR KEATS: The MUA, likewise, sees the proposed clause as a way of resolving the issue as far as it's concerned. In terms of wording, we consider both the wording that is put forward by you and that put forward by the AWU would be sufficient to resolve the issue.
JUSTICE ROSS: All right.
MS CERCHE: Your Honour, I do apologise. It's Perth here. I'm struggling to hear Mr Keats.
JUSTICE ROSS: If you could speak into the - - -
MS CERCHE: I'm wondering if there is a way to adjust the volume.
JUSTICE ROSS: No, that's fine. The short version is this - can you hear me?
MS CERCHE: I can, your Honour.
JUSTICE ROSS: All right. Mr Keats is content with the proposed resolution, the new clause 13.3, and is also content with the proposition advanced by the AWU/AMOU; is relaxed either way.
MS CERCHE: Thank you, your Honour.
JUSTICE ROSS: No problem? Ms Shaw?
MS SHAW: Yes, our position is somewhat different to what has been proposed here and I understand we're coming to the table a little bit late. Our understanding is that shift workers can work ordinary hours on Saturday and Sunday, and the penalty of 50 per cent would apply to Saturday work and a penalty of 100 per cent for Sunday work. This penalty would be exclusive of shift work loading. That's our understanding of the industry, that a shift worker is not limited to Monday and Friday work, yes.
JUSTICE ROSS: Okay. In Melbourne?
MR NIVEN: Yes. Thank you, your Honour. AIMPE also supports the proposed new clause 13.3. Similar to the AWU and AMOU, I was concerned at the word "overtime" and I agree with the proposed wording that they have put forward just now.
JUSTICE ROSS: All right.
MR NIVEN: Our view is that that would resolve the issues.
JUSTICE ROSS: Okay. In Perth?
MS CERCHE: Thank you, your Honour. MIAL's position is that we think the proposal in paragraph 26 is a sensible way to resolve the issue and are comfortable with that approach. I know that is somewhat different from a position recently advanced, but we have now had the opportunity to speak with members and our understanding of how this operationally works with them is somewhat clearer now.
In terms of the proposed amended wording, we are reasonably comfortable - and forgive me, your Honour, we're a little bit on the fly with those words.
JUSTICE ROSS: No, I entirely understand that. That's fine. Look, to be fair, I don't think Mr Duncalfe was sort of putting it as a do or die effort. If there can be an agreement around the proposed new clause 13.3, then - if I can put it this way - the unions broadly are comfortable with that proposition.
MR DUNCALFE: Yes, your Honour.
MS CERCHE: Yes, your Honour. I think we're all trying to get to the same end point. We are just proposing different ways - - -
JUSTICE ROSS: Not all of us, as it turns out.
MS CERCHE: - - - because of the lack of comfort with the term "overtime".
JUSTICE ROSS: Yes. All right. I'm sorry, go on.
MS CERCHE: The one matter I might raise in terms of the proposed new wording reverting back to the ordinary span of hours is that shift work by its definition will finish outside the ordinary span of hours, so I'm just concerned that that might lead to a little bit of confusion.
JUSTICE ROSS: Yes. Look, it may be preferable having regard to the way in which the amendment is put that we proceed with the clause as it is set out in paragraph 26. If in fact it creates a practical issue, then the matter can be revisited subsequently. Would you be content with that, Mr Duncalfe?
MR DUNCALFE: Yes, your Honour.
JUSTICE ROSS: All right. It seems that there is broad agreement - well, there is agreement save for AFEI that the new clause 13.3 would resolve the issue and there will be no further matters in respect of this award in a technical drafting sense. Now, MIAL has indicated that they have spoken to their members and it's consistent with their current operational practice and the like. Who are the AFEI members that have a different practice or that this has been a concern for?
MS SHAW: I would need to seek instructions on the exact member, but it is quite a large member if not maybe association that they've had recent discussions with involving this. Needing the ability to be able to roster, you know, shift workers on from Saturday and Sunday, I think including like passenger ferries which obviously operate on the weekends; and need that ability for shift workers to be able to perform, you know, shifts on Saturday and Sunday without it being overtime.
JUSTICE ROSS: Well, how do you want to proceed with it?
MS SHAW: We have got instructions that we can have some further conferences maybe without you, with the unions, to discuss about our concerns seeing they are new and do it quickly.
JUSTICE ROSS: Yes. You can certainly have some bilateral discussions.
MS SHAW: Yes.
JUSTICE ROSS: Perhaps if we do it this way - would two weeks be sufficient for that?
MS SHAW: Yes.
JUSTICE ROSS: If you can then send a note to my chambers about where you have got to with that; whether you're still pressing the current position or whether you're content for the new clause 13.3. If you're still pressing, then propose a set of draft directions - - -
MS SHAW: Yes.
JUSTICE ROSS: - - - for you to file your submissions and then the other parties with an opportunity to reply. There will be liberty to apply. Absent any request for an oral hearing, the matter would be then determined on the papers.
MS SHAW: Okay.
JUSTICE ROSS: All right?
MS SHAW: Thank you.
JUSTICE ROSS: Let's see if you can sort it out first. If that two weeks isn't sufficient, let us know. I don't want it to drag on, you know, for months.
MS SHAW: Yes, I understand.
JUSTICE ROSS: But if it's a case of another week that would assist you to come to a resolution, then that's fine. Okay?
MS SHAW: Yes. Thank you.
JUSTICE ROSS: Is there anything else? No? Well, hopefully the discussions will be fruitful and we won't need to get into a long argument about the, no doubt, fascinating history of this award and how these provisions came to be, but I'll wait to hear from you in the next couple of weeks. Thanks. I'll adjourn.
ADJOURNED INDEFINITELY [11.14 AM]