C2001/3950, Transcript of Proceedings [2001] AIRCTrans 2315 (13 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 9067
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

C2001/3950

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

and

ENCORE PACKAGING PTY LTD

Notification pursuant to section 99 of the Act
re notification of an industrial dispute -
log of claims

MELBOURNE

THURSDAY, 23 AUGUST 2001

PN1

MR T. WOODS: I appear with MR A. MILLER for the CFMEU.

PN2

MR G. PELS: I appear for the Australian Industry Group on behalf of our member, Encore Packaging Pty Ltd; appearing on behalf of the company is MR D. HOLCKNER.

PN3

THE COMMISSIONER: Mr Woods.

PN4

MR WOODS: Thank you, Commissioner. Commissioner, the CFMEU notified the Commission of an alleged industrial dispute between itself and Encore Packaging Pty Ltd, a subsidiary of Encore Industries Pty Ltd, in respect of a log of claims that had been served upon the company on 9 July 2001. Chris Northover, the Federal Secretary of the Pulp and Paper Workers Branch of the CFMEU was provided authority by the CFMEU's Forestry Division Executive to serve a letter of demand and log of claims upon Encore Packaging Pty Ltd for the purpose of establishing wages and conditions of employment for workers engaged by that company. I tender to the Commission a copy of that authority.

PN5

THE COMMISSIONER: Thank you, Mr Woods.

EXHIBIT #A1 UNDATED LETTER FROM MR SMITH TO MR NORTHOVER REGARDING ENCORE PACKAGING PTY LTD

PN6

MR WOODS: Thank you. On the basis of that authority a letter of demand and log of claims was served upon the company on 9 July 2001. I tender to the Commission a copy of the letter of demand and log of claims.

PN7

THE COMMISSIONER: Thank you.

EXHIBIT #A2 LETTER OF DEMAND AND LOG OF CLAIMS DATED 9/07/2001 FROM THE CFMEU FOREST PRODUCTS DIVISION TO MR HOLCKNER DIRECTOR ENCORE PACKAGING

PN8

MR WOODS: I will also tender, Commissioner, the - it should have been attached I think - the copy of the registered mail receipt of the service of that log of claims and letter of demand.

EXHIBIT #A3 REGISTERED POST RECEIPT

PN9

MR WOODS: The letter of demand requested that the company implement the terms and conditions of the log of claims within seven days. No response was received to the correspondence. The CFMEU then notified the Commission of the alleged industrial dispute between itself and the company. The CFMEU seeks a finding of a dispute by the Commission. If the Commission pleases. Thank you.

PN10

THE COMMISSIONER: Thank you, Mr Woods. Mr Pels.

PN11

MR PELS: Yes, Commissioner, the company acknowledges receiving a letter of demand and a log of claims issued by the union, dated 9 July 2001. Now, the company rejects the demand contained therein and the company also objects to a dispute finding on the basis that there is a log of claims issued just what, less than 18 months ago, over a similar issue, and we can't see the reason as to why the union would want to issue another log of claims on the company. We haven't been told as to why they have issued the log of claims or why they are seeking a dispute finding, but there is already one which applies to this company and we can't see any reason for - there be another dispute finding found in relation to a dispute between Encore Packaging and the CFMEU.

PN12

THE COMMISSIONER: Mr Pels, do I understand you to say that there is actually a pre-existing dispute finding of the Commission with respect to the company?

PN13

MR WOODS: I can perhaps if that is acceptable provide some clarification.

PN14

MR PELS: Yes.

PN15

THE COMMISSIONER: It would help, Mr Woods. Thank you.

PN16

MR WOODS: Thank you, Commissioner. The CFMEU did some 18 months ago - I don't have the detail in front of me - serve a further subsidiary of Encore Industries Pty Ltd, Encore Tissue Pty Ltd, with a letter of demand and log of claims and it is the case that that matter is in discussion, as directed by the Commission, between the company and the union. However, this is a separate subsidiary company. There have been no discussions between the company and the CFMEU or the Encore Industries Pty Ltd and the CFMEU about drawing those two together. So as I understand, correct procedure would be for us to notify because it is a separate company.

PN17

MR PELS: Yes, Commissioner, before Mr Woods was about to clarify that I got instructions that that is the case. Actually the other dispute was bound over, Encore Tissue Pty Ltd.

PN18

THE COMMISSIONER: Fine. And this one is with respect to Encore Packaging?

PN19

MR PELS: Yes.

PN20

THE COMMISSIONER: All right. And so what is - in the light of that clarification what is the company's position then with respect to the dispute finding?

PN21

MR PELS: If the unions are seeking to create an industrial dispute to have the company roped into a particular award, we say that the appropriate award is one which the union doesn't want coverage over. That would be the Graphic Arts General Award 2000. So to create a dispute in actual fact would only generate a lot of ambiguity and uncertainty on behalf of all parties: the union, the company and the employees, over what terms and conditions of employment should apply. The company's position would be that the type of work that they are doing, the Graphic Arts General Award 2000 is the appropriate award and I don't believe the CFMEU has responded to that award. If the Commission pleases.

PN22

THE COMMISSIONER: Thank you, Mr Pels. Mr Woods, did you wish to comment?

PN23

MR WOODS: I certainly do, Commissioner. There are a number of matters with respect to this. Firstly, the CFMEU's constitutional coverage incorporates rules that allow it to cover work that is undertaken at Encore Packaging Pty Ltd. Equally, the CFMEU covers a number of other, via a different award, to that mentioned by Mr Pels, a - at least one other workplace that makes precisely the same products as those manufactured by Encore Packaging Pty Ltd and on that basis the CFMEU seeks the finding of a dispute with itself, not in respect of what award but rather its constitutional coverage and the fact that it also already covers a workplace that covers similar types of work. If it pleases the Commission.

PN24

THE COMMISSIONER: Mr Pels, did you wish to say anything further?

PN25

MR PELS: Yes, Commissioner. They may have constitutional coverage but the award they seek, which they say they apply, I understand is a consent award amongst a number of major manufacturers, and it is a consent award which I think is the Pulp and Paper Making Manufacturing Award or a similar type. My understanding is that is not - it doesn't have any descriptors as per coverage, it is purely a consent award which those companies agreed to be roped into that particular award because it suits the companies and the union.

PN26

But the important element out of the dispute finding here would be that the Graphic Arts General Award 2000 applies and Mr Woods hasn't rebutted the fact that his union is not party to that award.

PN27

THE COMMISSIONER: Aren't we jumping the gun slightly at the moment? All the Commission has before it at the moment is an application for a dispute to be found. In terms of what happens after that, that is not actually the subject of these proceedings. That is a matter that the parties - the Commission normally suggests to the parties - or directs the parties to go into - to have discussions concerning. That is the next step which may lead to a roping-in award application or it may not. But that is not what is before me at the moment. Simply what is before me is an application for a dispute to be found.

PN28

I mean I hear what you say but I don't think that gets in the way of a dispute finding, because all the other - as far as I can tell, Mr Pels, all the other requirements for the Commission to find a dispute finding have been set out before the Commission this morning.

PN29

MR PELS: Well, on behalf of the company I am not confident - I haven't been convinced or shown or given evidence that they can have constitutional coverage over these employees.

PN30

MR WOODS: Commissioner, I can provide copies - extracts from - uncertified extracts admittedly, but extracts from the CFMEU's rules that provided indication of the CFMEU's coverage of any occupation connected with manufacture, processing and supply of pulp, paper board, straw board, a range of materials, etcetera, paper bags or any similar commodity. That would in our view, and has in the past satisfied the Commission, that the CFMEU has constitutional coverage for the work that is engaged in at Encore Packaging Pty Ltd and I am happy to tender that into the Commission.

PN31

THE COMMISSIONER: I think you need to, Mr Woods. Thank you.

PN32

MR WOODS: I would just add if I could that that is - this extract is rule 2, sub-rule 3(c)(ii).

PN33

THE COMMISSIONER: Can you say that again slowly. It was rule - - -

PN34

MR WOODS: It is rule 2.

PN35

THE COMMISSIONER: Yes.

PN36

MR WOODS: Sub-rule 3(c)(ii). If it pleases the Commission.

EXHIBIT #A4 EXTRACT FROM THE CFMEU RULES - EXTRACT SPECIFICALLY OF RULE 2 SUB-RULE 3(c)(ii)

PN37

THE COMMISSIONER: Mr Woods, before I move to Mr Pels, can you explain to me, please, as to the business of Encore Packaging, what they do?

PN38

MR WOODS: Yes. Commissioner, our understanding is that the business of Encore Packaging Pty Ltd is the manufacture of a number of products, what might broadly be termed egg carton products made out of pulped fibre, generally recycled pulped fibre, primary source being wood fibres before they have been recycled, and going into, as I say, the manufacture of a form of paper board, albeit in a moulded form of paper board. If it pleases the Commission.

PN39

THE COMMISSIONER: Mr Pels, are you in a position to respond to Exhibit A4?

PN40

MR PELS: Yes, Commissioner, I have had some discussions with the company on the basis of what I have already put on transcript in regard to award coverage. The union is cognisant of that. We don't have any objection to a dispute finding but obviously if the - we put on the record that if the union intend to rope the company into an award which is not close to the Graphic Arts, or not the Graphic Arts Award, obviously we would be objecting. Thanks, Commissioner.

PN41

THE COMMISSIONER: Thank you, Mr Pels. On the basis of the submissions this morning and all the exhibits that have been tendered, the Commission pursuant to section 101 of the Workplace Relations Act 1996 determines as follows:

PN42

(1) that an industrial dispute within the meaning of the Act exists between the Construction, Forestry, Mining and Energy Union and Encore.

PN43

Now, let me just get the correct name. Is it the correct name, Encore Packaging Pty Ltd?

PN44

MR WOODS: Yes.

PN45

MR PELS: Yes, Commissioner.

PN46

THE COMMISSIONER: Thank you:

PN47

and Encore Packaging Pty Ltd of 37 to 41 Gilbertson Road, Laverton North, Victoria, 3026, being an employer identified in the attachment to the notification of dispute lodged by the CFMEU in the Victoria Registry on 19 July 2001;

PN48

(2) that the matters in dispute are the items contained in the letter of demand and log of claims dated 9 July 2001, as posted on or about the same day by the CFMEU, and attached to the above-mentioned notification of dispute filed in the Victoria Registry;

PN49

(3) that the dispute exists throughout the Commonwealth of Australia and its Territory.

PN50

Gentlemen, I think the next step, as we alluded to earlier in these proceedings, is for the parties to hold discussions to determine the path forward from here and I direct the parties to do that. If the parties find that they need some assistance from the Commission with respect to those discussions, the Commission is available to provide that assistance to the parties. On that basis then the Commission stands adjourned.

ADJOURNED INDEFINITELY [12.47pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 UNDATED LETTER FROM MR SMITH TO MR NORTHOVER REGARDING ENCORE PACKAGING PTY LTD PN6
EXHIBIT #A2 LETTER OF DEMAND AND LOG OF CLAIMS DATED 9/07/2001 FROM THE CFMEU FOREST PRODUCTS DIVISION TO MR HOLCKNER DIRECTOR ENCORE PACKAGING PN8
EXHIBIT #A3 REGISTERED POST RECEIPT PN9
EXHIBIT #A4 EXTRACT FROM THE CFMEU RULES - EXTRACT SPECIFICALLY OF RULE 2 SUB-RULE 3(c)(ii) PN37