C2002/1950, Transcript of Proceedings [2002] AIRCTrans 2412 (28 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT04587

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/1950

AWARD BY CONSENT OF THE PARTIES

Application under section 111(1)(b) of
the Act by The Victoria Branch,
Association of Professional Engineers,
Scientists and Managers, Australia for
a roping-in award

MELBOURNE

2.00 PM, THURSDAY, 13 JUNE 2002

PN1

MS J. FREDERICKS: I appear on behalf of the Association of Professional Engineers, Scientists and Managers with MR M. GEORGIOU.

PN2

MR R. DALTON: I seek leave to appear for U E Com and with me is MR PURTELL.

PN3

MR D. SULLIVAN: I am from AIG on behalf of Vemtec.

PN4

THE SENIOR DEPUTY PRESIDENT: Ms Fredericks, do you have any objection to Mr Dalton being given leave to appear?

PN5

MS FREDERICKS: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. Leave to appear is granted, Mr Dalton. Is there no appearance for Texas Utilities Australia? No appearance for AES Transpower Australia Pty Ltd. Have you had any communication with either of those two organisations?

PN7

MS FREDERICKS: From Texas Utilities, yes, from AES Transpower, no.

PN8

THE SENIOR DEPUTY PRESIDENT: Right. So what do you want me to do today, Ms Fredericks?

PN9

MS FREDERICKS: Your Honour, this is an application under section 111(1)(b) of the Workplace Relations Act for a roping-in award. It relates to findings of dispute made by Senior Deputy President Kaufman in C2001/4813 last year. I will tender a copy of the dispute finding.

PN10

THE SENIOR DEPUTY PRESIDENT: Thanks very much. You want that marked, do you?

PN11

MS FREDERICKS: Yes.

EXHIBIT #APESMA1 COPY OF DISPUTE FINDING MADE BY SENIOR DEPUTY PRESIDENT KAUFMAN ON 25 OCTOBER 2001

PN12

MS FREDERICKS: Senior Deputy President, on 10 May this year a copy of the notice of hearing, draft award, the dispute finding, the application and a letter were served on four employers, so I will tender you a copy of the correspondence and at the same time I will tender the draft award and the proof of delivery of service.

PN13

THE SENIOR DEPUTY PRESIDENT: What is the facsimile transmission sheet, what does that relate to?

PN14

MS FREDERICKS: That is the proof of delivery of service.

PN15

THE SENIOR DEPUTY PRESIDENT: I see. Is that the only way service was effected?

PN16

MS FREDERICKS: Yes, your Honour, by courier.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #APESMA2 FACSIMILE TRANSMISSION SHEET AS PROOF OF SERVICE BY COURIER

EXHIBIT #APESMA3 DRAFT AWARD

EXHIBIT #APESMA4 COPY APPLICATION FOR ROPING-IN

PN18

MS FREDERICKS: Could I clarify with you, Senior Deputy President, that APESMA3 is a fax of the - sorry, APESMA2 is a fax of the actual delivery sheets.

PN19

THE SENIOR DEPUTY PRESIDENT: Is?

PN20

MS FREDERICKS: Yes.

PN21

THE SENIOR DEPUTY PRESIDENT: From the courier company?

PN22

MS FREDERICKS: From the courier. Your Honour, you will see from the draft award, APESMA3 - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

MS FREDERICKS: - - - that today we are seeking to make three companies respondent to the Power and Energy Industry Electrical, Electronic and Engineering Employees Award 1998 which is a simplified award from today's date. We have had discussions with Vemtec and U E Com. Vemtec have indicated that they will consent today. U E Com have indicated that they won't consent today and we have not heard from AES Transpower. So today I am seeking this award made against those three companies. If the Commission pleases.

PN25

THE SENIOR DEPUTY PRESIDENT: And the one against Vemtec you say by consent?

PN26

MS FREDERICKS: Yes, Vemtec is by consent.

PN27

THE SENIOR DEPUTY PRESIDENT: And did you say anybody else was by consent - no.

PN28

MS FREDERICKS: No, U E Com I understand won't consent and we haven't heard from AES Transpower.

PN29

THE SENIOR DEPUTY PRESIDENT: All right. Mr Sullivan, you appear on behalf of Vemtec; is that right?

PN30

MR SULLIVAN: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: And you have - do you have any written authority from the company to consent?

PN32

MR SULLIVAN: No, we have had verbal authority from the company, your Honour, and they have no objection to consenting.

PN33

THE SENIOR DEPUTY PRESIDENT: The rules actually require that the party proposing to consent to a roping-in award must lodge a written statement - signed statement stating that the terms of the proposed award by consent have been approved by the parties. You don't have any authority of that nature?

PN34

MR SULLIVAN: At this stage I don't, your Honour. I have got a representative of the company here today who isn't at the bar, who could do that today if necessary, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: That person is authorised to speak on behalf of the company, are they?

PN36

MR SULLIVAN: Yes, he is, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, perhaps if we could get an undertaking from him that - what is his name by the way?

PN38

MR SULLIVAN: Larry Lawson, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Perhaps if Mr Lawson could give an undertaking to forward to my associate a written authority to consent to the making of the award and that will be satisfactory.

PN40

MR SULLIVAN: Would you like him to do that now, your Honour?

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Lawson, what is your position with the company.

PN42

MR LAWSON: Your Honour, I am Managing Director of Vemtec.

PN43

THE SENIOR DEPUTY PRESIDENT: All right. And would you give an undertaking or do you give an undertaking that you will provide a written authority for being roped-in to this award by consent?

PN44

MR LAWSON: I do give that undertaking, yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you Mr - - -

PN46

MR LAWSON: Do you still need that in writing?

PN47

THE SENIOR DEPUTY PRESIDENT: Sorry - yes, I do, yes, because that was what your undertaking was, or the substance of your undertaking.

PN48

MR LAWSON: Correct.

PN49

THE SENIOR DEPUTY PRESIDENT: Thanks. Yes, thank you, Mr Sullivan. Mr Dalton, what do you say?

PN50

MR DALTON: Your Honour, I am instructed to ask for an adjournment of the application against my client. The adjournment would be for a period of approximately a month. The reason for it is that my client doesn't consent to the making of the roping-in award and it doesn't consent because it doesn't accept that the Quad E Award is the appropriate award to cover any of its employees who may be within the scope of APESMAs rules. As I understand it, APESMA would assert that my client is a successor to United Energy.

PN51

And your Honour may be familiar with the scope and application clause of the Quad E Award which includes a provision to the effect that it would extend to successors of respondents to the award and United Energy is a respondent to the Quad E Award.

PN52

THE SENIOR DEPUTY PRESIDENT: Right.

PN53

MR DALTON: Your Honour, I don't propose to go into the detail of it but perhaps if I could just outline to you briefly what U E Com does. It is in the business of telecommunications in that it owns and operates optic fibre cable. It is not a business, as I understand it, that as emanated in any way from the United Energy business which in my submission would be the business of owning and operating a power transmission infrastructure. That is United Energy is in the business of distributing electricity. I think it is also in the business of retail, to some extent, these days. It is for that reason that my client does not accept that the Quad E Award is the appropriate award.

[2.15pm]

PN54

THE SENIOR DEPUTY PRESIDENT: So, just, when you say owns and operates optic fibre cable, what does that actually mean. How do they operate optic fibre cable?

PN55

MR DALTON: Well, they have rolled out that cable and they have contracts with various customers, particularly business customers, to provide a data transmission service, that is, the conduit for which is the cable that he just rolled out.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR DALTON: My client asks the Commission for a relatively brief adjournment, as I said, approximately a month, in which time it proposes to, firstly, assess any possible scope of APESMAs coverage to its employees. I understand from the initial instructions I have received that U E Com does employ some people who are qualified as engineers and my client will look at that in further detail. What it also proposes to do is examine the duties and functions and qualifications of its employees to assess who, if anyone, would properly fall within APESMAs eligibility rules.

PN58

And then it proposes to look at other awards that currently exist to which APESMA is a party. One of those awards which I have drawn my client's attention to is the Technical Services Professional Engineers (General Industries) Award 1998. And for your Honour's ease of reference, that is AW800659. On my reading of that award that is a general industry award to which APESMA is a party which covers professional engineers. A brief look at the respondent's reveals that it covers a range of employers across mining and energy, construction, consulting engineers and other such businesses.

PN59

THE SENIOR DEPUTY PRESIDENT: Has there been any discussion between your client and APESMA about that to date?

PN60

MR DALTON: Not in relation to the - whether there is appropriate alternative awards. The application for the roping-in award, as I understand it, was provided to my client about a month ago. And the only communications between my client and APESMA have been two telephone calls, one from the HR manager of U E Com about a week ago indicating that U E Com was not going to consent to the making of the roping-in award. And the second telephone conversation was one that I had with Ms Fredericks yesterday just confirming that to be the position and asking Ms Fredericks if she would be agreeable to an adjournment of a month to allow my client to do the things that I am outlining to you now.

PN61

THE SENIOR DEPUTY PRESIDENT: Why would that take a month?

PN62

MR DALTON: Well, I think that - in my submission, it would be reasonable to allow two weeks for my client to examine all of these things. It also, in my submission, should have the opportunity to, you know, examine the terms and conditions in any awards, to look at appropriate award content. Compare that with the terms and conditions that applies generally. And also speak to its employees and get their views as to award coverage - regulation of their terms and conditions at a safety net level.

PN63

My client would be in a position to speak to APESMA within two to three weeks and make its position clear to APESMA at that time. And then the Commission could hear from the parties in a month's time as to whether in fact there has been a consent position reached. The time between when my client gets back to APESMA and when the matter is reported back to the Commission can be used to examine appropriate award coverage. If it is clear, based on the response from my client to APESMA, that there is not much point in pursing those talks, then of course, the matter could be brought on earlier for argument.

PN64

In terms of the urgency of the matter, in my submission, there is not any. The dispute finding was made at the end of October last year and it is not until May that APESMA bothers to seek a roping-in order against my client. And my understanding, or my instructions, there were not any communications from APESMA to my client prior to that in relation to award coverage.

PN65

THE SENIOR DEPUTY PRESIDENT: Did your client appear at the hearing for the dispute finding?

PN66

MR DALTON: Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: Did they take any objection to the - - -

PN68

MR DALTON: No opposition was made to the finding of dispute and I have not made any submissions in relation to that at this stage. All I am asking for is adjournment to allow time for my client to assess who might be covered. The other thing on the question of urgency, your Honour, is that all of the employees who might conceivably fall within APESMAs rules are paid well in excess of any of the safety net wages that are prescribed in either the Quad E Award or the general industries - the Tech Services Award that I referred your Honour to.

PN69

THE SENIOR DEPUTY PRESIDENT: What is the basis of their entitlement. It is just contract or AWAs or - - -

PN70

MR DALTON: Contract, your Honour. They are paid a total employment cost which, on my instructions, are the salary component which is well above award rates.

PN71

THE SENIOR DEPUTY PRESIDENT: What about other conditions?

PN72

MR DALTON: I beg your pardon, your Honour?

PN73

THE SENIOR DEPUTY PRESIDENT: What about other conditions? The other conditions that they are employed under - - -

PN74

MR DALTON: Yes, I will just - - -

PN75

THE SENIOR DEPUTY PRESIDENT: - - - are they commensurate with the award conditions?

PN76

MR DALTON: Look, I have only had a brief opportunity to get those instructions. It appears that there are more generous entitlements to things such as leave and my understanding, again from the brief instructions I have been able to gather on the non salary conditions, there is unlikely to be any issue when one compares it with safety net test case standards of the Commission. Those are my submissions in support of the application for adjournment, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Dalton. Ms Fredericks, what do you say about Mr Dalton's application for adjournment?

PN78

MS FREDERICKS: Your Honour, APESMA does not consent to an adjournment today on two grounds. One, that we maintain that the Power Industry Award is the most appropriate award to rope the company in to. And, two, that they have had adequate time to make the assessments of appropriate awards, as he outlined. As Mr Dalton said, the award is binding on any successor, assignee or transmittee of the former State Electricity Commission of Victoria. U E Com is part of United Energy. Energy is a successor to the SECVs distribution business.

PN79

And our members at U E Com worked for SECV before they went over to U E Com.

PN80

THE SENIOR DEPUTY PRESIDENT: So how do you know U E Com is part of United Energy?

PN81

MS FREDERICKS: Pardon, your Honour?

PN82

THE SENIOR DEPUTY PRESIDENT: How do you know U E Com is part of United Energy?

PN83

MS FREDERICKS: I am informed by my colleague, Mr Georgiou.

PN84

MR GEORGIOU: If I could answer that. At the time of negotiating an enterprise agreement, your Honour, the company put to us that it wanted separate enterprise agreements for different divisions of its organisation. And as recently as three months ago I dealt with a dismissal matter with U E Com where the issue of the jurisdiction of my organisation to cover that employee, who was either second or third in charge of the organisation, was never questioned. So, some of the submissions that have been made to you today have been a little bit fanciful, I think.

PN85

THE SENIOR DEPUTY PRESIDENT: Mr Dalton, what do you say about that. U E Com has a subsidiary or part of United Energy?

PN86

MR DALTON: Your Honour, U E is the major shareholder in U E Com and it owns 66 per cent of the business. U E Com is a separate company, and as I indicated to you earlier, your Honour, my instructions are that, since staring the business of being a telecommunications carrier and having a licence to do that, U E Com has been a separate business. My instructions are that also, that U E, that is United Energy, has never engaged in that business. And it is the lack of identity between what United Energy has done since it was formed and what U E Com does since it was formed that, in my submission, would lead to the conclusion that there is no successorship for the purposes of section 149 of the purposes of the scope and application provision of the Quad E Award.

PN87

THE SENIOR DEPUTY PRESIDENT: When did you say your client received notification of the application for roping-in?

PN88

MR DALTON: I think it was the 9th - 10 May, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: So, it has had a month already to consider the scope of the award and its position, has it not?

PN90

MR DALTON: It has had that time but only recently, perhaps had the legal issues and the implications of what the roping-in award has, has been considered by my client. I received firm instructions in relation to this particular application last week. But, yes, the documentation was received a month ago.

PN91

THE SENIOR DEPUTY PRESIDENT: When did you first received instructions about it?

PN92

MR DALTON: Freehills received instructions about this back at the finding of dispute stage, your Honour. And I think that Freehills appeared for a couple of companies at the original hearing before his Honour, Senior Deputy President Kaufman. And one of those companies was U E Com and no opposition was made to a finding of dispute at that stage. And a dispute finding was made.

PN93

MS FREDERICKS: Senior Deputy President, could I just interject to point out that Mr Georgiou has had much contact with U E Com since the dispute finding on different matters. So there would have been opportunities there for them to raise a more appropriate award.

PN94

THE SENIOR DEPUTY PRESIDENT: What I am inclined to do is to allow you a week, Mr Dalton, to conduct such investigations and seek such instructions as you may wish to obtain and perhaps have further discussions with APESMA about those matters. And then re-list the matter to hear any argument you want to put as to why your client should not be bound by the award.

PN95

MR DALTON: If your Honour pleases.

PN96

THE SENIOR DEPUTY PRESIDENT: I will make the roping-in award for Vemtec subject to the provision of the written authority from the company to be bound by consent. And that award will operate from the first pay period on and after today's date.

PN97

MS FREDERICKS: AES Transpower, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Pardon?

PN99

MS FREDERICKS: AES Transpower.

PN100

THE SENIOR DEPUTY PRESIDENT: Well, you have had no discussions with them at all though, you said, did you not?

PN101

MS FREDERICKS: No, they haven't contacted me.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes. What I will do is, I will adjourn that matter until 20 June as well. And in the interim you may seek to have contact with them to see what their attitude is. It may well be that they would wish to consent also. But you should inform them that if they do they ought to provide a written authority to that effect. Anything else? This matter is adjourned to 20 June.

ADJOURNED UNTIL THURSDAY, 20 JUNE 2002 [2.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 COPY OF DISPUTE FINDING MADE BY SENIOR DEPUTY PRESIDENT KAUFMAN ON 25 OCTOBER 2001 PN12
EXHIBIT #APESMA2 FACSIMILE TRANSMISSION SHEET AS PROOF OF SERVICE BY COURIER PN18
EXHIBIT #APESMA3 DRAFT AWARD PN18
EXHIBIT #APESMA4 COPY APPLICATION FOR ROPING-IN PN18