C2001/6227, Transcript of Proceedings [2002] AIRCTrans 132 (7 January 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2001/6227

THE AUSTRALIAN WORKERS' UNION

and

EXOSTEEL HOLDINGS PROPRIETARY LIMITED

Application under section 170LW of the Act
for settlement of dispute re employment conditions
applicable on relocation

ADELAIDE

12.40 AM, TUESDAY, 18 DECEMBER 2001

PN1

THE COMMISSIONER: Yes, I will take appearances thanks.

PN2

MR M. ATS: I appear with MR D. EDWARDS for the Australian Workers' Union in this matter, thanks.

PN3

MR S. MOIR: I appear with MS P. HEATH for Exosteel.

PN4

THE COMMISSIONER: Thanks, Mr Moir. Mr Ats?

PN5

MR ATS: Commissioner, you have before you an application pursuant to section 170LW and clause 9 in the enterprise agreement identified in the application. I understand that you also have before you some proposed orders that have been arrived at by consent of the parties. We will be seeking that you make those orders today. There are three brief points I would simply wish to record at this time. In relation to appendix B which applies to the Gepps Cross site, the signature of one employee is not currently present. It is because that employee is overseas on leave. He will be returning early in the new year and we will simply request that the file be held open for a short time to allow him to complete the documentation and provide it to you upon his return although we understand that that employee is supportive of the arrangements that have been reached.

PN6

The parties wish the Commission to note and record on the transcript that it is intended that the agreements which form appendixes A and B operate at common law as a matter of contract in addition to the force we hope that you will give them as orders of this Commission. Again in relation to the Gepps Cross agreement, the appendix B, where in clause 19 it refers back to clause 13, that ought to read clause 12, it is a typographical error which is as a result of a cut and paste from the appendix A which has one further clause than the appendix B.

PN7

THE COMMISSIONER: Can you just make that reference again, sorry, in appendix B.

PN8

MR ATS: Appendix B, clause 19, contains a reference back to a clause 13.

PN9

THE COMMISSIONER: Yes.

PN10

MR ATS: That reference back is in fact to clause 12 which correlates with 13 in appendix A.

PN11

THE COMMISSIONER: Yes. So you will be amending appendix B accordingly?

PN12

MR ATS: Yes, thank you, Commissioner. At this time those are all the matters that we wish to draw the Commission's attention. In the absence of any further questions, I will hand over to my friend.

PN13

THE COMMISSIONER: Yes. So it is Mr Morrison who is overseas at the moment?

PN14

MR ATS: That is so, sir, that is so.

PN15

THE COMMISSIONER: You wish the Commission to note that it is intended - in fact I think the agreements actually specify this, don't they - that the agreements are to operate at common law with the force - with contractual force, is that the - - -

PN16

MR ATS: Yes. That is in addition to as an order. There may have been - we simply wanted it to be crystal clear that it is intended to have force, both as an order and at common law. It is a matter that has been discussed between the parties and we simply record in a formal way again now.

PN17

THE COMMISSIONER: Yes. Mr Moir?

PN18

MR MOIR: Thank you, sir. I just wish to support the application made by my friend, Mr Ats, in such that the order sought and the attached appendices A and B, the intent is to represent full and final settlement of all matters outstanding or arising out of the issue of the relocations and the employment relationships during that period. In addition, for the housekeeping of Mr Morrison, with appendix B, clause 5, indicates payment and an election that each employee can make by a set date being 21 December, obviously for the reasons Mr Morrison cannot make that election at this time nor can the payments be made and it is agreed that the effect that that clause in regard to Mr Morrison will be followed through on his election upon his return.

PN19

In regards to all other matters of the submissions of my friend, the employer supports the making of the order as sought and asks the Commission to follow through with that, if it pleases.

PN20

THE COMMISSIONER: Thank you.

PN21

MR ATS: Commissioner, I am able to confirm that those arrangements that my friend discussed are in fact the case. We would seek that the Commission request the transcript in this matter and make it available to the parties and with that in mind I would, from my perspective, like to record that I think it has been a great pleasure and privilege to represent this group of members who have conducted themselves in my view in line with extraordinarily high standards in sometimes trying circumstances and I thank them for that opportunity. I thank the Commissioner for the Commission's ongoing assistance in dealing with this difficult matter.

PN22

THE COMMISSIONER: Thanks, Mr Ats. Now, I can say that the Commission has it before then an application to approve two agreements pursuant to section 170LW of the Workplace Relations Act. The first agreement which is marked appendix A is an agreement between the Australian Workers' Union and 14 of its members, namely Messrs Downes, Atkinson, Hobby, Cameron, Ross, Evans, Oko, Agius, Edwards, Murphy, Wilcox, Hunt, Catalinic and Randell of the one part and Exosteel Holdings Proprietary Limited of the other.

PN23

The second agreement which is marked appendix B is between the Australian Workers' Union and two of its members, Mr Rob Elliott and Mr Barry Morrison of the one part and Exosteel Holdings Proprietary Limited of the other. The agreements effectively settle a long standing dispute between the union and Exosteel Proprietary Limited trading as Cowell Steel in matter C Number 51332 of 2000. The agreement also includes an undertaking for the discontinuance of certain Federal Court matters flowing from that original dispute.

PN24

The Commission has had the benefit of a full explanation from the parties of both the application and the substance of the two agreements, the subject of the application. In conference yesterday, the parties appropriately responded to a number of queries that the Commission had about the terms of the agreement and the processes of having these agreements approved. The Commission notes that in regard to the agreement of appendix B, Mr Morrison is currently overseas on leave and is therefore is unable to complete the documentation. The Commission notes however that Mr Morrison has indicated that he is satisfied with the agreement.

PN25

The Commission also notes that in respect of clause 5 of that agreement in appendix B, Mr Morrison will be able to make his election pursuant to that clause upon his return from overseas. While we are talking about appendix B, the Commission also notes that there is a small typographical error which needs to be amended. In clause 19 there is a reference back to clause 13 of the agreement and as indicated by the parties, that should be a reference back to clause 12. The agreement will be amended accordingly. The Commission also notes that it is the intention of the parties that both agreements are to operate at common law with the full force of contracts enforceable at common law.

PN26

The Commission has considered the two agreements and is satisfied that they are both in order, that they are capable of being approved by the Commission as presently constituted, that the necessary procedural requirements have been met by the parties and that in equity and good conscience, it is appropriate that they be approved. The Commission therefore approves the two agreements before it operative from today's date. It should be recorded that the Commission congratulates the parties on their agreement to settle what I know was a very complex and time consuming dispute dating back now just over 12 months.

PN27

Finally, I just indicate that I will ask that transcript be made available to the parties. Unless there is anything further from either of the parties, I think that covers all that we need to cover. That being the case, once again I congratulate the parties and that now disposes of this matter.

ADJOURNED INDEFINITELY [12.53pm]