C0089/699, Transcript of Proceedings [2001] AIRCTrans 3055 (12 November 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 0952
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00896 of 1999
C2001/4976

STANDARD HOURS (OIL COMPANIES) AWARD 1974

Review under Item 51, Part 2, Schedule 5,
Transitional WROLA Act 1996 re conditions
of employment

Application under section 33 of the Act on
the Commission's Own motion - Award simplification
re respondency

MELBOURNE

10.10 AM, FRIDAY, 26 OCTOBER 2001

Continued from 14.9.01 in Sydney

THE FOLLOWING HEARING WAS CONDUCTED
BY VIDEO-CONFERENCE

PN59

MR S. WOOD: I appear for the Australian Workers Union. I also appear for the CEPU.

PN60

MR G.N. WHITEHEAD: I appear for the Australian Manufacturing Workers Union.

PN61

MR P. RICHARDSON: I appear for the National Union of Workers.

PN62

MS N. THOMAS: I appear for Basell Australia Pty Limited, formerly Shell Chemical Australia Pty Limited. I have formerly been granted leave to appear.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, that will continue, Ms Thomas.

PN64

MR A. FARR: I appear on behalf of Esso Australia Pty Limited, on behalf of Mobil Oil Australia Pty Limited, and - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Esso Australia Limited?

PN66

MR FARR: Pty Limited, your Honour; that is obviously an issue in relation to the respondency today.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, and sorry, who else, Mr Farr?

PN68

MR FARR: Mobil Oil Australia Pty Limited.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes; sorry, that is Pty Limited again?

PN70

MR FARR: Pty Limited as well, your Honour, and thirdly Mobil Refining Australia Pty Limited.

PN71

THE SENIOR DEPUTY PRESIDENT: Mobil Refining.

PN72

MR FARR: Australia Pty Limited, and fourthly, your Honour, Esso Chem Australia Limited. Your Honour, I am currently at Esso, but I am a legal practitioner so I just raise that; I don't seek your leave to appear as I am an employee down at Esso now.

PN73

THE SENIOR DEPUTY PRESIDENT: In that case, leave is not required, yes, thank you, Mr Farr.

PN74

MR W.R. ANDERSON: If the Commission pleases, I am appearing on behalf of BP Australia Limited.

PN75

THE SENIOR DEPUTY PRESIDENT: BP Australia Limited.

PN76

MR ANDERSON: Yes. BP Fremantle Limited, BP Refinery Kwinana Limited and BP Refinery Bulwer Island Limited.

PN77

THE SENIOR DEPUTY PRESIDENT: It is BP Refinery Bulwer Island Limited.

PN78

MR ANDERSON: That is right, and in addition, I am appearing on behalf of ALMC Pty Limited.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Anderson. Who have we got in Sydney?

PN80

MR K. BROTHERSON: If the Commission pleases, solicitor from Blake Dawson Waldron; I would seek leave to appear for the Shell Company of Australia Limited, and Shell - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Shell?

PN82

MR BROTHERSON: The Shell Company of Australia Limited.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, and your name is Brotherson, is that correct?

PN84

MR BROTHERSON: That is correct, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Sorry about that. Yes.

PN86

MR BROTHERSON: Also for Shell Refining Australia Pty Limited.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN88

MR BROTHERSON: I have with me also MR BARTRAM who appeared on the last occasion.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Brotherson. Yes, who is next?

PN90

MR C.J. GEEVES: Your Honour, I appear for Caltex Australia Petroleum Pty Limited.

PN91

THE SENIOR DEPUTY PRESIDENT: Caltex Australia Petroleum Pty Limited.

PN92

MR GEEVES: Correct. Caltex Refineries (Queensland), or (Qld) Pty Limited.

PN93

THE SENIOR DEPUTY PRESIDENT: Just say that again. Caltex Refineries.

PN94

MR GEEVES: Yes, (Qld) Pty Limited, Caltex Refineries (New South Wales) or (NSW) Pty Limited, and Caltex Lubricating Oil Refinery Pty Limited.

PN95

THE SENIOR DEPUTY PRESIDENT: That is Oil Refinery Pty Limited?

PN96

MR GEEVES: Yes, if the Commission pleases.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Geeves.

PN98

MS L. DOUST: Your Honour, I appear for the CFMEU.

PN99

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Doust. Does that complete - no, it does not quite complete the appearances.

PN100

MR K. HARVEY: Looks like I got here just in time, your Honour. I apologise for my late arrival; from the Australian Services Union; I think we did write yesterday indicating that we may be late, for which we apologise.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Right, well, I think that completes the appearances. I indicated on the last occasion that I foresaw various difficulties with respondency in relation to this award, and that I thought it appropriate to give parties an opportunity to consider their positions and also to address me. I do have a letter from Quenos dated yesterday's date from a Mr Ron Last, the Employee Relations Manager who reiterates that Quenos was previously known as Altona Petrochemical Company Limited, and he respectfully submits that the Quenos Company is no longer an oil-industry based business, and therefore should not continue to be named as a respondent to the Standard Hours Oil Companies Award 1974. It would appear that Mr Last has considered that sufficient by way of submission; I note that on the transcript. Now, where are we, ladies and gentlemen? Who wants to address me first?

PN102

MR WOOD: Well, if the Commission pleases, our understanding after having some brief discussions certainly in Melbourne and some correspondence that I have received from Caltex, that essentially we don't see - and I can stand to be corrected on this - but I don't see that there is going to be a problem with the companies that are present here today, that there is a necessity in our submission to correctly identify the company name changes that have occurred. I don't think there is an issue with anyone, as I say, here today, about that.

PN103

THE SENIOR DEPUTY PRESIDENT: Nobody is trying to escape respondency, as I understand it. It is a matter of just sorting it out.

PN104

MR WOOD: Yes, that is correct; I think everyone here today as I say is more about sorting it out rather than escape respondency. We however would like to make some submissions about Quenos' request to not be bound by the Standard Hours Oil Companies Award because we certainly don't share the same view as they have, that because they see that they are not an oil company any longer, therefore they are not caught or bound by respondency to this award.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, well, I can indicate, Mr Wood, that they certainly need far more than a one-page facsimile making that assertion before I would do anything about it. I am more concerned though whether to know - and you may or may not be able to help me - is Quenos a successor to the Altona Petrochemical Company Limited, or did that company change its name to Quenos?

PN106

MR WOOD: No, I believe that they are - the company underwent a number of changes some years ago back in the late '80s, early '90s. There were some changes undertaken there, and different parts of the business were sold off and re-established, but our view is that they are caught by the transmission of business provisions. Senior Deputy President Polities had dealt with a similar type question in the long service leave simplification of the award - came to the same view about another company who have been sold off as part of the Shell assets, and were caught by transmission of business.

PN107

I think since then the Shell Companies brought some of that business back, and you will hear something about that later today, but in the case with - the company was at the time called Montel - Senior Deputy President Polities expressed a view that they were caught by the transmission of business, but if we wanted to get them named in their own right, we would have to go through the roping-in exercise and have them named in their own right, but in any event, they were caught by the transmission business.

PN108

Now, I think that is a matter for the unions to decide as to whether, given Quenos' very brief view about whether they are caught or not, whether we continue to rely on the transmission of business or we go to the problems of getting them properly named in the award, but as we see it, that is a separate exercise or something open to the union.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes, well, it may be more than a matter of just getting them properly named, and that is why I have caused all this trouble to all of you people of having to come back before me again, but there are real questions that arise - I don't know what the answers are and I must confess - but do I have the power to vary an award as against a company called Australian Petrochemical Company Limited that no longer exists?

PN110

It is all very well to say that Quenos is a successor to that company and bound by the 1974 Award, but knowing that APC for instance no longer exists, is there an entity - a respondent against whom I can vary the award, and does the variation in any case bind a successor who has already succeeded? These are issues that I don't ask you to address me on, but in my previous life I had some dealings with successor provisions in the Act and court cases involving it, and I did have cause to at least look at some of these problems, and that is why I brought this matter on of my own motion because it is an opportunity for the - not only for the unions but for the companies that want to have certainty as well to ensure that there is a sound jurisdictional foundation for the simplified award. I am not just trying to be difficult.

PN111

MR WOOD: No, well, in our submission we would say that the Commission has got the jurisdictional foot in because if you follow that argument through as to whether a successor ..... can have an award varied that refers to another party - if you couldn't, the provisions of transmission would almost be worthless to a certain extent, that if there was no jurisdictional footing to do that merely because the name remained the same, we say that they are bound by it because they are actually named respondent.

PN112

It is not like being caught by being a member of an association or whatever; there is a schedule of people, there was a company doing work, and might I say that the work that they were doing in the early '80s or even in the late '70s when this award was created, is not too dissimilar to what they are doing now. They weren't an oil company per se where they are an oil refinery -most of the parties that sit here before you today actually have oil refineries in the country, and are, you know, well and truly in the oil industry.

PN113

APC, when they were named respondent, were not an oil refinery - they weren't then, and they are not now, but the changing a process does not, you know, change their respondency, and we say that the Commission does have jurisdiction to vary the award - I share the same view as Senior Deputy President Polities that we can't just automatically go and change their name if they are a different company that that is something that is up to the unions to go and re-serve in terms of dispute finding and have them roped in and properly named, but the company exists -APC exists, at least in the - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Well, it does not. That is the trouble.

PN115

MR WOOD: - - - theory of transmission of business. They don't exist in name, but they exist because of the provisions of transmission of business, and they continue to exist because business is still being carried out, there is work still being carried out, people still working under that, and that they have been transmitted to there. The same thing happened, as I say, in the Long Service Leave Award. Montel - - -

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the way you are putting your submission.

PN117

MR WOOD: Yes. Montel is still mentioned in that long service - Shell Chemical is still mentioned in that award, not Montel, but Montel was still there, and the award was varied even though the company, you know, to that extent didn't exist. If the Commission pleases.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Wood. Anybody else got anything to say?

PN119

MR HARVEY: Your Honour, I notice from the transcript when this matter was last before you and Mr Nucifora was representing the union, there was a question of the correct title of the union to be shown in this award, and you indicated at that point that you would like to be addressed on that at a future date. I am not sure whether you want me to do that now.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN121

MR HARVEY: Yes, thank you, your Honour. Perhaps the best way to do this is, I think on a previous occasion Mr Nucifora for the union indicated that the Australian Municipal Administrative, Clerical and Services Union was a union formed by amalgamation of three unions in 1993. The Federated Clerks' Union which was the organisation which was bound by this award was as Mr Nucifora indicated on the last occasion in his words, you know, the host union for that amalgamation, and the name of that organisation was then changed to the Australian Municipal and Administrative Clerical Services Union.

PN122

Perhaps the simplest and quickest way to illustrate that, your Honour, is simply to hand up a copy of the current certificate of registration of the union now which shows the name change.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Harvey.

PN124

MR HARVEY: If anybody else at the Bar table wants one in Melbourne, I have copies. There is a second document which might be helpful, your Honour, which I might hand up as well, and the second document is a print, Print K8162, decision of Deputy President Williams, which indicates that the Commission had approved a ballot with regard to a proposed amalgamation of the Federated Clerks Union of Australia, Australian Municipal Transport and Energy, Water Ports, Community and Information Services Union, which was also then known as the ASU, and the Federated Municipal and Shire Council Employees Union of Australia, the MEU, and indicates that the ballot has now been completed and as a result of that ballot, the proposed amalgamation has been approved.

PN125

That particular determination does not show the full names, but the certificate of registration which I have also handed up to your Honour, if you can read through the cross-outs, shows that an organisation originally known as the Australian Clerical Association then became known as the Federated Clerks Union of Australia - I think that was back in 1917, and then became the Australian Administrative, Clerical and Services Union as a result of that amalgamation I just referred to on 1 July 1993.

PN126

I think that probably is sufficient documentary evidence, your Honour, but if there is anything further you would wish from the union we would be able to supply; if the Commission pleases.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. No, I think that is sufficient. Thank you, Mr Harvey.

PN128

MR WHITEHEAD: Your Honour, if the Commission pleases, in the same vein the Australian Manufacturing Workers Union which is the short name for the Automotive, ....., Metals, Engineering, Printing and Kindred Industries union, is not named in this award. Its earlier predecessor is named, and as a result of amalgamations, we are now what we are, and I would refer you to section 253(t) in relation to the following on of respondency to various awards including this one, so I will just point that out, that our name would need to be updated as well.

PN129

I would just like to make a couple of brief comments on the issue of the respondency of Quenos; I would support the submission put to you by Mr Wood so far, and I just indicate that I notice, having come into this matter late and not having a lot of time to do some research, but I am aware - I notice that the award was made by the President of the Commission at the time, Sir John Moore, or bench comprising of Sir John Moore, Robinson J and Mr Commissioner Neale, to settle a dispute between Altona Petrochemical Company and Others v the AMWU, or our predecessor.

PN130

So I just submit to the Commission the company appearing to say that it is not in the industry any more by virtue of that letter you read out this morning, your Honour, but I mean, the President of the Commission at the time was dealing with a dispute between Quenos' predecessor and was settling a dispute. As far as I am aware, there was no dispute as to whether the industry was correct or not at the time - I mean, the other companies - the parties to that proceeding I think - - -

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Whitehead, you don't have to trouble yourself with that. I wouldn't remove them on the basis of that, that - - -

PN132

MR WHITEHEAD: Thank you, your Honour.

PN133

THE SENIOR DEPUTY PRESIDENT: I am more interested in the question of - - -

PN134

MR WHITEHEAD: The dispute exists.

PN135

THE SENIOR DEPUTY PRESIDENT: The character of the company was, the company exists, not whether it is in the industry.

PN136

MR WHITEHEAD: Well, thank you, your Honour. In that vein, what I was going to say - submit is that if the companies say that it is not in that industry, well then, who is the employer that is employing the employees which Mr Wood referred to - our members, our respected memberships - they are going on performing duties and functions that they have performed for a number of years - who is the employer? I think my colleague Mr Wallace requested - or suggested to the Commission when it met the last time that it might be helpful if directions were issued, I think, to flush out who the company actually is that is employing the employees in this establishment so that - - -

PN137

THE SENIOR DEPUTY PRESIDENT: Is there any uncertainties - I assume that it was Quenos Pty Limited?

PN138

MR WOOD: That is correct, they are - they don't say that they are not the employer, your Honour.

PN139

THE SENIOR DEPUTY PRESIDENT: No.

PN140

MR WHITEHEAD: That clarifies that for me; thank you, your Honour.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Richardson.

PN142

MR RICHARDSON: Your Honour, in respect of the union's respondency, schedule B, the registered name of the organisation that I represent is the National Union of Workers, and that name change occurred in 1992 if my memory serves me correctly, so the organisation is no longer known or registered under the Act as the National Union of Storeworkers, Packers, Rubber and Allied Workers.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes, and that was purely as a result of the name change?

PN144

MR RICHARDSON: That is correct. In respect of Quenos which principally employs members of the AWU and the National Union of Workers, unfortunately yet characteristically the NUW has a different view, and that view is tempered by one of caution.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes.

PN146

MR RICHARDSON: That is that whilst we don't accept the correspondence - or the contents of the correspondence to which you have referred, we do say that there are issues as to whether or not respondency to this Award and the benefits that it therefore provides do in fact apply as a matter of law to Quenos. Mr Wood is correct in the observations that he recalled, his Honour, Senior Deputy President Polities making when the Standard Hours Oil Companies Award was simplified, but there were also some issues in relation to some companies there.

PN147

One such example if I could direct your attention, your Honour, to the current schedule A of this award, is that there appears there amongst other companies a business or a company known as Australasian Lubricants Manufacturing Company Pty Limited.

PN148

THE SENIOR DEPUTY PRESIDENT: On the current schedule A to the award?

PN149

MR RICHARDSON: Yes, and that is as a consequence of a roping-in award - I am assuming your Honour has a consolidated copy.

PN150

THE SENIOR DEPUTY PRESIDENT: I thought I did, but it is not there, so if you just bear with me for a moment.

PN151

MR RICHARDSON: Perhaps I am assuming all parties do. It is the third variation to the order if that assists. Unfortunately I do not have the print number.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, I have got an award that purports to be varied as to 16 October 2000 in the loose leaf version but I don't have any roping in awards.

PN153

MR RICHARDS: I believe - - -

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, I do. I am sorry, I do and you were talking about the Australasian Lubricants Manufacturing Company Pty Limited?

PN155

MR RICHARDS: That is correct, yes. Now by way of example that company is a joint venture company between BP Australia and Caltex Australia that was formed in late 1999 although I might stand to be corrected on that, and subsumed the various operations of those businesses in the manufacture and distribution of lubricants, and it was the view of my organisation at the time that the standard hours award was the subject of item 51 proceedings that the most appropriate approach to ensure the ongoing benefits of various awards was to provoke the jurisdiction of the Commission by means of a dispute finding and seek a roping in award.

PN156

Proceedings before Commissioner Lewin in October of last year brought about - in respect of this award - a roping in award and I believe the print number is Q8133, although I stand to be corrected on that, which had the effect of including Australasian Lubricants Manufacturing Company within the schedule of the award or within the body of the award.

PN157

THE SENIOR DEPUTY PRESIDENT: Yes, and your union, yes.

PN158

MR RICHARDS: It would be our view, tempered by want of caution, that the same approach is appropriate with Quenos, and obviously that then raises an opportunity for them to, if they so desire, argue that they should not be respondent to the award for whatever reasons. Quenos is, as I understand, a third or fourth generation business in that whilst part of its functions - or part of its operations were originally performed by the company Australian Petroleum Company Limited. There are in fact several other companies tied up within Quenos and in fact immediately - at least in respect of my organisation's membership - immediately prior to being known as Quenos it was called Cemcorp, so we urge a cautious approach so as to ensure that on the one hand employees are not denied the benefits of this award and those benefits aren't considerable, but also that proper respondency is effected.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, it could be a lawyers' field day if bridge proceedings were sought to be taken against Quenos I suspect.

PN160

MR RICHARDS: Well it could and one wonders if the correspondence you have received isn't - well is perhaps not designed to avoid the benefits of such an award but perhaps to explore alternative respondency. If I could just, while I am on my feet, refer to two other matters and I don't wish to put Mr Anderson from BP on the spot but he may refer to those; the first is that there is within the existing schedule a company known as Castrol Australia Pty Limited.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes.

PN162

MR RICHARDS: That company was subsumed by BP Australia in approximately April of last year and subject to the finalisation of these proceedings, there may no longer be, in our submission, a need for Castrol to remain a respondent.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes, because BP Australia is a respondent.

PN164

MR RICHARDS: Although at this point in time, your Honour, there are a small group of employees and I don't believe it would be more than five or six who perform clerical functions who are members of my organisation who remain employed by Castrol Australia and will remain employed until notionally the end of this year when those functions will cease to be performed by Castrol and will be assumed by BP Australia. Further to that and as a consequence of BPs acquisition of Castrol a new company was formed on or around July of this year, known as BP Lubricant Services and the union foreshadows its - and that company assumed the manufacturing operations of two of Castrol's Australian workplaces - and the union foreshadows that again as part of a cautious approach that it will at an appropriate point in time serve logs with a view to provoke a dispute finding and ultimately a roping in award the effect of which would be to bind BP Lubricant Services to this award and other similar awards, if the Commission pleases.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Richardson. Just before I call on any of the employers is there anybody else from the union side who wants to make a comment?

PN166

MS DOUST: Yes, your Honour - - -

PN167

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Doust?

PN168

MS DOUST: Thank you, your Honour. It is our submission that your Honour should vary the name in schedule B from the Federated Engine Drivers' and Firemens' Association of Australia to the Construction, Forestry, Mining and Energy Union.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, on what basis?

PN170

MS DOUST: The old FEDFA became a part of the CFMEU through another motion which occurred in approximately 1992/93.

PN171

THE SENIOR DEPUTY PRESIDENT: The FEDFA wasn't the host union, was it if I remember correctly?

PN172

MS DOUST: Not as I understand it, your Honour.

PN173

THE SENIOR DEPUTY PRESIDENT: Does that cause me any problems, Ms Doust, the fact that the FEDFA ceased to exist?

PN174

MS DOUST: Your Honour, we say that there is no problem, the your Honour has power under section 133(3) if your Honour is any doubt.

PN175

THE SENIOR DEPUTY PRESIDENT: So 133(3)?

PN176

MS DOUST: Sorry, 113(3).

PN177

THE SENIOR DEPUTY PRESIDENT: Well, doesn't 113(3)(b) create the very problem that I was adverting to, Ms Doust?

PN178

MS DOUST: 113B, your Honour?

PN179

THE SENIOR DEPUTY PRESIDENT: No, I was looking at 113(3)(b) that reads:

PN180

The Commission may on application by an organisation or person bound by an award ...(reads)... has been cancelled to omit the reference to its name.

PN181

Isn't that the case with the FEDFA?

PN182

MS DOUST: Well, your Honour, we think that the CFMEU should become the respondent listed in that schedule.

PN183

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN184

MS DOUST: Then your Honour should do that under subparagraph (a).

PN185

THE SENIOR DEPUTY PRESIDENT: That would reflect the name of the change of the host organisation on another motion.

PN186

MS DOUST: Well, your Honour, in our submission that is sufficient to give your Honour the power to effect the change that we contend for, if there is no other source.

PN187

THE SENIOR DEPUTY PRESIDENT: Well of course an easy source would be for the CFMEU to serve a log of claims so that then the question of power and jurisdiction would be beyond doubt.

PN188

MS DOUST: Yes, we don't say that is necessary, your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your submission, thank you.

PN190

MS DOUST: Thank you, your Honour.

PN191

THE SENIOR DEPUTY PRESIDENT: I intend to ask each of the employers, given that nobody is seeking to escape from the award, to run through with me in some detail the actual employing entities and tell me what has happened to the companies that are respondents in schedule A and either no longer exist or have had their names changed, but before I do that and associated with that, is there another way in which this matter could be dealt with and I raise this for consideration of all of you. The definition of industrial dispute in section 4 of the Act provides that an industrial dispute means a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph A of that definition and that is the usual sort of industrial dispute:

PN192

An industrial dispute including a threatened impending or probable industrial dispute ...(reads)... the relationship between employers and employees.

PN193

It occurs to me that perhaps what we have here is a situation that is likely to give rise to an industrial dispute if this question of proper respondency is not sorted out. We have unions that arguably were not respondents to the - like the CFMEU and employers that arguably were not respondents to the award because the respondents no longer exist, but we do have unions that currently exist with members who are working for employers that currently exist performing work in this industry.

PN194

I would invite submissions from all of you and if you can't address me today you can do so in writing, as to whether I should not find an industrial dispute under paragraph B of the definition being an industrial situation that is likely to give rise to an industrial dispute between the current organisations of employees involved with the current employers of the labour involved in work that has been the subject of the standard hours oil companies award and that continues to be performed.

PN195

If I can find such a dispute with the co-operation of the parties I could identify more accurately or quite accurately who are the relevant employers and who are the relevant organisations of employees in their current forms. So I just raise that for the consideration of all of you; it would obviate the necessity for serving logs of claims. It seems to me that I may well have that situation in front of me in any event and it may be appropriate to make a dispute finding on that basis, but I now ask the employer representatives to address me and I do want to try to sort out from schedule A exactly what has happened to the various employing entities. I don't mind who goes first.

PN196

MR GEEVES: Your Honour, perhaps as A is first on the list being Ampol it might be a good place to start.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Geeves, is it?

PN198

MR GEEVES: That is correct, your Honour, from Caltex. I have provided a letter to Mr Wood outlining the organisations that have been either merged or subsumed by the Caltex group of companies and perhaps if I take you through those - - -

PN199

THE SENIOR DEPUTY PRESIDENT: Yes if you would, thank you.

PN200

MR GEEVES: There are a number of companies with the name Ampol appearing in them; they are Ampol Petroleum Pty Limited - - -

PN201

THE SENIOR DEPUTY PRESIDENT: Pty - sorry. I am looking at schedule A to the award, is that where I should be looking?

PN202

MR GEEVES: Well I had hoped that Mr Wood may have submitted the letter I provided to - but I will go to that.

PN203

THE SENIOR DEPUTY PRESIDENT: No, but if - I think he has got a copy for me, he is handing it to me now.

PN204

MR GEEVES: Well if we look at the award, schedule A the third respondent is Ampol Petroleum Limited.

PN205

THE SENIOR DEPUTY PRESIDENT: Yes.

PN206

MR GEEVES: Then follow the Ampol companies.

PN207

THE SENIOR DEPUTY PRESIDENT: Yes. Does Ampol Petroleum Queensland Pty Limited, Ampol Petroleum - - -

PN208

MR GEEVES: Yes.

PN209

THE SENIOR DEPUTY PRESIDENT: - - - Victoria Pty Limited and Ampol Refineries Limited?

PN210

MR GEEVES: Correct.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes.

PN212

MR GEEVES: Now the Ampol group of companies merged with the Caltex group of companies in 1995. They went through a number of name changes but today they have adopted the Caltex name and the first suggested respondent name which has been put to Mr Wood and we put to you is Caltex Australia Petroleum Pty Limited. Now that is effectively the holding company or the main company if you like. We then have two other companies.

PN213

THE SENIOR DEPUTY PRESIDENT: Sorry, just interrupting you there; does Caltex Australia Petroleum Pty Limited employ anybody?

PN214

MR GEEVES: Yes, it does.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes.

PN216

MR GEEVES: Well it employs me for a start, I think.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Does it employ anybody who is subject of the award?

PN218

MR GEEVES: Yes, it does.

PN219

THE SENIOR DEPUTY PRESIDENT: Very well.

PN220

MR GEEVES: It does, it employs members of the various unions around here, in terminals and other installations throughout Australia.

PN221

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN222

MR GEEVES: That name would take care of the - appearing in schedule A - Ampol Petroleum Limited and further down that schedule, Caltex Oil (Australia) Pty Limited.

PN223

THE SENIOR DEPUTY PRESIDENT: When you say that name would take care of - - -

PN224

MR GEEVES: Well it subsumes those two companies.

PN225

THE SENIOR DEPUTY PRESIDENT: Do those companies no longer exist?

PN226

MR GEEVES: I think we retain as a shelf company the Ampol name but in no more than a shelf company.

PN227

THE SENIOR DEPUTY PRESIDENT: So is it your - - -

PN228

MR GEEVES: They employ no-one.

PN229

THE SENIOR DEPUTY PRESIDENT: Thank you, yes.

PN230

MR GEEVES: Ampol Petroleum Queensland was the employing company of people engaged within Queensland and are now Litten Refinery. The employing company for those engaged at the Litten Refinery is now Caltex Refineries (Qld) Pty Limited.

PN231

THE SENIOR DEPUTY PRESIDENT: Sorry, Caltex?

PN232

MR GEEVES: Refineries (Qld) Pty Limited.

PN233

THE SENIOR DEPUTY PRESIDENT: So Ampol Petroleum Queensland no longer employs anybody?

PN234

MR GEEVES: Correct.

PN235

THE SENIOR DEPUTY PRESIDENT: Does it exist?

PN236

MR GEEVES: It may as a shelf company, I'm not able to tell you.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN238

MR GEEVES: It is highly unlikely but I'm not quite clear on that.

PN239

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN240

MR GEEVES: The next suggested respondent name is Caltex Refineries (NSW) Pty Limited. That company covers people engaged at one of our Kurnell refineries; formally those people would have been engaged by Caltex Oil (Australia) Pty Limited. Now the last suggested respondent's name is Caltex Lubricating Oil Refinery Pty Limited - - -

PN241

THE SENIOR DEPUTY PRESIDENT: Just stopping you there again, can you tell me the position of Caltex Oil (Australia) Pty Limited as far as it being an employer?

PN242

MR GEEVES: It employs no-one.

PN243

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN244

MR GEEVES: As far as I know it no longer exists.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that.

PN246

MR GEEVES: Now I mentioned Caltex Lubricating Oil Refinery Pty Limited; that is the second half of our refinery at Kurnell and the employees in that refinery were previously employed by Australian Lubricating Oil Refinery Limited and Australian Oil Refinery Pty Limited.

PN247

THE SENIOR DEPUTY PRESIDENT: Sorry, the first one was Australian Lubricating Oil Company?

PN248

MR GEEVES: Refinery Limited.

PN249

THE SENIOR DEPUTY PRESIDENT: Sorry, Australia Lubricating - sorry, I keep interrupting you and cutting you off. Just say the name again.

PN250

MR GEEVES: Australian Lubricating Oil Refinery Limited.

PN251

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN252

MR GEEVES: Still in schedule A of the current award, Australian Oil Refinery Pty Limited.

PN253

THE SENIOR DEPUTY PRESIDENT: Thank you, and what do you say as to those companies.

PN254

MR GEEVES: Those companies no longer exist and their employees and the business is effectively Caltex Lubricating Oil Refinery Pty Limited.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN256

MR GEEVES: Now other companies that I have mentioned to Mr Wood which I will bring to your attention are Golden Fleece Services Pty Limited; that company was subsumed or taken over by Caltex in the - well I'm not sure of my facts here, sir, but in the early 80s I believe.

PN257

THE SENIOR DEPUTY PRESIDENT: Yes, that sounds about right.

PN258

MR GEEVES: As was HC Sleeve which at that stage was part of that same company.

PN259

THE SENIOR DEPUTY PRESIDENT: Yes.

PN260

MR GEEVES: Total Australia Limited was taken over by Ampol also in the early 80s, in fact I think it was 1980. The last name is Total Refineries Australia Limited; that was a refinery at Matraville and that no longer exists and no employees exist. Now having said all that I will just repeat that to the best of our ability we say that the four names listed or provided to Mr Wood and which I will repeat, cover all those employees, that is Caltex Australia Petroleum Pty Limited - - -

PN261

THE SENIOR DEPUTY PRESIDENT: Yes.

PN262

MR GEEVES: Just to be quite clear these are the names we say should now go into the simplified award - in the respondency list.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes.

PN264

MR GEEVES: Caltex Refineries (Qld) Pty Limited.

PN265

THE SENIOR DEPUTY PRESIDENT: Yes.

PN266

MR GEEVES: Caltex Refineries (NSW) Pty Limited.

PN267

THE SENIOR DEPUTY PRESIDENT: Yes.

PN268

MR GEEVES: And Caltex Lubricating Oil Refinery Pty Limited.

PN269

THE SENIOR DEPUTY PRESIDENT: You added two more to the list that you gave Mr Wood - Caltex Petroleum (Qld) Pty Limited and Caltex Petroleum (Victoria) Pty Limited.

PN270

MR GEEVES: I added those did I?

PN271

THE SENIOR DEPUTY PRESIDENT: There were six in the letter that you sent to Mr Wood on 15 June.

PN272

MR GEEVES: Yes, yes. Those two companies do exist; they could have been covered by Caltex Australia Petroleum Pty Limited but belts and braces - we have added those two too because they do exist under the current organisation.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes, do they employ people?

PN274

MR GEEVES: Well they do employ people but effectively any contract with those is with Caltex Australia Petroleum Pty Limited, but they are operating companies in those states and conceivably they could employ people, yes.

PN275

THE SENIOR DEPUTY PRESIDENT: Yes, so they would be appropriately respondents to an award.

PN276

MR GEEVES: Yes.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, thank you very much for that.

PN278

MR GEEVES: Thank you.

PN279

THE SENIOR DEPUTY PRESIDENT: Mr Wood, do you want that document back, is that your only copy?

PN280

MR WOOD: No, you can hold that, I have got a copy.

PN281

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. All right, well that deals with Caltex; who else wants to help me?

PN282

MR ANDERSON: If the Commission pleases, perhaps I will just run through the BP companies.

PN283

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Anderson.

PN284

MR ANDERSON: There are two minor changes - BP Fremantle Limited, there's just a spelling error in that, it is F-r-e.

PN285

THE SENIOR DEPUTY PRESIDENT: Yes, I noticed that. That is from schedule A, it has been that way all along.

PN286

MR ANDERSON: Yes.

PN287

THE SENIOR DEPUTY PRESIDENT: Is that a company that still exists?

PN288

MR ANDERSON: Well it does exist, it doesn't - it does exist and it does have some employees; I will leave it like that.

PN289

THE SENIOR DEPUTY PRESIDENT: So that is all appropriately - as it is - BP Fremantle Limited is it?

PN290

MR GEEVES: That is right.

PN291

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN292

MR ANDERSON: The company - excuse me - referred to as BP Refinery Western Port Pty Limited does not exist any more, and the refinery does not exist any more.

PN293

THE SENIOR DEPUTY PRESIDENT: Yes.

PN294

MR ANDERSON: The other comment I would make was - I should have mentioned I am representing Castrol Australia today - it was not on the notice of listing I received; it was an oversight on my part, but it will continue, Mr Richardson quite rightly said, until we have completed integration of that company.

PN295

THE SENIOR DEPUTY PRESIDENT: That is Castrol Australia Pty Limited?

PN296

MR ANDERSON: That is right.

PN297

THE SENIOR DEPUTY PRESIDENT: Yes, very well, and what of BP Australia Limited?

PN298

MR ANDERSON: Yes.

PN299

THE SENIOR DEPUTY PRESIDENT: That still exists and employs people?

PN300

MR ANDERSON: That is the principal employer.

PN301

THE SENIOR DEPUTY PRESIDENT: BP Refinery Kwinana Pty Limited?

PN302

MR ANDERSON: It still exists, yes.

PN303

THE SENIOR DEPUTY PRESIDENT: Employs?

PN304

MR ANDERSON: Employs, yes.

PN305

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you.

PN306

MR ANDERSON: If the Commission pleases.

PN307

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Farr.

PN308

MR FARR: Thank you, your Honour. If I can deal firstly with in schedule A, there is Esso Australia Limited; the correct name for the employer in that instance is now Esso Australia Pty Limited.

PN309

THE SENIOR DEPUTY PRESIDENT: That is the same company, but a change of name, is it?

PN310

MR FARR: Your Honour, I am not entirely sure whether it was just a straight change of name but not having the background to that, but Esso Australia Pty Limited is the correct employer. Your Honour, we are still trying to identify in relation to Esso Chem Australia Limited whether in fact it is actually an employer in this industry. Your Honour, we were unable to ascertain that at this stage, and will endeavour to continue to try and identify that and will write to the Commission and to the other parties to identify whether or not it is an employer.

PN311

THE SENIOR DEPUTY PRESIDENT: Yes. That is Esso Chem Australia Limited?

PN312

MR FARR: That is correct.

PN313

THE SENIOR DEPUTY PRESIDENT: I think we have lost a video-link. We might just stop until we get Sydney back.

SHORT ADJOURNMENT [11.04am]

RESUMED [11.10am]

PN314

THE SENIOR DEPUTY PRESIDENT: I think we are back in touch with Sydney; is that correct? Thank you. Yes, Mr Farr, you were telling me about Esso. I am not sure when Sydney dropped out; perhaps you might just - - -

PN315

MR BROTHERSON: Sorry, I was just going to indicate to your Honour I think the last bit we heard was there was uncertainty whether Esso can continue to employ people.

PN316

THE SENIOR DEPUTY PRESIDENT: Yes, it still exists as a company, yes. Yes.

PN317

MR FARR: That is correct, your Honour. We will come back to the Commission on that particular point, if that is okay. Your Honour, in relation to the Mobil Companies who are respondent in schedule A, if I can just indicate that Mobil Oil Australia Limited is now known as Mobil Oil Australia Pty Limited.

PN318

THE SENIOR DEPUTY PRESIDENT: Is that the main employer, is it?

PN319

MR FARR: That is the employing entity, and then the respondent under that, Petroleum Refineries (Australia) Pty Limited, that company is now known as Mobil Refining Australia Pty Limited.

PN320

THE SENIOR DEPUTY PRESIDENT: Was that a name change, was it?

PN321

MR FARR: As I understand it, it was, your Honour, and so the new name is the employing entity. Again as my friends - I am not sure whether the original company is still in existence or whether it has been deregistered, but it is not an employing entity.

PN322

THE SENIOR DEPUTY PRESIDENT: That is the PRA?

PN323

MR FARR: That is correct.

PN324

THE SENIOR DEPUTY PRESIDENT: Yes, so it sounds as though you are not certain whether PRA changed its name to Mobil Refining Australia Pty Limited, or whether there was a transmission of business.

PN325

MR FARR: No, as I understand it, it was a change in name, your Honour.

PN326

THE SENIOR DEPUTY PRESIDENT: It was a change of name, yes.

PN327

MR FARR: Yes.

PN328

THE SENIOR DEPUTY PRESIDENT: So the company remains in existence, yes. Yes, thank you. Yes.

PN329

MS THOMAS: Your Honour, referring to Shell Chemical Australia Pty Limited - - -

PN330

THE SENIOR DEPUTY PRESIDENT: Shell Chemical, yes.

PN331

MS THOMAS: That company has gone through a couple of name changes and is now named Basell, B-a-s-e-l-l, Australia Pty Limited.

PN332

THE SENIOR DEPUTY PRESIDENT: That is by virtue of a name change rather than a transmission, yes, so it is Basell Australia Pty Limited?

PN333

MS THOMAS: Yes.

PN334

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, and as for the Shell Company - Mr Brotherson appears for that.

PN335

MR BROTHERSON: Yes, your Honour, both the Shell Company of Australia Limited and Shell Refining Australia Pty Limited continue to exist and continue to be employing entities.

PN336

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, anybody else - I have got everybody now, have I? It would appear so. Well, what I am minded to do but I am very much in the parties' hands - - -

PN337

MR WHITEHEAD: Your Honour, before we dealt with those change of names and so on, you raised that issue of section 4 of the Act, and in fact I came here this morning prepared with a brief submission to put to you virtually what you have put to us, and that is that - - -

PN338

THE SENIOR DEPUTY PRESIDENT: Well, you must be right then.

PN339

MR WHITEHEAD: Well, I wouldn't say that. If you say so, perhaps I should. What - Mr Wallace, I think, was treading in that direction the last time this matter was on before you, and I think he might have been suggesting - he certainly suggested to me anyway, that we, our members certainly would be getting into dispute with the company Quenos very quickly - that might be ..... serving logs and so on but - so in other words it is highly probable that a dispute would occur and you addressed that when you went through section 4, so speaking on behalf of the AMWU, we certainly would be moving in that direction and we would suggest to you that the Commission probably has a responsibility or can exercise some power to avoid a dispute occurring.

PN340

Unfortunately the company appears not to be consenting to anything, but we were also going to submit to you that under section 111(1), the Commission could make a consent award, but that is not the case, but we also submit that there is, as Mr Wood alluded to, there was recent case law, I suppose, to put it that way, in relation to transmission of business which has set out the principles involved.

PN341

One recent case that I looked at was the PP Consultants Pty Limited appeal in relation to the Finance Sector Union of Australia matter; the High Court of Australia comprised of Gleeson CJ and Gaudron, McHugh, Gummow and Kellerman JJ really set out very clearly I thought, the principles involved in the transmission of business, so looking at that and referring it to - applying it to this particular exercise, it seems fairly clear to me.

PN342

We think that the Commission probably has a responsibility to do all it can to avoid disputes being generated. We also think that there are probably other provisions - I think the Cadbury/Schweppes case which my colleague referred you to I think at the last hearing, defined or dealt with the issue of a consent award, I think it was - dealt with disputes and conciliation, and conciliation powers of the Commission, so we suggest to you that in fact the Commission should act along the lines that you suggested earlier on this morning.

PN343

In relation to one other matter, perhaps I could raise this; Ms Doust put to you - discussed with you, the amalgamation issue around the CFMEU; the AMWU - in my earlier submission I mentioned to you section 253T of the Workplace Relations Act which is the effect of amalgamation on awards, orders and certified agreements, and just to paraphrase it, it means that it provides that all the awards and orders, agreements that the amalgamating parties are respondent to are brought forward into - or are picked up by the new union, the new amalgamated union.

PN344

Now, I imagine that would depend entirely on the scheme of amalgamation that was registered in the Commission at the time of the dealing with the amalgamation, but I think that - I put to the Commission that possibly that section of the Act might provide the umbrella under which you could move ahead and rope or indicate or list the CFMEU as a respondent to this award.

PN345

THE SENIOR DEPUTY PRESIDENT: It certainly binds the CFMEU; it is a bit like the 149, the other side of that 149 coin - it binds the CFMEU by virtue of - - -

PN346

MR WHITEHEAD: That provision.

PN347

THE SENIOR DEPUTY PRESIDENT: - - - that provision. Does it make the CFMEU a party to it, is a different question - possibly.

PN348

MR WHITEHEAD: Thank you, your Honour.

PN349

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What I have in mind, unless people do want to address me now is to give you an opportunity to put things in writing or to come back. What we haven't addressed at all is the terminology of the award, but that does not seem to me to require much in the way of change. I think I have raised a few issues on the last occasion and particularly whether certain clauses were redundant or not as well as just some tidying-up of some language.

PN350

What I would like to see if possible is a draft consent award sent to me with some submissions on the respondency and the issue of finding a dispute as I indicated a little earlier. Mr Wood.

PN351

MR WOOD: Yes, sir. If the Commission pleases, in respect to the issue of the simplification of the award, after having the first attempt to try to put something forward, I take the points that you had raised in respect to what would appear to be outdated provisions; the reason why I didn't touch those were first of all that they were allowable, but second of all, I was not absolutely sure that the transitional provisions have in fact become non-existent.

PN352

I don't know that there are any people anywhere in Australia working for an oil company that is not relying upon that. Equally there were some references to 40 hour weeks now where 40 hour week was going to be changed to 70 hour fortnights. I know that the companies themselves - it has become a bit of an issue where they went from 8 hour days to 12 hour days - there was some tidying-up to be done in relation to getting their leave forms and so forth reflecting 12 hour days, not 8 hour days, and I am not sure whether equally the companies have gone and done all those things.

PN353

My view would be that it would be very difficult for any party to put forward submissions on how that question should be dealt with. I think it would be more appropriately dealt with in conference at some later stage between the oil companies and the unions to talk those issues through and come to some form of agreement about drafting as to whether they should be included or not.

PN354

THE SENIOR DEPUTY PRESIDENT: Yes. Is that as part of the simplification exercise?

PN355

MR WOOD: That is correct.

PN356

THE SENIOR DEPUTY PRESIDENT: Yes.

PN357

MR WOOD: Secondly, in relation to the issue about the respondency, I have a competing or different view to what the MUW has and I want to point out the reason why. I accept that for completeness that it is in the union's interest to go and log Quenos to have them properly named within the award, but I don't concede the point that they escape respondency and I don't give up the point that they are bound by transmission of business because - - -

PN358

THE SENIOR DEPUTY PRESIDENT: I don't think Mr Richardson was suggesting that; I think he was suggesting that just to be sure, to log them again.

PN359

MR WOOD: Yes, to be sure, that is right, but I - - -

PN360

THE SENIOR DEPUTY PRESIDENT: I certainly didn't take him to be suggesting that his organisation accepts or might accept that they are not bound by the successor provisions.

PN361

MR WOOD: Yes, well, I agree that we should go and do that, but my principal position is that they are bound by it, and even if they were successful in not being roped in for some argument that they wanted to put up does not, you know, their principal position is that they are caught by the transmission of business, in any event. So with that being said, getting back to that earlier point, I think that there should be a conference of the parties to work out whether these provisions are actually obsolete and they should be taken out and some drafting done there.

PN362

If the Commission pleases.

PN363

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if nobody else wants to say anything, what I will do is adjourn this matter yet again; I know it is taking a lot of time and effort but I think by its very nature, it is unavoidable - to allow the parties to have further discussions and to present me with a draft award that indicates where there are differences, what the differences are, and who contends for what, and also included in that a respondency list that the various parties contend for.

PN364

I will give you a couple of months, I think, because it will probably take a little while; is that a fair amount of time, or is it too long? I guess no-one will ever say a time is too long.

PN365

MR GEEVES: It is fine by Caltex.

PN366

MR WOOD: The longer the better with the upcoming election, your Honour.

PN367

THE SENIOR DEPUTY PRESIDENT: Well, 2 months actually brings us to Christmas - gosh, I can't believe it. Well, it looks as though this one is going to run into the new year, does it not? Is there any problem with drafts being provided to me in January? No, very well. I will set Friday 11 January as the date by which the draft that I have just spoken of needs to be exchanged between the parties and filed in the Commission.

PN368

I will adjourn these proceedings indefinitely; when I receive that draft I will then assess what further action needs to be taken. It may well be that no further hearing is necessary - if a further hearing is necessary, I will fix a date after 11 January 2002. We will adjourn the Commission on that basis, thank you.

ADJOURNED INDEFINITELY [11.27am]