PR948794 AG817955 PR948794 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute The Maritime Union of Australia (C2003/6017) s.170MD(6) Variation of certified agreement to remove ambiguity The Maritime Union of Australia (AG2004/3575) PORT WARATAH COAL SERVICES LIMITED CERTIFIED AGREEMENT 2002 (ODN AG2002/3481) [AG817955 PR921682 ] Port and harbour services COMMISSIONER RAFFAELLI SYDNEY, 1 JULY 2004 Jurisdictional bases for both applications - no juriscdiction found. DECISION [1] The Maritime Union of Australia (MUA) has made application pursuant to section 170MD(6) of the Workplace Relations Act 1996 (the Act) to vary clause 8.1 of Appendix 3 of the Port Waratah Coal Services Limited Certified Agreement 2002 [ PR921682 ] (the Certified Agreement) by substituting new provisions for the existing ones. [2] The existing provisions are: " 8 . Pay Averaging Pay averaging is a method used to maintain an average payment each week over an agreed eight (8) week period of time. 8.1 All employees working the 7 Day Continuous Roster will have their weekly pay averaged to a maximum of forty three point seven five (43.75) rostered hours per week. This will be maintained when all rostered hours are worked each week. 8.2 Any absences except for those noted in clause 9.3 of this Agreement will change the average weekly pay in the week the absence occurs. 8.3 Allowances, overtime (other than rostered overtime) and any other payments due to an employee will be paid as additional payments in the appropriate pay week." [3] The provisions sought by the MUA to replace clause 8.1 are: "The base salary of all employees working the 7 day Continuous Roster will be their weekly pay averaged to a maximum of forty three point seven five (43.75) rostered hours per week. This will be maintained when all rostered hours are worked each week." [4] The MUA has also applied pursuant to section 170LW of the act for a Statement or if it is necessary an Order in the following terms: "The base salary negotiated in the Certified Agreement for employees engaged under the 7 day continuous roster is the weekly pay of such employees averaged to a maximum of 43.75 rostered hours per week as set out in Clause 8.1 of the Agreement." [5] The section 170LW Statement or Order is put as an alternative to the variation sought pursuant to section 170MD(6). [6] Port Waratah Coal Services Limited (PWCS) challenges the jurisdictional basis for the Commission to act on both applications. [7] In respect of the s.170MD application, the MUA put submissions including that there is the necessary ambiguity or uncertainty over what is to be the "base salary negotiated" under the Certified Agreement for employees working the 7 Day Continuous Roster. The MUA asserts that the base salary is the weekly pay averaged, as set out in clause 8.1 of Appendix 3. The application alters the existing clause 8.1 in order to remove any ambiguity or uncertainty by then inserting clearer terms. On the other hand, it is said by the MUA, that PWCS assert that the base salary are the rates contained in clause 15 of the Certified Agreement. [8] Clause 15 provides: " 15 WAGE RATES The rates of pay herein are "total" and/or "paid rates" payable for individual classifications. Such rates comprehend all Agreement entitlements including, but without limiting the generality to payments for travelling time, travelling allowances, fares, excess fares, site disabilities such as space, height, dirt, mud, dust, coal sludge, waste and all abnormal conditions encountered when working with coal; irregularity of work, industry or special allowances, compensation for travel patterns, mobility etc. inclement weather, isolation, allowances, damage to clothing and any other similar or like payment but excludes those payments contained in clause 16 of this Agreement Weekly Rate Weekly Rate Classification Weekly Rate 1 st - 4% increase 2 nd - 4% increase 1 August 2002 1 August 2003 Operator Level 1 100% 863.95 898.51 Operator Level 2 101.5% 876.91 911.99 Operator Level 3 110% 950.35 988.36 Assistant Wharf Foreman 111% 958.98 997.35 Weekly Rate Weekly Rate Foreman 112.5% 971.94 1010.82 Tradesperson 110% 950.35 988.36 Advanced Tradesperson 115.9% 1001.32 1041.37 Acting Supervisor/Acting Ops Scheduler 124.5% 1075.62 1118.64 Note * The Assistant Wharf Foreman rate and the Operator Level 3 rate are all purpose for the time worked, unless otherwise agreed. * No employee will be disadvantaged in pay rate by the introduction of the competency base classifications." [9] The MUA say that because there are therefore two views as to what is the base salary, there is clearly an ambiguity and uncertainty as to a provision of the Certified Agreement. [10] On the evidence before me, including two items of correspondence (Exhibits Crawshaw 1 and Crawshaw 2) there is no basis for accepting that PWCS has a view that the base salary is that provided in clause 15. It sees no ambiguity or uncertainty. [11] Jurisdictional questions under section 170MD(6) have been well described by a Full Bench of this Commission in PTC of Victoria v ARTBU [PR2454]. In particular, relevant words included: "In our view the approach adopted by his Honour Gray J. in the PKIU case is a sensible one and should be applied by the Commission in dealing with applications to vary agreements for the purpose of removing ambiguity or uncertainty. Accordingly the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case can be made out for more than one contention." [12] It might be said that there are rival contentions. As to whether an arguable case can be made out for more than one contention it is necessary to look at the relevant provisions of the Certified Agreement. [13] It can be seen from above that clause 15 makes provisions for wage rates. It can also be seen from clause 8 of Appendix 3 that Pay Averaging is used to maintain consistent income for employees. The current provisions of clause 8.1 makes specific reference to 7 Day Continuous workers who are to have their weekly pay averaged. [14] I can find no ambiguity or uncertainty in respect of those provisions. [15] It is said that ambiguity and uncertainty arises because it is not clear what is the base salary for the employees concerned. [16] That is true. But "base salary" is not a term referred to anywhere in the Certified Agreement, much less in clause 15 and clause 8.1. [17] It is said by the MUA that "base salary" is a term used in the Stevedoring Employees Retirement Fund (SERF). A number of MUA members employed by PWCS are members of SERF. [18] In that regard the Certified Agreement contains the following provisions: " 17 SUPERANNUATION a) Permanent/Fixed Contract Employees: The company will make superannuation contributions of 14.5%, inclusive of the Superannuation Guarantee Levy. Superannuation contributions will be calculated based on the employee's base weekly wage rate as defined in clause 15. Superannuation contributions will be made to the Superannuation Trust of Australia, Stevedoring Employees Retirement Fund, or any other superannuation fund nominated by the Company, subject to the superannuation fund's acceptance of the employee's application to become a member of the superannuation fund, and the Company being a participating employer of the superannuation fund or employees may recommend to PWCS an Australian Taxation Office recognised "Complying, Public Offer" Superannuation fund, which PWCS will contribute to on behalf of the employee." [19] An extract from the trust deed of SERF provides: " Classification Base Wage in respect of member, means the greater of the following amounts: a) The amount of 75% of the Members Base Salary and b) The amount of (i) In respect of a Guarantee Wage Employee or a Permanent Part-Time employee - $650 per week and (ii) In respect of any other member - $950 per week. " Base Salary in respect of a member means the base salary (excluding overtime, incentives and bonuses) negotiated in an enterprise bargaining agreement or similar industrial instrument, as is notified to the trustee by the Members Participating Employer, up to the maximum contribution base determined under Section 15 of the Superannuation Guarantee Act 1992 unless the Trustee determines otherwise." (Exhibit Crawshaw 2) [20] It is said that there is uncertainty or ambiguity as to what is such base salary. [21] It seems to the Commission that there is no ambiguity or uncertainty as to contributions that must be made to SERF. So much is obvious by reading the words of clause 17. [22] The fact that terms, provisions or indeed the operation of another instrument is not clear when referable to the Certified Agreement is not a relevant consideration. [23] The Certified Agreement may contain terms which do not sit easily with a range of legislation. However, section 170MD(6) can only be given a meaning that makes the necessary ambiguity or uncertainty referable to a provision within the Certified Agreement. [24] I can find no arguable case for more than one view as to what the provisions at issue mean. [25] I find that on what has been put to the Commission there is no ambiguity or uncertainty. The Commission lacks the necessary jurisdiction to proceed further with the application. [26] As to its application pursuant to section 170LW, it seems that the relevant dispute settlement procedure in the Certified Agreement (clause 14) provides the Commission with the necessary conciliation and arbitration power. [27] However, section 170LW relevantly provides that the Commission's power to determine an issue is confined to settling disputes over the application of an agreement. [28] It is said by the MUA that it accepts that there must be a relationship between provisions in an agreement and the subject matters in a dispute. The fact that the dispute relating to the application of the Certified Agreement arises because of the need to ascertain base salary for superannuation purposes, does not prevent the relevant relationship from existing. [29] It seems that there is a dispute between the MUA and PWCS as to what payments ought be made to SERF. The Statement or Order sought by the MUA, which is opposed and resisted by PWCS, relates to the provision of a negotiated base salary in the Certified Agreement. Such negotiated base salary is not provided for in the Certified Agreement. Consequently, whatever the dispute is about it is not about the application of the Certified Agreement or any particular term or provision of the Certified Agreement. [30] Given that, the Commission does not have jurisdiction to deal with this application. [31] Both applications are dismissed for want of jurisdiction. BY THE COMMISSION: COMMISSIONER Appearances: S. Crawshaw SC with W. Giddins for The Maritime Union of Australia. G. Hatcher SC with R. Crow of counsel and D. Fletcher , solicitor for Port Waratah Coal Services Limited. Hearing details: 2004 Sydney: June 2, 30. Printed by authority of the Commonwealth Government Printer <Price code C>