C2002/1952, Transcript of Proceedings [2002] AIRCTrans 2718 (17 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT04746

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/1952
C2002/1953
C2002/1955
C2002/1957

ENTERPRISE BARGAINING AWARDS

Applications pursuant to section 111(1)(b)
of the Act by the Association of Professional
Engineers, Scientists and Managers, Australia,
the Victorian Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

TUESDAY, 2 JULY 2002

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [10.40am]

C2002/1957

TECHNICAL SERVICES PROFESSIONAL ENGINEERS
(GENERAL INDUSTRIES) AWARD 1998

PN1

MS J. FREDERICKS: Your Honour, the final matter listed for 10.15 is another application for a roping-in order, this time to Technical Services Professional Engineers (General Industries) Award 1998, which is a simplified award. This application also relates to the dispute findings in C2001/4813 which was found by your Honour last year. On 7 June 2002, APESMA served a copy of the award, the application and the draft order on the relevant employers, and for the file I will tender a copy of the amended order sought today, and the proof of service.

PN2

THE SENIOR DEPUTY PRESIDENT: Now, Ms Fredericks, did you personally attend to the service of those documents? That is the application for the roping-in award together with the award to which the employers are to be roped-in, the draft order - - -

PN3

MS FREDERICKS: Your Honour, I personally attended to them in that I organised the documentation to go to our mailing house.

PN4

THE SENIOR DEPUTY PRESIDENT: It would be preferable, I would have thought, to have a statement of service by somebody who actually attended to the dispatch of these documents, saying precisely what had been served. I am more concerned with this one, because there is a large number of persons sought to be roped-in to the award, and I must say I am a little concerned to make a roping-in award without a more satisfactory proof of service, Ms Fredericks.

PN5

MS FREDERICKS: Your Honour, I could provide that proof of service within seven days.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, well, subject to what the employers have to say, because I notice that in this matter there are a few employers appearing, I would be content to make a conditional order, all other things being satisfied. I will mark the registered mail receipt together with the draft award as APESMA1 in matter 2002/1957.

EXHIBIT #APESMA1 (C2002/1957) REGISTERED MAIL RECEIPT AND DRAFT AWARD

PN7

THE SENIOR DEPUTY PRESIDENT: And you seek to make the same variation to clause 3 in this draft award as you did in the previous matter, do you, Ms Fredericks?

PN8

MS FREDERICKS: Yes, I do.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MS FREDERICKS: Thank you, your Honour. You will see from the draft order that, as I said, it is an application to draft - to rope-in a number of employers into our Technical Services Professional Engineers (General Industries) Award 1998. I should draw the Commission's attention to the lay-out of the award, the General Industries Award, and state that we are seeking that the employers' names be added to schedule A which is the main body of the award, but also appendix A, appendix B and appendix C, which relate to superannuation, termination, change and redundancy, and parental leave. And we say that they are all within the ambit of the dispute.

PN11

It is just an unusual award in the way it is set out, in that those - when the award was varied to incorporate those various provisions, whey were not put into the body of the award; they were added as appendices with separate respondency lists.

PN12

THE SENIOR DEPUTY PRESIDENT: Well, you are asking that the parties in this schedule be bound by provisions of the award as varied from time to time?

PN13

MS FREDERICKS: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Whether or not that includes the schedules might be a matter for debate at a later time.

PN15

MS FREDERICKS: Yes, I would say that they do form part of the award. We will leave it to see - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the award handy?

PN17

MS FREDERICKS: I have my copy which I can give you.

PN18

THE SENIOR DEPUTY PRESIDENT: May I just see that for a moment? There are 18 clauses, it seems, and there are several schedules of respondents with roping-in awards as well.

PN19

MS FREDERICKS: And then you will notice, your Honour, towards the back, there is an appendix A and then a schedule of respondents, then an appendix B. They can be hard to miss in those roping-in awards.

PN20

THE SENIOR DEPUTY PRESIDENT: There is an appendix A, superannuation, with a schedule of respondents to that appendix.

PN21

MS FREDERICKS: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Do I take it from that that there is a more limited respondency to schedule A than there is to the award - to the main body of the award?

PN23

MS FREDERICKS: Yes, that is correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: And you are seeking to have all of the employers whom you served in this matter bound by schedule A - by appendix A?

PN25

MS FREDERICKS: Yes, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Well, that is far from clear from your application.

PN27

MS FREDERICKS: Okay.

PN28

THE SENIOR DEPUTY PRESIDENT: I suggest you do it again, Ms Fredericks.

PN29

MS FREDERICKS: Your Honour, my application says that it will apply to the provisions as varied from time to time of the Technical Services Professional Engineers (General Industries) Award.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MS FREDERICKS: And appendices form part of that award.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, that is your submission.

PN33

MS FREDERICKS: Yes, that is my submission.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. Having looked at the lay-out of the award, I am not sure that I could accept that. It is not clear to me from looking at it that appendix A, for instance, forms part of the award, given that it applies to a different set of respondents.

PN35

MS FREDERICKS: Your Honour, if it is an indication f how the employers received my application, I only received one inquiry about whether those appendices applied.

PN36

THE SENIOR DEPUTY PRESIDENT: There is also a schedule of respondents in appendix C, I notice.

PN37

MS FREDERICKS: Yes, I am seeking - - -

PN38

THE SENIOR DEPUTY PRESIDENT: So that is more limited again than the general - - -

PN39

MS FREDERICKS: Yes, although I should say that the Australian Industry Group and Victorian Employers' Chamber of Commerce and Industry are respondents to all of those appendices.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. And the same goes for appendix B. The number of named respondents is much smaller than it is in relation to the award. Well, I will hear what the employers have to say and then I will have a think about it. Before I call on the employers, I should indicate that there has been some correspondence, a company called Techeng wrote on 24 June by facsimile transmission indicating that it approves the terms of the roping-in - the proposed roping-in award; as did a company called Semiconductor Technologies Australia on 14 June; as did a company called ADVEA Engineering on 14 June. And BP Australia Limited sent a facsimile on 13 June 2002 advising that BP Pty Limited does not exist and that BP Australia Limited is already named in schedule A of the award. I do not know, Ms Fredericks, if you have any response to that.

[10.55am]

PN41

MS FREDERICKS: I do have several other things to raise, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MS FREDERICKS: Regarding BP, I received a copy of that facsimile as well. I then inquired with the Australian Securities and Investments Commission about the existence of a company called BP Pty Limited and found that such a company does exist. I provided those details to BP Australia. I haven't received a response from them as to that. If the Commission would like, I have a copy of an extract from the Australian Securities and Investments Commission which demonstrates that BP Pty Limited does exist.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, I will accept that. Does anybody at the bar table appear for BP Pty Limited or BP Australia Pty Limited. No? Thank you.

PN45

MS FREDERICKS: Your Honour, I do draw your attention to the locality of the registered office which is in Lalor, Victoria, which is different to where we served. We served at the City of Melbourne.

PN46

THE SENIOR DEPUTY PRESIDENT: BP Pty Limited was found to be a party to the dispute, was it?

PN47

MS FREDERICKS: Yes, it was. I would be prepared, your Honour, to hold further discussions with BP Australia.

PN48

THE SENIOR DEPUTY PRESIDENT: I think that is probably a sensible course, Ms Fredericks. There is probably not much point in roping into an award an entity over which there is some debate.

PN49

MS FREDERICKS: Yes, and so I propose, your Honour, that we re-list this matter in approximately a week so that I can - - -

PN50

THE SENIOR DEPUTY PRESIDENT: You can write to me, seeking a re-listing if you want for BP Pty Limited roped-in to the award.

PN51

MS FREDERICKS: Your Honour, I also need to inquire, did you receive some correspondence from a company called Technical Systems Testing?

PN52

THE SENIOR DEPUTY PRESIDENT: It would appear not.

PN53

MS FREDERICKS: Your Honour, I can provide you with a copy of the correspondence. It is addressed to you, so perhaps it was mislaid before it got to you, but it is a consent to the roping-in application.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Technical Systems Testing appears to have sent a facsimile transmission on 19 June 2002 addressed to me. I don't think I have got the right fax number, by the look of it, but it does say that it approves the terms of the proposed roping-in award. May I retain that, Ms Fredericks?

PN55

MS FREDERICKS: Yes, you may, your Honour.

EXHIBIT #APESMA2 FACSIMILE DATED 19/06/2002 (C2002/1957)

PN56

MS FREDERICKS: And finally, your Honour, have you received a fax from Employers First with yesterday's date?

PN57

THE SENIOR DEPUTY PRESIDENT: Again, it would appear not.

PN58

MS FREDERICKS: I can provide you with a copy.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN60

MS FREDERICKS: Your Honour, you will see that that correspondence is from the representative of Akzo Nobel, Courtaulds Coatings, Dulux Australia, PPG Industries and Vaspar Australia Corporation and they say that they are prepared to consent to the roping-in of Akzo Nobel Pty Limited, Dulux, PPG and the Vaspar Corporation.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, and they go on to note that Courtaulds Coatings Australia (Holdings) Pty Limited is now owned by Akzo Nobel and does not exist as a separate company.

PN62

MS FREDERICKS: Yes, and as a consequence of that, I have removed them from schedule A of my application. If the Commission pleases.

EXHIBIT #APESMA3 FACSIMILE DATED 01/07/2002 (C2002/1957)

PN63

THE SENIOR DEPUTY PRESIDENT: Does that conclude your submission?

PN64

MS FREDERICKS: Yes, it does. Thank you, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Halls.

PN66

MR HALLS: Your Honour, in respect to this matter, the Australian Industry Group represents a number of companies, potentially the majority of companies that fall within this award. Perhaps if I could tender a list of the companies we represent.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN68

MR HALLS: I should also alert your Honour to the fact that this list also contains the other awards that are at issue here and the companies we represent as well. What we would like to alert your Honour to firstly is that the Australian Industry Group is a named respondent to this award or, rather, is a party to the award.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, just before you do, I will mark that list of those for whom you appear. I notice that it is - - -

PN70

MR HALLS: Those who we appear for are marked with an asterisk, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, and you had it open at one particular page. That is the page in this C number?

PN72

MR HALLS: That is correct. That is relating to this award.

PN73

THE SENIOR DEPUTY PRESIDENT: Would it not be preferable if I deleted the pages that don't apply to this C number?

PN74

MR HALLS: Certainly. That is fine, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: I will hand those back to you.

EXHIBIT #AIG1 LIST OF COMPANIES FOR WHOM AIG APPEARS (C2002/1957)

PN76

THE SENIOR DEPUTY PRESIDENT: They are identified by an asterisk on that document. Yes, Mr Halls.

PN77

MR HALLS: Your Honour, the Australian Industry Group is a party to the award and our initial submission would be that our preference, of course, would be that all of these companies would inherit the respondency to the award via their full membership to the Australian Industry Group and our preference would be not to have them roped-in as a named respondent. However, we are open to the Commission's view in respect of that. Perhaps another document, if I could hand up, your Honour, in relation to some correspondence we have forwarded to APESMA regarding this award.

PN78

Your Honour, this documentation was sent to APESMA this morning, however, follows discussions that were held with Jocelyn Fredericks last night. It ultimately disputes the appropriateness of the coverage of this award for these companies. We have indicated a number of companies which are already bound either in their own right or via their membership to the Australian Industry Group via the Metal, Engineering and Associated Industries Award. On that basis, we believe that the appropriate award application should be the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998.

PN79

THE SENIOR DEPUTY PRESIDENT: Are you making an application?

PN80

MR HALLS: No, your Honour. I have held discussions with Ms Fredericks regarding that. She may have a submission in reply to make.

PN81

THE SENIOR DEPUTY PRESIDENT: But you haven't made a submission to me?

PN82

MR HALLS: No, your Honour. What we believe the companies would - our preference is not to have them roped-in to the award, that they would inherit respondency to either award via their membership to the Australian Industry Group, but you will notice that on the APESMA service list that these companies all fall within the Technical Services Professional Engineers General Industries Award and we don't believe that that is appropriate.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, I am in some difficulties, Mr Halls. You say you don't believe that it is appropriate, that they are respondents to another award. What do you want me to do about it? Do you want to lead some evidence as to why one award is more appropriate than another?

PN84

MR HALLS: Well, on that advice, your Honour, I have indicated that those companies are already bound by the Metal, Engineering and Associated Industries Award.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but why do you submit that it is not appropriate that they be bound by two awards? Do you submit it is not appropriate that they be bound by two awards?

PN86

MR HALLS: Yes, that is the submission, your Honour, if I am not being clear regarding that. We believe that the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 should apply instead of this award that is being proposed.

PN87

THE SENIOR DEPUTY PRESIDENT: Ms Fredericks, do you agree with this?

PN88

MS FREDERICKS: Your Honour, I had a brief discussion with Mr Halls before the hearing and regarding the companies that Mr Halls states are bound by the Metals Award, I am prepared to have further discussions with him about those, but would want to then apply to have them bound to the Metals Award.

PN89

THE SENIOR DEPUTY PRESIDENT: Are you a party to the Metals Award as well, are you?

PN90

MS FREDERICKS: Yes, your Honour, and our application is listed on Thursday morning before you.

PN91

THE SENIOR DEPUTY PRESIDENT: I think I might list both of these matters together. Are you the only employee organisation party to that award?

PN92

MS FREDERICKS: Your Honour, we have our own Metals Award. I will give you the correct title. The correct title is the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 and APESMA is I understand the only party to that award.

PN93

THE SENIOR DEPUTY PRESIDENT: And do you say that is before me on Thursday for a roping-in?

PN94

MS FREDERICKS: Thursday morning at 10.15.

PN95

THE SENIOR DEPUTY PRESIDENT: I am inclined, Mr Halls, to adjourn that part of this matter that concerns you until that date and the two matters can be brought on together, I think.

PN96

MR HALLS: Your Honour, that would certainly be preferable.

PN97

THE SENIOR DEPUTY PRESIDENT: Ms Whitecross, what have you got to say about all this?

PN98

MS WHITECROSS: Your Honour, I would like to submit a list of those organisations that VECCI represents in this matter.

PN99

THE SENIOR DEPUTY PRESIDENT: I will mark the list of those organisations represented by VECCI.

EXHIBIT #VECCI1 LIST OF ORGANISATIONS (C2002/1957)

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Whitecross.

PN101

MS WHITECROSS: Your Honour, I would indicate from the outset that in receiving its instructions from its members and non-members who we are also representing in this matter, the organisations listed in exhibit VECCI1 have indicated that they do not oppose the application made by APESMA on the terms sought. Now, in saying that, I share your concerns with respect to the appendixes, the appendix issues of these awards. However, I would also acknowledge that VECCI is a named respondent to this award, the parent award and also to the appendixes and, indeed, that full members of our organisation would also have obligations with respect to those three instruments. One may well assume that those members are in effect not disputing their roping-in to the three industrial instruments. VECCI also has a number of organisations or has a relationship with a number of organisations which subscribe to service for the purposes of respondency to awards that VECCI is a named party. Such respondency issues don't transfer.

PN102

THE SENIOR DEPUTY PRESIDENT: And it is still the case, is it not, that if a member resigns, an award ceases to bind? The law hasn't changed - - -

PN103

MS WHITECROSS: With respect to employees that subsequently are engaged by that organisation, it would be our submission that if you had entered into an employment relationship with an employee whilst a member of VECCI, you would have an obligation under common law to continue those terms and conditions of employment, but, yes, certainly if the organisation sought to leave VECCI. Your Honour, I suppose I would suggest at this stage that with respect to those organisations that are full members of VECCI that we wouldn't be opposing the application in terms of roping the companies in to the three documents.

PN104

THE SENIOR DEPUTY PRESIDENT: Ms Whitecross, I have got another suggestion. Are you available at 10.15 on Thursday?

PN105

MS WHITECROSS: I think I may already be seeing you at 10.15 on Thursday.

PN106

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn that part of this matter, the part of the matter that concerns VECCI and its members, to 10.15 on Thursday.

PN107

MS WHITECROSS: I would if I may, your Honour, state for the record that I have also received the same correspondence with respect to Techeng and Technical Systems Testing, who have indicated that they do not oppose APESMAs application and so we wouldn't be raising these concerns with respect to those two organisations. I would in that interim period before Thursday make a commitment to contact each of my members and other non-member organisations that I am representing to receive full instructions on that matter and it may not end up being an issue.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think it is desirable that you and Mr Halls receive instructions from those whom you represent in this matter as to the attitude of those entities to respondency to the three schedules to the award. That would be of assistance to me in deciding whether to rope them in or not.

PN109

MS WHITECROSS: Thank you, your Honour.

PN110

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Hodgson.

PN111

MS HODGSON: If the Commission pleases. I apologise, your Honour. I think I may have been remiss earlier in not notifying a change in appearance insofar as Australian Industry Group have previously appeared on behalf of Lane's Biscuits. This is my first appearance in that matter.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes.

PN113

MS HODGSON: Lane's Biscuits do not consent to the application to rope them in to the parent award. That is on two bases. Firstly, to the extent that it employs anyone that is eligible to be covered by APESMA, there are two people, one that is engaged on a contract basis and the other is employed by Lane's. However, his role has been notified as becoming redundant in the next three months and, secondly, it is on the basis that Lane's is a full member of the Australian Industry Group and would be bound by virtue of the respondency in any event. To the extent that that is necessary, they pay well above the terms and conditions contained in that award and my submission is the objective of achieving an effective safety net in that regard for Lane's Biscuits would be met by virtue of its respondency through the Australian Industry Group. If the Commission pleases.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Hodgson. Mr Murphy.

PN115

MR MURPHY: If the Commission pleases. As far as TCS Management is concerned, it doesn't oppose being roped-in to paragraphs 1 to 18 of the award. In relation to the schedules, schedule A is a matter that ought to be looked at very closely by the Commission. Your Honour has mentioned the question of ambiguity in the correspondence, but the matter that is of concern is the whole question of superannuation, because legislation has been introduced into the Parliament in relation to choice of fund by employees and this appendix does appear to duplicate that legislation or has the potential to be superseded by that legislation and, indeed, the appendix A actually recites - A2 recites the fact that the legislation governs the rights of the parties, but appendix A, point 3, selection of fund, has the potential to be overtaken by this legislation which was introduced into the - I think it was the House of Representatives on 27 June of this year. It is laying over for the winter recess.

PN116

THE SENIOR DEPUTY PRESIDENT: So there is no Act been passed yet?

PN117

MR MURPHY: No Act, no, but there is a bill for this choice of fund to allow members' superannuation, members, employees to choose which fund they go in to. Now, what this clause does, it really gives the union the right to bring to this Commission any concerns about the fund that the employer currently chooses and that is in A, point 3.2.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN119

MR MURPHY: Now, the employees will have the right to choose their own fund under this legislation if it is passed.

PN120

THE SENIOR DEPUTY PRESIDENT: Which they do under the appendix that appears, on a reading of it, on a quick reading of it.

PN121

MR MURPHY: No, it appears the employer is the one that makes the choice.

PN122

THE SENIOR DEPUTY PRESIDENT: I am sorry, yes.

PN123

MR MURPHY: And under this appendix, the union is saying, well, we can bring to this Commission any concern about a fund that the employer may choose by way of a dispute or an argument, but under the new legislation, the employees will have the absolute right to choose their own fund. Now, the position as far as these three appendices are concerned, your Honour, relates to the comments that your Honour has made about ambiguity in the letter as to whether or not what the union was seeking was respondency to the whole of the award including the appendices or just to the main body of the award, paragraphs 1 to 18. And if your Honour is not minded to make an order including the appendices that would be the position of my client, TCS Management. That is all I have to say.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Murphy. Yes, Mr Rogers.

PN125

MR ROGERS: Thank you. In relation to our clients, Basell Australia Pty Ltd, as well as Shell Company of Australia Pty Ltd. Both clients have indicated that they haven't had any consultation at all with APESMA and are objecting to any orders being made today on the basis that those consultations take place. Now, there has been some preliminary discussions with Ms Fredericks in terms of the week commencing 8 July in relation to Shell Company of Australia and we would also ask a fortnight be set aside for consultations in relation to Basell Australia Pty Ltd.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN127

MR ROGERS: I also, for the record, note our comments just in relation to the application. The material our clients received included the letter which was sent to the Registrar together with the draft order and certainly from the draft order clause 2 just simply referred to employers named in schedule A in respect of the employment and there was certainly no reference to the appendices.

PN128

THE SENIOR DEPUTY PRESIDENT: That is in clause 2 of the draft award that was served?

PN129

MR ROGERS: That is right.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. The award should be binding upon the union, its members and on the employers named in schedule A to the draft award, I take it.

PN131

MR ROGERS: There is certainly no reference to each of the various appendices to the award.

PN132

THE SENIOR DEPUTY PRESIDENT: Were your clients served with a copy of the parent award, if I can call it that?

PN133

MR ROGERS: Yes.

PN134

And the notice of listing.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rogers. Yes, Ms Fredericks - Mr Halls, do you want to say something?

[11.20am]

PN136

MR HALLS: Your Honour, just an issue if I could raise quickly, regarding the exhibit AIG1 in relation to this matter. Since we have attended the Commission this morning, it has become apparent that Montell and the Shell Company are already represented by Blake Dawson Waldron, so I would ask you to amend the exhibit in respect of that. And also I would just confirm that there is an error, BP have actually been cited as being represented by us, but that is not correct.

PN137

THE SENIOR DEPUTY PRESIDENT: So delete representation for BP Proprietary Limited.

PN138

MR HALLS: That is correct. Montell Australia.

PN139

THE SENIOR DEPUTY PRESIDENT: Which is now Basell.

PN140

MR HALLS: And the Shell Company.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Fredericks.

PN142

MS FREDERICKS: Your Honour, I understand that you are proposing an adjournment with members of VECCI and AIG until Thursday.

PN143

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN144

MS FREDERICKS: I am prepared to agree to that, your Honour, regarding those two groups.

PN145

THE SENIOR DEPUTY PRESIDENT: Thank you. I don't know that I was actually giving you any option.

PN146

MS FREDERICKS: I thought I would just put my opinion on transcript, your Honour. However, regarding the other employers other than the members of AIG and VECCI, I would seek today that the award be made for all the other respondents, and that includes to appendix A, B, C, etcetera. Just ducking back quickly to Mr Rogers' submission when he was referring to clause (2) as being part of the ambiguity, I would say that schedule A reference there is merely to the employers who intend to be bound.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes, I think I clarified that with Mr Rogers. His position is that there was no mention of the appendices to the award in that clause.

PN148

MS FREDERICKS: Yes. I would like to draw the Commission's attention to the fact that a copy of the entire award was served on all of the employers and I would think that it would be apparent in me doing that that I intended to make the employers respondent to the entire award. Regarding Ms Hodgson's submissions about being a member of AIG, we would like Lanes Biscuits to be individually cited in case they do leave AIG in the future so they have an ongoing respondence to the award.

PN149

Regarding the submission of TCS Management about the superannuation legislation, I would say that that legislation is not law currently. It has been stalled in Parliament for a long period of time and doesn't have prospects of passing in the near future, and would also say that if it did become law, then obviously it would override the award.

PN150

Regarding Shell and Montell, we would be prepared to have discussions with those companies and would seek a relisting as soon as possible of that matter. My preference would be for next week, your Honour. I should also - perhaps for today I will also draw your attention to the second to last paragraph of the - I think it is AIG1 that Mr Halls submitted, the letter which outlines the people he claims are covered by the Metals Award, the second to last paragraph.

PN151

THE SENIOR DEPUTY PRESIDENT: Sorry, that is AIG2, yes.

PN152

MS FREDERICKS: Yes, AIG2. He states Nestle Australia is already a respondent to the Technical Services Professional Engineers (General Industries) Award and I have checked that, your Honour, and I - on that basis they should be removed from the list that I have submitted to you. But as regarding Peters Foods Australia, Mr Halls says that that is a subsidiary of Nestle. We would still seek to have them bound in that name. If the Commission pleases.

PN153

THE SENIOR DEPUTY PRESIDENT: Well, this matter will be adjourned until 10.15 on Thursday insofar as it affects AIG and its members named as potential respondents to the roping-in award, and also VECCI and its members named as potential respondents to the roping-in award. As regards Lanes Biscuits, I am not persuaded that merely because it only employs one person who is likely to become redundant who would be bound by the award that that is a reason not to rope the company in to the award, nor am I persuaded by the submission that an employer should not be made a named respondent to award if it has been found to be in dispute with the union merely because that employer is a member of an industrial organisation.

PN154

Although it is not clear from the correspondence whether the roping-in award is intended to rope the companies sought to be now bound to the schedules of the award, that is appendices A, B and C, it is clear from Ms Fredericks' submission that APESMA does seek to have those appendices apply to the roping-in award sought today and that must be clear to the representatives at the bar table who oppose that particular course. Although, Ms Hodgson, I am not sure whether you oppose your client - or whether you oppose Lanes Biscuits being roped in to the appendices on a different basis to that which you indicated that you oppose Lanes Biscuits being roped in to the award. Can you enlighten me as to that?

PN155

MS HODGSON: Sorry, your Honour, I didn't have a copy of the award with me and so other than becoming aware of it as an issue the first thing this morning, I had nothing further to add than what had been raised by the other employer companies.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes. TCS Management is in a slightly different position in that Mr Murphy does oppose his client being roped in to the appendices to the award. In my view, it may not have been clear precisely what was sought because of the nature of the wording of the application. I am not prepared today to rope in companies that oppose being roped in to the appendices on the basis that they may not have been in a position to give sufficient consideration to that issue, Ms Fredericks. I am inclined to adjourn this application insofar as Lanes Biscuits and TCS Management are concerned to enable them to obtain or to properly consider their position now knowing that you seek to rope them in to the appendices, and accordingly I won't rope them in to the award today. I will adjourn the matter to another date.

PN157

MS FREDERICKS: Your Honour, I neglected to mention that TCS Management were the company that sought my advice as to whether they - I was seeking to make them bound to appendices A, B and C, and I did inform them on 26 June that we would seek to have them roped in to appendices A, B and C.

PN158

THE SENIOR DEPUTY PRESIDENT: I see. Do I have a copy of that?

PN159

MS FREDERICKS: No, you don't, but I can lend you my copy, your Honour.

PN160

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Murphy, do you accept that that is the position?

PN161

MR MURPHY: Yes, we do accept that that is the position. I was seeking to ride on the points that your Honour was mentioning, the ambiguity that was there.

PN162

THE SENIOR DEPUTY PRESIDENT: Yes. Well - - -

PN163

MR MURPHY: But I accept that that was said in an e-mail that was sent by Ms Fredericks.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes. So there was no ambiguity as far as your client is concerned.

PN165

MR MURPHY: There is no ambiguity as far as we are concerned.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes.

PN167

MS HODGSON: Your Honour, if it is convenient for Ms Fredericks and yourself, I would be happy to come back on Thursday morning having had time to consider the appendix if that is convenient.

PN168

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, I will adjourn the matter insofar as Lanes Biscuits is concerned until 10.15 on Thursday morning. Thank you, Ms Hodgson. Insofar as TCS Management is concerned in that case, given that the company was under no illusion as to what was to be sought today, the objection seems to be that appendix A may fall foul of some legislation if and when it is passed or may be inconsistent with that legislation if and when it is passed. I should act on the basis of the law as it now is rather than on the basis as it may or may not be and accordingly I am not persuaded to exclude TCS Management from the operation of those appendices.

PN169

No doubt if legislation in the form of the draft bill is passed, one can expect an application to vary the award from TCS Management, but that may or may not come to pass. Accordingly, I will make a roping-in award in respect of TCS Management in terms of the - sorry, I withdraw that - a roping-in award to rope TCS Management in to the Technical Services Professional Engineers (General Industries) Award 1998, together with its appendices A, B and C. That roping-in award will operate from the first pay period on or after today's date.

PN170

That only leaves the companies for whom Mr Rogers appears and it is consented by APESMA that the matter be adjourned in respect of those companies. I will await an application to re-list from APESMA in relation to that should there be no agreement.

PN171

If there is nothing more, on that basis I will adjourn the Commission until 10.15 on Thursday in respect of those entities for whom I have indicated that course will apply. Yes, Ms Fredericks.

PN172

MS FREDERICKS: Your Honour, could I just clarify the status of the companies who aren't members of AIG and VECCI other than the ones represented here today.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes. I will consider my position in relation to that. I won't adjourn the matter until Thursday in respect of those entities because that would require a further notification, but I won't make any orders in respect of that. I want to further consider whether or not there was sufficient clarity, which I doubt as presently advised, in relation to the roping-in to the appendices. So I will issue a decision in relation to that at an appropriate time. I think that is probably the best course. The Commission will now adjourn.

END OF EXTRACT

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 (C2002/1957) REGISTERED MAIL RECEIPT AND DRAFT AWARD PN7
EXHIBIT #APESMA2 FACSIMILE DATED 19/06/2002 (C2002/1957) PN56
EXHIBIT #APESMA3 FACSIMILE DATED 01/07/2002 (C2002/1957) PN63
EXHIBIT #AIG1 LIST OF COMPANIES FOR WHOM AIG APPEARS (C2002/1957) PN76
EXHIBIT #VECCI1 LIST OF ORGANISATIONS (C2002/1957) PN100