C2378/100, Transcript of Proceedings [2001] AIRCTrans 316 (21 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C NO 23781 OF 2000

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

AND

ANCO AUSTRALIA PTY LIMITED AND OTHERS

NOTIFICATION PURSUANT TO SECTION 99 OF THE
ACT OF A DISPUTE RE WAGES AND CONDITIONS IN
THE TECHNICAL SERVICES INDUSTRY

SYDNEY

11.42 AM, THURSDAY, 1 MARCH 2001

CONTINUED FROM 30.01.01

HEARING CONTINUING

PN56

THE SENIOR DEPUTY PRESIDENT: Good morning. Could I have the appearances please?

PN57

MS K. COTIS: If it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN59

MS J. MAUDE: With your leave, your Honour, I appear on behalf of the respondents in the matter.

PN60

THE SENIOR DEPUTY PRESIDENT: Do you work for the respondents or are you - - -

PN61

MS MAUDE: Your Honour, I'm employed by Australian Business Lawyers, a firm of solicitors who are instructed to act on behalf of each of the three respondents.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, well, this matter has been stood over to allow the parties to confer and report back. What's happening?

PN63

MS COTIS: Your Honour, I'm disappointed to report that despite the union's efforts to arrange a face-to-face meeting in Melbourne which wasn't acceptable. We tried to organise telephone hook ups which also weren't acceptable prior to today's hearing so we haven't met yet to discuss any issues that the companies have in relation to the application.

PN64

THE SENIOR DEPUTY PRESIDENT: Do you seek the roping of these employers into an award? What is the name of the award you seek the roping into?

PN65

MS COTIS: We originally were and incorrectly we made a mistake in the award that we were seeking to rope them into which was the Federal Metals Award. I think we notified the Australian Business Lawyers and yourself last Friday correcting that mistake and we issued a draft order in relation to the correct award, which is the Drafting Production Planners and Technical Workers Award 1998.

PN66

THE SENIOR DEPUTY PRESIDENT: Do you have a number for that award?

PN67

MS COTIS: The award number is D102. I could give you a print number if you need that as well, K9198.

PN68

THE SENIOR DEPUTY PRESIDENT: Who issued the award?

PN69

MS COTIS: I actually don't know.

PN70

THE SENIOR DEPUTY PRESIDENT: Is it a simplified award?

PN71

MS COTIS: It is, yes.

PN72

THE SENIOR DEPUTY PRESIDENT: When did you notify the respondent's representatives that this is the award that you're now seeking roping into?

PN73

MS COTIS: Last Friday, your Honour, last Friday in a letter by fax. I will just get you the date.

PN74

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN75

MS COTIS: The 23rd of February.

PN76

THE SENIOR DEPUTY PRESIDENT: Ms Maude?

PN77

MS MAUDE: Your Honour, my friend is correct in that no meetings have been held and no meaningful discussions have been held regarding the proposed application to rope my clients into a federal award. Since the last time the matter was before you on 30 January we've attempted to obtain from the union some details in writing, specifically an application for the making of a roping-in award so that my clients can be clear as to what it is the union's proposing and why.

PN78

THE SENIOR DEPUTY PRESIDENT: Well, it's clear that they're proposing to rope your client in as a respondent, well, at least until last Friday, into the Metals Industry Award.

PN79

MS MAUDE: That's correct, your Honour, but it wasn't until last Friday that that award has been identified.

PN80

THE SENIOR DEPUTY PRESIDENT: The award had been identified?

PN81

MS MAUDE: The award had been identified. Prior to that we were working on the assumption that it was the Federal Metals that we were being roped - - -

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, but you hadn't had a meeting in relation to that award either?

PN83

MS MAUDE: No, that's right.

PN84

THE SENIOR DEPUTY PRESIDENT: So how could you have resolved it?

PN85

MS MAUDE: We had written to the AMWU informing them of the basis for our client's opposition to being roped into the Federal Metals Award and it was upon receipt of that correspondence that we were informed that that in fact is the incorrect award. My clients are quite willing to discuss Federal Award coverage with the union and it's entirely possible that those discussions could resolve this matter quite expeditiously. On its face the Drafting Production Planners and Technical Workers Award appears to be a much more appropriate award for my clients to be roped into. However, my clients are understandably wary because they haven't had any communication from the AMWU in relation to the procedure that they're trying to follow in roping them into the awards. They're relying on conversations that I've had with the union.

PN86

The union haven't provided us with any details of the award that they're seeking to rope us into. We received on Monday the draft award that they're seeking to make. The union has told me that they are not going to make any application and I was told on Tuesday, your Honour, and forgive my language but I've been told that my requests for those details is pedantic shit. Now, your Honour, I think my clients are entitled to know the details of what the Commission is being asked to rule on particularly because they had opposition, they had reasons for opposing being roped into the Federal Metals Award.

PN87

Those reasons may not exist in relation to the Drafting and Production Planners and Technical Officers Award. That award is significantly different in that it's not limited by industry and it's not limited geographically in the way the Federal Metals Award was. Given that the notification regarding the new award was received on Friday it's not unreasonable for my clients to be allowed a period of time more than 4 working days or 3 working days in order to consider the proposed application that's being made, take advice and give us instructions.

PN88

THE SENIOR DEPUTY PRESIDENT: Well, it seems to me, Ms Maude, no matter what has gone forward now you have the name of the award, it has a print number, you can look at it.

PN89

MS MAUDE: Correct.

PN90

THE SENIOR DEPUTY PRESIDENT: A roping-in application is relatively straight forward. If you are roped into the award you are bound by the terms of the award and you can, of course, as you're aware, reach agreement over and above those conditions by way of a certified agreement if you wish. So now that you're in possession of the details of the correct award then the seeking of those instructions seems to me to be a relatively straightforward matter.

PN91

MS MAUDE: That's correct, your Honour. My concern was that my friend insisted that we should have been able to have a meeting prior to today's report back, that today's report back should have been more than a report back. There are a range of reasons why that wasn't possible and I don't think it's unreasonable for us to have a short period of time in which to consider the award and have those discussions.

PN92

THE SENIOR DEPUTY PRESIDENT: Given those circumstances, Ms Maude, I have no opposition to your having time to consider the new award and seek instructions and either consent to the roping in or not and then get a hearing.

PN93

MS MAUDE: Thank you, your Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: But it seems to me that there is no excuse for having not met up until last Friday in relation to the other one.

PN95

What has everyone been doing out there?

PN96

MS MAUDE: My colleague was informed on the last occasion that the union official conducting this matter was going to be on leave until 14 February so no discussions were possible prior to that date in any case. After that date we have attempted to have those meetings but the AMWU has requested that the meetings be held in Melbourne which is unacceptable to us because the parties, the Commission, the AMWU is based in Sydney.

PN97

THE SENIOR DEPUTY PRESIDENT: Well, you can forget me because I won't be a party to the discussions but is your client solely based in Sydney?

PN98

MS MAUDE: One of my clients has an office in Melbourne but, your Honour, I'm unable to travel to Melbourne to attend those meetings myself.

PN99

THE SENIOR DEPUTY PRESIDENT: But your client can. I mean I know you're here by leave, Ms Maude, but these are matters usually conducted directly between the parties, the industrial parties. Those parties can meet in Melbourne or Sydney as they agree. I don't think it's necessary that meetings be conducted by lawyers for those purposes, so what I'm saying to you is you should all do what is necessary to have the meetings.

PN100

This is an ordinary application. If you're opposing the roping in then I will give you a hearing date but I need it to be attended to expeditiously so you can both come to some agreement about where you meet. My view is, however, that as to the necessity for your attendance, well, it may be that everyone considers that your attendance adds to the process, well, that will be useful but I don't think it's one of those matters that ought to cause any delay. Industrially the parties can deal with each other.

PN101

MS MAUDE: Your Honour, I agree entirely with what you're saying and my client has absolutely no difficulty meeting with the AMWU. All its asking is that it be told; but for the fact that we insisted on getting some further information from the union we would have been roped in a month ago to an inappropriate award. Now it seems that a more appropriate award has been identified and all my clients are asking for is a period of time which I understand you are giving us now.

PN102

THE SENIOR DEPUTY PRESIDENT: I have already given you that, I am just making those remarks so that both parties understand where I'm at in relation to what happens after that. So, Ms Cotis, I'm going to stand this matter over until, because it suits my diary and I don't have a great deal more time, 10.00 am on 12 March.

PN103

MS MAUDE: Your Honour, would it be possible to list it before you on another day that week, perhaps the 14th, 15th or 16th?

PN104

THE SENIOR DEPUTY PRESIDENT: The 13th I'm in Melbourne, the 15th and 16th I'm in Bourke and Wednesday is not a day that presently I wish to list at all for another reason so what is your commitment on Monday?

PN105

MS MAUDE: I have family responsibilities on Mondays and Tuesdays, your Honour. I can have a colleague attend but given my familiarity with the matter it would probably be more expeditious just to - - -

PN106

THE SENIOR DEPUTY PRESIDENT: What, you don't work Mondays and Tuesdays?

PN107

MS MAUDE: I don't work Mondays and Tuesdays, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: 9.45 on the 21st?

PN109

MS MAUDE: That would be suitable, thank you.

PN110

THE SENIOR DEPUTY PRESIDENT: I put this matter in for mention at 9.45 am on 21 March in Sydney.

PN111

MS COTIS: Your Honour, I'd just like to say something for the record, I just want to clarify that the AMWU made a mistake in identifying originally the metals award and I must say it's not a matter of finding a more appropriate award. Had a dispute been found a month ago when this matter was before you last that mistake would have been identified and rectified. Thank you, your Honour.

PN112

MS MAUDE: Your Honour, might I also just ask, if the parties are able to reach agreement before the next occasion is it possible for us to file consent orders prior to 21 March?

PN113

THE SENIOR DEPUTY PRESIDENT: Absolutely.

PN114

MS MAUDE: Thank you.

PN115

THE SENIOR DEPUTY PRESIDENT: If you don't think there's any reason why your client wants to oppose the roping-in award to the now identified new award then I'm happy to make those orders by consent and that would be probably an appropriate way to deal with it. The Commission is adjourned.

ADJOURNED UNTIL WEDNESDAY, 21 MARCH 2001 [11.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs