C2002/3477, Transcript of Proceedings [2002] AIRCTrans 3216 (21 August 2002)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT05230

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/3477
C2002/3475
C2002/3476

THE FEDERAL EXPLOSIVES MANUFACTURING AND DISTRIBUTION (AWU) AWARD 2000

Applications under Section 113 of the Act by
The Australian Workers' Union to vary the
above award to give effect to the
Safety Net Review - Wages, May 2000,
Safety Net Review - Wages, May 2001,
Safety Net Review - Wages, May 2002

MELBOURNE

9.42 AM, TUESDAY, 6 AUGUST 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Phillips. You appear for the AWU?

PN2

MR C. PHILLIPS: Yes, your Honour, I do.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4

MR PHILLIPS: Your Honour, if I can firstly pass to the Commission correspondence received from Mr Patrick Gallagher. He is a partner of McCullough Robertson Lawyers, acting on behalf of the respondent Dyna Nobel Asia Pacific Limited.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that is sufficient proof of service.

PN6

MR PHILLIPS: I've actually passed you two copies of the same document, your Honour. If I may - - -

PN7

THE SENIOR DEPUTY PRESIDENT: I will mark the facsimile transmission from McCullough Robertson lawyers dated 5 August 2002 as exhibit 1.

EXHIBIT #1 FACSIMILE TRANSMISSION FROM McCULLOUGH ROBERTSON LAWYERS DATED 05/08/2002

PN8

MR PHILLIPS: Your Honour, if I may, I would prefer to go off record just to discuss one point with regard to that correspondence.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

OFF THE RECORD

RESUMED

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Phillips. I notice that in exhibit 1 Mr Gallagher asks for an adjournment of seven days. You've indicated in conference that you wish to proceed with the application.

PN11

MR PHILLIPS: Your Honour, the AWU would propose to proceed with two qualifying positions. First that the respondent have seven days to ensure that the calculations are correct as under the decisions. Secondly, the AWU would be seeking under this application to have the 12 month waiver between the three applications be successful. However, we would also suggest that at least seven days be given to the parties to resolve that particular issue and come to the Commission with a consent position, hopefully.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. What are the relevant dates, Mr Phillips, of the variations. You are now talking about the 2000 variation and the 2001 variation, are you?

PN13

MR PHILLIPS: That's correct, your Honour. Originally this matter was - this particular award was simplified in I believe around August of 2000. However, I can't be sure of that date. The AWU was simply going through an administrative process to ensure the awards are up to date and particularly those awards that are a safety net and don't have any practical impact on wages paid to our membership. So we are seeking to improve this award by including the safety net review decisions of 2000, 2001 and 2002. I can put to the Commission a draft order to that effect.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, if you would. Thank you.

PN15

MR PHILLIPS: Your Honour, the bundle of documents provided consists of facsimile header, facsimile activity report, the notice of listings plus three draft orders.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. That bundle of documents will be exhibit 2.

EXHIBIT #2 BUNDLE OF DOCUMENTS

PN17

MR PHILLIPS: You will note on the second page that a broadcast report which confirms that this bundle of documents was also received by both the company, Dyna Nobel Asia Pacific Limited, and Mr Patrick Gallagher, who was acting on the company's behalf in respect of this matter.

PN18

THE SENIOR DEPUTY PRESIDENT: And that's the transmission in respect of which exhibit 1 is the acknowledgment, is it?

PN19

MR PHILLIPS: Yes, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

MR PHILLIPS: You'll also note that we've provided draft orders and a calculation sheet. The calculation sheet goes to specifically Clause 7 and an allowance which relates to our members that are employed at Kalgoorlie. That allowance is being calculated as per principle 5 using the Furnishing and Glass Industries Allowance decision, which is print M9675. We say that multiplier is the correct multiplier to increase a work-related allowance and that is consistent with the three draft orders that have been provided.

PN22

THE SENIOR DEPUTY PRESIDENT: So there is a draft order in respect of the safety net review 2000 - - -

PN23

MR PHILLIPS: Yes, your Honour. That's the last draft order.

PN24

THE SENIOR DEPUTY PRESIDENT: - - - which increases the wage rates in the award consistent with that decision.

PN25

MR PHILLIPS: Correct.

PN26

THE SENIOR DEPUTY PRESIDENT: Then a - - -

PN27

MR PHILLIPS: Further draft order for 2001.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. And a further order for 2002. Yes, very well.

PN29

MR PHILLIPS: Subject to the qualifiers put in my submissions earlier, your Honour, we would be seeking this application be successful from today's date. The AWU states that the application as put is consistent with the safety net review decisions of 2000, 2001, and 2002. The AWU transcript confirms its commitment to principle 8(c) regarding the absorption. I think they would be our submissions at this point, your Honour, unless you have any further questions. The application seeks to vary the Federal Explosives Manufacturing and Distribution (AWU) Award 2000, if it please.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if I receive correspondence to indicate that the variations sought are by consent and do not result in an increase in the wages actually paid to employees or increase the wage costs for the employer, the applicable 12 months delay between the safety net adjustment variations will be waived. If I don't receive correspondence to that effect the matter will have to be relisted. I would ask you, Mr Phillips to obtain the transcript of today's hearing and ensure that that is forwarded to the company as well.

PN31

MR PHILLIPS: Yes, your Honour. I will take that obligation up.

PN32

THE SENIOR DEPUTY PRESIDENT: Having said that, if I receive the correspondence to which I have just referred, as well as confirmation from the company that the calculations are correct within seven - I give the company seven days to provide that correspondence. If that's received and subject to my staff checking the figures as well, the award will be varied to come into operation on or after the first pay period from today's date. If I don't receive that communication, as I said, the matter will have to be relisted for further argument. On that basis, this matter is adjourned.

PN33

Yes, Mr Phillips, you again appear for the AWU.

PN34

MR PHILLIPS: Yes, your Honour. I suspect that there's another application after this. My submissions in the previous matter deal with the award as mentioned and we are seeking that the 2000, 2001 and 2002 be dealt with as one matter.

PN35

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN36

MR PHILLIPS: They have been listed individually.

PN37

THE SENIOR DEPUTY PRESIDENT: These matters should have been listed together. Would you call on C3476 as well?

PN38

MR PHILLIPS: Your Honour, it if please, I may adopt the submissions as put in C number 3477 of 2002 regarding the safety net adjustment 2002.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Those three matters should be joined and I now join them, and my comments are apposite to all three applications, and the transcript will be provided to the company.

ADJOURNED INDEFINITELY [11.36am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 FACSIMILE TRANSMISSION FROM McCULLOUGH ROBERTSON LAWYERS DATED 05/08/2002 PN8
EXHIBIT #2 BUNDLE OF DOCUMENTS PN17