C2001/5957, Transcript of Proceedings [2001] AIRCTrans 3542 (18 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2001/5957

AMCOR FIBRE PACKAGING

and

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

Application under section 127(2) for an order
to stop or prevent industrial action

PERTH

9.15 AM, SATURDAY, 1 DECEMBER 2001

PN1

MR S. SHEPHERD: I seek leave to appear for the applicant.

PN2

MR T. KUCERA: I appear for the Automotive, Food, Manufacturing, Engineering, Printing and Kindred Industries Union, otherwise known as the AMWU, sir. We have no objection to leave, as I am also of counsel, sir.

PN3

THE DEPUTY PRESIDENT: Leave is granted for both. Mr Shepherd?

PN4

MR SHEPHERD: Thank you, Mr Deputy President. First of all, Deputy President, may I thank you for sitting on Saturday. This application being an application under section 127 of the Act has been brought on as these applications will be on fairly short notice and the applicant is keen to have the matter dealt with as quickly as possible. The application is brought because of industrial action that commenced at the applicant's Bibra Lake plant on the afternoon of 29 November 2001, which wast last Thursday. It commenced at about 3.30 and involved a strike by in the region of 100 employees who are members of the respondent union and who mostly work in production, printing and other metal trades.

PN5

The current position is that although there has been an expression from the union that the members of the union will return to work on Monday morning, there has also been an expression from the union that further bans will be in place on Monday and potentially on Tuesday, if certain conditions aren't met. So really it is difficult to characterise, Deputy President, this application as one being in relation to current industrial action or threatened impending or probable industrial action. It just really depends on the characterisation of the ongoing proposed bans on Monday and Tuesday. But I am happy to deal with the matter was one of seeking to prevent threatened or impending or probable industrial action.

PN6

THE DEPUTY PRESIDENT: I am in your hands as to how you want to deal with it but you will have to convince me that the requirements of the Act are fulfilled before I can issue any order.

PN7

MR SHEPHERD: Mr Deputy President, yes, that is quite right. And there will certainly be evidence that the union has informed the witness that I will be calling today who is the Regional Manager for the applicant that certain bans, and I will go into those in evidence, will be in place on Monday. And that there is a likelihood of further action, as I say, if the core dispute, if I can call it that, isn't resolved in favour of the union on Tuesday. As far as the jurisdictional questions are concerned, Deputy President, there are of course requirements in section 127 which must be fulfilled and those requirements will be known to you.

PN8

Leaving aside the issue of the industrial action which I will leave to last, the - and in fact, dealing with them in - I think we will just reverse order from the way they are traditionally expressed. Is, first of all, the applicant is indeed a party who is affected by the industrial action. And for the obvious reason that industrial action is taking place at the applicant's plant. Section 127(1)(c) states that:

PN9

If it appears to the Commission that an industrial action is happening or is threatened, impending or probable in relation to work that is regulated by an award or certified agreement, the Commission may, by order, give directions that the industrial action stop or not occur.

PN10

I don't think it will be any dispute, Deputy President, that there is a certified agreement in place. The name of that certified agreement is the Amcor Fibre Packaging National Enterprise Agreement 2001. It was certified on 5 October 2001 and is expressed in - - -

PN11

THE DEPUTY PRESIDENT: Not very old.

PN12

MR SHEPHERD: No, it is not very old, Deputy President. That will be one of the submissions. Or that will be the basis for one of the submissions later in the application. It is expressly in force for a period of 36 months from the date of certification. So it is clearly in term. Deputy President, I have a truncated copy of the agreement to hand up with has the certification on the front page, if that will be of assistance.

PN13

THE DEPUTY PRESIDENT: It would be. You are tendering that?

PN14

MR SHEPHERD: Yes.

EXHIBIT #A1 EXTRACTS FROM AMCOR FIBRE PACKAGING NATIONAL ENTERPRISE AGREEMENT 2001

PN15

THE DEPUTY PRESIDENT: The other parties have got sufficient information about the content of the agreement, I am assuming and the agreement?

PN16

MR SHEPHERD: I have got a similar truncated copy if my friend - Deputy President - - -

PN17

THE DEPUTY PRESIDENT: When you say "truncated", what do you mean?

PN18

MR SHEPHERD: The provisions that - the full agreement runs to about 60 pages. Really what - in the bundle that I have handed up, is the first page of the certification page. Part I which deals with the date and period of operation. Then page 3 which has several of the clauses on it including - - -

PN19

THE DEPUTY PRESIDENT: So they are extracted relevant pages from the agreement, are they?

PN20

MR SHEPHERD: Deputy President, yes.

PN21

THE DEPUTY PRESIDENT: Okay.

PN22

MR SHEPHERD: Deputy President, the industrial action on Thursday occurred extremely suddenly. And came as something of a surprise, as this will often do, to the applicant. The background to the industrial action is what can conveniently be called a dispute over the pay arrangements for two employees of the applicant who are what are known to the applicant as packaging designers. Without going too deeply into the nature of that disagreement, because it is not necessary to do so for the purposes of this application, essentially the two employees who had been on the staff of the applicant have made certain complaints, known to the applicant, in relation to their conditions.

PN23

On 8 November the union wrote to the applicant, I think Mr Thomas of the applicant, bringing the issue formally to the attention of the applicant and setting out what it was that the two employees were concerned about. In that letter which will be the subject of evidence and which I will tender later, it was stated that the classifications of the employees were covered by the enterprise bargaining agreement. As a result of that letter there were two meetings between union representatives the applicant to see if the dispute could be resolved. One on 21 November and the following meeting on 28 November. Deputy President on the meeting of 28 November, and this will be the evidence of Mr Thomas, it was indicated on behalf of the applicant that further information needed to be obtained.

PN24

And, again, it is not at the moment relevant to say what that was, in order to deal further with the dispute. And it was agreed that there would be a further meeting to discuss the matter on 4 December. In the interim a stop work meeting was held at the applicant's plant and a resolution carried that industrial action be commenced. And indeed the industrial action, as I have indicated, commenced on 29 November. Deputy President, you will see from the extract from the enterprise agreement that I have given you, and if I could ask you to turn to page - or what is noted as page 14, but it is the last page of the clip of papers. That the enterprise bargaining agreement contains a clause dealing specifically with the settlement of disputes.

PN25

Now, that clause sets out the steps which are required and you will see that the first two steps are to raise matters with supervisors and if the matter is unresolved, to be referred to a union delegate to consult with appropriate representation of management. And that, Deputy President, is really what has been happening. Importantly, clause 16.2 provides that:

PN26

While the above procedures are being followed, work shall continue normally in accordance with the agreement.

PN27

And 16.4 provides that:

PN28

The parties shall at all times confer in good faith and without undue delay.

PN29

Well, on the part of the applicant, Deputy President, 16.4 has been entirely complied with and the applicant has been doing its best to resolve the dispute in accordance with the procedure. Well, that procedure doesn't - well, the union has failed by taking industrial action to comply with the dispute resolution procedure set out in the agreement and that, Deputy President, forms the basis for this application. Because clearly one would expect that the union would abide by an agreement negotiated, as you have pointed out, a little over, I think, 2 months ago. Or finally certified a little over 2 months ago.

PN30

The industrial action is further in breach as you will realise, Deputy President, of section 170MN of the Act which provides that there will be no industrial action during the term of an agreement such as this. And that too underlines the basis for the application before you today. As to the effect on the applicant of the industrial action, it will be the evidence of Mr Thomas that the period before Christmas is a particularly busy period for the company and for each day that industrial action prevents work being undertaken at the plant, the company loses approximately 100 - I am sorry, approximately $200,000 of revenue. So it is action which substantially affects the applicant.

PN31

Deputy President, that is all I propose to say in opening. If I can summarise that. I think it is fair to say that the jurisdictional requirements of section 127 are clearly met. There is an agreement in place with a dispute resolution procedure which hasn't been followed. The applicant is clearly be affected by the industrial action that has happened to date and the proposed industrial action. And, thirdly, there is indeed - and that will be a matter for evidence but there is indeed industrial action that is either continuing or threatened or probable. The industrial action is seriously affecting and is likely to continue to seriously affect the applicant and it is most appropriate that the discretion of the Commission be exercised in favour of the applicant to make an order in the terms set out in the application.

PN32

So let's not go any further in opening.

PN33

THE DEPUTY PRESIDENT: Just, if I can turn you to what you are requesting with that order. It seems fairly extensive, particularly in the term of the point you are actually seeking.

PN34

MR SHEPHERD: Yes, Deputy President?

PN35

THE DEPUTY PRESIDENT: For a industrial action that is brief to this point, I don't know what it will be in the future, for there to be no regular history, from what you have said that you will lead, of industrial action, the request for an order with the effect of 3 months seems a little ambitious, if I can say so.

PN36

MR SHEPHERD: Deputy President, I was giving a general summary of the matters that I would raise in evidence. An additional matter which will be part of evidence and in fact is on the record in this Commission is that most recently there was an application before the Commission in June on precisely the same - well, not precisely the same grounds, but again there was industrial action whilst - it was the previous enterprise bargaining agreement that was in term. And the parties came - given the applicant was obliged to bring the matter to the attention of the Commission, and my understanding is that an order wasn't made at that time although at the hearing of the application the union indicated that the industrial action would, in those circumstances, cease, which is a slightly different position in this case.

PN37

Well, it is a different position in this case, where it has been indicated to the applicant that the likelihood is that industrial action will continue. But, yes, it was as recently as June that this union was - - -

PN38

THE DEPUTY PRESIDENT: So you will be addressing at some point why you want an order for that length of time, will you?

PN39

MR SHEPHERD: Deputy President, yes, I will.

PN40

THE DEPUTY PRESIDENT: Mr Kucera, have you got anything to comment on or add or refute at this point?

PN41

MR KUCERA: Yes, sir. I mean, in terms of the jurisdictional pre-requisites, one of the jurisdictional pre-requisites under section 127 is that there is industrial action which is - I think the words of the legislation or the words of the legislation are:

PN42

Is happening or is threatened, impending or probable.

PN43

My instructions are, sir, that there is no industrial action that is happening and there is no industrial action that is threatened, impending or probable. And we would respectfully submit, sir, that on that basis - - -

PN44

THE DEPUTY PRESIDENT: Will you be leading evidence to that effect?

PN45

MR KUCERA: Will we be giving evidence?

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MR KUCERA: I haven't proposed to call any witnesses but I am in a position to call a witness who will give evidence to that effect, sir.

PN48

THE DEPUTY PRESIDENT: Have the parties had any discussions over the status of this action?

PN49

MR KUCERA: Well, that was going to be my next point, sir. So that this is a worthwhile exercise for all the parties, perhaps sir, we might adjourn into conciliation to see if we can resolve the matter. There was a previous application that came before the Commission in June, as my friend pointed out, and what we found in that previous application, sir, was that the parties were able to resolve the issue through conciliation. And I would suggest, sir, that that might well be something which might - - -

PN50

THE DEPUTY PRESIDENT: But your dispute resolution procedure in your agreement provides for that sort of process to occur. What I am just a little curious about is if that hasn't occurred through the various steps and should it occur now, I suppose?

PN51

MR KUCERA: 16.4 of the disputes procedure says:

PN52

The parties shall at all times confer in good faith and without undue delay.

PN53

The issue giving rise to this dispute, sir, has a long standing history. It goes back as far as 10 years. And I would have to say, sir, that there is a more than latent level of frustration amongst the work force that an issue could be allowed to go for this long and it would be satisfactorily resolved through the parties all resolved by the parties, sir. And that is why I say conciliation of this, albeit at a late stage, might well assist us to bring a lasting resolution of this dispute which isn't going to be the product of further antagonism between the parties in the future.

PN54

THE DEPUTY PRESIDENT: Well, I will accede partially to your request. What will I request that the parties confer amongst themselves for a short period. I will adjourn. I will reconvene after you have had that opportunity to confer. And I would hope that you would be able to come to some understanding of a means to progress this yourselves without my intervention. So I will proceed on that manner at this point and direct that you confer for a short period to enable that to occur. This matter is adjourned.

SHORT ADJOURNMENT [9.36am]

RESUMED [10.51am]

PN55

THE DEPUTY PRESIDENT: Well, have the parties got anything to report? Have they had any success?

PN56

MR SHEPHERD: Deputy President, we are perhaps some way down the track to resolving this matter although we are still, I am afraid, some distance apart. And it is really a question of what needs to be said and what undertakings need to be given in order to ensure that the core dispute, if I can call it that, is resolved properly and in an appropriate period of time. And in my submission, in accordance with the dispute procedure set out in the employment bargaining agreement. What we have put to the respondent in the break for which we are grateful is that if a written undertaken is given that there will be no further industrial action until this matter is resolved, which is really, as a side issue, say no more is required of the respondent in any event under 170MN, that is the first undertaking.

PN57

The second undertaking would be that the union would agree to follow to the letter the disputes procedure on any other matter which arises, because again that is why we are there. There is an agreement that is only in place - been in place for 2 months and there has been industrial action outside the terms of the dispute agreement. So those are the two undertakings on which we would preface any action on behalf of the applicant or any agreement on behalf of the agreement. And then in relation to the dispute itself, it has been proposed by the respondent that there be a committee determined to look at the issue of the pay rates for the two employees.

PN58

And we would suggest that a week be given for that committee - the composition of that committee to be determined and the respondent has made some suggestions about the potential composition of such a committee. And none of those were suggestions that the applicant had particular difficulty with. So it didn't look like there would be any particular problem with getting the committee together. And, secondly, we would suggest that there be a period of 4 weeks allowed for the resolution of the dispute effectively in accordance with the dispute resolution process under the EBA. So that is to allow those steps to take place. But obviously the committee's work would have to be first, to see if the committee couldn't work out an agreed pay structure for the employees.

PN59

But then looking at the terms of the dispute resolution process, there are a number of other steps which might have to take place to comply with it. And I am thinking primarily of the latter steps, step 4 and 5. So whatever the committee decides might then have to be referred to the higher levels of both the union and the company. But if there is no answer or if the parties are unhappy or there is no resolution within a month or within 4 weeks, I should say, just a more appropriate time, then it is proposed by the applicant that the matter be referred to the Commission for conciliation and/or arbitration. So that, if you like, the Commission step, the final step, step 5, - - -

PN60

THE DEPUTY PRESIDENT: Section 99 you are envisaging?

PN61

MR SHEPHERD: Yes.

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR SHEPHERD: That final step then take place. And in my submission that entirely adequately deals with the dispute. There has been some concern expressed to the applicant on the part of the respondent that the respondent didn't want this matter dragging on forever. Well, the correspondence will show it has only ever been suggested that the resolution procedure would take about a month. And that is all that is being suggested now. Is that the parties have an appropriate period in which to complete steps 1 to 4. The applicant is entirely happy to deal with it at the first instance through a committee involving experts so that there can be a good chance of determination at that stage.

PN64

If it can't be done in 4 weeks after the appointment of the committee, then the applicant would suggest, well, the parties just abide by step 5. And you will see, Deputy President, that step 5 is really determinative. Because by the agreement, both parties accept the decision of the Commission as final. And subject to normal appeal rights. But that is an end to the matter. So it is really saying, well, this dispute should - in fact all of that, Deputy President, is really just to say that the respondent should abide by the steps in the 2 month old agreement, set out in clause 16. And as a show of good faith, the applicant is prepared to say, "Well, look, we will speed up - well, not speed up the process.

PN65

But we will say, okay, we won't leave it open ended. If we can't do it in a month, then we will go to the final step straight away. There will be no shilly-shallying. We will go to the final step."

PN66

THE DEPUTY PRESIDENT: So, Mr Shepherd, in essence, what you are really asking of the union is - of the respondent is the second point you first appraised. Really that the union agree and perhaps commit to following the disputes procedure. That is really the core of what you are saying?

PN67

MR SHEPHERD: That is really what we are saying.

PN68

THE DEPUTY PRESIDENT: Yes. Mr Kucera, have you got anything to comment on or - - -

PN69

MR KUCERA: Yes. Well, I suppose there are two points where we are apart on. One issue is the actual time frame. Our position was in relation to the dispute overall is that we say it is in relation to one issue and that the union would give an undertaking that there be no further industrial action in relation to this particular issue. We are opposed to giving any broad open ended undertakings, simply for the fact that in doing that what we would in effect be agreeing to is a broad, open undertaking that gives the respondent everything that is sought in the order they are seeking. We are saying that the order they are seeking is far too broad and for that reason we are not going to give an undertaking to that effect.

PN70

What we will say, sir, is that there will be no further industrial action in relation to this particular issue. Our position on the committee to investigate and reach agreement on the issue appears to be something that we are in agreement on. The only thing that we are not in agreement on beyond that point, sir, is this issue of the timetable. And on that, sir, my instructions are we want a 14 day timetable, simply because if we say a month in the present circumstances, we will be into Christmas and New Year and the holiday period, then there is the potential for the thing to run off the rails. So if we say a tight timetable of 2 weeks. If the parties need further time, they can by agreement extend that time period.

PN71

So we are not inflexible. And in addition to that we would say that we report back to the Commission on our progress within 14 days. That doesn't necessarily need to be a report back conference. That can simply be advice to your Associate, sir. And in relation to an end point, if the parties aren't able to reach final agreement in that 14 day timetable, the matter could then be referred to the Commission for further conciliation and/or arbitration. And we see, sir, that as a sensible way to dispose of the issues giving rise to this dispute. In relation to the disputes procedure more generally, sir, we don't see that there the necessity to give, as I said before, a broader undertaking simply because it goes without saying, we are parties to the certified agreement.

PN72

We are committed to disputes procedure. And it is just there has been no - - -

PN73

THE DEPUTY PRESIDENT: But you can express an intention.

PN74

MR KUCERA: Yes, sir, I suppose. This has just been, I suppose, a glitch along the way.

PN75

THE DEPUTY PRESIDENT: Yes. Mr Shepherd, if I come to the timetable, I mean, what Mr Kucera says seems reasonably sensible to me, that if you put a fairly tight target on yourselves and if there is reasons why and practical reasons why you, towards the end of that timetable, haven't been able to meet it, then it is open to you both to try and extend it or have it extended. If it can't be met, despite the best endeavours of everybody, then that will become realised by the participants in the process. I suppose the participants in the process would probably have to be satisfied though that there is a genuine commitment to try and genuinely meet the timetable.

PN76

MR SHEPHERD: Deputy President - - -

PN77

THE DEPUTY PRESIDENT: But it would seem to me, from what Mr Kucera says, is quite sound.

PN78

MR SHEPHERD: Deputy President, I hear what you say. With respect, I think that, first of all, Mr Kucera suggested that the reason why he wanted particularly to propose the matter being dealt with in the way that he suggested was to avoid the thing coming off the rails. Well, first of all, I think it is a fair submission to make that there is little point in putting n place an unrealistic timetable. And that is true in any forum. I appreciate that with goodwill and the best intentions, it may be that 2 weeks is attainable. But that is a tight timetable. It seems to me there is little reason to put that in place. And particularly if the committee itself can simply extend it.

PN79

What is being suggested by the applicant is to say, well, we will give the committee, so it knows what it is doing, 4 weeks to deal with the matter in its entirety. And at that 4 week point - and it is not being suggested that it be a 3 month process. It is 4 weeks rather than 2, in a period which encompasses the period in the lead up to Christmas. And also will involve, and it is accepted on both sides, that there are issues that arise in dealing with the core dispute, that will involve inevitably issues that have arisen in other sites, particularly in Victoria. And given that it may then involve making arrangements for people to go to or come from Victoria, it may also involve arranging for people to be available for telephone conferences if travel is decided not to be appropriate.

PN80

It seems to me that 2 weeks is just, say - it is just making an unnecessarily harsh rod for everyone's back. There is no reason why the - there is no express reason - well, there has been no reason put why it is necessary for there to have a 2 week - - -

PN81

THE DEPUTY PRESIDENT: Well, the reason is implicit, isn't it? That the respondents want to ensure that the matter gets dealt with expeditiously by the parties.

PN82

MR SHEPHERD: Deputy President, yes. But what has been suggested by the applicant is not an open ended procedure. It is another 2 weeks. It is not - in fact, quite the contrary. What is being said by the applicant is if it is not done in 4 weeks, well, that is it. We will just go to the arbitration. What is being said by the respondent is, well, if it is not in 2, and I suggest it is extremely unlikely that it will be done 2, but if it is not done in 2, then the committee itself can decide to push the matter out. Well, if anything is open ended, it is what is being suggested by the respondent. The other issue, I think, there has been no - I appreciate - if the point is only that there must be an end point to this, then the parties are agreed.

PN83

Yes, of course there must be. But the question is where you set it. 4 weeks is not an unreasonable period of time to deal with these issues, particularly because they are of complex issues and also matters which arise in another State. It is not unreasonable. There has been no basis put for suggesting the tight timetable. And no-one at the moment - there has been no suggestion that either of the two employees will be disadvantaged by an additional 2 weeks. They won't be. Because what is being sought by the employees is a determination of their pay structure under the EBA which gives them a similar result as they are getting currently in their staff arrangements. So they are not - so really it is that.

PN84

And the correspondence shows, Deputy President, that the applicant has said, well, if is finally determined, and the applicant has always been open to the determination of this issue in the proper way, if it is determined that it is appropriate for any salary increase to be backdated, that salary increase will be backdated. No-one - there is no reason for trying to truncate the procedure in a way that just seems unnecessary. And the applicant does say that it ought to be done in 4 weeks. The full procedure. Up to bringing it back before the Commission. And then it is appropriate then that as soon as possible, if it is not resolved, as soon as possible in the New Year, the matter will be before the Commission.

PN85

And that will be the final result. So by early next year, it will all be determined.

PN86

THE DEPUTY PRESIDENT: And if I can address this to both the parties. In coming back to the Commission, you see it coming back through the auspices of section 99, I think you mentioned, Mr Shepherd? Mr Kucera, is that the way you would see it coming back? If that were the case, and the parties are amenable - not amendable to it. But if that were the case, I would have a fairly strong inclination to issue an order dismissing this matter and for it to get back on the rails through the process of the procedure. If I were to do that, subject to what you have of course, your intentions in pursuing the application be, Mr Shepherd, if I were to do that, would that have any implications for your timetable, given what Mr Shepherd has said?

PN87

MR KUCERA: Probably not, no, sir. I don't see that it would. Just, no - I just don't see that it would - - -

PN88

THE DEPUTY PRESIDENT: And I would say I am going to do it. It is pretty well in the hands of the applicant is whether they want to pursue their application. But if that were to be the series of events that - and sequence of them that took place, does that have any implications for your 14 day timetable? Where does 14 days take us to?

PN89

MR KUCERA: Well, - - -

PN90

MR SHEPHERD: I presume, sir, it wouldn't be a Saturday. Perhaps we could take 14 days from Monday.

PN91

THE DEPUTY PRESIDENT: Yes. I mean, what are we talking about, the difference between 3 weeks 5 weeks. Is that what it boils down to?

PN92

MR SHEPHERD: I think it does, sir, yes.

PN93

THE DEPUTY PRESIDENT: Well, 4 weeks takes us to about 24 December, doesn't it? I mean, is it unrealistic? You say, we will have a target for you to - a finite point to finish this prior to Christmas in your procedure and if it isn't, then obviously you will be pursuing a matter before here in one form or another pretty early in the New Year. That is not unrealistic, is it?

PN94

MR KUCERA: Sir, we don't - in relation to the 14 day time frame, we deliberately inserted a - I suppose a provision into our suggested agreement providing - - -

PN95

THE DEPUTY PRESIDENT: Specific times?

PN96

MR KUCERA: Yes, specific times. And then obviously where we can't get anywhere, agreement that that time frame be extended. I mean, our position in relation to that is that agreement wouldn't be unreasonably withheld. The idea was to try and keep the issue going in an attempt to get it fixed before Christmas because if it is not fixed before Christmas, it is one of those things. It will drag out and - - -

PN97

THE DEPUTY PRESIDENT: But you can set times for when you are going to meet now.

PN98

MR KUCERA: Exactly.

PN99

THE DEPUTY PRESIDENT: Without having the 14 day constraint on it hanging around over us now. If there is a willingness, as I understand, from what the applicant is saying to get the thing pursued expeditiously, then - and if there is a commitment to, say, not completed by, say, Christmas time, then aren't everyone's interests protected?

PN100

MR SHEPHERD: Deputy President, yes.

PN101

THE DEPUTY PRESIDENT: Reasonably?

PN102

MR SHEPHERD: In fact, 4 weeks from Monday is 31 December conveniently. So - - -

PN103

THE DEPUTY PRESIDENT: I am not going to be here on New Year's Day, I can tell you now.

PN104

MR SHEPHERD: Deputy President, of course - - -

PN105

THE DEPUTY PRESIDENT: Nor New Year's Eve.

PN106

MR SHEPHERD: Of course. And nor would we seek that to happen. But what that says - and obviously that week is problematic in any event. So it seems to me to be sensible - and there is no objection to scheduling meetings because that is already was being done by the applicant. But the point being this. That if the - there is, of course, to consider the week in which to get the committee together and there will need to be some negotiation about who is on it and who is not. But I don't think that is - - -

PN107

THE DEPUTY PRESIDENT: Well, I guess the point too, Mr Shepherd, if I could just interrupt, is that - I mean, we can finesse our way around the timing and whatever. I have got a section 127 application before me. I can, I guess, push that button and then you would have to convince me that the action is threatened, it is real, it is impending and it is very likely. Now, from what has been said from the bar table, you are going to be pushing it fairly hard to get that convinced and I put it no higher than what's been said and you have rights of - - -

PN108

MR SHEPHERD: Deputy President, yes, that is - yes, there is quite a difference I think, there's quite a gap between often what's said from the bar table and what the evidence will show and there's been - there's no suggestion that there's any evidence to be called from the respondent in any event.

PN109

THE DEPUTY PRESIDENT: I think he said he may.

PN110

MR SHEPHERD: Well, there's certainly no suggestion so far that he will.

PN111

THE DEPUTY PRESIDENT: I guess you would wait and see what sort of evidence you call, whether he needed to?

PN112

MR SHEPHERD: Deputy President, yes, but without - and again there's no need for me to deal with it now, but there is strong evidence about that and I would be happy to do that, but what seems most sensible for these parties, is that it's put that the core dispute is put back into some rational use of the dispute procedures which they have agreed to and it seems to me that there's - what - - -

PN113

THE DEPUTY PRESIDENT: But then I have a section 127 before me, I don't have the dispute procedure as such and who is following or not following and how they follow in what, I have a 127 and you are as aware as I am, what my constraints and obligations are under that section.

PN114

MR SHEPHERD: Deputy President I am confident that we would convince you if this matter went on to make an appropriate order. Really where the parties are is that may not be necessary if we can reach an agreement and if the appropriate undertakings are given.

PN115

THE DEPUTY PRESIDENT: Well, look, can I adjourn this for another five minutes, I will direct the parties have another go at it, try to accommodate it, it's really a question of timing and I think with a degree of good will by both of you and with a commitment that the issue that is at the core of this is expeditiously dealt with then the explicitness of the detail of timing etcetera, is really secondary to a genuineness of a commitment to deal with it in an expeditious manner. So rather than confront this formally in submissions at this point, can I again request that the parties get their heads together and try and resolve the issue of how you wish this matter to be dealt with and the conditions associated with whether you are going to proceed or not Mr Shepherd.

PN116

MR SHEPHERD: Registrar yes and I think - I'm sorry, Deputy President yes, the only - - -

PN117

THE DEPUTY PRESIDENT: I've been just about everything this morning, so far, but you can call me Deputy President.

PN118

MR SHEPHERD: I apologise for that it's one of the difficulties of having a varied practice.

PN119

THE DEPUTY PRESIDENT: It must be Saturday morning.

PN120

MR SHEPHERD: It's that also I think. Deputy President I entirely agree this is a 127 application. It's a question as to whether or not we go ahead, whether or not we go ahead will really depend on whether we can agree with the other side some proper resolution.

PN121

THE DEPUTY PRESIDENT: Well this matter is adjourned for 10 minutes only.

SHORT ADJOURNMENT [11.13am]

RESUMED [11.29am]

PN122

THE DEPUTY PRESIDENT: Are we any further?

PN123

MR SHEPHERD: Deputy President I think we are and I'm certainly hopeful that we can in fact deal with this matter finally now.

PN124

THE DEPUTY PRESIDENT: I want to watch the Davis Cup today.

PN125

MR SHEPHERD: Yes, I was hopeful of getting to the cricket myself. The first matter is that the applicant would seek, from the respondent, a statement of its intention to follow the dispute resolution procedure in the EBA in the future. Secondly, the applicant would seek an undertaking from the respondent that there be no further industrial action until this matter has been determined and obviously that determination can be either by agreement, which one would hope for, or by ultimately the Commission and in relation to timing, the Committee be given a period of three weeks in which to make its findings, that period capable of extension if the Committee sees that that is necessary and appropriate and there be a report back of progress by the Committee, at that three week anniversary, which would be 24 December.

PN126

THE DEPUTY PRESIDENT: Report back to who?

PN127

MR SHEPHERD: I think what was envisaged was a report back to the Commission and I think, sir, to your associate.

PN128

THE DEPUTY PRESIDENT: For a fresh section 99? Is that what you're suggesting?

PN129

MR SHEPHERD: I think what's envisaged sir, on the three week, is simply a report back of progress.

PN130

THE DEPUTY PRESIDENT: Okay.

PN131

MR SHEPHERD: And if in three weeks I suspect it has become apparent that the Committee is going to be unable to resolve the matter then I - - -

PN132

THE DEPUTY PRESIDENT: But you're not expecting me to keep this section 99 alive for that period?

PN133

MR SHEPHERD: Deputy President no, in fact what I think is envisaged is that if within the three week period it becomes apparent that it's not possible to resolve this matter, then the matter would then be referred to the Commission under section 99, as early in the New Year as possible.

PN134

THE DEPUTY PRESIDENT: Okay, Mr Kucera, have you got anything to comment on or respond to?

PN135

MR KUCERA: No that's fine sir, that's the agreed position between the parties.

PN136

THE DEPUTY PRESIDENT: Thank you. Well Mr Shepherd on that basis I am assuming that you will be not proceeding with the section 99 and if that were the case I would be dismissing it on the basis of your withdrawal of the application.

PN137

MR SHEPHERD: Deputy President, yes, I can see no benefit in holding it over. I would, Deputy President, and perhaps it

PN138

s - well I would press for the intention and the undertaking to be formally given on behalf of the respondent.

PN139

THE DEPUTY PRESIDENT: What do you mean by "formally given"?

PN140

MR SHEPHERD: Well simply rather than agreeing to what I've said, I would like to hear the words out of the respondent counsel's mouth, if that's not - - -

PN141

THE DEPUTY PRESIDENT: Well I don't know that that's really necessary, I mean you've expressed them, they're fairly clear what you've expressed, the respondent has agreed with that. I would assume that if they didn't agree with that, that they would express that on the record, but they have agreed.

PN142

MR SHEPHERD: Deputy President. I am instructed to ask for - that the expression of intention and the undertaking to be given in writing and put in written form.

PN143

THE DEPUTY PRESIDENT: Do you need a short adjournment? I might just make a comment Mr Shepherd and that is the impression that I have gained from the comments at least made from the bar table are a genuineness on behalf of the respondent to proceed with the intention to follow the EBA and to proceed with the general procedures expected under the agreement, to pursue written commitments and the like is obviously in your hands and in your client's hands, but given the manner in which the respondent, at least to me appears to have approached this matter today, I think it's something you and your client need to think fairly seriously about.

PN144

MR SHEPHERD: Deputy President, could I have just - I don't think there will be any need - well I was going to say Deputy President, I don't think there will be any need to adjourn, I think I can deal with it very shortly, if you will give me leave.

PN145

THE DEPUTY PRESIDENT: Okay, well we will just go off the record for five seconds.

OFF THE RECORD [11.35am]

RESUMED [11.36am]

PN146

THE DEPUTY PRESIDENT: Mr Shepherd?

PN147

MR SHEPHERD: Deputy President thank you for your forbearance then and in fact throughout the morning. The parties have agreed and on the basis that there will be a joint statement issued by agreement on Monday, then I think that ends the matter on the basis of the agreement that I have outlined and the applicant formally withdraws his application.

PN148

THE DEPUTY PRESIDENT: Okay, on that basis this application will be dismissed on the basis of what has been said on record this morning. Can I say to the parties if there is any industrial action then any application to this Commission of any nature will be expedited. Similarly can I say to the union, if there is any disingenuousness or difficulty with the expedition of the resolution of this matter, should there be an application pursued by the respondent to the Commission, it will be expedited in whatever form that it comes before this Commission.

PN149

Can I also just suggest to the parties that the dispute resolution clause is in the agreement, it would be in any matter that came before me, an expectation that that dispute resolution clause was followed. Also, can I say to the parties and particularly to the applicant, the breadth of the nature of the section 127 application, the nature of it, perhaps there are other avenues open to the applicant, rather than a 127, although obviously it is its right to pursue whatever applications it wants. There are other avenues available to parties to pursue matters before this Commission and I would expect matters of this nature that they would be very thoroughly explored before 127s are applied for. This matter is adjourned.

ADJOURNED INDEFINITELY [11.48am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 EXTRACTS FROM AMCOR FIBRE PACKAGING NATIONAL ENTERPRISE AGREEMENT 2001 PN15