PN1

VICE PRESIDENT HATCHER: Yes, can I take appearances starting in Sydney. So Mr Keats, you appear with Mr Jacob for the MUA?

PN2

MR KEATS: With your permission, yes, your Honour.

PN3

VICE PRESIDENT HATCHER: Yes, thank you, and then in Perth Mr Jones and Mr Old you appear for the Fremantle Commercial Diving Company, is that right?

PN4

MR JONES: Your Honour, unfortunately we're having difficulty hearing you. Would we be able to have the volume turned up please?

PN5

VICE PRESIDENT HATCHER: Can we turn that up? Right, can you hear me now?

PN6

MR JONES: Yes. Thank you.

PN7

VICE PRESIDENT HATCHER: All right, so Mr Jones and Mr Old you appear for Fremantle Commercial Diving?

PN8

MR OLD: That's correct.

PN9

VICE PRESIDENT HATCHER: And Mr White you appear for the Australian Mines and Metals Association?

PN10

MR WHITE: Yes we do, your Honour.

PN11

VICE PRESIDENT HATCHER: Does anyone oppose the MUA being granted permission to be represented by a lawyer?

PN12

MR WHITE: No, we don't.

PN13

VICE PRESIDENT HATCHER: No? All right, we'll grant that permission.

PN14

All right, Mr Keats, would you like to go first?

PN15

MR KEATS: Certainly. Yesterday we e-filed and outline of submissions. Hopefully it has found its way to each of the members of the Full Bench?

PN16

VICE PRESIDENT HATCHER: Yes.

PN17

MR KEATS: Might I start by first of all expressing the union's gratitude for convening this Full Bench. I set out in the first three paragraphs the issues that give the unusual nature of us being here today. I have to make one important concession in relation to the outline of submissions and that's at paragraph 31. I have just been instructed this afternoon that it's not the MUA's Facebook page but a group of professional divers, some of whom are members of the MUA, that posted these concerns and the MUA is a Facebook friend on this particular page, and I apologise but I've only just been given those instructions before I just rose.

PN18

The submissions seek to do a few things. First of all set out how we got to this situation and the section background, hours of work for inshore and modern awards. The purpose of that section is to indicate that before the first modern award was made it was understood, and it seems to be accepted by the Full Bench, that we did have a 33 hour week for inshore divers, and it seeks to try and explain what the position was of the MUA before that modern award was made.

PN19

The purpose of that is this, in that if wage rates were affected by a decision when the making of a modern award occurred, we could apply for a take‑home pay order. But now that the change has occurred as part of a four yearly review and rates of pay have been reduced, and that's the nature of the complaints being made by divers, such a mechanism is not available to them and so there is a concern about how the concerns could be remedied or whether indeed the Bench decides to remedy them.

PN20

VICE PRESIDENT HATCHER: That's obviously premised on the assumption that there has been a reduction in rates of pay, which you will need to establish.

PN21

MR KEATS: Yes.

PN22

VICE PRESIDENT HATCHER: Both legally and as a matter of fact.

PN23

MR KEATS: Thank you, your Honour. I'll take the section slightly more slowly then. The historical basis you'll see is predicated on the Professional Divers Maritime Union of Australia Award 2002 which is in tab 2 of the bundle I provided. You'll see that it's not page numbered but on clause 29, 29.3, they're there recorded how the rate of pay for a casual employee working in inshore diving would be calculated, and it provided that the rate was predicated on 1/33rd of the weekly rate plus at that stage a 20 per cent loading.

PN24

DEPUTY PRESIDENT BULL: Sorry, where were you reading from then, Mr Keats?

PN25

MR KEATS: Tab 2 of the bundle.

PN26

DEPUTY PRESIDENT BULL: All right.

PN27

MR KEATS: That being the pre-reform award.

PN28

VICE PRESIDENT HATCHER: I think as we have it, it simply follows from your submission. I don't think ours is tabbed, but in any event I've got it.

PN29

MR KEATS: It's recorded at paragraph 12, the relevant clause, on page 3 of the submissions. But for clarity we've provided the award itself as it existed before the decision on the making of modern awards.

PN30

DEPUTY PRESIDENT BULL: Yes, I've found it. Thank you.

PN31

MR KEATS: So that's the position. So the weekly rates were found a little higher up the same page and you'll see they were just expressed as weekly rates of pay. What occurred in the award modernisation process is my client asked that the hourly rate divided - sorry, I withdraw that. Sought a provision for inshore divers that the weekly rate be prepared on an hours of work of six hours and 36 per minute - per day, being a 33 hour week, and for casuals the language was perhaps infelicitous but it said:

PN32

A casual employee's ordinary hours of work are the lesser of 38 hours per week or the hours required to be worked.

PN33

Infelicitous in the sense that in the inshore that was to be read with the other part of the award that was being sought by the MUA, which is then set out in 20.4 paragraph 5 of our submissions, being this six hours and 36 minutes per day. The position of AMMA was somewhat clearer and we set that out in paragraph 11 of our submissions to show that - and you need to read 11 and 12 together, but they accepted the 1/33rd as the divisor and also sought the ordinary hours be the six hours and 36 minutes per day.

PN34

What we say that means is that at that point in time you divided the hourly rate by 33 and you got an - sorry, you divided the weekly rate by 33 to get the hourly rate. When the award got published it put in a divisor of one over 38 and added a loading now of 25 per cent not 20 per cent, and for reasons that are somewhat inexplicable no one sort of raised the ambiguity or lack of consistency between the casual provisions and the hours of work provisions until this review. Indeed even on the material that Fremantle Commercial Diving has put forward they didn't write to the Fair Work Ombudsman about the pay scales until 2015, during which time this review was well under way.

PN35

I understand the fact that we can't accept these as gospel but the Fair Work Ombudsman as the regulator published pay guides which are there to assist industry and employees to understand how people are to be paid. They're found at tab 4 of the bundle and you'll see if you turn over to "Inshore divers casuals" the rate of pay as an hourly rate of pay is 35.64, and that's the rate of pay as of 1 July 2016 as calculated by the Fair Work Ombudsman; and if you compare that to the weekly rate of pay for full‑time inshore divers you'll see the divisor is 33. If you turn over to - - -

PN36

VICE PRESIDENT HATCHER: Well, I don't know why they did that because as I understand it clause 10.3(c) of the modern award has always said that the casual hourly rate is 1/38th of the minimum effective wage.

PN37

MR KEATS: They used the 33 I assume because there was a confusion between the hours of work for inshore casuals, being the 33, and the provision about how you calculate it.

PN38

COMMISSIONER BISSETT: But there was no confusion in the award. I mean you might not have agreed with what it said but it was clear in terms of what it said.

PN39

MR KEATS: Well, there's - - -

PN40

COMMISSIONER BISSETT: It says the hourly rate has a divisor of 38, to determine the hourly rate.

PN41

MR KEATS: That's what the modern award says.

PN42

COMMISSIONER BISSETT: Yes.

PN43

VICE PRESIDENT HATCHER: And it never actually used the number 33 anywhere, did it?

PN44

MR KEATS: The modern award did not use 33, it used six hours and 36 minutes in its terms.

PN45

DEPUTY PRESIDENT BULL: But, Mr Keats, you took us to the 2002 award which had a provision in there that said:

PN46

An employee shall be paid a minimum eight hours per day.

PN47

That's reflected in the modern award so how does eight hours a day relate to 33 hours a week?

PN48

MR KEATS: That doesn't have a good relationship either, Deputy President, in that the usual relationship would be 7.6 hours. But it is a recognition that these are casuals and that awards at that period of time did have minimum start periods and this has a slightly generous minimum start period.

PN49

VICE PRESIDENT HATCHER: I've never heard of a minimum start period that exceeds daily ordinary hours. That just doesn't make sense.

PN50

DEPUTY PRESIDENT BULL: You've taken us to the Fair Work Ombudsman's pay guide but if you look at the wage determination issued by this Tribunal on every occasion since at least - well, every occasion since the modern award the rates have gone up and there's been no decrease.

PN51

MR KEATS: And that's reflective of a reading of the modern award the way Commissioner Bissett asked earlier.

PN52

DEPUTY PRESIDENT BULL: That's correct, yes.

PN53

MR KEATS: And I accept that that's what the modern award did say in the provision in relation to casual - - -

PN54

DEPUTY PRESIDENT BULL: And it appears to be the case that some employers at least - how they've been applying it since 2010.

PN55

MR KEATS: Yes it's - - -

PN56

DEPUTY PRESIDENT BULL: Do you know, Mr Keats, how many - or maybe you don't. It might be you have to enquire about this yourself. How many people will be actually employed on the award conditions?

PN57

MR KEATS: I'm not sure how many are actually employed on award conditions, no.

PN58

DEPUTY PRESIDENT BULL: The reason I ask is because for offshore diving the casual rate is 127 per cent under the old award, or 227 per cent depending on how you want to apply it, but 227.5 per cent. That's not reflected in the modern award and no one said a thing about it for seven years.

PN59

MR KEATS: It was sought by the MUA - - -

PN60

DEPUTY PRESIDENT BULL: It was sought, yes, I understand that but there has been no complaint other than the fact that it was sought, you're quite right, by yourselves. But I just wondered if that might be reflective of there's very few people employed at least offshore under the award.

PN61

MR KEATS: The modern award process, we sought that provision, we complained about it, that it wasn't in the exposure draft.

PN62

DEPUTY PRESIDENT BULL: Yes.

PN63

MR KEATS: And we lost that. The Full Bench ruled against us in relation to the casual rate of pay and the loading.

PN64

DEPUTY PRESIDENT BULL: Yes, I'm not quite sure that's a hundred per cent right, but you lost the argument that it should be 27.5 as opposed to 25 per cent I think.

PN65

MR KEATS: From my recollection, and I'll stand corrected, but in appearing in those proceedings we did myself appear for the Maritime Union and we did seek that it would be the 127 and a half per cent during those proceedings.

PN66

DEPUTY PRESIDENT BULL: Yes. You did, yes.

PN67

MR KEATS: And the reason why it hasn't been agitated is that the union has accepted that that change has occurred.

PN68

DEPUTY PRESIDENT BULL: From 127 down to 25 per cent?

PN69

MR KEATS: Yes, the union accepted that was the ruling of the Full Bench.

PN70

DEPUTY PRESIDENT BULL: Well, previously it was 20 per cent for inshore and 127.5 for offshore.

PN71

MR KEATS: Correct.

PN72

DEPUTY PRESIDENT BULL: Now you say that you've accepted it's 25 per cent for everybody.

PN73

MR KEATS: No, I said we - you were asking me about the offshore divers.

PN74

DEPUTY PRESIDENT BULL: Yes.

PN75

MR KEATS: And in relation to offshore divers we accepted that and we accept - sorry, I should correct myself. Yes, we've accepted the casual loading of 25 per cent for both inshore and offshore divers. That's correct.

PN76

DEPUTY PRESIDENT BULL: Yes. Because you have a look at the award that you took us to, the 2002 award.

PN77

MR KEATS: The 2002 award?

PN78

DEPUTY PRESIDENT BULL: If you go to clause 13.3.3(d).

PN79

MR KEATS: Yes.

PN80

DEPUTY PRESIDENT BULL: 13.3.3(d). I don't know if you've got that there, Mr Keats.

PN81

MR KEATS: I do.

PN82

DEPUTY PRESIDENT BULL: You can see it used to be for offshore 227.5 per cent.

PN83

MR KEATS: Correct. Yes.

PN84

DEPUTY PRESIDENT BULL: And it's now 25 per cent.

PN85

MR KEATS: Correct.

PN86

DEPUTY PRESIDENT BULL: I don't think that's right myself, but anyway. I know it might be a bit hard to follow but due to the nature of the even time roster, you work your four weeks on and your four weeks off. I think that should read 127 per cent at least in the new award, or 125 per cent I should say. But the point I was making was no one complained about it, which would indicate that there's probably not many people covered by the award.

PN87

MR KEATS: I'd have to take that on notice and get instructions, but I can't assist you with that on my feet.

PN88

DEPUTY PRESIDENT BULL: No, that's fine. Thank you.

PN89

VICE PRESIDENT HATCHER: So is there any evidence that anybody has actually suffered a pay cut because of the change that was made earlier this year?

PN90

MR KEATS: My instructions are what has been provided in the written submissions. Tab 8 I understand has been redacted but presumably made it to the way of each of the members of the Full Bench. That provision talked about the way people complained about their rates of pay, and whilst no one has in explicit terms said "I earnt this and now I earn less than X; it's this" they have complained in a slightly more general way that the award is, to take one person - I don't wish to identify them - the first page of tab 8 and about two-thirds of the way down the page:

PN91

The award is now 38. When I started it was 28 nine years ago.

PN92

There are people complaining on the top of that page as well that the rate has gone from 35.64 per hour down to $31.98 per hour and that that's an over 10 per cent pay cut and the award is now worse than it was 10 years ago. That's about as high as I can put the material that's put in there. I can't say on terms someone said "My actual pay in my pay packet this week is now this many dollars less". The material I've been instructed with does not take it to that degree of specificity.

PN93

The next section of the submissions, if I could move to that, your Honour, seeks to try and provide a little bit more background as to where the 33 hours came from. The historical background is somewhat unsatisfactory. I have provided the reported decisions from the Commonwealth Arbitration Reports which I don't believe were previously before this Full Bench in relation to this review or indeed the making of the award. They indicate that Commissioner Porters dealt with the first application, and this is tab 5 of the material, for an award of general application for divers.

PN94

Tab 5 shows that an interim award was made because there wasn't time to conduct the arbitration. Tab 6 is then the outcome of the arbitration. I say it is unsatisfactory because if you turn to tab 6 page 86 of the reported decision it sets out what the matters were that were not agreed and upon which arbitration was required, and what's lacking from that list is anything to do with hours of work. You will see the highest it gets - and I appreciate it doesn't get much higher - is on page 95 when the award is made. There's a preamble put to the award that says the award is made except in relation to clause 27, which is hours of work.

PN95

That's because at that time the Commonwealth and Arbitration Act 1994 reserved certain matters to a Full Bench to be dealt with. Hours was one of them in certain circumstances, and if you go to the end of the reported decision at page 105 you'll see an order made by a Full Bench on 10 July 1974 which just deletes the preamble and does nothing more. But the effect of deleting the preamble means that those parts of the award are then made. I've inspected the files. I did that just recently this month and I did that in part because of reading the submissions from the Australian Metals and Mines Association.

PN96

They referred to the transcript which unfortunately was lacking from the file when I looked at it, but it made reference to the Bridge and Wharf Carpenters State Award which is a New South Wales award, and we provide a curious decision from New South Wales of Ferguson J dealing with that award. Now in this area there were people called carpenter divers that went down and building walls and things like that in harbours and other bodies of water, and he was asked about the fixation of hours of work less than 44 hours a week which was then the standard in New South Wales. He was told various things like it was in recognition of the work engaged in is prejudicial to health and that it was critical to certain Australian standards. You will see that on page 70 of the reported decision, it's tab 7 of the bundle, that it's a curious for this reason, that Ferguson J says:

PN97

On the evidence before me I am not satisfied to grant the application.

PN98

That's in the second - - -

PN99

VICE PRESIDENT HATCHER: So where is that?

PN100

MR KEATS: It's the second full paragraph. It's the paragraph starting "The question of the Industrial Commission".

PN101

VICE PRESIDENT HATCHER: So what page?

PN102

MR KEATS: It's page 70. The numbers, you'll only see the 0 because they're cut off on the original. I apologise.

PN103

VICE PRESIDENT HATCHER: Yes. Yes.

PN104

MR KEATS: So he says "On the evidence I am not satisfied" but if you then go down to the last paragraph on that page he then says:

PN105

I am of the opinion however that the claim for the five day working week should be granted.

PN106

And then if you turn over two pages to page 72 of the reported decision he makes the declaration making the 33 hour week and he says that the basis is this:

PN107

...that carpenter divers will not be asked to work for longer periods in diving than those fixed as a maximum in the Australian Standard Rules...

PN108

And then gives the full name of those and then grants liberty to apply to the relevant union in relation to the matter. The rest of the decision is about a second claim that was being pursued in relation to overtime. But we provide that to give all I can find as the other historical background to where the 33 hours per week has come from. And what we would like to be able to do, and we accept that we've been given more than one opportunity to put material before this Full Bench as to how this industry in inshore operates, but we'd like an additional bite at the cherry, if you like, and we set that out in paragraph 32 of the submissions; is whether we could be given a further opportunity to call some evidence. Now the Bench has made a finding that they're not persuaded that there's an evidentiary basis that there's a difference in the hours of work between what happens in the offshore area and the inshore area. We'd like an opportunity to persuade you otherwise by calling evidence about that.

PN109

VICE PRESIDENT HATCHER: This was the opportunity. Today was the opportunity.

PN110

MR KEATS: In the period of - - -

PN111

VICE PRESIDENT HATCHER: That is, you sent a letter asking for an opportunity to persuade us further and we've given you the opportunity. You want another opportunity?

PN112

MR KEATS: That is so, your Honour.

PN113

DEPUTY PRESIDENT BULL: In addition to that, Mr Keats, no disrespect to yourself but on 4 February last year on behalf of the MUA the W.G. McNally Jones staff wrote in to the Commission and said:

PN114

Our research has been unable to shed further light on the genesis of the 33 hour week in the inshore diving area prior to the awards identified on the 23 November 2015 listing.

PN115

So as far as the Commission was concerned there was nothing further to come from the MUA back in February last year.

PN116

MR KEATS: The only thing I can say about that is that paragraph also said that it reiterated the submissions of earlier days, and one of those earlier days was 31 December 2015.

PN117

DEPUTY PRESIDENT BULL: Yes.

PN118

MR KEATS: And at that point in time my client was taking a bi‑fold approach. One part was to say that a certain decision of this Commission, the accident pay case, provided a satisfactory basis that history alone was enough to justify the retention of the 33 hour week. That was not accepted by the Full Bench. But the other part of those submissions suggested - sorry, requested that if further evidence was required to satisfy the Commission that there's merit in retaining a 33 hour week then we'd request that such a hearing be facilitated.

PN119

VICE PRESIDENT HATCHER: I mean if you look at paragraph 32(b).

PN120

MR KEATS: Yes.

PN121

VICE PRESIDENT HATCHER: If that proposition - let's assume it's correct - is set to justify the 33 hour week, how could then the retention of the eight hour minimum daily payment be justified? That is if the factual proposition is that they can only do these two periods of three hours 15, how can you justify an eight hour daily minimum?

PN122

MR KEATS: We don't seek in these proceedings to do that. I know - - -

PN123

VICE PRESIDENT HATCHER: But that's what you're opening up. That is if there's a natural limitation on the work of six and a half hours a day that justifies the lower working hours, how do we justify an eight hour minimum?

PN124

MR KEATS: We wouldn't be able to is the answer, your Honour. They'd be inconsistent propositions.

PN125

VICE PRESIDENT HATCHER: How does that work out mathematically?

PN126

MR KEATS: It ends up being a 33 hour week if my maths is right.

PN127

VICE PRESIDENT HATCHER: 33 hours paid at 33 hours as distinct from a 38 hour week paid at 40 hours? Are you still ahead? Do you want to have a think about that, or?

PN128

MR KEATS: I'd have to do the maths. Can I take instructions on that?

PN129

VICE PRESIDENT HATCHER: Sure.

PN130

MR KEATS: I might ask my instructor to do the maths for me.

PN131

VICE PRESIDENT HATCHER: All right, is there anything else at this stage?

PN132

MR KEATS: No, there's nothing else.

PN133

DEPUTY PRESIDENT BULL: Could I please ask you before you sit down Mr Keats, do you have any instructions as to whether the pearl diving industry, if there is such an industry, is covered by the inshore award?

PN134

MR KEATS: Pardon, Deputy President, did you say the delve - - -

PN135

DEPUTY PRESIDENT BULL: The pearl diving industry, sorry.

PN136

MR KEATS: That's offshore work as I understand it. It's when you work in saturation most of the time.

PN137

DEPUTY PRESIDENT BULL: No, pearl. Sorry, pearl diving.

PN138

MR KEATS: Pearl diving. Sorry, sir.

PN139

DEPUTY PRESIDENT BULL: The reason is I just wanted to know whether the restrictions of how long they can spend air diving applies equally - I assume it does - to the people that you're saying have been prejudiced.

PN140

MR KEATS: I'd have to take instructions on that as well if I could, Deputy President.

PN141

DEPUTY PRESIDENT BULL: Thank you.

PN142

MR KEATS: Would it be convenient to have a short adjournment to have those instructions taken?

PN143

VICE PRESIDENT HATCHER: We might as well just hear from the employers and then we can come back to that when it's convenient.

PN144

MR KEATS: Thank you, your Honour.

PN145

VICE PRESIDENT HATCHER: Mr Jones or Mr Old, do you want to speak now?

PN146

MR OLD: Yes, thank you, your Honour. So we provided a submission this morning roughly an hour before the commencement of this hearing.

PN147

DEPUTY PRESIDENT BULL: Sorry, is that Mr Jones or Mr Old?

PN148

MR OLD: Mr Old. Sorry.

PN149

DEPUTY PRESIDENT BULL: Thank you.

PN150

MR OLD: Can you please confirm whether you guys have received that submission that was in reply to the one posted by the MUA this morning?

PN151

VICE PRESIDENT HATCHER: Yes we did.

PN152

MR OLD: So just looking briefly at the points raised in that, I think the first point is that the MUA have claimed that the draft award that they set out for 24 July 2009 had cited in the table at the front of the award that they were referring to clause 33.1 of the preceding 2002 award. If you have that in front of you and have a look at that table you can see that that clause doesn't refer to 33.1. We've been through this stuff regarding Facebook. That's actually a divers' page and has no affiliation with the MUA.

PN153

In regards to offshore work being different to onshore work, saturation is the type of diving where people refer to it as living inside a bell. It's a very, very small percentage of what happens offshore. Most of the time the guys are in some level of decompression where they're out and back on surface, you know, within a couple of hours max and they're topside for their evening, and they're running the same tables that the inshore diving industry are running and working in the same nature. And in regards to the - - -

PN154

DEPUTY PRESIDENT BULL: Mr Old, does your company supply offshore divers?

PN155

MR OLD: Sorry, say again, your Honour?

PN156

DEPUTY PRESIDENT BULL: Does your company supply offshore divers?

PN157

MR OLD: We work in the onshore diving sector. We do some work for offshore projects. There's a strange and somewhat confusing crossover about jurisdiction; we don't work on oil rigs. So our employment is based around the onshore diving sector for the purposes of this award. So, regarding the period of time cited in the last point in the MUA submission, the divers can be exposed to pressure. They're citing an award from 1947. This is a time when not long after Haldane was experimenting with diving physiology back in the sort of first part of that century, and the guidance that they had in those days was very, very rough and to say that a diver can go to 42 feet for an hour and a half with a 15 minute break then an hour and a half and then repeat that again would - it contravenes the Australian Standards by orders of magnitude.

PN158

The guidance is so irrelevant that it would be lethal, and back in those days that's why diving was such a lethal activity because the knowledge just wasn't there. In the context of what we do these days we have enriched gas, we have all sorts of things to manipulate tables, but we still couldn't get anywhere close to those times and the vast, vast majority of a diver's day is spent on surface prepping and checking and running safety and making sure that the diving operation is run the way it should. So I'm still a little bit baffled by these historical sort of references to what it used to be like in 1947 because really it doesn't have any context in the way that diving operations are performed today.

PN159

VICE PRESIDENT HATCHER: So just to be clear, you completely reject the proposition that this notion of working two periods of three hours with 15 minutes on the surface is still something that's current?

PN160

MR OLD: Absolutely, your Honour. That would be lethal.

PN161

VICE PRESIDENT HATCHER: Yes.

PN162

MR OLD: It resulted in a lot of fatalities in the early days, those tables. That was not long after the first ever US Navy tables came out and there was a lot of fatalities in the industry because they just hadn't got it there. To put it in context, off the top of my head if you were going to dive to 42 feet on air now you would be allowed to dive for less than an hour and a half I think, and then you might be able to get back in for a shorter period of time if you had a few hours on surface. To propose that you could do six hours would put you into beyond what's known as exceptional exposure, which is only to be used in a case of emergencies.

PN163

VICE PRESIDENT HATCHER: Thank you.

PN164

MR OLD: So yes, we would outright reject that.

PN165

DEPUTY PRESIDENT BULL: So Mr Old, how many hours a day do you engage the casuals?

PN166

MR OLD: Depending on the job. A typical day for us, we engage - we - I've looked back through our history and I cannot find a day where our company has engaged a casual on a diving operation for less than 10 hours in the last five years.

PN167

DEPUTY PRESIDENT BULL: Yes.

PN168

MR OLD: Often it's longer. Often it's 11, it just depends. For us to take a diving operation from start to finish in a day safely, running the type of systems and accreditations that we run, we never get it inside a 10 hour day.

PN169

DEPUTY PRESIDENT BULL: Now I assume depending on how deep that the divers are diving depends on how much time they're going to spend underwater?

PN170

MR OLD: That is correct, your Honour. So the industry has a standard that applies to it and there are prescribed diving tables that are industry standard, and I'm just trying to find those. But to give you an idea, the amount of time that one can spend underwater is exponentially reduced. So if you dive to say 12 metres or 11 and a half metres you can stay down there on air for two and a half hours under the most commonly accepted table. If you dive to say 50 metres you can stay down there for six minutes and it's a very - it's an exponential curve between those two. So the idea that you can just mandate that someone can do six hours and no more in a day underwater is absurd.

PN171

DEPUTY PRESIDENT BULL: But once you get to 50 metres you should be using saturation bells, shouldn't you?

PN172

MR OLD: That is the cutoff, yes, and most of the inshore diving industry is up to 30 metres. So 30 metres you're probably looking at off the top of my head just roughly half an hour. So you know, we dive up to those depths and our divers, they will do on air a half hour day and that's their day. They're finished for diving but they're not finished for work.

PN173

VICE PRESIDENT HATCHER: So typically 10 hours plus work for that amount of diving?

PN174

MR OLD: Yes, your Honour.

PN175

VICE PRESIDENT HATCHER: Thank you.

PN176

MR OLD: So just a couple of other things if I could go through. Mr Keats has raised that they proposed a 38 hour week originally but it had some leeway. There was in fact a second version of that draft proposed by the MUA in September and it had that section highlighted in red and changed to 33. Presumably the fact that it was highlighted in red and submitted would have caught the attention of the review process at the time. So 10.4(b), I don't know if you can see that but the section here that's highlighted in red presumably would have been reviewed and discussed and if it was, obviously dismissed in that process.

PN177

So in regards to the overtime and the six hours 36, the industry as our company and a lot of other companies have interpreted it since 2010 is that casuals are paid 1/38th but their overtime did kick in at six hours and 36 minutes, and that's how the majority of the companies in my understanding have been applying that award and paying that award. Which brings us to this - the issue for me has been slightly confused. There are two issues at play. The first is the divisor of 1/38th and the second is at what point overtime kicks in for ordinary hours.

PN178

So historically we've always viewed that as 1/38th of the full‑time wage and that's what the wage is set out at whatever it is now, $31-odd, and then you have at what point this overtime kicked in.

PN179

VICE PRESIDENT HATCHER: So to be clear Mr Old - - -

PN180

MR OLD: So - - -

PN181

VICE PRESIDENT HATCHER: Just to be clear, Mr Old. Just on that first point, you've been using the 38 hour divisor since the modern award was made from 1 January 2010?

PN182

MR OLD: Yes, your Honour, we have.

PN183

VICE PRESIDENT HATCHER: Yes. All right.

PN184

MR OLD: We've also been paying overtime after six hours and 36 minutes.

PN185

VICE PRESIDENT HATCHER: Yes.

PN186

MR OLD: Our company hasn't changed our pay structure since the decision recently and we're still paying overtime after six hours and 36 minutes. Because we employ our divers for relatively long days and we didn't have any desire to lower their pay rates we've maintained that structure. I have heard through anecdotal evidence that because the overtime or the normal hours has now been changed to 38 hours in a week that there are employers who have interpreted that as you can pay normal hours for three 12 hour days or, you know, there's been some change in the way that they've administered that overtime.

PN187

Now there's potentially a change to the way that divers are paid because of that mechanism, where their overtime has kicked in later in the day and so by virtue of when their overtime starts they may have been subjected to a decline in pay. But in terms of where the divisor sits for us it hasn't changed. It's always been 38 since it was made. It was highlighted in that August draft by the MUA in red and presumably rejected. I think it would be helpful for the Commission to clarify either to bring it in line with national guidelines of 7.6 or whatever that happens to be, or clarify something that relates to a day, to take out that potential for people to interpret that as a 12 hour day of normal rates.

PN188

Through this whole process our company has never seeked to lower our wages for our divers. We feel that where the industry sits and where particularly the way that we engage and pay our divers is fair and equitable. And in terms of the historical context, there doesn't seem to be a lot there and I'm not sure how relevant the reference to the carpenter divers stuff is. Depending on who you talk to in the industry, that may or may not still exist today. But I think that it's not really relevant to this award particularly. It's actually mentioned in a separate award and if there is a particular divisor that is created to cover that then it should sit outside this award because it's actually covered elsewhere.

PN189

VICE PRESIDENT HATCHER: Yes, all right. Thank you.

PN190

Mr White?

PN191

MR WHITE: Yes, your Honour. Thank you. We have had an opportunity to read the MUA's submission - - -

PN192

VICE PRESIDENT HATCHER: Mr White, it might be easier if you stay seated so you can stay closer to the microphone.

PN193

MR WHITE: Thank you, your Honour. But as the submission was only loaded up today, we haven't had an opportunity to prepare one in response. A lot of the issues that we've identified have been raised by the Bench this morning. AMMA wouldn't support the MUA's request to present evidence to demonstrate the two issues they've raised. We would - - -

PN194

VICE PRESIDENT HATCHER: Sorry, Mr White, you're a bit faint. Can I ask you to move that microphone as close to you as you can?

PN195

MR WHITE: Yes, your Honour. AMMA wouldn't - - -

PN196

VICE PRESIDENT HATCHER: That's much better.

PN197

MR WHITE: - - - wouldn't support the MUA's submission. We would accept the industry specialist evidence of Fremantle Commercial Diving in relation to both those issues being incorrect. We don't see any benefit to go over the same material that has been raised this morning other than to say our view is that all parties have been given an opportunity to present submission and evidence on this issue. The Full Bench issued a decision on 9 June of this year, made a determination and AMMA doesn't believe that is a matter that is an error and should be revisited.

PN198

VICE PRESIDENT HATCHER: And the Fremantle Commercial Diving business has raised an issue that perhaps there's a slightly broader issue that the terms of daily work, the award doesn't really make clear from when overtime is payable. Do you want to say anything about that?

PN199

MR WHITE: Without reference to members' views on that one we would tentatively support the clarification that Fremantle Commercial Diving put forward. That as the award has adopted standards for a 38 hour week for casual loading, seven hours 36 is the standard for ordinary hours on a daily basis so we wouldn't oppose the clarification of that nature, your Honour.

PN200

VICE PRESIDENT HATCHER: Right, thank you, Mr White.

PN201

Mr Keats, do you want to have a break now or are you ready to proceed further?

PN202

MR KEATS: If I could have five minutes that would be appreciated, your Honour.

PN203

VICE PRESIDENT HATCHER: All right, we'll take a short adjournment and, Mr Keats, you'll tell my associate when you're ready to resume?

PN204

MR KEATS: Thank you.

PN205

VICE PRESIDENT HATCHER: So we'll now adjourn.

SHORT ADJOURNMENT [2.46 PM]

RESUMED [3.01 PM]

PN206

VICE PRESIDENT HATCHER: Mr Keats?

PN207

MR KEATS: Your Honour, thank you for the time to try and get some instructions. We've been able to answer most of the questions but the maths has been a little bit harder in the period. I'll do my best. In relation to the question, Deputy President, of the divers as to whether they are covered by this award or not, my instructions are they are not covered by this award. They've got their own peculiar specific regulations that apply to pearl diving. We're not quite sure, in the short time, whether they're covered by any award at all. It's quite possible that they fall outside the modern award system.

PN208

DEPUTY PRESIDENT BULL: The reason I asked, Mr Keats, is I just wondered whether they were working six hours and 36 minutes a day or anything like that. That's all.

PN209

MR KEATS: I understand. It's a natural question. It's an industry all by itself, but unfortunately that's the end of the line as far as my instruction. The next matter I understand was about the reduction and what material there might be about reduction. That's one of the matters we would like this opportunity to put on further material.

PN210

VICE PRESIDENT HATCHER: When you say the opportunity, does the evidence exist and you're ready to call it at some stage or is this something that you have to be able to obtain at some stage?

PN211

MR KEATS: To an extent it's the latter. We have talked to some divers already. One was unfortunately going into hospital and unable to give us a statement before today. It was also our understanding from the statement issued - - -

PN212

VICE PRESIDENT HATCHER: That's not because he's working two periods of three hours, is it?

PN213

MR KEATS: No it's not. It was for other reasons, your Honour. In addition our understanding of the statement of 3 November, the last paragraph, was that a Full Bench would be pulled together to consider the issues not necessarily on this one day, but there would be potentially a timetable for filing material and then it brought on for hearing. That's our misunderstanding. I apologise, but that's the way my client understood it.

PN214

VICE PRESIDENT HATCHER: How long do you need to obtain and file this evidence, if it exists?

PN215

MR KEATS: In the light of this time of year we'd like until the end of January. The last working day as I understand it is 29 January. The evidence would go to the matters set out in the last paragraph of our submissions and to this evidence of reduction of pay. It appears it's from at least the anecdotal material that Fremantle Commercial Diving has indicated today on transcript that they're at least cognisant that other employers are changing when overtime is payable as a consequence of the decision. So that would be one area that will address in the material as well.

PN216

VICE PRESIDENT HATCHER: That's another matter. That's not something covered by 32.

PN217

MR KEATS: Correct. That's why I'm raising it directly now.

PN218

VICE PRESIDENT HATCHER: So just to be clear, what is the third matter you want to call evidence about?

PN219

MR KEATS: Evidence about reduction of pay. I think particularly in light of the way I've had to characterise what is on the Facebook page it's beholden to my client to put more specific evidence on about that issue before this Commission.

PN220

VICE PRESIDENT HATCHER: Fremantle Commercial Diving has suggested that that might be avoided or at least mitigated if the award made clear, which it doesn't appear to do currently, when overtime is payable on a daily basis. That is I don't read the award as actually identifying when on a daily basis you become entitled to receive overtime. Might that be a more constructive way to deal with the issue?

PN221

MR KEATS: That might be, but I'm also aware - and I believe your Honour's on it - there's a Full Bench dealing with when casuals are paid overtime as part of the casuals and part‑time Full Bench for common issues, and I know this award is one of the awards that has been identified.

PN222

VICE PRESIDENT HATCHER: I think there's no doubt that casuals are entitled to overtime under this award.

PN223

MR KEATS: Yes.

PN224

VICE PRESIDENT HATCHER: It's simply a question of the award doesn't make clear when they become entitled on a daily basis.

PN225

MR KEATS: And that's precisely one of the three questions being asked for the award in those proceedings.

PN226

VICE PRESIDENT HATCHER: Yes. Yes, well I'm suggesting it might be more constructive to deal with it arising out of the specific issue you've raised.

PN227

MR KEATS: I'm happy to deal with it in that way. I just raise the overlap with the other proceedings.

PN228

VICE PRESIDENT HATCHER: All right, yes, and the mathematical calculation?

PN229

MR KEATS: Look on our maths we're worse off, but we don't have either brilliant mathematicians at the Bar table here so that would be as part of that evidence as to reduction, because we'd have to establish it by some sort of mathematical way.

PN230

VICE PRESIDENT HATCHER: I mean Fremantle Commercial Diving says this is all irrelevant anyway because nobody works less than 10 hours.

PN231

MR KEATS: Correct, that's what they say.

PN232

VICE PRESIDENT HATCHER: So which is obviously inconsistent with your 32(b), I think.

PN233

DEPUTY PRESIDENT BULL: Mr Keats, just what is the MUA's position on the decision of the Full Bench which took away the reference to six hours and 36 minutes a day? It didn't change the calculation for the casual divisor which has been 38 since 2010, so what is the MUA's position as to why the people on the Facebook have put in there the wage reduction? Is it to do with overtime or is it to do with a reduction - or the increase in the divisor?

PN234

MR KEATS: I can only point to what they say and tab 8 of the material talks to a change of the hourly rate, and my only way of reading that - and it's not set out - is that's because of a change in the divisor.

PN235

DEPUTY PRESIDENT BULL: Yes, but no decisions of this Commission has changed the divisor, have they?

PN236

MR KEATS: Not since the modern awards were made and that was the interchange I had with Commissioner Bissett.

PN237

DEPUTY PRESIDENT BULL: Yes.

PN238

MR KEATS: That we accept that that's what the modern award has looked like since it was made. I must do. That's a matter of fact.

PN239

DEPUTY PRESIDENT BULL: Right, so any reduction in wage that you might produce evidence of won't have anything to do with any decision since 2015 or 16 or 17 of this Commission by the sound of things.

PN240

MR KEATS: I'd leave open the area of a reduction in pay arising from when overtime is paid.

PN241

DEPUTY PRESIDENT BULL: Yes. No, put that to one side. Yes, but I thought your original concern was there was some suggestion that the Commission changed the divisor from 33 to 38 recently. Because I can't see - - -

PN242

MR KEATS: Hopefully I've disavowed that this morning - or this afternoon.

PN243

DEPUTY PRESIDENT BULL: All right. Thank you.

PN244

VICE PRESIDENT HATCHER: All right, Mr Old and Mr White do you want to give a further response to any of that?

PN245

Mr Old?

PN246

MR OLD: Your Honour, I was having a little bit of trouble hearing that. It was very quiet. Do you mind just recapping what was said?

PN247

VICE PRESIDENT HATCHER: I think the main issue is that Mr Keats wants the opportunity, and he says he can do this by 29 January, to call further evidence about the two matters identified in paragraph 32 of the MUA's submissions and in addition further evidence demonstrating a loss of income as a result of a change to the overtime entitlement, as you perhaps flagged might be happening, in your submissions.

PN248

MR OLD: Your Honour, our position would be that if there was to be a clarification in terms of when overtime was payable, instead of putting it into a 38 hour week, breaking it down into whatever it would be, 7.36 in a day, that that would be helpful to the industry. If the matter of the divisor of 33 versus 38 is to be included in that discussion, we would reject that. We feel that that's settled and that we're looking at this from wanting to be constructive with it, and I'm happy to consider changing and clarifying when overtime should be paid. Our position is that we don't want to revisit the divisor. We feel that that has been settled.

PN249

VICE PRESIDENT HATCHER: Thank you.

PN250

Mr White, do you want to add anything?

PN251

MR WHITE: Similarly, your Honour, we also wouldn't object to a clarification on the overtime matter but the two matters raised by the MUA in their submission at 32 we don't believe get them to the outcome of the hourly week. So would continue to object on the basis that this matter has been already heard and determined.

PN252

VICE PRESIDENT HATCHER: All right.

PN253

Mr Keats, might at least a constructive first step be to ask the parties to confer on the question of a daily threshold for the payment of overtime, to see if that problem can't be solved by consent?

PN254

MR KEATS: I'm happy for that course.

PN255

VICE PRESIDENT HATCHER: Before we take any further steps that you've envisaged.

PN256

MR KEATS: That seems to me to be a constructive first step.

PN257

VICE PRESIDENT HATCHER: All right. Is there anything else?

PN258

MR KEATS: No, your Honour.

PN259

DEPUTY PRESIDENT BULL: Mr Keats, could I ask you if you don't mind, whether you can revisit whether you think 25 per cent loading for offshore casual divers is appropriate seeing it used to be 227.5 per cent? The reason I say that is because full‑time divers get paid on their time off whereas casuals - that's offshore, that is - whereas casuals don't. And so the 25 per cent loading is only - it would seem to be artificially low if it doesn't cater for the fact that the full‑time divers are getting paid on their time off and the casual doesn't get paid on their time off.

PN260

MR KEATS: May I just have a moment, Deputy President?

PN261

DEPUTY PRESIDENT BULL: Yes, that's fine.

PN262

MR KEATS: Deputy President, I'm instructed whether we could take that on notice and talk to some officials of the union in relation to that.

PN263

DEPUTY PRESIDENT BULL: Yes, that's all right. I don't expect you to answer it today. Yes, you're quite right. You'd said earlier that your union had raised it previously.

PN264

MR KEATS: Correct.

PN265

DEPUTY PRESIDENT BULL: And the Commission said that they wanted to maintain the standard 25 per cent loading, but I'm not sure whether they meant to say it should be reduced by 100 per cent in addition to the 25 per cent.

PN266

MR KEATS: Thank you very much for raising that. If I could take that back to the officials of the union that would be appreciated.

PN267

DEPUTY PRESIDENT BULL: Yes, it's probably the fact that there's not many casuals that are employed offshore is another issue too.

PN268

MR KEATS: I suspect it was a matter due about standardising the casual loading from the Full Bench's perspective, because a model clause was put in for a lot of awards.

PN269

DEPUTY PRESIDENT BULL: Yes. No, I understand that part.

PN270

VICE PRESIDENT HATCHER: All right, well, if there's nothing further we'll adjourn and advise the parties of the next steps in due course.

ADJOURNED INDEFINITELY [3.13 PM]