PR934499 AW788096 PR934499 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 Review of award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (C No. C00340 of 1998) MARITIME INDUSTRY OFFSHORE OIL AND GAS OPERATIONS AWARD 1991 (ODN C No. 21361 of 1990) [Print K1046 [AW788096]] Various employees Oil and gas industry SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 16 JULY 2003 Award simplification. DECISION [1] This Decision concludes a review of the Maritime Industry Offshore Oil and Gas Operations Award 1991 pursuant to the Workplace Relations and Other Legislation Amendment Act 1996 (`the WROLA Act'). [2] On 5 February 2003 I published a decision ( PR927351 ) which incorporated a Draft Order and an invitation to the parties to address any concerns relative to this Draft Order. The parties have since identified wages and classifications and issues associated with a proposed Consultation Leave provision. The award has been the subject of further conferences involving the Commission since the publication of the 5 February 2003 Decision. On 18 June 2003 I issued a recommendation in the following terms: "This recommendation has been issued following a further conference convened this morning in Perth relative to the simplification of the Maritime Industry Offshore Oil and Gas Operations Award 1991. This conference considered three outstanding issues relative to this matter. 1. Wage rates: I have advised the parties that notwithstanding that I am not prepared to rely on the information provided to me relative to the use of the Maritime Industry Seagoing Award to establish a rate of 107.5% for the Integrated Rating, I am prepared to accept this rate on the basis that previous decisions of this Commission allow for the adoption of such an approach. The parties have advised that they seek that other rates in the award be established based on existing award relativities with reference to the Integrated Rating. 2. Aggregate rates: the parties have requested the opportunity to review the basis of the calculation of the aggregate rates so that this approach can be incorporated in the simplified Award at clause 9.2. I understand that the parties particularly wish to review the extent to which an additional hour per week remains necessary for miscellaneous purposes. In the absence of a response from the parties by Friday 27 June 2003, I will assume that the description of the aggregate salary arrangement provided to me at today's conference, continues to reflect an agreed approach. 3. I RECOMMEND THAT the parties review the need to retain the existing Schedule 8 Construction Work. This Schedule appears to be based on an 18-hour working day, which is no longer considered appropriate. Additionally, the simplification process is likely to result in changes to this Schedule which reduce the extent to which the parties may choose to rely upon it at any time in the future. I have noted the advice of the parties to the effect that the Schedule does not currently have any practical effect. I have also noted that it appears possible that some amendments might be agreed with reference to Schedule 9 Specialised Vessels which may allow the integrity of a Safety Net structure to be better preserved. In the absence of a response from the parties by Friday 27 June 2003, I will proceed to finalise the simplification of this award which may result in changes being made to the Construction Work Schedule." [3] The AMOU sought, and were granted, an extension of this time frame until 7 July 2003 to facilitate discussions with the MUA and with the AIMPE. Advice in response to this recommendation was received from the AMMA on 9 July 2003. I understand that the parties' have agreed on this advice. [4] Accordingly, this Decision addresses the outstanding issues on the basis of the AMMA response. Wages and Classifications [5] The 5 February 2003 Decision incorporated an invitation to the parties to provide the Commission with a substantiated rationale for the rates of pay and classification structure proposed for inclusion in the Award. [6] The parties have provided advice on an agreed approach to Wages and Classifications. This approach is based on the classification structure and rates of pay contained in the Maritime Industry Seagoing Award . [7] As the parties have not provided me with information that confirms the approach adopted by the Commission in the Maritime Industry Seagoing Award, I have decided to refer to the Masters and Deckhands Award 1992 for the purpose of establishing properly fixed minimum rates of pay. [8] The Paid Rates Review Decision established principles for the conversion of Awards which do not contain properly fixed minimum rates. In this respect Principal 3 states: "3. Fixation of appropriate minimum rates should be achieved by making a comparison between the rate for the key classification within the award with rates for appropriate key classifications in awards which have been adjusted in accordance with the 1989 approach." [9] In my decision of 5 February 2003, I foreshadowed such an approach. "I consider that these rates require review under Item 51(4) of the WROLA Act. In the absence of information from the parties to substantiate the proposed classification structure and rates of pay, I propose to apply an approach consistent with that adopted by Ross VP in the Masters and Deckhands Award 1992 (Print S9495). I will also consider the decision of Wilks C in the Tugboat Industry (Consolidated) Award 1990 (Print R1723). I propose to consider internal Award relativities on the basis of the current Award classification structure." 1 [10] I am satisfied that the Integrated Rating represents an appropriate Key Classification for the purpose of establishing properly fixed minimum rates of pay. This classification is a common classification within an otherwise variable classification structure. I am equally satisfied that the properly fixed minimum rate of pay for the Integrated Rating should be 107.5% of the Metal Tradesperson's rate on the basis of the findings made by Ross VP Masters and Deckhands Award 1992 (S9495) relative to this classification. In the Masters and Deckhands Award Ross VP approached the application of the Paid Rates Review Principles on the following basis: "The Award came into force on 31 May 1993 and does not appear to have been varied since that date. In the context of the matter before me the Paid Rates Review principles require a three step process: 1. The key classification rate in the award is to be fixed by reference to the minimum rate for a fitter in the Metal Industry Award 1998 (i.e. $477.20); 2. Once the key classification rate has been properly fixed the other rates in the award are adjusted by applying the internal award relativities which have been established, agreed or maintained; and 3. Any residual component above the identified minimum rate is to be separately identified and not subject to future increases." 2 [11] I have applied the same approach to establish properly fixed minimum rates of pay, expressed on an annual basis, in this award. [12] In accordance with advice provided to me by the parties, I have adjusted the other rates of pay on the basis of the existing Award relativities. [13] The rates specified in this award are, and have been since the inception of the award, aggregate salaries. The parties have advised that the aggregate component is 71.5%. Further, the parties have advised that the aggregate rates of pay are based on employees working 12 hours per day on an even time roster. All hours in excess of 7.6 hours per day are calculated on the basis of time and a half for the first two hours and double time thereafter. Saturday work is calculated on the basis of time and a half for the first two hours and double time thereafter. Sunday work is calculated on the basis of double time and Public Holidays at time and a half which is applied to five Public Holidays given the even time roster. [14] I have considered these loadings and have concluded that their application results in an aggregate rate based on the payment of 63.38 hours per week. [15] I have included a provision to this effect in the award at clause 9.2. I have also expressed these aggregate rates as Annual rates in the relevant Schedules. [16] The award now incorporates all Safety Net Adjustments up to and including the May 2003 Decision ( PR002003 ) on the basis that this reflects an agreed position between the parties and, given the existence of Certified Agreements, does not result in a real wage increase. Consultation Leave [17] In my 5 February 2003 Decision, I observed that the then proposed clause relating to Leave for Consultation Meetings was not allowable in that form. [18] The Unions have now proposed a revised Consultation Leave provision as a component of the Industrial Dispute Resolution Procedures clause. The Unions have submitted that the provision now sought is consistent with that adopted by Marsh SDP in the Stevedoring Industry Award 1991 (Print R7753). In this Decision the Commission stated: "I have decided that having regard to the reformatted wording of the clause and the evidence of Mr Giddins that the consultative meetings clause is an integrated part of the dispute settling procedure. The meetings are only permitted "for the purpose of considering proposals arising out of an industrial dispute"; employees are only entitled to attend on a "if required" basis and the 24 hour nature of the industry makes it important in the context of dispute resolution to hold a single meeting of all affected employees in appropriate circumstances. The subclause is incidental to s.89 A(2)(p) and necessary for the effective operation of the award in particular the dispute settling procedure. It will be included in the award. This finding is not inconsistent with the Leave Full Bench decision [Print Q9399] which referred to The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 [Print M2100] clause 39 - Leave for consultation meetings: "In the proceedings leading to the Award Simplification Decision the Bench did not have the benefit of the detailed submissions we have enjoyed on the construction of s.89A (2)(g). Nonetheless, we are satisfied that clause 17.3 falls into the concept of personal leave we have adopted. Termination of employment is an occurrence of a personal nature which gives rise to the need to seek alternative employment and the employee cannot control the time at which leave is required for that purpose. On the basis of the detailed submissions before us on the construction of s.89A (2)(g) we are less confident that clause 39 falls within the scope of our construction of the term 'other like forms of leave.' However, because we were not addressed in detail on this provision and given the absence of any rationale in the Award Simplification Decision, it is neither appropriate nor necessary to finally decide this issue. We are satisfied that the clause could be incidental to clause 11 - Procedure to Avoid Industrial Disputation (which sets out the dispute settling procedure) and necessary for the effective operation of the provision. As such it could fall within the scope of s.89A (6)." [Print Q9399 at para. 19] For the reasons given I am satisfied the provision before me is a s.89A (6) matter and will be included in the reviewed award." [19] The employer position was that the proposed revised clause was neither supported nor opposed. [20] On the basis that the existing Award contains a Consultation Leave provision, I am prepared to include the provision, in the terms now proposed by the Unions, in the revised Award. I consider that such an approach best preserves employee entitlements consistent with the requirements of Item 51(3) of the WROLA Act. Schedule 8 Construction Work [21] I have deleted this Schedule. I understand that the Schedule contained rates of pay based on an 18 hour working day which is now no longer supported by either party. Because of the extent to which this Schedule includes provisions now no longer allowable, I do not consider that the Schedule will have any practical effect as a safety net. Schedule 9 Specialised Vessels [22] I have deleted this Schedule. When expressed in an allowable form, it no longer retained any value as a safety net provision as it simply details issues which may be the subject of negotiations. As this is a minimum rates Award the parties are free to negotiate such arrangements in any event. Respondents [23] The parties have not responded to my request for advice relative to the currency of named respondents to the award. In the event that a nominated respondent considers that they should not be so named, I am prepared to review the Respondency list if such matters are bought to my attention within a month of this Decision. Conclusion [24] I have modified the Draft Order issued in February 2003 to reflect this Decision. [25] I am satisfied that the award now meets the requirements of the WROLA Act and related decisions of this Commission. [26] An Order ( PR934500 ), reflecting this Decision has been issued. This Order will operate from 21 July 2003 and shall remain in force for a period of six (6) months. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code C> 1 PR927351 2 S9495 PN6