Lawson and Stateships [2003] AATA 389 (28 April 2003)

Last Updated: 30 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 389

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/337

GENERAL ADMINISTRATIVE DIVISION	)
	Re	BARRY LIONEL LAWSON

Applicant

And

STATESHIPS

Respondent

DECISION

Tribunal

Associate Professor S D Hotop, Deputy President Mr M Allen, Member

Date 28 April 2003

Place Perth

Decision

The Tribunal: * sets aside the decision under review; and * in substitution therefor, decides that the amount of compensation by way of incapacity payments payable to the applicant, pursuant to s 31 of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act"), in respect of his right knee injury sustained on 27 July 1991, is to be calculated on the basis that, with effect from 16 October 2000, his "normal weekly earnings", within the meaning of s 13 of the Act, are increased by the same percentage as the amount per week payable to an employee classified as a cook/seaman under the "Norwest Shipping/Maritime Union of Australia Enterprise Agreement 2000" was increased by that Agreement. The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings (not including any costs incurred by the applicant in relation to the "Application for Extension of Time for Lodging Application for Review" lodged on 4 September 2002 - see s 92(3) of the Act), such costs, in the absence of agreement, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal.

.........(sgd S D Hotop)......................

Deputy President

CATCHWORDS

COMPENSATION - seafarers - applicant a seafarer - applicant paid under award - applicant suffered injury in 1991 - compensation payable to applicant - certified agreement made in 2000 - whether amount of incapacity payments payable to applicant increased - normal weekly earnings - whether amount payable to employees in class to which applicant belonged when injury happened increased as result of certified agreement - identification of class of employees to which applicant belonged - identification of class of employees covered by certified agreement - whether same class of employees

Seafarers Rehabilitation and Compensation Act 1992 ss 3, 13(1), 13(6), 31

Workplace Relations Act 1996 s 4(1)

Re Thompson and Comcare (2002) 69 ALD 762

REASONS FOR DECISION

28 April 2003

Associate Professor S D Hotop, Deputy President Mr M Allen, Member

INTRODUCTION

1. This is an application by Barry Lionel Lawson ("the applicant") for review of a deemed reviewable decision of Stateships ("the respondent"), pursuant to s 79(6) of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act"), disallowing the applicant's claim for an increase, in accordance with s 13(6) of the Act, in the amount of his "normal weekly earnings" for the purpose of calculating the amount of compensation by way of incapacity payments payable to him pursuant to s 31 of the Act.

2. At the hearing the applicant was represented by Mr D Jones of counsel, and the respondent was represented by Mr W Naseem, solicitor. The Tribunal had before it the statement and accompanying documents ("T documents") lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:

* Maritime Industry Modern Ships Award 1989 (A1);

* draft "Union Bulkships/Maritime Union of Australia Enterprise Agreement 1997" (A2);

* witness statement of Barry Lionel Lawson, filed on 19 July 2002 (A3);

* witness statement of Cleve Woollams, dated 19 August 2002 (A4);

* witness statement of Peter Anthony Groessler, dated 30 July 2002 (A5);

* witness statement of David Harold Mitchell, filed on 19 July 2002 (A6);

* extract from Maritime Industry Seagoing Award 1999 (A7);

* Vessel Specifications of MV Kimberley (A8);

* letter from Charles Viola, Stateships to Barry Lawson, dated 3 August 2000 (A9);

* statement of Charles Viola (including annexures CV1-CV7), dated 20 August 2002 (R1).

Oral evidence was given by the applicant and by Cleve Woollams, Peter Groessler and David Mitchell (who were called as witnesses by the applicant), and by Charles Viola (who was called as a witness by the respondent).

THE FACTUAL BACKGROUND

3. The relevant background facts, about which there is no dispute between the parties, and as found by the Tribunal on the basis of the T documents and the exhibits, are as follows.

4. In July 1991 the applicant injured his right knee in the course of his employment by the respondent as a cook/seaman on board the MV Roberta Jull.. At that time the applicant was being paid wages in accordance with the Maritime Industry Modern Ships Award 1989 ("MIMSA"). He was subsequently certified as medically unfit for sea duties for certain periods and, on 9 June 1994, he was certified as permanently unfit for sea duties.

5. On 10 June 1994 the applicant lodged with the respondent a claim for compensation under the Act in respect of his right knee injury. The matter ultimately came before the Tribunal for determination and, on 26 June 1998, the Tribunal decided that the respondent continued to be liable to pay compensation, by way of incapacity payments, to the applicant in accordance with s 31 of the Act since 10 June 1994 (with the exception of the period from May to September 1996): see AAT Decision No 11887A.

6. Following the Tribunal's decision of 26 June 1998 the parties were unable to reach agreement regarding the quantum of compensation to which the applicant was entitled, and that matter was then referred to the Tribunal by the parties for determination. On 16 April 1999 the Tribunal decided that, for the purpose of calculating the applicant's entitlement to compensation, his normal weekly earnings continued to be governed by MIMSA, in the absence of any evidence of an increase in salary payable under an award or a certified agreement: see [1999] AATA 231.

7. In August 1999 MIMSA was superseded by the Maritime Industry Seagoing Award 1999 ("MISA").

8. On 17 October 2000 the "Norwest Shipping/Maritime Union of Australia Enterprise Agreement 2000" ("the 2000 certified agreement") was certified by the Australian Industrial Relations Commission under s170LT of the Workplace Relations Act 1996, with effect from 16 October 2000. The parties to that Agreement were expressed (in cl 4.1) to be Norwest Shipping and the members of the Maritime Union of Australia who are employed aboard the MV Kimberley pursuant to the provisions of MISA, and it was provided (in cl 5.2) that that Agreement replaced the "Union Bulkships/MUA Enterprise Agreement 1997".

9. By letter dated 29 November 2000 the applicant informed the respondent that he was claiming all salary owing to him as a result of the 2000 certified agreement.

10. Following various exchanges of correspondence between the applicant and the respondent, by letter dated 13 February 2001 to the applicant the respondent confirmed that it was of opinion that the 2000 certified agreement did not apply to him, thereby, in effect, disallowing his claim for a salary increase on the basis of that agreement.

11. By letter dated 12 March 2001 the applicant's solicitors requested the respondent to reconsider its determination of 13 February 2001.

12. The respondent failed to reconsider that determination within the period prescribed by s 79(1) of the Act thereby resulting, pursuant to s 79(6) of the Act, in a deemed reviewable decision disallowing the applicant's claim. That deemed reviewable decision is the subject of the present application for review.

THE APPLICANT'S EVIDENCE

13. The applicant's witness statement, which was tendered in evidence (Exhibit A3) , is as follows:

"...

2. I was born on 2 August 1945.

3. I joined the Australian Navy in 1962. After 20 years service I was discharged in 1982 with the rank of Petty Officer/Cook.

4. On 26 October 1988 I joined the Maritime Union and commenced service on vessels out of the Port of Fremantle.

5. On 15 January 1991 I was engaged as a seaman/cook on the MV Roberta Jull.

6. My initial voyage on the Roberta Jull was ex-Fremantle to Bunbury then Tasmania, Newcastle, Melbourne and return to Fremantle.

7. The Roberta Jull's route subsequently changed to Christmas Island, Cocos Island, Jakarta, Kuchin, Singapore return to Christmas Island and Fremantle.

8. On 27 July 1991 whilst engaged as a seaman/cook on the Roberta Jull I suffered an injury to my right knee.

9. On 31 July 1991, I was declared by Dr Graham Martin as unfit for sea duties.

10. I subsequently underwent surgery on the knee performed by Mr Tiller.

11. On 24 September 1991 I returned to duty as a seaman/cook on the Roberta Jull.

12. On 8 February 1993, I left the Roberta Jull and Stateships on the advice of Dr Martin who thought that I might be able to work more comfortably on larger vessels as there would be less strain on my knee and I might be able to better cope with working as a cook on larger vessels.

13. Between 17 and 31 March 1993 I worked on the Skua Venture which was an oil production vessel. I was flown up to Darwin to a rig.

14. I joined the Energy Searcher on 12 May 1993 which was an exploration vessel drilling off Rottnest Island.

15. However I was involved in an accident on 21 May 1993 where I slipped on the deck of the Energy Searcher and I aggravated the previous injury of the right knee. I was again certified as unfit for sea duty by Dr Graham Martin.

16. I was on workers' compensation until October 1993. I could not return to the Energy Searcher as it had ceased operation on 19 July 1993.

17. I returned to work on the Western Atlas as Second Cook between 22 September 1993 and 26 November 1993 and then on MT Australian Achiever between 8 December 1993 and 9 March 1994.

18. If I had not sustained the accident on 27 July 1991 I would have remained with Stateships on the Roberta Jull. Although it was not one of the popular postings amongst Union members because of the comparatively low pay, for me it offered good conditions, I preferred the life style of working on a ship which was constantly on the move, I looked forward to the challenge of cooking for a small number of crew and I enjoyed the extra duties asked of me as a seaman/cook that being the requirement to work on deck when entering and leaving harbour.

19. A further arthroscopic debridement was performed on my knee in March 1994 and I was certified permanently unfit for sea duties on 9 June 1994.

20. During the time I was on the Roberta Jull, I had opportunities to leave that ship and go to a higher paid job. It was only a matter of going on the Roster and as jobs became available depending on your priority you were engaged as crew on other vessels. This is how I obtained my employment with the Energy Searcher. However I had no intention to do so as I was happy working as a seaman/cook on the Roberta Jull.

21. Besides the qualifications I obtained in the Navy I had also completed two helicopter ditching courses prior to July 1991 and passed a seaman's survival course and a firefighting course.

22. In 1988 and 1990 I had also passed and received the necessary medical certificates stating that I was fit to go to sea.

23. When Stateships discontinued the coastal trade and withdrew the Roberta Jull, Frank Konecny and Gordon Reid from service only the MV Sina offered the position of seaman/cook with Stateships. I am confident that I would have obtained a posting on the Sina as Dave Mitchell, who had a very similar background to myself, advised me that during its first year of operation under Norwest Shipping the MV Sina had five different seaman/cooks on the alternative swings to the swing on which he was engaged. I would have made certain that when the first swing on which Dave Mitchell was the seaman/cook was completed I would have nominated for the seaman/cook on the return swing of that vessel.

24. I have never been in any trouble on a ship. I have never been suspended nor have had any other disciplinary action taken against me. I am therefore confident that, considering the approach taken by Norwest Shipping in the employment of ship's crew, I would have as I wished been engaged as a seaman/cook by the MV Sina and would have when the opportunity arose transferred to the MV Kimberley."

14. In his oral evidence the applicant explained that the employee classification in which he was engaged on the MV Roberta Jull in 1991 - namely, "cook/seaman" - was created when the respondent began to operate the "Jon Sanders class" of small ships with a crew of 11 members. He said that that employee classification and the crew complement of 11 were maintained when the respondent began to operate the slightly larger "Roberta Jull class" of small ships and the larger vessel MV Sina. He added that the vessel MV Kimberley, which is larger than the MV Sina and is presently operated by Norwest Shipping, also has a crew of 11 members, one of whom is classified as "cook/seaman". He said that the duties of a "cook/seaman" included, in addition to all of the cooking and associated duties, some deck duties such as tying up, letting go, driving winches and working cargo.

THE EVIDENCE OF CLEVE WOOLLAMS

15. Cleve Woollams' witness statement, which was tendered in evidence (Exhibit A4), is as follows:

"I am the general manager of Norwest Shipping which operates from 15 Tydeman Road, Fremantle.

In 1995 following a dispute, Stateships decided to cease operating its coastal shipping route. However, the Kimberley Development Commission exercised some influence on the Government of the day and it was decided that the MV Sina a vessel at that time operated by Stateships would continue to operate the coastal route but it would be put out to tender.

Holyman Shipping Services Pty Ltd who were the predecessor of Norwest Shipping won the tender which required that the North West be serviced on the same pattern as it had by the Stateships vessels.

As of October 1995, Norwest Shipping commenced operating the coastal trade with the Sina. The crew that was initially employed by Norwest were in the main crew that had been engaged by Stateships on the Sina. All the Sina crew however had been made redundant but as Norwest needed 11 crew immediately to man the vessel for its routine coastal voyage it was expedient to offer positions to the crew of the Sina, who were experienced on the duties of the ship and the manner in which the ship operated.

Norwest also required another 11 crew members for the second swing which took place approx 35 days later. In the main the officers employed were ex Stateships but not necessarily ex Sina with the balance of the crew from the Seaman's Engagement Centre.

I took the advice of the former engineer superintendent with Stateships in respect of which officers we should employ. With regard to the crew anyone who wished to remain stayed for the first swing (35 days). The relieving crew was engaged entirely from the Centre. I however only interviewed officers directly myself. I did not personally interview members of the ship's crew for the position of seaman cook.

When the Sina was replaced in December 1999 by the MV Kimberley, all crew from the Sina automatically were offered positions on the Kimberley as it was a replacement vessel for Sina and by that time the Seaman's Engagement System (sic) had been abolished and Company employment had commenced. Most members of that crew had been working for Norwest for some four years and consequently had been appropriately vetted and assessed. There was no reason that any crew member in December 1999 working on the Sina would not have been offered a position on the Kimberley.

The conditions of employment when Norwest Shipping took over the Sina were the same as the crew that had worked under Stateships under the MIMSA Award. It was varied in 1999. It was subsequently replaced by uncertified agreement between Norwest Shipping and subsequently (sic) on 17 October 2000 a Norwest Shipping/Maritime Union of Australia Agreement 2000 was certified by the Australian Industrial Relations Commission. That Enterprise Bargaining Agreement is still the operative agreement under which the ship's crew are paid.

While providing crew for the Sina and the Kimberley has not produced great difficulties, the availability of crew in the industry varies as in all industries depending on the financial health of the industry. However, crew that work on the Kimberley do not work in what would be considered by seamen as being a high paying job. Crew working on oilrigs could receive up to double the income that is paid to the crew of the Kimberley with comparable conditions of one on one off work schedules.

I have never personally met Barry Lawson. To my recollection he was never a member of the crew of the ships handled by the organizations by which I have been employed. If he had been a member of the Sina at the time Norwest Shipping had won the tender then he would have been considered for employment with Norwest on the Sina subject to his previous work performance."

16. In his oral evidence Mr Woollams said that Holyman Shipping Services Pty Ltd, which took over the north-west coastal shipping trade from the respondent in 1995, was a "parent company" which traded under the name "Union Bulkships" which was later changed to "Norwest Shipping".

17. Mr Woollams said that the MV Kimberley, which is presently operated by Norwest Shipping, has the same "manning scale" as that of all the small ships previously operated by the respondent - namely, a crew comprising 11 members in "exactly the same categories". He described the MV Kimberley as a "coastal small ship", although he acknowledged that it is a larger vessel than the MV Sina which in turn was larger than the small ships (including the "Roberta Jull class") formerly operated by the respondent. He said that the MV Kimberley "does the same job" and operates the same coastal shipping route as those other vessels formerly did but that the crew on the MV Kimberley "work harder" than the crews on those other vessels because the MV Kimberley carries a larger number of containers and calls at more ports than those other vessels did. As regards the "cook/seaman" classification specifically, Mr Woollams said that that job was "virtually the same" as between the abovementioned vessels, except that there are more sailings and departures on the MV Kimberley.

18. Mr Woollams was referred to the 2000 certified agreement and its predecessor, the "Union Bulkships/Maritime Union of Australia Enterprise Agreement 1997" (which was not certified). He said that MIMSA was used as the basis of the 1997 Agreement and that MISA (which had superseded MIMSA in 1999) was used as the basis of the 2000 certified agreement. Referring to the 3 vessels, MV Roberta Jull, MV Sina and MV Kimberley, Mr Woollams said that they all have "exactly the same manning" and the "same basic rate of pay" emanating from the same award, which he referred to as "the WA Stateships Small Ships Award" (that is, MIMSA which was subsequently superseded by MISA).

THE EVIDENCE OF PETER GROESSLER

19. Peter Groessler's witness statement, which was tendered in evidence (Exhibit A5), is as follows:

"I am a member of the Maritime Union of Australia and employed at sea as a Chief Cook, 2^nd Cook and Cook/Seaman.

I am aged 56 years having been born on 21-08-1945.

In 1962 I joined the Royal Australian Navy in which I did my apprenticeship as a cook.

In 1974 I retired from the Royal Australian Navy holding the rank of Petty Officer Cook.

On 14 December 1978 I joined the Maritime Union of Australia.

On 14 December 1978 I obtained employment with Stateships as a Second Cook on MV Nyanda.

To obtain employment it was necessary for me to attend the Maritime Union of Australia to complete the necessary application and obtain a Certificate of Safety Training.

I also had to complete a full medical, which I passed. It is compulsory for everyone to attend a full medical examination every two years, which I have passed on many occasions the last being on the 30 July 2002.

In the past 24 years while a member of the Maritime Union of Australia I have worked on many ships of various categories, 10 of those jobs were with Stateships, sometimes returning to work on a ship I had previously worked on. My first ship with Stateships was the MV Nyanda in 1978.

Since the introduction, by Stateships, of the class of empoyee of Seaman/Cook in 1988 I have worked as a Seaman/Cook on the:

MV Mary Durack 2^nd May 1989 - 31^st May 1989;

MV Jon Sanders 27^th July 1989 - 28^th July 1989;

MV Gordon Reid 15^th February 1994 - 20^th April 1994.

I have also worked as a Seaman/Cook on the MV Sina for Union Bulkships:

15^th November 1997 - 5^th December 1997.

Most recently I worked as a Seaman/Cook on the MV Kimberley for Norwest Shipping:

18^th May 2002 - 21^st June 2002.

While working on these ships my duties as Seaman/Cook remained the same. The cooking part of my duties included menu planning, ordering and storing fresh and dry stores, preparing the meals for breakfast, lunch and dinner, washing up after every meal and the responsibility for hygiene for the kitchens, freezers and dry store etc.

While the seaman part of my duties involved working on deck `tie and let go' running the winch and handling any lines when entering and leaving harbour and in cases of fire it was my responsibility to close vents, to assist with repairs from collisions and to assist generally in all emergencies.

On these vessels there were 11 crew as follows: Skipper, Chief Mate, Second Mate, Chief Engineer, 1^st Engineer, Chief IR, IRs (x3), Steward/Seaman and Cook/Seaman.

We would work one month on and one month off and therefore each vessel required another crew to work the alternate `Swing'..

The vessels were involved in the transport of general cargo and the run varied as the different cargoes and contracts changed overtime. However my duties did not change nor did the number and composition of the crew.

I did not stay long on these vessels as I preferred the better paying jobs in the offshore oil production and exploration industry and I was never too fond of the duties the Seaman part of being a Cook/Seaman required.

I did not have to attend any special interview or training course to find employment with Stateships, Union Bulkships or Norwest Shipping.

To be employed by Norwest Shipping, on the MV Kimberley, 18^th May 2002 - 21^st June 2002, I was required to place my name on the roster. I was then informed by the Maritime Union of Australia that a Cook/Seaman was required on the MV Kimberley and would I like the job.

I was only required to say yes or no. There was no selection process nor was this considered to be a promotion.

While working on vessels for Stateships, since the introduction of the Seaman/Cook class of employee, I was paid under the Maritime Industry Modern Ships Award 1989 (Schedule A)

While working on the MV Sina Union Bulkships as a Seaman/Cook I was paid under an Enterprise Bargaining Agreement.

Also while working on the MV Kimberley Norwest Shipping as a Seaman/Cook I was paid under an Enterprise Bargaining Agreement.

The MV Kimberley, Norwest Shipping, took over the coastal trade route formerly served by the MV Sina, Union Bulkships, and prior to that the MV Sina, Stateships.

Norwest Shipping also took over Union Bulkships offices in Fremantle and sailed the MV Kimberley on the same trade route formerly serviced by the Sina.

I am currently waiting on the roster for employment at sea."

20. In his oral evidence Mr Groessler confirmed that he had never worked on the MV Roberta Jull but he added that he had worked on a "sister ship", namely, the MV Gordon Reid, which was of the same design as the MV "Roberta Jull". He reiterated that there were no differences in his duties when he worked as a "cook/seaman" on the MV Gordon Reid, the MV Sina and the MV Kimberley.

THE EVIDENCE OF DAVID MITCHELL

21. David Mitchell's witness statement, which was tendered in evidence (Exhibit A6), is as follows:

"I am a Cook/Seaman.

I am aged 50 years having been born on 28 February 1952.

In 1971 I joined the Australian Navy in which I did my apprenticeship as a cook.

In 1993 I retired from the Australian Navy holding the rank of Leading Seaman Cook.

On 28 April 1995 I joined the Maritime Union of Australia.

Also on 28 April 1995 I obtained employment with Stateships as a Cook/Seaman on the MV Sina which was a Roberta Jull class vessel.

To obtain employment it was necessary for me to attend the Maritime Union of Australia to complete the necessary application and the following day I obtained a Certificate of Safety Training.

I also had to complete a full medical which I passed.

It is compulsory for everyone to attend a full medical examination every two years which I have passed on three further occasions.

Whilst at Stateships my duties included, menu planning, ordering and storing fresh and dry stores for the Sina, preparing the meals for breakfast, lunch and dinner, washing up after every meal and responsibility for hygiene for the kitchens, freezers and dry store etc.

I was also involved in `tie and let go' running the winch and handling any lines.

I also received `Lashing' money which was paid into my Superannuation. Lashing involves securing cargo with chains and lashings etc.

I did not actually perform Lashing myself but it was regarded as part of my job description and I certainly would not object to do it if I was asked.

In cases of fire it was my responsibility to close vents, to assist with collisions and to assist generally.

On the Sina there were 11 crew as follows: Skipper, Chief Mate, Second Mate, Chief Engineer, 1^st Engineer, Chief IR, IRs (x3), Steward/Seaman and Cook/Seaman.

We would work one month on and one month off and therefore the Sina required another crew to work the alternate `Swing'.

The Sina was involved in the transport of general cargo and the run would normally commence at Fremantle and then the Sina would travel to Broome, Wyndham and Darwin which were essentially the main ports.

On occasions the Sina would stop at Kwinana and Dampier.

The Sina also travelled to Indonesia and Christmas Island however that ceased after Stateships folded.

Stateships folded in October 1995 and Union Bulkships took over the Sina and I simply continued working on the Sina. I did not even have to take my personal belongings from my locker.

I did not have to attend any special interview or training course as I was simply kept on and in fact continued employment on my normal swing.

There was no selection process of which I was aware nor was this considered to be a promotion.

The Maritime Union were responsible for providing the crew for the Sina. I was asked by the Union if I wanted to stay on. I said I did and that was the discussion I had about continuing on the Sina when employed by Union Bulkships.

On 10 October 1995 I commenced employment with Union Bulkships working on the Sina as a Cook/Seaman.

My duties did not change and nor did the number and composition of the crew of the Sina though the trips to Indonesia and Christmas Island ceased.

During this period I worked as a Cook/Seaman for Union Bulkships on the Sina. On the alternate swing there were approximately four other persons employed individually as Cook/Seaman.

During my employment with Union Bulkships on the Sina I was paid under an Enterprise Bargaining Agreement.

In December 1999 I ceased working on the Sina as it ceased sailing the coastal route.

Norwest Shipping took over the coastal trade route formerly served by Union Bulkships with the Sina. Norwest also took over Union Bulkships offices in Fremantle and sailed the MV Kimberley on the same trade route formerly serviced by the Sina.

In December 1999 I was employed through the Maritime Union by Norwest Shipping and transferred to the Kimberley.

Again, I simply moved straight across. There was no interview, training course and selection process of which I was aware. I was asked by the Union if I wished to transfer. I said I did and that was all that was necessary.

As a Cook/Seaman on the Kimberley there was also no change to my duties, the number and composition of the crew, the work on the Kimberley or the ports of call although Dampier was now visited on every run.

I continued to be paid in accordance with the Enterprise Bargaining Agreement although a new Enterprise Bargaining Agreement came into operation in late 2000.

I am currently employed by Norwest Shipping as a Cook/Seaman on the Kimberley. Nothing of significance has changed since I commenced employment on it in December 1999. The crew complement is the same, the type of cargo is unchanged, and my duties are the same. There has only been a minor change in the ports of call."

22. In his oral evidence Mr Mitchell explained the statement in his witness statement that the MV Sina was a "Roberta Jull class" vessel. He said that he was referring to the fact that they were both "self-loading, self-discharging" ships and he added that the only difference between them was their size - the MV Sina was "just a little bit bigger than the Roberta Jull class".

23. Mr Mitchell said that when he joined the MV Sina in April 1995 it was being operated by the respondent and that he never worked for the respondent on any other vessel.

THE EVIDENCE OF CHARLES VIOLA

24. A statement of Charles Viola was tendered in evidence (Exhibit R1). The contents of that statement (omitting the annexures thereto) are as follows:

"1. I am the accountant for Stateships and presently work part time. I first joined Stateships in 1962 as an office junior and progressed to the position of the accountant in 1996.

2. Currently, there is only 1 other administrative employee of Stateships, who is the Manager of Finance and Administration.

CLASSES OF VESSELS

Different Vessel Specifications

3. Annexed hereto and marked `CV1' is a true copy of Schedule A of the Maritime Industry Modern Ships Award 1989 (`Schedule A of MIMSA').

4. Annexed hereto and marked `CV2' is a true copy of Stateships vessel details for the:

(a) `M.V. Irene Greenwood';

(b) `M.V. Pilbara';

(c) `M.V. Koolinda';

(d) `M.V. Jon Sanders', `Mary Durack' and `C.Y. O'Connor' (`the Jon Sanders class');

(e) `M.V. Roberta Jull', `Frank Konecny' and `Gordon Reid' (`the Roberta Jull class'); and

(f) `M.V. Sina'.

5. I believe that the `MV Kimberley' is a larger vessel than the `MV Sina', both being considerably larger than the `Roberta Jull'.

6. From my in excess of 40 years of experience in the shipping industry I am of the view that the `MV Kimberley' and the `Roberta Jull' are different classes of vessels. My view is primarily based on the different vessel:

(a) Ownerships;

(b) Specifications/characteristics - not sister ships;

(c) Design configurations;

(d) Tonnages; and

(e) Builders/class identifications.

Different Vessel Ownership

7. The `MV Sina' was owned by the German company Briese - Schiffahrts Gmbh & Co for a proposed 3 Year bareboat charter by Stateships commencing 17 March 1994.

8. Stateships sub-demise chartered the vessel to Union Bulkships (Norwest Shipping) on or about 10 October 1995.

9. The `MV Sina' was due to be returned to the German owners and dry-docked in Singapore in March 1997, but Union Bulkships decided to charter the `MV Sina' in its own right after the expiration of the Stateships' charter. Stateships arranged for the `MV Sina' to be dry-docked and inspected at Coogee, Western Australia on or about 26 and 27 March 1997 to the owner's satisfaction so that Union Bulkships could take over as charterers.

10. In contrast, the `Roberta Jull' class of vessels were all built in Western Australia and owned by the Westpac Bank. Stateships bareboat chartered the vessels from about 1989 for a proposed 10 year period whereby Stateships only supplied the crew.

11. Annexed hereto and marked `CV3' is a true copy of Stateships' face sheets to charter agreements for the `Jon Sanders' and `Roberta Jull' class of vessels and the `MV Sina' confirming inter alia:

(a) Vessel owners;

(b) Vessels class and specifications;

(c) Charterers; and

(d) Charter period.

12. Relevantly the `Roberta Jull' class of vessels were:

(a) Built and registered in Australia;

(b) Owned by Westpac, Australia;

(c) A motor dry cargo type of vessel;

(d) 1599 GRT;

(e Class "LRS + 100A1 LMCUMS AUSTRALIAN D.O.T".

In contrast, the `MV Sina' was: -

(a) Owned by a German company;

(b) Registered in Antigua

(c) Built in Germany;

(d) A multi-purpose container type of vessel;

(e) Class "GL + 100A4E1"; and

(f) 3236 GRT.

13. The `MV Sina' was time chartered by Sealink Transport Pty Ltd on or about 2 June 1995 from Stateships until October 1995. Annexed hereto and marked `CV4' is the charter face sheet for those voyages.

Different Vessel Characteristics - not Sister Ships

14. The `MV Kimberley' is a vessel of a different class to the `MV Roberta Jull'. These vessels are not `sister ships'. Indeed they are manifestly different in characteristics and ownership.

15. The `Roberta Jull' belonged to the class of vessel within the terms of Schedule A of MIMSA. That class of ships was expressly identified in Schedule A as `West Australian Small Ships', being specific to Stateships. This Schedule is only applicable to members of the Maritime Union employed by Stateships on board the:

(a) `MV Mary Durack';

(b) `MV CY O'Connor';

(c) `MV John (sic)Sanders'; and

(d) any other small vessels of similar class and manning operated by Stateships.

16. Stateships did charter sister ships including the:

(a) `Roberta Jull';

(b) `Frank Konecny'; and

(c) `Gordon Reid'.

Those vessels fell into the same class as evidently they had the same:

(a) Ship manufacturer, being Australian Shipbuilding Industries;

(b) Tonnage of 1599 tonnes;

(c) General design configuration and were the same length of 92.7 metres, and breadth of 15.10 metres;

(d) Mechanical data; and

(e) Hold dimensions.

The `MV Kimberley' did not belong to the same class.

17. Both the `MV Sina' and `MV Kimberley' are in different classes to the `Roberta Jull' class in that they are larger vessels than the `Roberta Jull' and have different:

(a) Design configurations and specifications;

(b) Tonnages, with the `MV Sina' having a gross registered tonnage of approximately 3236 tonnes as compared to the `Roberta Jull' class of vessels which are of 1599 tonnes;

(c) Mechanical data;

(d) Hold dimensions;

(e) Owners; and

(f) Builders and class identifications.

18. The vessel size used by Stateships is dependant upon the economic and operational requirements of the time. Much larger vessels were operated by Stateships prior to the early 1990s such as the `MV Irene Greenwood', `MV Pilbara' and `MV Koolinda'.

19. Due to changing economic and operational needs Stateships then looked at different smaller classes of vessels known as the `small ships era' from the late 1980s.

20. The `small ships' era marked the use of the `Jon Sanders' class of vessels in the late 1980s, followed by the `Roberta Jull' class of vessels in the early 1990s. These were the vessels listed in Schedule A of MIMSA.

21. Schedule A vessels had 11 crew compared to the earlier larger vessels which had approximately 30 crew.

22. The `MV Sina' is clearly of a different class to the `Roberta Jull' class of vessel. Annexed hereto and marked `CV5' are Certificates of Class issued by Lloyds of Britain for the `Roberta Jull' class and the Certificate issued by Germanischer Lloyd of Germany for the `MV Sina' confirming the different entities involved and the different vessel classes.

Different Working Conditions

23. The rates of pay under Schedule A of MIMSA take into account the number of the crew being 11 for the `Roberta Jull' class of vessels and the composition of the crew. The crew comprised of:

(a) One Bosun (head seaman);

(b) One cook/seaman;

(c) Two ABS (able bodied seaman);

(d) One greaser/seaman (worked in the engine room);

(e) One crew attendant/seaman;

(f) One master;

(g) One chief officer;

(h) One second officer;

(i) One chief engineer; and

(j) One first engineer.

24. Annexed hereto and marked `CV6' is a true copy of the Norwest Shipping/Maritime Union of Australia Enterprise Agreement, dated 16 October 2001 (sic) (`Enterprise Agreement').

25. The `class of employees' under Schedule A of MIMSA is distinct and unique to the `class of employees' under the Enterprise Agreement. Schedule A was adopted in recognition of the `special circumstances' pertaining to the operation of Stateships' small ships. These `special circumstances' are a combination of:

(a) Change in vessel size to smaller vessels

(b) Recognition of a reduction in crew numbers from approximately 30 to 11 as consequence of the increase in workload per crew member; and

(c) Salary rates include recognition of the different trade, frequent port calls and non-homogenous cargoes together with a requirement that crew members were required to work cargoes in some ports.

Alternating Trade Routes

26. Just prior to the time of Stateships' cessation of operations in or about October 1995, the `Roberta Jull' class of vessels were predominantly plying their trade on the South East Asian route, delivering general cargo. The `MV Sina' operated along the North West-Darwin and Indonesia trade route. The `MV Sina' would also alternatively service the South East Asian route.

27. Annexed hereto and marked `CV7' is a true copy of Stateships' sailing schedules and a map showing the two alternate trade route operations of the `Roberta Jull' class of vessels and that of the `MV Sina' at the time Stateships ceased its operations in 1995. At the time of Stateships' cessation the `Roberta Jull' class of vessels (which were in South East Asian waters) were sailed to Singapore where they were sold by Westpac to foreign owners. The crew were repatriated back to Fremantle.

THE ROSTER SYSTEM

28. Stateships' operations ceased in 1995. Stateships' crew members at the time (including cooks employed on the `MV Sina') had been engaged via the usual practice, through the Seaman's Engagement Centre Roster (`Roster System'). This was operated by the Commonwealth Department of Transport at their offices and the workers would attend every morning those offices awaiting for placement for jobs at sea.

29. The crew members on the Roster System were paid `appearance' money whilst awaiting for a new larger or smaller vessel, upon which to be placed.

30. The Roster System at that time was the only way for a seaman to join an Australian vessel as a crew member, with at that stage there being no system of company employment, which commenced on or about 28 February 1998.

31. The Roster System was an Australian wide pool of labour whereby a range of employers such as P & O, BHP, BP Tankers, Dalgeties, Mermaid Marine and Union Bulkships from all over Australia (not just Stateships) could collect crewmembers from the Roster for service anywhere in Australia (not only Fremantle) depending upon their individual priority in the queue. Relevantly, the Roster System pooled all of the Ratings, being the seamen, cooks, stewards and the greasers.

32. At the time when Stateships ceased operating vessels, crew members were repatriated to their homeports. Their engagement was terminated. They were paid their leave entitlement. They were entitled to rejoin the Roster System for further vessel placement. No ex-Stateships crew members, employed through the Roster System were paid redundancy, or employed on shore by Stateships.

33. There is no nexus between the crew on the `MV Sina' and the `Roberta Jull'. The crew on the `MV Sina' were terminated after the Respondent ceased its shipping operations.

34. The crew then had to re-enroll on the Roster to obtain employment from any number of companies in addition to Norwest Shipping for any number of vessels and operations with a new complement of crew being engaged by Norwest Shipping on the `MV Sina' at the time of Stateships' cessation of operations and Norwest's taking over of the charter of the `MV Sina' in or about 1995.

35. At the time of the Applicant's employment on the `Roberta Jull' and up to the time of the cessation of Stateships in or about 1995, the Roster System was the only operative system, for crew member placement.

36. Given the Roster System and the way it operated, there was no guarantee that the Applicant would have worked on the `MV Sina' when registering on the Roster. To predict whether crew members on earlier Stateships vessels would be employed with Stateships, or a company such as Norwest thereafter on different vessels with different owners such as the `MV Kimberley' would be a purely speculative task. Further, when Stateships ceased trading, this would have added another six cooks on the Roster awaiting their placement from the queue.

37. In summary therefore, the vessels of the `MV Roberta Jull' and the `MV Kimberley' are of a different class of vessel being vessels of different:

(a) Ownership/registration and charter;

(b) Operational periods during different times of labour allocation, namely the Roster System as compared to the current system of company employment;

(c) Tonnages;

(d) Design configurations;

(e) Builders;

(f) Trade routes;

(g) Mechanical data;

(h) Hold dimensions;

(i) Class identifications; and

(j) Eras.

Further the `MV Kimberley' does not fall into the class of ships under Schedule A of MIMSA, being `West Australian Small Ships'."

25. In his oral evidence Mr Viola was first referred to Schedule A to MIMSA (annexure "CV1" to his Statement), the introduction to which states:

"In recognition of the special circumstances pertaining to the operation of the WASS small ships including the number and composition of the complement of these ships, the provisions of this schedule apply only to members of the maritime unions employed by WASS in M.V. Mary Durack, M.V. C.Y. O'Connor and M.V. John (sic) Sanders and any other small vessels of similar class and manning operated by WASS (including the vessels under construction being identified as hull numbers 291, 292 and 293)."

He explained that the expression "WASS small ships" referred to those ships specified in Schedule A which the respondent had in operation at the time MIMSA was made, as opposed to the "much larger" vessels that the respondent previously operated, namely, the MV Pilbara, the MV Irene Greenwood and the MV Koolinda. Mr Viola also explained that the reference to "vessels under construction... hull numbers 291, 292 and 293" was a reference to the 3 "Roberta Jull class" vessels that were then under construction, namely, the MV Roberta Jull, the MV Frank Konecny and the MV Gordon Reid, respectively.

26. Mr Viola was next referred to annexure "CV2" to his statement which contained the specifications of the various vessels. He confirmed that:

* in respect of the "Jon Sanders class" vessels (namely, the MV Jon Sanders, the MV Mary Durack and the MV CY O'Connor), the overall length was 91 metres, the gross registered tonnage was 1392 tonnes, and the container cargo capacity was 140 units;

* in respect of the "Roberta Jull class" vessels, the overall length was 92.7 metres, the gross registered tonnage was 1599 tonnes, and the container cargo capacity was 150 units;

* in respect of the MV Sina, the overall length was 100 metres, the gross registered tonnage was 3236 tonnes, and the container cargo capacity was 240 units.

He compared the abovementioned vessel specifications with those of the MV Kimberley, namely, an overall length of 105 metres, a registered gross tonnage of 4454 tonnes, and a container cargo capacity of 320 units (Exhibit A8).

27. Mr Viola was asked to explain the reference to "special circumstances pertaining to the operation of the WASS small ships" in the introduction to Schedule A to MIMSA. He explained that, prior to the operation of the small ships, the larger ships operated by the respondent had a crew of more than 30 members with "very structured duties"; whereas the "small ships" had a much smaller crew of 11 members with extra duties.

28. Mr Viola said that the respondent commenced to operate the MV Sina on 17 March 1994 and that its crew were paid in accordance with rates specified in Schedule A to MIMSA from that date. He said that the MV Sina had the same crew complement performing the same duties as in the case of the MV Roberta Jull and that the crews of both vessels were paid under the same award, namely MIMSA. He agreed that the MV Sina was a "WASS small ship" in the sense that its crew were paid the same rate of pay as the crews of the other small ships.

29. Finally, Mr Viola said that MIMSA and MISA (under which the applicant continues to be paid) have effectively been "left behind" by individual enterprise agreements and that the applicant (and any other person in a similar situation) may be the only person(s) still being paid under MISA.

THE LEGISLATION

30. Section 31 of the Act provides for the payment of compensation, to "an employee who is incapacitated for work as a result of an injury", by way of incapacity payments in accordance with a formula which includes the amount of the employee's "normal weekly earnings".. The meaning of the expression "normal weekly earnings" is explained in s13 of the Act which relevantly provides:

"13(1) For the purposes of this Act, if an employee who is a seafarer suffers an injury, the employee's normal weekly earnings are an amount equal to the amount payable weekly to the employee by way of salary under the contract of employment that applied to his or her employment immediately before the injury happened.

...

13(6) If the amount per week payable to employees in a class to which the employee belonged when the injury happened is later increased or reduced as a result of:

(a) the operation of a law of the Commonwealth, or of a State or Territory; or

(b) the making, alteration or operation of an award, determination or certified agreement, or the doing of any other act or thing under such a law;

the normal weekly earnings of the employee before the injury, as worked out under the preceding subsections, must be increased or reduced by the same percentage as that by which that amount per week was so increased or reduced, as the case may be."

The expression "certified agreement" has "the same meaning as in the Workplace Relations Act 1996": see s3 of the Act. By s4(1) of the Workplace Relations Act 1996 the expression "certified agreement" is defined to mean "an agreement certified under Division 4 of Part VIB".

THE ISSUES

31. The only issues, in terms of s13(6) of the Act, that arise for consideration and determination in this case are:

* the identification of the "class" of employees to which the applicant belonged when his relevant injury happened in July 1991; and

* whether the amount per week payable to employees in that class has subsequently increased or decreased as a result of, relevantly, the making of a certified agreement.

THE SUBMISSIONS

32. Mr Jones (for the applicant) submitted in essence that the class of employees to which the applicant belonged at the time of his injury in July 1991 was to be identified by reference to Schedule A to MIMSA. The class of employees specified in Schedule A comprised the crew which manned "small ships" operated by the respondent in the coastal shipping trade off the north-west coast of Australia. More specifically, the applicant belonged, at the relevant time, to the sub-class of "cook/seaman" within the abovementioned class. He submitted that, although both the vessels plying the north-west coastal trade routes and the employers operating those vessels have changed since 1991, the relevant class of employees - namely, the crew complement manning those vessels, including the occupation of "cook/seaman" - has not changed. Finally, he submitted that as from 16 October 2000 the amount per week payable to employees in that class (including cook/seaman) was increased as a result of the 2000 certified agreement and that, accordingly, the applicant's "normal weekly earnings" must be increased by the same proportion with effect from the same date, in accordance with s 13(6) of the Act, for the purpose of calculating his compensation entitlements pursuant to s 31 of the Act.

33. Mr Naseem (for the respondent) submitted that Schedule A to MIMSA was "Stateships specific", and not "industry wide", in that it applied only to members of the Maritime Union of Australia ("MUA") who were employed by the respondent on board the "small ships" specified therein and "any other small vessels of similar class and manning operated by" the respondent. Likewise, he submitted that the 2000 certified agreement is not "industry wide" and applies only to Norwest Shipping and the MUA members who are employed by Norwest Shipping on board the MV Kimberley. He submitted that the MV Kimberley is a different class of vessel from the MV Roberta Jull and the other vessels referred to in Schedule A to MIMSA, and that the members of the crew of the MV Kimberley (who are paid under the 2000 certified agreement) constitute a different class of employees from that comprised by the members of the crews of the MV Roberta Jull and the other vessels referred to in Schedule A to MIMSA. He also submitted that it cannot be said that it was probable that, had the applicant not been injured in July 1991, he would have secured employment as a cook/seaman on the MV Sina or the MV Kimberley. Accordingly, he submitted that s 13(6) of the Act has no application in the applicant's case and that the applicant's "normal weekly earnings" continue to be governed by MISA (which superseded MIMSA in 1999).

CONSIDERATION AND FINDINGS

To what class of employees did the applicant belong when his injury happened in July 1991?

34. The word "class" is not defined in the Act. Given that the word "class", as appears in s 13(6) of the Act, is an ordinary English word, it is appropriate to have regard to relevant dictionary definitions of that word in order to ascertain its meaning for the purposes of that subsection. In The Macquarie Dictionary (3^rd ed, 1997) the appropriate definition of "class" is:

"1. a number of persons, things, animals, etc., regarded as forming one group through the possession of similar qualities; a kind; sort."

In The New Shorter Oxford English Dictionary (1993) the appropriate definition of "class" is:

"4 gen. A group of people or things having some attribute in common; a set, a category."

35. The Tribunal accepts that the Act is beneficial legislation and that the concept of "class" of employees, for the purposes of s 13(6) of the Act, should not be understood in such a narrow sense as would tend to frustrate the evident purpose of s 13(6), namely, to ensure that the amount of incapacity payments received by an injured employee under the Act is kept in line with the amount of salary or wages payable, from time to time, to employees of the same class as that to which the injured employee belonged at the time of the injury.

36. In the Tribunal's opinion the "class" of employees to which the applicant belonged at the time of his injury in July 1991 is appropriately described as that of cook/seaman within the wider class of the crew of the number and composition manning small ships, within the meaning of Schedule A to MIMSA, which operated in the coastal shipping trade off the north-west coast of Australia. It is not appropriate, in the Tribunal's opinion, to define that class more narrowly so as to confine it to employees employed by the respondent alone because the essential character of the class of employees is determined by the nature of their employment, their working conditions, remuneration and other entitlements, not by the identity of their employer (which may, of course, change from time to time). The Tribunal notes the recent decision in Re Thompson and Comcare (2002) 69 ALD 762, which was concerned with the identification of a particular class of employees for the purposes of (the former) s 8(9) of the Safety, Rehabilitation and Compensation Act 1988, and regards the approach taken by it in the present case to be consistent with the approach taken by the Tribunal in that case.

Has the amount per week payable to employees in the abovementioned class subsequently increased or decreased as a result of the making of a certified agreement?

37. It is common ground that the 2000 certified agreement is a "certified agreement" within the meaning of the Workplace Relations Act 1996 and of s 13(6) of the Act. It is also common ground that the amount per week payable to employees in accordance with the 2000 certified agreement is greater than that payable under MISA (which superseded MIMSA in 1999) to the abovementioned class of employees to which the applicant belonged in July 1991. The question for the Tribunal's determination is whether the class of employees covered by the 2000 certified agreement is the same as, or different from, the abovementioned class of employees to which the applicant belonged in July 1991.

38. According to the evidence before the Tribunal, since the introduction by the respondent of "small ships" to operate the north-west coastal shipping routes in the late 1980s (which replaced the much larger vessels, with a crew of approximately 30 members, which formerly operated those routes), although the ships themselves have changed - namely, from the "Jon Sanders class" to the "Roberta Jull class" to the MV Sina and, finally, to the MV Kimberley - and have gradually increased in size and container cargo capacity, the number and composition of the complement of those ships have not changed. That complement continues to comprise 11 crew members, including a "cook/seaman" who performs substantially the same duties as those performed by the applicant as cook/seaman on board the MV Roberta Jull in July 1991. The Tribunal does not regard the evidence of Mr Viola as differing substantially from the above propositions; his evidence was concerned more with purporting to distinguish the MV Sina and the MV Kimberley from the "Jon Sanders class" and the "Roberta Jull class" of vessels than with distinguishing between the working conditions and the duties of the crews serving on those vessels. As regards the working conditions and duties of the crews, the Tribunal accepts the evidence (based on first-hand experience) of the applicant (who served as cook/seaman on the MV Roberta Jull in 1991), David Mitchell (who served as cook/seaman on the MV Sina from 1995 to 1999) and, most notably, Peter Groessler (who served as cook/seaman on "Jon Sanders class" vessels in 1989, a "Roberta Jull class" vessel in 1994, the MV Sina in 1997 and the MV Kimberley in 2002. Mr Groessler was the only witness who had first-hand experience working as cook/seaman on all of the abovementioned vessels and his evidence was that his work duties as cook/seaman remained the same across all of those vessels. As regards the vessels themselves, the Tribunal notes that Mr Viola, in his oral evidence, was prepared to acknowledge that the MV Sina was a "small ship" (as least in the sense that its crew were paid at the same rate as the crews of the other small ships), and that Mr Woollams, the General Manager of Norwest Shipping which operates the MV Kimberley (a larger vessel than the MV Sina), in his oral evidence described the MV Kimberley as a "coastal small ship". In the Tribunal's opinion, the MV Sina and the MV Kimberley should be classed as "small ships", in common with the "Jon Sanders class" and the "Roberta Jull class" vessels, as distinct from the much larger vessels (namely, the MV Pilbara, the MV Irene Greenwood and the MV Koolinda) that were operated by the respondent prior to the introduction of the "small ships" in the late 1980s.

39. The employees covered by the 2000 certified agreement comprise "the MUA members who are employed aboard the `Kimberley' pursuant to the provisions of the Award" (namely, MISA) and "this Agreement": see cl 4.1 of the 2000 certified agreement. On the basis of the evidence before it the Tribunal finds that, because the number, composition and work duties of those employees are the same as in the cases of the crew members employed on board the MV Sina, the "Roberta Jull class" vessels and the "Jon Sanders class" vessels, they comprise the same class of employees as that to which the crew members (including the applicant at the time of his injury in July 1991) employed on those vessels also belonged (as described in paragraph 36 above) - namely, the crew of the number and composition manning small ships, within the meaning of Schedule A to MIMSA, which operated in the coastal shipping trade off the north-west coast of Australia. It necessarily follows from that finding that, as a result of the 2000 certified agreement, the amount per week payable to the employees in that ongoing class - which includes the subclass of "cook/seaman" to which the applicant belonged at the time of his injury in July 1991 - increased, within the meaning, and for the purposes, of s 13(6) of the Act.

CONCLUSION

40. On the basis of the abovementioned findings the Tribunal concludes that, for the purpose of calculating the applicant's ongoing compensation entitlements pursuant to s 31 of the Act, his "normal weekly earnings", within the meaning of s 13 of the Act, must, in accordance with s 13(6), be increased by the same percentage as that by which the amount per week, payable to a cook/seaman within the abovementioned class of employees covered by the 2000 certified agreement, was increased by that agreement.

DECISION

41. For the above reasons the Tribunal:

* sets aside the decision under review; and

* in substitution therefor , decides that the amount of compensation by way of incapacity payments payable to the applicant, pursuant to s 31 of the Act, in respect of his right knee injury sustained on 27 July 1991, is to be calculated on the basis that, with effect from 16 October 2000, his "normal weekly earnings", within the meaning of s 13 of the Act, are increased by the same percentage as the amount per week payable to an employee classified as a cook/seaman under the 2000 certified agreement was increased by that agreement.

42. The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings (not including any costs incurred by the applicant in relation to the "Application for Extension of Time for Lodging Application for Review" lodged on 4 September 2002 - see s 92(3) of the Act), such costs, in the absence of agreement, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Mr M Allen, Member

Signed: .........(sgd V Wong)....................................

Associate

Date/s of Hearing 29-30 August, 20 September 2002

Date of last Submissions 4 October 2002

Date of Decision 28 April 2003

Counsel for the Applicant Mr D Jones

Solicitor for the Applicant Kuscevich & Associates

Counsel for the Respondent Mr W Naseem

Solicitor for the Respondent Cocks Macnish