Mr Andrew Phillips v Total Marine Services Pty Ltd

[2010] FWA 7614

[2010] FWA 7614

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Mr Andrew Phillips
v
Total Marine Services Pty Ltd
(C2010/466)

COMMISSIONER CLOGHAN PERTH, 30 SEPTEMBER 2010

Application for settlement of dispute.

[1] On 31 July 2010, Mr Andrew Phillips (“the Applicant”) made an application to Fair Work Australia to deal with a dispute in accordance with a Dispute Settlement Procedure.

[2] The application is made pursuant to s.170LW of the Workplace Relations Act 1996.

[3] The Agreement subject of the dispute and application is the Total Marine Services Pty Ltd and Australian Maritime Officers (AMOU) Union Oil and Gas Agreement 2006 (“the Agreement”). The Agreement operates from 31 March 2006 and has a nominal expiry date of 31 December 2008. The Agreement is binding on the Employer, its officers and the AMOU.

[4] Clause 12 Settlement of Disputes Procedure provides at sub-clause 12.6:

“Dispute Settlements - the above steps shall not preclude the right of either party to refer a dispute to the Commission. In these circumstances, the Commission shall retain its discretion to refer the parties back to a continuation of this procedure where the Commission considers that course as appropriate.”

THE DISPUTE

[5] Sub-clause 18.2 of the Agreement provides:

“An officer will be paid the salary appropriate to that officer’s rank and vessels category or as otherwise agreed.”

[6] This dispute is not about the Applicant’s rank but the category of the vessel.

[7] Sub-clause 18.11 of the Agreement sets out the classification of vessels. Vessels are categorised from Grade 1 to Grade 7.

[8] The Applicant is seeking the salary applicable to Grade 7 (117%) Specialist Vessels for the period of time he was employed on the Geobay. Mr Phillips received a salary applicable to a Grade 4 (100%) vessel at the relevant time.

[9] The application stated that he is to be represented by the Australian Maritime Officers Union (“AMOU”). On 25 August 2010, I was advised by Form F54 that the AMOU ceased to act for the Applicant.

[10] The application was the subject of a conference of the parties on 25 August 2010. Subsequent to the conference, I received submissions, in order of sequence, from the Employer, the Applicant and finally, the Employer.

APPLICANT’S CASE

[11] The Applicant states that the Agreement describes Grade 4 vessels in Clause 18 as follows:

“Support Vessels Category 1

Supply Vessels Category 1

Seismic Survey Vessels

Semi Sub and MODU Tows

Geotechnical Drilling Vessel Division 1”

[12] The definition of Support and Supply Vessels Category 1 are contained in Clause 3 of the Agreement. The Applicant asserts that the Geobay does not meet the definition of Support or Supply Vessels Category 1. Further, the Geobay does not fit the remaining definition of vessels contained within the Grade 4 category.

[13] By a process of exclusion, the Applicant contends that the only category of vessel matching the description of the Geobay is Grade 7. Specifically, the Applicant states that the work undertaken by the Geobay accords with:

“...a vessel required to undertake specific operations in the oil and gas industry e.g. a Specialist Dive Support Vessel or Specialist Pipe Laying Vessel.”

[14] Consequently, in accordance with the Agreement, the vessel category attracts a salary of 117% which the Applicant is seeking for the period of time he was employed on the Geobay.

[15] The Applicant concludes his submission by noting the greater clarity in the equivalent 2010 enterprise agreement.

EMPLOYER’S CASE

[16] The Employer was required to provide staffing for the Geobay in January 2008.

[17] Consistent with custom and practice, correspondence was forwarded to the relevant unions advising of the Employer’s appointment to provide marine and catering crew for the “Multi Purpose Vessel” Geobay. The correspondence indicated that the Geobay “will be on Schedule 1 Division 1 (100%) for the duration of the project (in Australia)” and indicated a date for inspections in Singapore of 21 and 22 January 2008.

[18] The AMOU and the Maritime Union of Australia (“MUA”) inspected the Geobay in Singapore. The Australian Institute of Marine and Power Engineers (“AIMPE”) was invited to inspections but were unable to attend.

[19] The MUA provided a written report on the inspection. The written report does not raise the issue of the vessel’s categorisation for remuneration purposes.

[20] At inspections, the Employer states that the issue of the vessel’s classification was raised by the Chief Mate and AMOU, but it was agreed that the designated classification of 100% was appropriate.

[21] While on the project in Australia, crew were paid at the classification of 100%.

[22] The vessel relocated to New Zealand on a different project.

[23] During the course of the project in New Zealand, a claim for payment at 117% was made. Following the “threat of the deck officers leaving the vessel if they did not receive the 117%”, the higher rate of 117% was paid. The Employer asserts that it was made clear that, remuneration would revert to 100% on return to Australian waters.

[24] On return to a project in Australian waters, the MUA sought payment of 117% which was the subject of a conciliation conference in the Australian Industrial Relations Commission (AIRC). The claim for 117% was withdrawn by the MUA.

[25] It is notable that neither the AMOU nor AIMPE, joined the MUA application.

[26] Towards the end of 2009, the AMOU and AIMPE raised the issue of the Geobay being classified at Grade 7 - 117% Specialist Vessels. The reasons for reclassification were rejected by the Employer on two grounds. The first ground related to Engine Horsepower and it is a matter of fact, that the Geobay Engine Horsepower is insufficient to meet the criteria for a Grade 7 category vessel.

[27] The second ground advanced by the unions is more complex. The claim by the AMOU and AIMPE is based on another vessel, the Geosea doing the same or similar specialist work. The Employer provided advice to the AMOU and AIMPE that both vessels were engaged on the same activities, however, the Geosea was paid the Grade 7 - 117% Specialist Vessel, as a result of a specific contractual instruction from the Employer’s client prior to commencement of its project, for crew retention reasons.

The client submitted that, if it was not for crew retention reasons, the Geosea should have been properly classified Grade 4 - 100%.

DISCUSSION AND CONCLUSION

[28] This application is primarily possible due to Clause 12 Settlement of Disputes Procedure in the Total Marine Services Pty Ltd and Australian Maritime Officers (AMOU) Union Oil and Gas Agreement 2006.

[29] The Agreement is, as its name suggests, between the Employer and the AMOU.

[30] The Agreement is binding on the Employer, employees and the AMOU.

[31] The Agreement specifically, in Clause 5 Collective bargaining, recognises the AMOU as having the right to represent the industrial interests of its members.

[32] One of the objectives of the Agreement refers to the development of a collective and consultative approach between the parties to “foster an environment of trust and open communication”.

[33] When a vessel is required to undertake work which would be covered by the Agreement, the Employer and the AMOU are involved in an inspection prior to its mobilisation.

[34] The AMOU is directly involved in manning redundancy, health insurance, superannuation, Loss of Certificate of Competency, vessel insurance, leave, hard lying allowance, consultative meetings provisions in the Agreement, and I am sure, many other matters indirectly.

[35] The relief sought by the Applicant to be paid a salary applicable to a Grade 7 - 117% is effectively seeking a declaration by the Tribunal that the AMOU was wrong to agree to the classification of Grade 4 - 100% for the Geobay, or alternatively, it should not have acquiesced to the Employer’s explanation of why the Geobay should be classified at Grade 4 - 100%.

[36] I am satisfied from the material which I have been provided with, that the procedures adopted by the Employer were consistent with custom and practice of categorisation of vessels. Further, from the material provided, I am not able to say that the process adopted by the Employer and the AMOU, was flawed, unfair or a contrivance.

[37] From the material provided to the Tribunal, the differences which exist between the parties to the application are that the Employer has reached an agreement with the AMOU on the vessel category of the Geobay which the Applicant disputes. In coming to this conclusion, both the Tribunal and the Employer specifically make no criticism of the Applicant.

[38] However, the Employer’s submission is that the Applicant’s disagreement should not prejudice the certainty of its agreement with the AMOU. Put shortly, the Employer argues that responsibility for the difference between the Applicant and the AMOU should not be shifted to the Employer. In view of the role of the AMOU in the Agreement and the need for certainty from the Employer’s perspective, especially given the contractual significance, I am satisfied that the accord between the AMOU and the Employer on the vessel’s categorisation should remain.

[39] In matters such as these, it is a question of whether I should disturb (if justified) the agreement between the Employer and the AMOU on the vessel category of the Geobay, or give an employee the right, and precedence, over that mutual agreement. In view of the significant involvement of the AMOU in the Agreement and the context in which the categorisation was undertaken (and subsequent events), I am unable to agree to the relief sought by the Applicant.

COMMISSIONER

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