C2002/623, Transcript of Proceedings [2002] AIRCTrans 3019 (7 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER McCUTCHEON

C2002/623

THE AUSTRALIAN WORKERS' UNION

and

ADELAIDE BRIGHTON CEMENT LIMITED

Notification pursuant to section 99 of the Act
of a dispute re demotions and removal of allowance

ADELAIDE

2.15 PM, TUESDAY, 23 JULY 2002

PN1

THE COMMISSIONER: This matter concerns a notification of industrial dispute pursuant to section 99 of the Act, notified to the Commission on 16 July by Mr Braithwaite. The dispute is said to be between the Australian Workers Union and Adelaide Brighton Cement Limited Birkenhead concerning the demotion of production employees within classification structure, the removal of refractory allowance and the notification asserts that the above two actions contravene the certified agreement and that there has been no consultation over these issues.

PN2

The award and agreement binding on the parties to the dispute is said to be the Adelaide Brighton Cement Ltd Employees (SA) Award 1999 and the Adelaide Brighton Cement Ltd Birkenhead Site Certified Agreement. I will take the appearances please.

PN3

MR J. BRAITHWAITE: May it please the Commission I appear on behalf of the Australian Workers Union and in attendance with me is a number of delegates.

PN4

THE COMMISSIONER: Thank you, Mr Braithwaite.

PN5

MS ZEITZ: May it please the Commission, I seek leave to appear with MS HANDLEY in this matter.

PN6

THE COMMISSIONER: Thank you, Ms Zeitz. Mr Braithwaite, on the issue of leave to appear?

PN7

MR BRAITHWAITE: Sir, I oppose leave to appear under section 42. As the Commission would be aware, the application indicates that we seek a conciliation conference in respect of this matter. It is not a matter that is here to be dealt with by way of argument today. It is a question whether or not the parties can negotiate or to conciliate an outcome in respect of this matter. Obviously if there is no settlement under conciliation we reserve our rights to take whichever steps are appropriate to the next phase in accordance with the dispute settlements procedure of this agreement.

PN8

THE COMMISSIONER: Thank you, Mr Braithwaite. Ms Zeitz?

PN9

MS ZEITZ: Thank you, Commissioner. My application is pursuant to section 42(3)(b) and it is on the basis that having regard to the subject matter of the proceedings there are special circumstances that make it desirable the parties may be represented. The grounds that we would advance in support of that is that the dispute notification does not disclose any jurisdictional base upon which the Commission can be seized of this matter. There is no aspect of an interstate dispute that derives in relation to the dispute notification. Secondly the allegation in the dispute notification is that the certified agreement has been contravened.

PN10

The Commission has no jurisdiction in relation to enforcement of certified agreements. If that is something that people intend to pursue, there are other venues where that is to occur and thirdly to pursue an application pursuant to section 111(1)(g)(iii) that even if the Commission were satisfied as to the other two points it is not necessary or desirable in the public interest for this matter to proceed and the basis for that relates to the fact that this matter in substance was before Commissioner Lesses on 19 July last year, that was 2001, where verbal recommendations were made by Commissioner Lesses on precisely the issue that has now been the subject of this dispute, that arising from those verbal recommendations a process was put in place that was confirmed with the Commission and this dispute notification is at one level certainly a de facto appeal from the process that was developed in those proceedings before Commissioner Lesses.

PN11

We say on those bases it is inappropriate that this matter be pursued by way of section 99. It has already been before the Commission and the process established. I can indicate to the Commission that while the bargaining process was proceeding in relation to the certified agreement, it had been anticipated that the impact of the changes on the particular employees affected would be absorbed into wage increases once a new certified agreement was reached. Unfortunately there has been a stalemate in those negotiations and the company has decided that after a period of some I think 10 months when this notice was given, 10 or 11 months, it is appropriate to proceed with the process that was put in place by Commissioner Lesses.

PN12

They are all matters of substance that we say mitigate against the matter proceeding and form the basis of my application for leave if the Commission pleases.

PN13

THE COMMISSIONER: Mr Braithwaite, as the jurisdiction of the Commission is being raised in issue, I think it might be appropriate to grant Ms Zeitz leave to appear and ask her to speak to the issue of jurisdiction first up.

PN14

MR BRAITHWAITE: Well, sir, quite frankly we notified this application in accordance with 13. - 17.8 of the certified agreement which indicates that if the matter is not settled, it may be submitted to a mutually agreed mediator or the Commission for conciliation. The union is merely following the disputes procedure within the agreement and seeking to see whether there are an ability to reach a conciliated outcome. If the company wishes to argue jurisdiction and wants to indicate to the Commission here this afternoon that they are not interested in conciliating this matter, then we will deal with that in another fashion but we clearly place on the record that we are here in accordance with the agreement.

PN15

The Commission does have jurisdiction for the purpose of conciliation and in that case if the company wished to state that they are not prepared to conciliate this matter in accordance with the certified agreement, I would like to hear that before I make further submissions on issues of jurisdiction and admittance of counsel.

PN16

THE COMMISSIONER: Mr Braithwaite, I note from the correspondence you attach to your notification that it is fair to say that Mr Ward, the manager of the Birkenhead operations, has on a couple of occasions indicated to you that the appropriate way to deal with it would be the disputes resolution procedure.

PN17

MR BRAITHWAITE: Correct.

PN18

THE COMMISSIONER: And it appears you followed that. The difficulty I have though is that your notification speaks of a contravention of a certified agreement.

PN19

MR BRAITHWAITE: Correct.

PN20

THE COMMISSIONER: The Commission has no jurisdiction to deal with the contravention of an agreement.

PN21

MR BRAITHWAITE: Sir, I would beg to differ. If we have to get into an argument over the issue of jurisdiction, that will be at another time under another section of the Act. I'm not here and I reiterate, I'm not here to have the argument in respect to jurisdiction. I am not here in respect of having an argument over the application of the agreement. I clearly state - - -

PN22

THE COMMISSIONER: But I've got to have jurisdiction before I can do anything.

PN23

MR BRAITHWAITE: Well, I believe the Commission does have jurisdiction for the purpose of conciliation. It is not binding on the parties and if the company are not interested in conciliating this matter I would ask again for them to put that on transcript.

PN24

THE COMMISSIONER: Ms Zeitz, do you want to comment on that?

PN25

MS ZEITZ: I could say several things about the purpose of that statement. I'm sure the media would be most pleased by it in a wider context. What I will say from the company's perspective is this. The matter was fully conciliated before Commission Lesses on 19 July last year. Recommendations were made. The company has accepted those recommendations and is now putting those recommendations into place. The employees and the union have been under notice that that was likely to occur for some period of time and we say it is convenient that they have used this occasion when there are other disputes occurring to try and elevate the dispute for media attention and not for the genuine purposes of trying to resolve this matter.

PN26

The company believes that having gone through the process with Commissioner Lesses on 19 July last year, having a process in place which includes giving 3 months notice to the employees affected, which has occurred, that that process is in place. I can just indicate, Commissioner, this relates to duties that are no longer performed by employees and have not been performed for a couple of years and it was recognised in those proceedings that it was inappropriate to be paying employees allowances for things that they were not doing but that it was equally appropriate because of custom and practice to give some notice of those things changing and the impact and that was the process that was agreed to on 19 July.

PN27

It is unfair and incorrect to say that the company is not prepared to conciliate. What is says is it has conciliated the matter, there is a resolution of the matter, it is merely complying with the process that Commissioner Lesses put in place and endorsed. So we certainly say there is no point in conciliating today because we say the conciliation process concluded before Commissioner Lesses, if the Commission pleases.

PN28

THE COMMISSIONER: Mr Braithwaite?

PN29

MR BRAITHWAITE: On the basis that the company are not prepared or interested in conciliation in accordance with the disputes procedure, sir, I formally withdraw the application and will deal with it in another manner, if the Commission pleases.

PN30

THE COMMISSIONER: Ms Zeitz, have you got any objection to me granting leave for the section 99 notification to be withdrawn?

PN31

MS ZEITZ: No, no, your Honour.

PN32

THE COMMISSIONER: I give you leave and regard the application as being withdrawn. That finishes these proceedings. Thank you.

ADJOURNED INDEFINITELY [2.25pm]