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					                                                For

           DREDGING INDUSTRY
         INDUSTRIAL SECRETARIAT
               Award Modernisation Submissions

Submitter:                  Stephen McCarthy
                            Managing Director

Organisation:               McCarthy Ausgroup Pty Ltd on behalf of the
                            Dredging Industry Industrial Secretariat

Address:                    Suite 1, 2 New McLean Street, Edgecliff NSW 2027

Phone:                      02 9362 8599

Fax:                        02 9362 8955

Email:                      stephen.mccarthy@mccarthyausgroup.com.au




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Dredging Industry Industrial Secretariat

Members:                                                                            c/o McCarthy Ausgroup Pty Ltd
                                                                                  Attention: Stephen McCarthy
                                                                                      Suite 1, 2 New McLean Street
Boskalis Australia Pty Limited                                                                 Edgecliff, NSW 2027
Dredeco Pty. Ltd.                                                                                          Australia
Jan De Nul N.V
                                                                                               Ph: (02) 9362 8599
                                                                                              Fax: (02) 9362 8955


OUR REF: IR 00190




16 May 2008

The Industrial Registrar
AIRC - Sydney
Level 8, Terrace Towers
80 William Street
East Sydney NSW 2011

                                                                                      BY EMAIL & POST:
Dear Registrar,

           DREDGING INDUSTRY INDUSTRIAL SECRETARIAT (DIIS) SUBMISSION
                          RE: AWARD MODERNISATION


The Dredging Industry Industrial Secretariat (DIIS) writes in relation the Federal
Government’s request of the Australian Industrial relations Commissions President, Justice
Giudice, to begin the process of Award Modernisation under the Transition to Forward with
Fairness amendments to the Workplace Relations Act 1996.

Giudice J has, through his Statement on Award Modernisation dated 29 April 2008, invited
Australian industry generally to comment on the process of Award Modernisation and a
number of other matters by Friday, 6 June 2008.

The DIIS submits the following submissions in relation to the Award Modernisation process:

1.         GENERAL INTEREST IN AWARD MODERNISATION

           a.        The DIIS note from Guidice J’s Statement of 29 April 2008 that the AIRC has
                     three priority tasks for completion by 30 June 2008, namely:

                      i.    To establish a list of priority industries or occupations for which modern
                            Awards are to be made by the end of 2008;
                     ii.    To publish a model flexibility clause to be included in modern Awards;
                            and
                    iii.    To publish a timetable for the completion of the award modernisation
                            process.

           b.        The DIIS have set out a number of submission below in regards to each of
                     these priority tasks to be carried out by the AIRC which should demonstrate
                     the importance the DIIS sees the process as having on the dredging industry
                                                          -3-


                   and that it is necessary for the AIRC to engage in consultation with the DIIS
                   not only in relation to Award matters which specifically effect its relevant
                   Industry Awards (1) , but also in relation to matters such as Award Flexibility
                   clauses and the implementation of National Employment Standards which, if
                   implemented, may have consequences upon the business operations of DIIS
                   members.
         (1)   Maritime Dredging Industry Award 1998; Dredging Industry (AWU) Award 1998; & Marine Engineers (Non
               Propelled) Dredge Award 1998

         c.        As the representative of the major employers in the Dredging Industry, which
                   forms part of the general Maritime Industry, the DIIS is an important
                   workplace relations stakeholder whose members will be affected by the
                   Award Modernisation process. The implementation of change in respect of
                   minimum conditions of employment will have the likely consequence of
                   affecting major capital development works throughout the country including
                   projects such as the deepening of the Port of Melbourne, the Hunter River at
                   Newcastle and the upcoming Port Botany reclamation project.


2.       WHAT IS THE DIIS AND WHAT FUNCTIONS DOES IT PERFORM

         a.        The DIIS is a National Secretariat representing the employer interests of the
                   dredging industry throughout Australia. Current members of the DIIS include:

                     i.   Boskalis Australia Pty Limited
                    ii.   Dredeco Pty Ltd; and
                   iii.   Jan De Nul N.V

         b.        The role of the DIIS is to act as a national employer association representing
                   the employee relations and human resources management interests of
                   Australia’s dredging industry.

         c.        The DIIS recognises that there are only a very small number of dredging
                   businesses operating in Australia, all of which are foreign owned.
                   Nonetheless, the DIIS believes that the effective operation of the Australian
                   dredging industry is vital to the Nation’s wealth and future. The infrastructure
                   projects which the dredging members of the DIIS perform directly supports
                   the creation and maintenance of a range of important industry categories
                   throughout Australia, including:

                     i.   Maritime industry - including shipping cargo – both export and import
                    ii.   Exploration and export of all natural resources, primary produce and
                          manufactured goods;
                   iii.   Infrastructure projects such a bridges, wharves, airport runways,
                          container terminals, shipping channels, off shore platforms etc.

         d.        The DIIS recognises that the operations and services it provides through the
                   creation and support of infrastructure throughout Australia for a number of
                   industries is vital to the continuance of the resources boom that Australia is
                   currently experiencing. As a major service provider stakeholder in the Nations
                   booming resources sector, the conditions and terms of employment of its
                   labour market must be effectively managed to ensure that the DIIS can
                   continue to provide its services in an efficient and productive manner.


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3.       LIST OF PRIORITY INDUSTRIES


         a.       The DIIS notes that in the Statement issued by the AIRC dated 29 April 2008,
                  the AIRC has developed a list of priority industries which are to be consulted
                  in relation to the Award Modernisation process.

         b.       The DIIS further notes that the Dredging Industry is not listed on that list of
                  priority industry and neither is the Maritime Industry in general.

         c.       As an important stakeholder in workplace relations and a crucial support
                  function of the development of infrastructure in this country, the DIIS requests
                  that the Dredging Industry be considered for addition to the list of priority
                  industries for Award Modernisation. The reasons by this request are as
                  follows:

                   i.     The current risk of industrial disputation in this Industry is high, mainly
                          because of the pressures on the DIIS members to pass on increased
                          benefits and conditions to employees as a result of the mining and
                          capital projects boom, particularly those occurring in the West of
                          Australia.
                   ii.    While the perception is that the resources boom in Western Australia is
                          happening throughout Australia, recent studies show that the boom in
                          other areas of the nation is slowing due to increased global economic
                          pressures and as a result less capital works projects are being
                          submitted with government departments for approval.
                  iii.    The DIIS’ operations are quite unique and set the industry apart from
                          other industries in regards to the shift work arrangements and victualling
                          prescriptions for its employees. While operating as part of a larger
                          construction industry throughout Australia, the Dredging Industry’s
                          operations must be considered with respect to matters such as flexibility
                          clauses and standards of work such as the setting of a maximum
                          number of hours of work.
                  iv.     The DIIS should, in our opinion, be at the forefront of consultation when
                          it comes to “modernising” Awards, otherwise, industries such as the
                          Dredging Industry with it unique arrangements and operating patterns
                          will be forced to conform to general terms and conditions in modernised
                          Awards that do not serve the needs of DIIS operations, are best applied
                          to smaller and less industrially exposed industries and this will impact
                          upon the Industry’s ability to provide infrastructure support services to
                          the nation.
                   v.     In order to highlight to Commission the very problems the Industry is
                          facing based upon the Exposure Draft NES, released earlier this year by
                          the Federal Government, which will ultimately form the “backbone” of
                          Modernised Awards, we have attached as Annexure ‘A’ a copy of our
                          Exposure Draft Submissions on the NES. It is hoped that in doing so the
                          AIRC may see that the DIIS should be consulted prior to any
                          implementation of Modernised Award standards or conditions and the
                          DIIS’ Award coverage should be either listed as a priority industry for
                          Award modernisation or at least have its separate Industry Award status
                          maintained notwithstanding Award Modernisation.




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                                                 -5-


4.       MODEL FLEXIBILITY CLAUSES

         a.       The implementation of Model Flexibility clauses in modern Awards is of great
                  importance to the DIIS and its operations.

         b.       Given the industrial relations history of the maritime industry, in which the
                  DIIS operates, and the threats of militancy that is made at times toward the
                  DIIS members and their operations, the DIIS submit to the AIRC that the
                  Flexibility Clauses of Modernised Awards need to be constructed and
                  prescribed so as to provide actual flexibility in operations, with the ability to
                  exercise managerial prerogative in certain circumstances. Flexibility clauses
                  have to be able to allow the needs of one individual employee to be catered
                  for when required and in specific circumstances without the potential problem
                  of other employees or a union seeking to either disrupt the arrangements or
                  to seek the same conditions regardless of the circumstances. It is also
                  important to avoid the use of the Flexibility Clause provisions as a ground for
                  any extra claim or entitlement by employees and their unions.

         c.       Prior industrial relations systems in Australia have attempted to prescribe
                  Award Flexibility clauses in Awards, however their attempts have resulted in
                  little more than a meaningless clause which on its face provide a means by
                  which flexibility could be achieved, but in reality, only provide so much as was
                  allowable when read in conjunction with the remainder of the relevant Award
                  provisions. In other words, by and large they were meaningless.

         d.       As the AIRC can see from Annexure A of these submissions, it is clear that
                  flexibility in Dredging operations is a necessity. For example, in regards to the
                  performance of hours and the taking of leave, given the conditions under
                  which work is performed by employees on dredges and in many instances the
                  remoteness of the work from populated areas, employees and employers are
                  required to reach agreement as to the timing and taking of leave and the
                  performance of hours due to seasonal conditions, tides etc.. Flexibility
                  clauses need to be drafted wide enough to envisage arrangements such as
                  these while also providing for industry’s with uninterrupted hours of work and
                  common patterns.

         e.       In commenting on the released draft versions of the Flexibility Clauses set out
                  in Annexure B of the AIRC Statement, the DIIS has a preference toward that
                  drafted by the ACCI and the AiG. The clause of ACCI and AiG is broad
                  enough to encompass the arrangements of the dredging Industry, while the
                  ACTU clause simply confines the flexible arrangements to the boundaries of
                  the relevant Award clauses. The ACTU clause has not been developed and
                  improved upon from the clauses of old which as mentioned earlier, seemed to
                  provide flexibility in operations, however did very little to achieve actual
                  flexibility.




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                                                   -6-



         f.       As a practical example of the flaws in the ACTU clause, if we take the normal
                  practice of hours and leave in the Dredging Industry. Employees work 12
                  hours shifts, rotating days and nights for up to 5 weeks and then the
                  employees have up to 5 weeks of leave. Effectively this means that on
                  average the employees work and average of 42 hours per week over a 12
                  month period of full time employment while they receive 6 months leave per
                  year. The implications arising out of the ACTU clause are this:

                         i. Where a Modernised Award “Hours of work” clause provides for 38
                            hours per week to be the standard of work for employees across the
                            Nation in accordance with the draft exposure National Employment
                            Standard, the flexibility clause, when read within the “limits specified in
                            the relevant Award clause” would typically only allow an employee to
                            work up to a maximum of 38 hours per week in a manner of shift
                            arrangements flexibly determined by the parties, however, it would not
                            allow the parties to agree to average the hours out over 12 months
                            and consider the hours arrangements in conjunction with the
                            significant additional / excessive leave entitlements received by
                            employees.
                        ii. Dredging operations as a result of a rigid 38 hour week arrangement
                            could not operate on a 24/7 basis and the costs resulting from the
                            hiring of dredging vessels and other necessary equipment would force
                            capital works projects to slow and infrastructure projects across
                            Australia to diminish.
                       iii. Employees who previously under their existing Dredging Industry
                            Award conditions were entitled to 6 months off per year in return for
                            working such hours, would now revert back to 4 weeks or 5 weeks
                            annual leave per year, well below the standard which they and their
                            unions are used to.

         g.       As you can see from this example, the ability to provide for alternate
                  arrangements for employees on vessels involved in the dredging Industry is
                  of great importance, specifically when the Award is the “backbone” of the
                  conditions of the employees involved in this industry sector and considering
                  that the dredging Industry is a necessary tool in developing and maintaining
                  the commercial interests of Australia with other countries throughout the world
                  who are involved in Maritime, Transport etc.


5.       TIMETABLE FOR THE AWARD MODERNISATION PROCESS

The DIIS notes the timetable for the AIRC’s Award Modernisation process and will advise in
due course, following further consideration and instruction, as to the DIIS’s appearance at
AIRC Hearings on these matters scheduled in Australia’s capital cities.

In regards to the consultation programme regarding the finalisation and completion of
Modernised Awards for the priority industries, we again submit that that the Dredging
Industry should be included in that list of priority industries and that the DIIS should be
consulted on the drafting of the relevant Award provisions relating to its industry for the
reasons abovementioned.




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                                             -7-


6.       IN CONCLUSION

The Dredging Industry Industrial Secretariat would ask the AIRC to take account of these
submissions during its Award Modernisation process as requested by the Federal
Government.

The DIIS would be pleased for the opportunity to expand on its Submissions to the AIRC and
/ or to meet with a member of AIRC in order to explain its case further or to assist the AIRC
in achieving its task of Award Modernisation in a manner that would support the effective
operations of the dredging industry.


Yours faithfully,




Stephen McCarthy Dip Law BAB
McCarthy Ausgroup
DIIS Convenor




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                                           -8-


Copies to:


Maritime Union of Australia (MUA) -        Mr P Crumlin
                                           Federal Secretary
                                           kmcguire@mua.org.au

                                           Mr M Doleman
                                           Assistant National Secretary
                                           mickdoleman@mua.org.au

Australian Institute of Marine and Power Engineers (AIMPE) –

                                           Mr H Christiansen
                                           Federal Secretary
                                           hchristiansen@aimpe.asn.au

Australian Maritime Officers Union (AMOU) -

                                           Mr W Moore
                                           President
                                           amou@amou.com.au

                                           Mr S Groves
                                           Southern Area Secretary
                                           vic@amou.com.au

Australian Workers Union (AWU) -

                                           Mr P Howes
                                           National Secretary
                                           Debra.bushell@awu.net.au




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                                                 -9-


                                           ANNEXURE ‘A’




                                                For

           DREDGING INDUSTRY
         INDUSTRIAL SECRETARIAT
                  National Employment Standards

                        Exposure Draft Submission

Submitter:                  Stephen McCarthy
                            Managing Director

Organisation:               McCarthy Ausgroup Pty Ltd on behalf of the
                            Dredging Industry Industrial Secretariat

Address:                    Suite 1, 2 New McLean Street, Edgecliff NSW 2027

Phone:                      02 9362 8599

Fax:                        02 9362 8955

Email:                      stephen.mccarthy@mccarthyausgroup.com.au


e6e8d828-d80f-41d6-a368-05b4e0868b19.doc
Dredging Industry Industrial Secretariat
Members:                                                                                 c/o McCarthy Ausgroup Pty Ltd
                                                                                           Attention: Stephen McCarthy
                                                                                          Suite 1, 2 New McLean Street
Boskalis Australia Pty Limited                                                                     Edgecliff, NSW 2027
Dredeco Pty. Ltd.                                                                                              Australia
Jan De Nul N.V
                                                                                                    Ph: (02) 9362 8599
                                                                                                   Fax: (02) 9362 8955


The Honourable Julia Gillard                                         2 April 2008
Minister for Employment and Workplace Relations
Parliament House
Canberra                                     BY EMAIL: NES_comment@deewr.gov.au

Dear Minister,

DREDGING INDUSTRY INDUSTRIAL SECRETARIAT (DIIS) SUBMISSION
RE: NATIONAL EMPLOYMENT STANDARDS (NES) EXPOSURE DRAFT

The Dredging Industry Industrial Secretariat (DIIS) has today become aware through the
media of the fact that the Federal Government has invited Australian industry generally to
comment on the Federal Government’s Draft proposed “National Employment Standards
(NES)” by Friday, 4 April 2008.

The DIIS notes that in its Discussion Paper on its Exposure Draft NES, the Federal
Government:-

           Indicates that the Exposure Draft’s purposes include seek(ing) comments and
            submissions about the operation of the NES; and that

           The Government is particularly interested in hearing about the interaction of the NES
            with diverse or atypical working arrangements1 ……

Given the hours of work arrangements that, by practical necessity, operate in the dredging
industry, the DIIS now writes to the Minister to express the dredging industry’s concerns with the
NES, and in particular, it’s proposed Standard Hours provisions.

As we understand it, the NES includes the following “hours of work” features:-

        1. Provisions that prescribe that all employees are to be guaranteed maximum working
           hours of 38 each week plus additional reasonable hours;

            To be read in conjunction with provisions that prescribe that

        2. The above maximum working hours each week will not be able to be worked under an
           “averaging system” over an extended period, such as is allowed for at present under the
           Workplace Relations Act 1996. That is, employees will be in future be expected to
           work a maximum of 38 ordinary hours each week and will be prohibited from working an
           “average” of 38 ordinary hour per week over an extended period of 1, 2, 3 or 12 months.




1
    (see points 11. & 12. – page 2 – Federal Govt NES Exposure Draft Discussion Paper)
                                                 -11-


A statutory requirement for the strict adherence to the above “hours of work” routine under the
Federal Government’s NES would have severally damaging consequences for the dredging
industry for the reasons set out below.

The Situation in the Dredging Industry
The proposed National Employment Standards (NES) will impact on the employment
arrangements of all persons engaged in the dredging industry throughout Australia.

The majority of persons employed in the dredging industry work either:-

        in remote locations; or
        in circumstances where, even if the dredging project itself is not being undertaken
        in a remote location, the employed crew travel and live away from home in order to take
         up the work.

Dredges generally operate on a continuous or semi-continuous basis and, while a project is
being undertaken, are expected to work on most if not every day of the year.

The most common shift arrangements in the dredging industry is a 12 hour shift arrangement
and involves employees working regularly rostered overtime in addition to their average 38 hour
week.

In the dredging industry (like the maritime sector generally) employees commonly
work an extended shift roster pattern of either:-

        Five (5) weeks on / five (5) weeks off; or
        Six (6) weeks on / six (6) weeks off.

During the 5 / 6 weeks on period employees would typically work an average of either:-

        156 hours / 4 week period (an average of 39 hours / week); or
        168 hours / 4 week period (an average of 42 hours / week).

Periodically, the 5 / 6 weeks on period may be temporarily reduced to a lesser period of 5 weeks
or 4 weeks because of the effect of such unpredictable variables as tides etc. before returning to
the usual 5 / 6 week on 5 / 6 week off arrangement.

On a typical five (5) / six (6) weeks on / five (5) six (6) weeks off roster routine over 12 months,
employees accrue one days paid leave for each day worked and as a result are on average
enjoying 6 months (26 weeks) paid leave each year.

The above outlined working hours arrangements would not be capable of fitting in with the
Government’s proposed NES hours standards.

The necessary working hour arrangements of the dredging industry would not be capable of
cost effectively fitting into the more typical hours arrangements of an average 7.6 hour day / 38
hour week worked generally by the Australian workforce, which would appear to be the standard
approach underpinning the “hours provisions” of the proposed NES.

The dredging industry requires the legislated minimum hours standards to provide
sufficient flexibility so as to allow the dredging industry to be able to continue to
accommodate its existing flexible working hours arrangements.



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                                             -12-


The dredging industry has concerns with the content of the draft NES and the absence of
access to hours flexibility.




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                                                  -13-



Dredging Industry concerns with the NES – Other than Hours
As mentioned at the introduction of this Submission, the DIIS has only today become aware of
the Government’s calling for industry submissions on the Draft NES. Consequently, the DIIS
has not had time to prepare any detailed submission in relation to the DIIS’s concerns in relation
to the Standard Hours issue. Further, we have not able to detail in any way our concerns about
several other aspects of the NES, however in saying that we would want to at least identify
those other areas of concern, as being:-

        Provisions for the accrual, taking and rate of payment of accrued leave entitlements –
         such as Annual Leave, Personal Leave and Long Service Leave (when a Federal LSL
         Standard is developed)

        The content of the standards in respect of:

              o   Recognition of existing levels of flexibility;
              o   The interaction of the public holiday standard with the industry’s roster systems,
                  including the ability to require work on public holidays where such work forms
                  part of an agreed roster;
              o   The recognition of public holidays compensation contained in a salary for the
                  purposes of determining if the requirement to work on a public holiday is
                  unreasonable;

        The recognition of the ability to average wages over a period of up to a year, particularly
         where annualised salaries are in place.

Given our short time frame, the DIIS would adopt the intent of relevant Submission’s made by
the Australian Mines & Metals Association (AMMA) to the Government on the above issues in
its Submission of 31 March 2008.

The need to protect the minimum entitlements of employees should be balanced
against the need for flexibility, particularly where that flexibility has been available
for a long period and has been utilised without disadvantaging employees. Such
is the case in the dredging industry sector where significant wage levels are being paid to those
employees who work in our sector.

The National Employment Standards must be flexible enough to allow the
resource sector to build on our success.




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                                                -14-



About the DIIS & the Dredging Industry
The Dredging Industry Industrial Secretariat (the DIIS) is a National Secretariat representing the
employer interests of the dredging industry throughout Australia.

The role of the DIIS is to act as a national employer association representing the employee
relations and human resources management interests of Australia’s dredging industry.

The DIIS recognises that there are only a very small number of dredging businesses operating
in Australia, all of which are foreign owned. Nonetheless, the DIIS believes that the effective
operation of the Australian dredging industry is vital to the Nation’s wealth and future. The
infrastructure projects which the dredging members of the DIIS perform directly supports the
creation and maintenance of a range of important industry categories throughout Australia,
including:

        Maritime industry - including shipping cargo – both export and import
        Exploration and export of all natural resources, primary produce and manufactured
         goods;
        Infrastructure projects such a bridges, wharves, airport runways, container terminals,
         shipping channels, off shore platforms etc.


In Conclusion
The Dredging Industry Industrial Secretariat would ask the Federal Government to take account
of these brief but important submissions on it’s Draft NES.

The DIIS would be pleased for the opportunity to expand on its Submissions for the Government
and / or to meet with the Government to explain its case further or to assist the Government in
achieving a workable final NES that would support the effective operations of the dredging
industry.


Yours faithfully,




Stephen McCarthy Dip Law BAB
McCarthy Ausgroup
DIIS Convenor




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                                            -15-


Copies to:


Maritime Union of Australia (MUA) -        Mr P Crumlin
                                           Federal Secretary
                                           kmcguire@mua.org.au

                                           Mr M Doleman
                                           Assistant National Secretary
                                           mickdoleman@mua.org.au

Australian Institute of Marine and Power Engineers (AIMPE) –

                                           Mr H Christiansen
                                           Federal Secretary
                                           hchristiansen@aimpe.asn.au

Australian Maritime Officers Union (AMOU) -

                                           Mr W Moore
                                           President
                                           amou@amou.com.au

                                           Mr S Groves
                                           Southern Area Secretary
                                           vic@amou.com.au

Australian Workers Union (AWU) -

                                           Mr P Howes
                                           National Secretary
                                           Debra.bushell@awu.net.au




e6e8d828-d80f-41d6-a368-05b4e0868b19.doc

				
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