C2001/3514, Transcript of Proceedings [2002] AIRCTrans 285 (29 January 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2001/3514

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

SOUTH SPUR RAIL SERVICES
PTY LIMITED AND ANOTHER

Notification pursuant to section 99 of the
Act of a dispute re wages and conditions

SYDNEY

2.05 PM, WEDNESDAY, 19 DECEMBER 2001

Adjourned sine die

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

MR K.J. DWYER: If it please your Honour, I appear on behalf of BJB Joint Venture.

PN2

MR A. NELSON: I appear on behalf of South Spur.

PN3

THE DEPUTY PRESIDENT: Is anybody representing CCC Asia Pacific in Perth?

PN4

MR NELSON: Yes, we also represent CCC Asia Pacific.

PN5

THE DEPUTY PRESIDENT: That's Mr Nelson, is it?

PN6

MR NELSON: Yes, it is.

PN7

THE DEPUTY PRESIDENT: There's two logs of claims. Are they to be joined, Mr Thomas? Is that how you want to deal with them or are we dealing with them separately?

PN8

MR A. THOMAS: I think we can join them, your Honour.

PN9

THE DEPUTY PRESIDENT: Is there any objection to them being joined?

PN10

MR NELSON: Yes, your Honour, because we see them as separate trading entities, dealing in separate businesses.

PN11

THE DEPUTY PRESIDENT: Which ones?

PN12

MR NELSON: South Spur.

PN13

THE DEPUTY PRESIDENT: The two that you represent?

PN14

MR NELSON: Yes, that's right.

PN15

THE DEPUTY PRESIDENT: But for the purpose of the dispute finding, is that going to be a problem?

PN16

MR NELSON: We see that it would be, yes.

PN17

THE DEPUTY PRESIDENT: Well, why is it a problem? This is just a dispute finding exercise. What happens after this is when it can get really interesting.

PN18

MR NELSON: Because they are separate businesses operating in different market segments under different trading names. One operates in rail freight ballast and the other operates in labour hire so they are different trading entities.

PN19

THE DEPUTY PRESIDENT: So which is which?

PN20

MR NELSON: South Spur is a locomotive hook and pull operator as it's known and CCC is a labour hire business.

PN21

THE DEPUTY PRESIDENT: Mr Thomas, do you want to respond to that?

PN22

MR THOMAS: Your Honour, I don't think for the purposes of the creation of a dispute, the fact that the two companies may come under different titles really makes any difference. However, at the end of the day, what we are seeking is disputes to be found with both of the organisations, whether they're dealt with jointly or concurrently, whatever - - -

PN23

THE DEPUTY PRESIDENT: It doesn't really matter.

PN24

MR THOMAS: Correct, whatever could facilitate this afternoon's hearing.

PN25

THE DEPUTY PRESIDENT: Yes, that was my intention, to try and make it easy for everybody but maybe if we deal with them separately as two separate logs and what I propose to do is to deal with C No 3514 which is the log served on South Spur Rail Services and the Abt Railway Holdings Proprietary Limited. Can I tell you that I have a fax from the Tasmanian Chamber of Commerce and Industry who represent Abt Railway Holdings Proprietary Limited. They do not oppose the finding of dispute but reserve their rights as to any further applications that the union may make. What's the position of South Spur as to the finding of a dispute, Mr Nelson?

PN26

MR NELSON: If we can give a bit of background, your Honour, on what our organisation is about. We are a small railway company, South Spur. We were formed four years ago. We do actually not have any labour in South Spur at all. It's purely a locomotive company moving freight and ballast and rail. Our position is that we have individual workplace agreements that are state registered. We have effectively an agreement with our people so we see no reason why there is a dispute at all and we see no reason why there should be coverage by this particular union.

PN27

However, what we see is that we're more than willing to enter into any discussion with the union but quite clearly if we entered into the discussion based on the log of claims, we would cease to exist as a business.

PN28

THE DEPUTY PRESIDENT: I think there may be a bit of ambit in the log of claims, that's usually the case but as to the application by the union which at this stage is purely for the finding of dispute, once the dispute is found, that then gives the Commission jurisdiction and what happens after that is what the parties then sit down and talk about. It may be something, it may be nothing. I don't know what the union wishes to do once the dispute has been found. So do you oppose the finding of dispute and reserve your rights to then have negotiations with the union afterwards or are you saying that you don't want a dispute found?

PN29

MR NELSON: Well, we're a small company and can't afford huge lawyers fees so we chose to come along today just to put our case. If there was a further discussion that was necessary that would give the Commission jurisdiction over this dispute, we would reserve our right and we would like to then go and seek legal advice.

PN30

THE DEPUTY PRESIDENT: So do I take it from what you're saying that you don't oppose the finding of dispute but you're reserving your rights then that if the union then come to argue with you that they want an award or they want to do whatever they want to do, you're reserving your rights to oppose that?

PN31

MR NELSON: Well, I don't know what the legal processes or perhaps there can be some clarification of that. What I'm looking for is a discussion here and I thought it was just a conference rather than a resolution of a dispute.

PN32

THE DEPUTY PRESIDENT: No, this is a hearing. The difficulty I have is I can't give you advice as to what to do but the union has properly filed the documents and you're not saying that they haven't been properly served.

PN33

MR NELSON: No, I agree that it happened.

PN34

THE DEPUTY PRESIDENT: It may well be that a dispute can be found.

PN35

MR NELSON: Well, if you were to make a decision today based that a dispute is in existence, then we would ask that it be adjourned so that we can seek legal representation because we don't believe that there is a dispute at the moment.

PN36

THE DEPUTY PRESIDENT: I don't want to get into the technicalities of the act which is where we're leading because I'm not in a position to, as I say, give you advice but I don't want to compromise your position either. I want to make sure that you're protected but perhaps I'll ask Mr Thomas what his position is and it may be that we can adjourn the proceedings as far as your company is concerned, this is South Spur and then we may have to re-list it in due course.

PN37

MR NELSON: That would be fine.

PN38

THE DEPUTY PRESIDENT: I'll hear from Mr Thomas.

PN39

MR THOMAS: Your Honour, we would press for the finding of a dispute between the RTBU and South Spur and, of course, at Railway Holdings. In our view, the log has been properly served. The dispute has been properly notified. Earlier, before these proceedings, your Honour, we did receive material from South Spur from a legal representative who, at the time, was to represent South Spur. Indeed, the initial proceedings were postponed on the basis of the unavailability of legal counsel at that time.

PN40

It is important to us, for the purpose of the finding of the dispute and the necessary jurisdictional prerequisites - and I refer in that in particular to the issue of interstateness - that there be a finding of a dispute involving both companies. I do believe, your Honour,m that Mr Nelson at this point is somewhat misconceiving the nature of a dispute finding. The dispute finding is to set in place a dispute and, therefore, the jurisdictional basis upon which the RTBU and South Spur can have further discussions on the nature and form and type of regulation of wages and conditions in that organisation and what flows from those discussions of course depends upon their nature and resolution and it always, of course, reserves the rights for the RTBU to seek an award or whatever.

PN41

Simultaneously, it leaves open the rights for South Spur to utilise the further processes and provisions of the act if they wish to maintain a particular position, but I think in terms of what Mr Nelson is putting, it is somewhat premature to be raising that and we would, your Honour, oppose any adjournment on the basis that it's already been adjourned once because of their difficulties with legal counsel and there is, in our view, no good reason to adjourn this dispute finding today.

PN42

Your Honour is also aware of the matters that we have in relation to Abt Wilderness Railways.

PN43

THE DEPUTY PRESIDENT: Yes, indeed.

PN44

MR THOMAS: Perhaps the reason why it is before your Honour today is largely because of circumstances pertaining to Abt.

PN45

THE DEPUTY PRESIDENT: Yes, that's right.

PN46

MR THOMAS: It would be highly prejudicial to ourselves if the matter was adjourned today.

PN47

THE DEPUTY PRESIDENT: Mr Nelson?

PN48

MR NELSON: When we engaged a lawyer, we're just a small business so when we started to get all these legal fees we then sort of said well, look, it's just a conference at the moment, we're just discussing the matter. That was our interpretation of what a conference was so we then decided well, let's come along, let's hear what the union has got to say, what we've got to say and then if it proceeded to the next step, then we would engage legal counsel.

PN49

We would like our rights respected in that regard because we would think that it would be difficult to give a notice of dispute today when clearly we don't think that one exists given that we have individual workplace agreements, we have no problems with our people. They're all registered, they're all employed at well above award wages and we're just employing people in Western Australia, not across Australia and clearly this is a federal Commission as opposed to a state commission.

PN50

THE DEPUTY PRESIDENT: All of the issues that you raised are the sort of issues that you would raise once the dispute has been found and you wanted to argue that the rail union shouldn't pursue your employees for an award or an agreement or whatever it is they want to do. The finding of a dispute, it's very difficult to explain it, is really a technical process. The union have served on you a log of claims which you say that you've received, it's been properly served and I take it from what you're saying or what you said earlier, you reject the claims. Is that true?

PN51

MR NELSON: We don't reject the claims. We would be more than willing to enter into discussions, not under the basis of the Commission at this stage. What we would prefer is an adjournment so that we can get legal advice if it's proceeding to a formal notification of dispute and that's -

PN52

THE DEPUTY PRESIDENT: Well, this is a formal dispute finding and unless you can tell me that the union hasn't properly served the log of claims and hasn't properly followed the procedures in the act or if you tell me that you agree to the claims, I can't find a dispute. If you are rejecting the claims and all of the documents have been properly served, in accord with the provisions of the act, there is a dispute but it's not a dispute as you understand it and that is that you're looking at a specific argument between you and your employees. It's purely a technical process to ground the jurisdiction for the Commission to have some role in the proceedings and then your right to reserve from then on as to what happens.

PN53

MR NELSON: Well, clearly we're not lawyers or experts in the industrial relations process and therefore what we would like to do is to adjourn it until we do get that expert advice that we quite clearly we don't have at the moment.

PN54

THE DEPUTY PRESIDENT: Well, I think when you were given a copy of the application there was a document attached to it from the Commission which explains what it's all about so subject to what Mr Thomas has to say, there is really no reason why I shouldn't find that a dispute exists between you and that you then be directed into conference but your right to reserve as to where the matter goes from there on in, but I'll just hear from Mr Thomas again just to see whether he's had a change of heart.

PN55

MR THOMAS: Well, I think you can rest assured, your Honour, I have not had a change of heart. The RTBU will press for the finding of a dispute today between ourselves and South Spur and Abt Railway Holdings. As your Honour would be aware, under the provisions of the act and a long line of High Court authority, the RTBU is entitled to the prima facie right to have a dispute found if we follow the due process.

PN56

If South Spur at some later point want to raise in further proceedings section 111(1)(g) or whatever, their rights are reserved to do that. Again, I think it's coming through fairly clearly to me that South Spur again are misconceiving the nature of these proceedings.

PN57

THE DEPUTY PRESIDENT: That's not unusual, I must confess. It's rather difficult to understand.

PN58

MR THOMAS: But in that event, your Honour, I understand that and persons have been around for some time. It's a matter of, I guess, common knowledge but that being the case, it is clearly no justification for adjourning an application or a dispute notification that has been formally and with due process filed and served on the parties.

PN59

THE DEPUTY PRESIDENT: I must say that as you're aware, these files have been referred to me by Commissioner Jones. I wasn't aware that the matter had been adjourned on a previous occasion but what I propose to do is to find that there is a dispute in the terms of the act between Abt Railway Holdings Proprietary Limited and South Spur Rail Services Proprietary Limited and the Australian Rail, Tram and Bus Industry Union.

PN60

Prima facie it would appear that the log has been properly served. South Spur and Abt Railways both reject the claims in the log so pursuant to section 101 of the act, I find that a dispute does exist between those parties. The matters in dispute are those industrial matters found in the log of claims. The parties are directed to confer and to report back to the Commission in due course. Both South Spur and Abt Railway have their rights protected as to any further action taken by the union and that can be dealt with depending on where and how this matter proceeds.

ADJOURNED INDEFINITELY [2.25pm]