Maritime Authority of New South Wales Award 2007 [2010] NSWIRComm 135

LEGISLATION CITED: Fair Work (Registered Organisations) Act 2009 Industrial Relations Act 1996

CASES CITED: Club Employees (State) Award and other Awards, Re [2002] NSWIRComm 362

30 August 2010 HEARING DATES: Written submissions: 6 September 2010, 8 September 2010

Mr D Shoebridge of counsel (Applicant) WG McNally Jones Staff Australian Maritime Officers Union of New South Wales (No appearance - written submissions) LEGAL REPRESENTATIVES:

Mr A T Martin of counsel (Respondent) NSW Maritime

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Australian Institute of Marine and Power Engineers, NSW District for variation re schedule A

1 In an amended application for an award variation, the Australian Institute of Marine and Power Engineers, NSW District ("the applicant") has asked the Industrial Relations Commission of New South Wales ("the Commission"), pursuant to s 17 of the Industrial Relations Act 1996 (the "Act") to vary the Maritime Authority of New South Wales Award 2007 (364 IG 1327) (the "Award") to make it a party to the Award and for it to be bound by the Award. 2 In written submissions, the Australian Maritime Officers Union of New South Wales ("AMOU"), a party to the Award, opposed the application. However, it did not appear at the hearing. The Maritime Authority of New South Wales, trading as NSW Maritime ("NSWM"), the employer, did not support or oppose the application. 3 Section 3 and s 17 of the Act were relied upon by the applicant to support the relief sought. Those sections provide: 3 Objects The objects of this Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 17 Variation or rescission of award (1) The Commission may vary or rescind an award. (2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied. (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. 4 Section 146(2) requires the Commission to take into account the objects of the Act. Course of the proceedings 5 The AMOU was represented at three directions hearings. It filed, in accordance with directions made, an outline of submissions and a statement by the Secretary/Treasurer of the AMOU, Mr Richard Barnes. As there was no appearance on behalf of the AMOU at the hearing of the application, enquiries were made by the applicant and also by my associate which revealed that the officer with carriage of the matter was overseas and no other officer was available to appear on the day of the hearing. 6 The Australian Services Union New South Wales ("ASU") and the Seamen's Union of Australia, New South Wales Branch ("SUA") who are also parties to the Award appeared at directions hearings. Neither of these parties appeared at the hearing of the application, although a statement of Mr Paul Garrett, Assistant Secretary of the Sydney Branch of the Maritime Union of Australia ("MUA") was filed on behalf of the SUA. Mr Garrett stated he had authority to act on behalf of the SUA. 7 Mr D Shoebridge of counsel, who appeared for the applicant, pressed that the hearing proceed. No objection was taken to this course by Mr A T Martin of counsel, who appeared for NSWM. Mr Shoebridge, quite fairly, submitted that as the AMOU had filed submissions to which the applicant had replied, the Commission ought to have regard to those submissions, to which I will refer to shortly, in determining this application. I propose to adopt that course, noting that the statement of Mr Barnes was not read in the proceedings and therefore, that material and the material filed on behalf of the SUA does not form part of the proceedings. Mr Shoebridge foreshadowed that if it did form part of the proceedings, he would require Mr Barnes for cross-examination. 8 At the conclusion of Mr Shoebridge's submissions, to which I will refer to shortly, Mr Martin, after reading affidavits of Ms Susanne Ohanian, Manager Human Resources and Mr Ramanathan Shankar, Manager Commercial Operations, Maritime Operations Division of NSWM, made the following application:

Your Honour as I indicated before the morning adjournment, I was somewhat taken by surprise in relation to [AMOU]. It's in clear public interest that there is as harmonious a workplace as there possible [sic] can be in terms of industrial relations and NSW Maritime is conscious of the fact that there [are] a number of Unions involved and we all have to get along and deal with them. What I propose is this, and I know my learned friend opposes this, I have spoken with him. Initially we approached this application on the basis there was quite some turbulent dispute between the AMOU and AIMPE about this application and our submissions were likely to relate to that.

We now have the circumstance where I am caught somewhat by surprise that the AMOU despite their strident submissions, are not here to make submissions to your Honour. What I propose is I be given the opportunity to find a little bit more about what is going on and to seek some instructions from my client. I would ask your Honour that we be given seven days to put on some brief written submissions and my friend can have 7 or 14 days to reply. But otherwise I need, I would respectfully urge your Honour I be given that time to get some instructions as to the lay of the land and then submit accordingly. We were completely taken by surprise and it looked like there was going to be a fight between the AMOU and the AIMPE, seeing the AMOU are not here. That's my difficulty and I urge that course upon the Commission.

9 I granted Mr Martin's application and made directions that NSWM file and serve any submissions it wished to make within seven days and that the applicant file and serve any submissions in reply within a further seven days. The position ultimately adopted by NSWM in written submissions, was that it took no position at all with respect to the application. I will return to consider the submissions of the parties later in these reasons. Factual background 10 Mr Shoebridge read a statement of Mr Henning Christiansen filed on 4 June 2010. Mr Christiansen is the President of the applicant organisation of employees registered under the Act. He is also the Federal Secretary of the Australian Institute of Marine and Power Engineers, an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009. Mr Christiansen's evidence was accepted by NSWM. He was not required for cross-examination. Annexed to his affidavit was a copy of the Rules of the applicant. Rule 5 - Eligibility detailed those persons eligible to be members of the applicant. Relevantly, they include:

Marine Engineers, Marine Surveyors, Senior Marine Surveyors, Chief Marine Surveyors, Engineers Pilot Vessels, Engineer Superintendents, Works Managers, Work Superintendent, Planning Officers. 11 Mr Christiansen stated that the application involved employees of NSWM employed in the Policy, Industry and Infrastructure - Commercial Operations Branch (the "Commercial Operations Branch"). Mr Christiansen set out in a table format, the grade, position and name of employees of the Commercial Operations Branch and whether or not such persons were members of the applicant. There were 23 positions listed. Three of the positions were vacant and 11 were occupied by members of the applicant. The positions occupied by members of the applicant were the SMS auditor for periodic survey (1); Ship Surveyor (4); Team Leader of Initial Survey (Temp) (1); Team Leader Periodic surveys (Temp) (1); Manager of Marine Certification (1); Initial Survey Manager (1); Periodic survey and SMS audit manager (old senior surveyor) (1), and Manager of commercial operations (1). 12 Annexed to Mr Christiansen's affidavit were documents titled "Job Specifications" which included the key responsibilities for each of the following positions:

Junior Naval Architect/Associate Surveyor; Marine Examination Officer/Auditor; Senior Marine Certification Officer; Naval Architect; Ship Surveyor; SMS Auditor/Ship surveyor; Team Leader - Initial Survey/Team Leader - Periodic Survey; Marine Certification and Safety Management Manager; Team Leader SMS Audit; Senior Surveyor (Technical); Manager Commercial Operations. 13 Mr Christiansen stated that the applicant had, for many years, enrolled as members persons employed by NSWM who performed work in the nature of a "Marine Surveyor". Until 2009, the members had not sought the assistance of the applicant in industrial representation. He contended, given the nature of the work these members perform, and in light of the applicant's Rules, these members were entitled to be members of the applicant and that the applicant should be allowed to represent their industrial interests. 14 Mr Christiansen said that if the application was not successful, and if the applicant was not made a party to the Award, then this would limit the applicant's ability to participate in industrial relations on behalf of their members. The applicant had sought to raise industrial matters on behalf of their members with NSWM, however NSWM had advised them that they would not enter into negotiations because it was not a party to the Enterprise Agreement, or the Award. Copies of relevant correspondence were annexed to the affidavit. Mr Christiansen stated that if the application was successful, he believed that the applicant, as a party to the Award, would be able to effectively represent its members. 15 Mr Christiansen said that the applicant had a history of actively representing marine surveyors employed by the Australian Maritime Safety Authority ("AMSA"). In 2008, through joint lobbying between the applicant and the MUA, a decision was made by the Council of Australian Governments to move to a single national jurisdiction and that AMSA would become the national regulator of all commercial vessels operating in Australian waters. Copies of several announcements made by the Commonwealth Government regarding this matter were annexed to the affidavit. These included five media statements by the Hon Anthony Albanese, the then Minister for Infrastructure, Transport, Regional Development and Local Government. By reason of the move to a single national jurisdiction, Mr Christensen believed that the interests of his members in NSWM would be advanced by being represented by the applicant, who also has strong industrial history in dealing with the Federal regulator, AMSA. 16 A survey was undertaken of all the employees of NSWM employed in the Commercial Operations Branch. Employees employed as examiners were asked if they considered marine certification and examination to be a function of Marine Surveyors. Copies of the questionnaire were given to each of the 20 employees of the Commercial Operations Branch. Nine questionnaires were returned, each of which agreed that persons employed as examiners were Marine Surveyors. Annexed to Mr Christiansen's affidavit were copies of the returned questionnaires. NSWM's evidence 17 As I have already observed, Mr Martin read affidavits of Ms Ohanian and Mr Shankar. Ms Ohanian set out the history of NSWM and its activities. She stated that NSWM had a total staff of approximately 400 in 33 offices and customer service centres around New South Wales. The Commercial Operations Branch is part of the Maritime Operations Division and is responsible for the implementation of the safety regulatory framework for commercial vessels in New South Wales. This occurs through initial and periodic inspections (vessel survey), certification of crew competency, and promotion and audit of safety management systems. She stated that the Commercial Operations Branch contributes to the development and implementation of national safety standards for commercial vessel design, construction, equipment and operational systems and is responsible for the audit of Registered Training Organisations for the delivery of crew training. 18 Since 1993, the industrial arrangements at NSWM have been regulated by Enterprise Agreements. There were 18 signatories to the 1993 Maritime Services Board Enterprise Agreement, including the applicant. The 1996 Waterways Authority Enterprise Agreement had four union signatories, together with the employer. Those unions were the AMOU, the Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) ("APESMA"), the ASU and the SUA. The same unions were signatories to the 2004 - 2007 Waterways Authority (trading as NSW Maritime) Enterprise Agreement with the exception of APESMA who was no longer a signatory or party to the Enterprise Agreement. The 2007 - 2010 Maritime Authority of NSW Enterprise Agreement has three union signatories, together with the employer. These are the same unions who were signatories to the 2004 - 2007 Enterprise Agreement, with the exception of APESMA. 19 Ms Ohanian stated that for each Enterprise Agreement, the unions formed a single bargaining unit for negotiations with the employer where the combined unions would jointly represent the interests of their members. Clause 1.7 of the current Enterprise Agreement establishes the Maritime Consultative Committee which consists of representatives from NSWM and the unions that are a party to the Enterprise Agreement. The Committee meets at least once every three months and at other times as required. 20 At some period between the 1996 and the 1998 Enterprise Agreements, the ASU ceased to represent vessel/ship surveyors and the AMOU began representing that group of employees. Ms Ohanian was unaware of the reasons for this change in representation. 21 Ms Ohanian said that there had been a relatively low level of industrial disputation at NSWM and its predecessors, with any industrial action usually occurring at the time of negotiations for a new Enterprise Agreement. There has been no specific industrial action by vessel surveyors. She noted that NSWM had received a Log of Claims from the applicant and correspondence seeking to raise industrial issues on behalf of the applicant. She confirmed that NSWM had advised that they would not enter into negotiations with the applicant because it was not a party to the Enterprise Agreement or the Award. Ms Ohanian stated that the Award, the subject of this application, was the Maritime Authority of New South Wales Award 2007. The Enterprise Agreement which sets out the terms and conditions of employment for employees of NSWM, prevails over the Award. 22 Ms Ohanian stated that the job specification documents for Maritime Examination Officer/Auditor, and Marine Certification and Safety Management Manager annexed to Mr Christiansen's statement, were draft position descriptions. She annexed the official documents titled "Job Specifications" for these positions to her affidavit. 23 The Maritime Authority of New South Wales Enterprise Agreement 2007 - 2010 expired on 30 June 2010. 24 Mr Shankar is the Manager Commercial Operations in the Commercial Operations Branch in NSWM. He is a Marine Engineer by profession. His affidavit was directed to making general observations relating to the job specifications discussed by Mr Christiansen in his statement. Mr Shankar provided clarification in respect of the duties and responsibilities of employees engaged in the Commercial Operations Branch. It is unnecessary in determining this application to deal further with this evidence, particularly in circumstances where the job specifications referred to by Mr Christiansen were in draft form. The applicant's submissions 25 The applicant's written submissions referred to the legislation relevant to the application, which I have set out earlier in this decision. 26 Mr Shoebridge particularly emphasised s 3(d) of the Act which, he submitted, encouraged the participation in industrial relations by representative bodies of employees and employers. Counsel further submitted that industrial representation by registered organisations is an essential part of the industrial relations framework in New South Wales. Counsel relied upon the Full Bench decision in Club Employees (State) Award and other Awards, Re [2002] NSWIRComm 362 at [12], [83], [104] - [108] for this contention. 27 In satisfying the public interest test, counsel submitted there were substantial reasons for varying the Award as follows:

(i) the applicant, which has a history of actively representing marine surveyors at the Commonwealth level, will be in a good position to represent its members in New South Wales while they are subject to industrial changes arising from the move to a single national jurisdiction of marine regulators; (ii) the employees of NSWM who are members of the applicant, wish to be represented by their union; (iii) only by being made a party to the Award will the applicant be in a position to fully represent its members by, inter alia: (a) participating in the Marine Consultation Committee (cl 9);

(b) being a formal contact point for assisting its members (cl 14.9);

(c) being a formal part of any dispute procedure (cl 14.11.2);

(iv) by becoming a party to the Award, the applicant will accept the various obligations imposed on it including the no extra claims provision in cl 20. 28 The applicant's submissions concluded by submitting there were compelling reasons for varying the Award to make the applicant a party. Submissions of AMOU 29 In written submissions filed 1 July 2010, the AMOU submitted that the application should be dismissed for the following reasons:

(a) the application is misconceived, because under the Act, an industrial organisation cannot become bound by an Award, or become a party to the Award, unless it was a party to the making of the Award;

(b) there is no power to vary the Award under s 17(3)(c) of the Act in the manner sought, because to do so would be contrary to the public interest and there is no substantial reason to vary the Award;

(c) the application is an abuse of process because it is brought for an ulterior or collateral purpose, namely to provide a basis for the applicant to negotiate a separate Enterprise Agreement with NSWM. 30 It was submitted s 12 of the Act identifies who is bound by an award. Under s 12(3), an industrial organisation is bound if they were a party to the making of the award. It was contended that s 17(3)(a) confirms the position in this respect. The Award was a consent award negotiated between NSWM, the AMOU, the SUA and the ASU. The AMOU submitted that as the applicant was not involved in the negotiations or the proceedings, it is not bound by the Award under s 12(3) of the Act. 31 It contended the Award cannot retrospectively be changed by adding the applicant's name to cl 4 of the Award. It was submitted this would be a futility, and inconsistent with s 12(3) of the Act. The proper course was for the applicant to apply to the Industrial Registrar under r 6.9 of the Industrial Relations Commission Rules 2009 to be added to the party card. 32 I would observe in passing that this rule no longer has application. As from 1 February 2010, the Uniform Civil Procedure Rules 2005 replaced the Industrial Relations Commission Rules 2009. Although the Commission may from time to time prescribe local rules to deal with specific matters not addressed by the Uniform Civil Procedure Rules relevant to the Commission's jurisdiction, no rule has been made to replace r 6.9 of the Industrial Relations Commission Rules. 33 It was further submitted that the applicant's members currently enjoy the benefits of the Award and that there was nothing in the application which would provide any additional benefits to its members. 34 It was contended in respect of the public interest, that the real purpose of the application was to provide a basis for the applicant to pressure NSWM to negotiate a separate Enterprise Agreement for its membership. If this occurred, the effective single bargaining unit which has existed for some years would be broken up and industrial relations would revert to being dealt with on a piecemeal basis. It was submitted that this would not be in the public interest, given that NSWM is a significant public sector agency. It was further submitted that in the exercise of its discretion, the Commission would not vary a consent award containing a strict no extra claims clause (cl 20) over the opposition of all parties to the making of the Award upon the application of an organisation, not a party to the making of the Award, with no prior history of an interest in the Award. Submissions of NSWM 35 NSWM neither supported nor opposed the application made by the applicant. In its written submissions filed 6 September 2010, it noted that the Award was still within its nominal term (cl 6(iii)). It was submitted that although not entirely free from doubt, s 17 of the Act provides a wide power to the Commission to vary awards. It followed, so it was submitted, that the better view was likely to be that the Commission is granted the power to vary an award to change the parties under s 17 in an appropriate case. 36 NSWM acknowledged that during the nominal term of an award, the Commission could vary an award if it considered that it was not contrary to the public interest to do so and there was a substantial reason to do so. It was submitted that NSWM enjoys a reasonably harmonious relationship with its workforce and it is in the public interest that this continues. It acknowledged that although the AMOU had filed submissions alleging abuse of process and requesting that the application be dismissed, it did not attend the hearing. 37 NSWM confirmed that it was committed to working as productively as possible with all employee organisations that have a presence in its workplace. It expressed some concern whether a demarcation dispute may arise in respect of the coverage of vessel surveyors. The submissions of NSWM concluded on the basis that:

12. NSW Maritime is placed in something of a difficult position in that if the application of AIMPE is accepted, it will be required to negotiate with two separate organisations that purport to speak for the same classes of employees. Although this may pose some challenges, NSW Maritime is committed to doing the best it can to resolve those issues on a case by case basis as they arise. It may be however that in future, the assistance of the Commission will need to be sought if there is an impasse as to negotiations with the AMOU and AIMPE concerning the industrial representations of the same class of employees.

13. NSW Maritime submits that the application is therefore a matter for the Commission, and cannot in this situation be heard to speak for or against it. Consideration 38 The issue in these proceedings is whether the Commission should vary the Maritime Authority of New South Wales Award 2007 to make the applicant a party to the Award. 39 It was common ground that in order for the applicant to succeed, noting that the Award is still within its nominal term until 7 November 2010 (cl 6(iii) of the Award), it was necessary for the applicant to satisfy the Commission that the application was not contrary to the public interest and that there was a substantial reason to grant the application (see s 17(3)(c) of the Act). 40 Section 146(2) of the Act provides that in exercising its functions under the Act, the Commission must take into account the objects of the Act. Section 3(d) of the Act encourages participation in industrial relations by representative bodies of employees and employers. The Full Bench in Club Employees (State) Award and other Awards, confirmed that industrial representation by registered organisations is an essential part of the industrial relations framework in New South Wales: see in particular [83], [104] - [108]. 41 In this matter, the applicant seeks no more than to be a party to the Award that regulates the terms and conditions of its members who are employed by NSWM. Furthermore, those members wish to be represented by the applicant. In my view, these desires are consistent with the objects of the Act, particularly s 3(d). 42 In view of the objects of the Act, it is clear that the public interest includes facilitating industrial representation of employees by registered organisations of employees. I do not see how the public interest would be served by excluding from an Award, an industrial union of employees whose eligibility rule falls within cl 5 Coverage of the Award and who has bona fide members covered by the Award. 43 The applicant has acknowledged that it will accept the obligations imposed upon it by the Award if the application is granted, particularly the no extra claims provision found in cl 20 of the Award. There was no evidence before me of any wages or conditions claims currently being pressed by the applicant. In this respect, an inference may be drawn that any variation will not impact on the New South Wales economy. Furthermore, on a proper reading of the no extra claims provision, it does not relate to an application such as this which is seeking industrial representation rights. The no extra claims provision clearly relates to changes to the terms and conditions of employment. It contains an exception in respect of claims allowed by Ch 2, Pt 2 Enterprise Agreements of Div 1 - 3 of the Act. 44 The AMOU relied on the provisions of s 12(3) of the Act. This section provides that an award is binding on all industrial organisations that were a party to the making of the Award. However in my view, s 12(3) is not expressed as being exhaustive. If the application is granted, the applicant will be bound by the Award by reason of its terms, which would include reference to the applicant as a party to the Award. The applicant, needless to say, upon becoming a party to the Award would also be bound by the statements of intention, co-operation and agreement provisions found in the Award. 45 The AMOU submitted that the applicant had an ulterior or collateral purpose in making this application. There is no evidence that would allow such a finding to be made, nor is there evidence that the granting of the application would have a negative impact on the industrial harmony at the workplace. If anything, the evidence is to the opposite effect. 46 Neither the AMOU nor NSWM called any evidence to challenge the claim by the applicant that it is entitled to represent members employed in the Commercial Operations Branch, or that any other registered organisation had coverage of such persons. It is to be observed that the applicant has a history of representing marine surveyors in the Federal jurisdiction and that the applicant's Rules provide eligibility to enrol marine surveyors and engineers. An additional substantial reason for granting the application is that pursuant to cl 9 of the Award, the applicant's members will be able to participate in the Marine Consultation Committee which recognises the importance of successful workplace reforms through involvement and co-operation of employee unions and workplace representations. 47 As a matter of discretion, for the foregoing reasons, I consider a case has been established by the applicant to vary the Award in accordance with the terms of schedule A attached to the application. To not do so would, in light of the factors I have outlined, impose an industrial injustice upon the applicant. The application is granted. 48 However in doing so, the Commission wishes to make clear to the applicant that in exercising its discretion to grant this application, the Commission is not conferring a benefit on the applicant to engage in industrial jousting with any other party to the Award. The only basis for the granting of the application is to ensure legitimate representation by the applicant of its existing members covered by the Award and any other members who fall within its eligibility rule who became members. ORDERS 49 Pursuant to s 17 of the Industrial Relations Act 1996, I vary the Maritime Authority of New South Wales Award 2007, published 15 February 2008 (364 IG 1327) as follows:

1. In clause 4 - Application, add a new paragraph: "The Australian Institute of Marine and Power Engineers, NSW District." 2. In clause 3(k) - Definitions, add the words: "The Australian Institute of Marine and Power Engineers, NSW District" after the words "New South Wales Branch." 3. In clause 14.9 - Grievance Handling and Dispute Resolution, add the following: "AIMPE: (02) 9698 3999" in a list format after the letters and numbers "MUA (02) 9264 5024." 4. This variation shall take effect on and from the date of this decision.

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