C0035/199, Transcript of Proceedings [2002] AIRCTrans 1340 (22 April 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VTO3494

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00351 of 1999

PHOSPHATE RESOURCES LTD TRADING AS
CHRISTMAS ISLAND PHOSPHATES AND UNION
OF CHRISTMAS ISLAND WORKERS MINING
AWARD 1991

Review under Item 51, Schedule 5,
transitional WROLA Act 1996 re conditions of
employment

CHRISTMAS ISLAND

2.32 PM, FRIDAY, 5 APRIL 2002

PN1

MR A. CAMERON: I appear for the Phosphate Company.

PN2

MR G. THOMSON: I appear for the Union of Christmas Island Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Thomson. Could I indicate to the parties that subsequent to Mr Cameron providing to my associate and to me some changes to the document as had been discussed in the course of conference with the parties I have incorporated those matters into the draft simplified award. And I have also in the course of incorporating those matters changed the award - sorry I withdraw that - made changes as have been discussed in conference with the parties. That has resulted in some serious formatting - re-formatting problems which, provided the parties are happy for it to occur in this way, I will arrange for those matters to be dealt with by the award simplification unit before I publish an order. Now, Mr Cameron, do you have any objection to that course?

PN4

MR CAMERON: Certainly not, your Honour. In fact I would suggest that is eminently sensible.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomson?

PN6

MR THOMSON: I agree with that, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you very much. There are - perhaps I need to just clarify some of the issues that have been changed in accordance with what I understood to be the parties requirements or desire or agreement in any event, albeit in some cases reluctant. By saying that, by the way, I don't mean to say that there hasn't been a very high degree of co-operation and I thank the parties for that. In clause 3.2 it was necessary to insert or identify the actual awards that were superseded. You might recall that the original draft had in it "all other awards and agreement between" and then it named a number of various parties.

PN8

And it was agreed that I would - or the names of the relevant awards would be inserted either as provided by the parties or as could be ascertained from the index of the various awards. Now, did you want to say anything about that, Mr Cameron? I at this stage have identified Christmas Island Phosphate Proprietary Limited/Union of Christmas Island Workers Mining Award 1991 and I think - I don't have the print number for it but I do have the C number, C0336. And also Phosphate Resources Limited T/A Christmas Island Phosphates and Union of Christmas Island Workers Mining Award 1991 Print P0940 CI number 8 of 1990. Now, are you aware of any other particular awards that you want identified in that area?

PN9

MR CAMERON: There is one matter there, your Honour. As you are aware from earlier proceedings there is something of a dispute between the parties as to whether certain earlier awards have bound the corporation set up by the Commonwealth and indeed the earlier British Phosphate Commission could be said to be binding on these parties.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, of course. Are they the awards that are commonly referred to in abbreviated form as the Redundancy Award and the Severance Pay Award?

PN11

MR CAMERON: They are the two that are a live issue between us, yes. Obviously from my end of the bar table we would be keen to still preserve the statement in the award as simplified that it replaces those earlier awards.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Well, let me take it in two steps. First of all, as I understand it the position at Phosphates - and I will refer to it in that way - is that they say they are not bound by those awards by reason of successorship or any other reason, is that right?

PN13

MR CAMERON: Correct.

PN14

THE SENIOR DEPUTY PRESIDENT: And the second position at Phosphates is that in the event that those awards were simplified on the basis that there was a successorship or on the assumption there was a successorship then that would be opposed by Phosphates?

PN15

MR CAMERON: That is correct, your Honour. The company would be seeking leave to intervene in those matters on the basis that we are on notice from the union that they have no fewer than three separate avenues they are considering for extending such awards to the company. Now - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. It seems to me though - I am sorry I didn't mean to cut you off. Go on, you were going to say something more?

PN17

MR CAMERON: Well, I was going to say that one of the arguments that we would be looking at putting up was that it could be said that they were binding upon us - was that an award is binding subject to any order of the Commission. But, of course, what we have here is an award where it is already expressed to supersede all earlier awards. I would simply say - foreshadow there is an argument to be made that that in itself would be sufficient to say that the earlier awards did not apply quite separately to any transmission of business argument.

PN18

THE SENIOR DEPUTY PRESIDENT: Let me say this. If this award was allowed to be expressed in those terms then it would lead to uncertainty. I think it is necessary to put in the term - or the names of the awards or identify the awards and identification of the flexibility - sorry, the Retrenchment Award - the Redundancy Award and the Severance Award - would necessitate a review of those awards in the context of this award and I wasn't proposing to do that.

PN19

It seems to me that as there is a dispute between the parties about the application of the Severance Award and the Redundancy Award, which I am going to come to at the conclusion of this proceeding, I would simply - subject to anything the parties want to say to me - adjourn those matters so that that issue could be finally resolved at another time. But at this stage I would be not prepared to allow that clause as expressed in that way in such poor terms. It would lead to too much uncertainty.

PN20

MR CAMERON: Well, in that case, your Honour, we would be seeking either one of two things. One would be we are to conclude this in short order prior to settling the dispute between the parties regarding the applicability of those two awards to actually proceed to go on and name the earlier awards and agreements that did exist with those earlier entities that are named. And, of course, amongst those would be the two awards that are relevant to the dispute between the parties. Or alternatively we proceed to resolve that issue that is between the parties as to the applicability of those two awards prior to the final order issuing simplifying this award.

PN21

THE SENIOR DEPUTY PRESIDENT: And subject to what Mr Thomson has to say one way around it would be for me to issue, in this case, an interim order subject to a final order being made after the issues concerning the dispute over the Severance Order and the Redundancy Award resolve.

PN22

MR CAMERON: Certainly from where I stand on the issue, your Honour, that would be eminently acceptable.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Thomson?

PN24

MR THOMSON: The union maintains that the company continues to have obligations to employees of the company in respect of the Christmas Island Redundancy Award 1981 and that matter is not resolved. But I think the point at issue is this, that the simplification process we are engaged in now requires that something that this award does not do should be done. That is, you must nominate the awards or agreements which this award made in 1991 is said to supersede What this 3.2 does is - talks about all awards and agreements between various companies and the Union of Christmas Island are superseded. Now, the award simplification process we are engaged in does not recognise that arrangement, that clause, and if that is the case then we must restrict ourselves to what is agreed until the dispute is resolved or determined by the Commission and we certainly don't accept what Mr Cameron says.

PN25

THE SENIOR DEPUTY PRESIDENT: I understand that but what do you say to the proposal that the Commission now make the interim order in terms agreed by the parties but nominating in clause 3.2 only those two awards that I have named, namely the two 1991 awards. And as an interim order may be - will not be finalised until such time as the issue between the parties over the Redundancy Award and the Severance Award has been resolved?

PN26

MR THOMSON: Yes, that is acceptable to the union, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cameron, do you wish to say anything else?

PN28

MR CAMERON: Your Honour, that being the accepted position between the parties and the proposal of the Commission obviously I surmise that is the way we will proceed.

PN29

THE SENIOR DEPUTY PRESIDENT: Very well. What I will do then when the document has been reformatted I will provide that to the parties to ensure that the changes that have been made are those that were agreed between the parties. But subject to that being confirmed I would say now that in this matter I was required to conduct a review of the Phosphate Resources Limited trading as Christmas Island Phosphates and Union of Christmas Island Workers Mining Award 1991 pursuant to Item 51 Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996.

PN30

Initially the matter was allocated to Commissioner Laing who notified t he parties of the intention to conduct a review and met with the parties in conference. Since the matter was allocated to me upon the retirement of Commissioner Laing I have conducted preliminary hearings and conferences from Perth and Melbourne by telephone and conferences on the island on 1 April 2002. The parties to the award are the Christmas Island Phosphate Proprietary Limited - which I shall refer to as Phosphates - and the Union of Christmas Island Workers, the union and its members. In the proceedings before me Mr Cameron appeared on behalf of Phosphates and Mr Thomson appeared for the union and its members.

PN31

It appeared on hearing Mr Cameron and Mr Thomson that there is a dispute between the parties about the awards that will be superseded by this award. It has been agreed by the parties that I should proceed to make an interim decision or an interim order subject to finalisation upon resolution of the issues between the parties regarding the awards over which there is a dispute. Those awards are, in particular, the Christmas Island Severance Pay Award 1981, that is C number 1999/197, and the Christmas Island Redundancy Award 1981, that is C number 1999/74.

PN32

I have indicated to the parties my intention to make an interim order and this is, therefore, an interim decision and the interim order will incorporate in clause 3.2 the awards - following awards. The Christmas Island Phosphate Proprietary Limited and Union of Christmas Island Workers Mining Award 1991, the print number of which is yet to be confirmed, and the Phosphate Resources Limited trading as Christmas Island Phosphates and Union of Christmas Island Workers Mining Award 1991 print 0940 CI number 8 of 1990.

PN33

In due course a determination will be made as to whether or not that clause should be further amended so as to incorporate references to the Redundancy Award and the Retrenchment Award to which I have recently referred. The parties have agreed I should make an interim decision and an interim order on that basis. I am satisfied that subject to the resolution of those matters and subject to the resolution of the formatting issues that the parties have agreed should be resolved by me the award as adjusted in the review process meets the requirement of Item 51 of the WROLA Act.

PN34

I am also satisfied that the rates of pay are properly fixed minimum rates of pay. I will set out in my decision, in fact, the internal relativities that have been provided to me by the parties. At the request of the parties I have exercised my powers to vary the award wherever necessary to ensure the award is currently applicable in the workplace. And to the extent that it is necessary to rely on those powers has not - as those matters do not fall in Item 51.

PN35

Subject to the reformatting process and resolution of the issues concerning the awards to be superseded ..... Award 1991, print 0940, CI number 8 of 1990. In due course a determination will be made as to whether or not that clause should be further amended so as to incorporate references to the redundancy award and the retrenchment award to which I have recently referred. The parties have agreed that I should make an interim decision and an interim order on that basis. I am satisfied that subject to the resolution of those matters and subject to the resolution of the four remaining issues that the parties have agreed should be resolved by me the award, as adjusted in the review process, meets the requirement of item 51 of the WROLA Act.

PN36

I am also satisfied that the rates of pay are properly fixed minimum rates of pay. I will set out in my decision, in fact, the internal relativities that have been provided to me by the parties. At the request of the parties I have exercised my powers to vary the award wherever necessary to ensure the award is current and applicable in the workplace and to the extent that it is necessary to rely on those powers as those matters do not fall within item 51. Subject to the re-formatting process and resolution of the issues concerning the awards to be superseded I will make interim order in the terms that have been discussed with and agreed between the parties.

PN37

In due course I will publish fuller reasons for my decision in this matter. Details of the necessary changes and variations in the award will be set out fully in my published reasons for decision. Prior to publication of that decision and the interim order I will provide to the parties the draft order as re-formatted in my office. The award and order - I should say the interim order shall take effect as from the date of the order. Anything else, Mr Cameron?

PN38

MR CAMERON: No, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Thomson?

PN40

MR THOMSON: No, your Honour, thank you.

PN41

THE SENIOR DEPUTY PRESIDENT: Again, I thank the parties for the co-operation and courtesies that have been provided during the course of my visit to Christmas Island and the matter is now adjourned.

ADJOURNED INDEFINITELY [2.49pm]