D2001/20, Transcript of Proceedings [2002] AIRCTrans 3259 (26 August 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT05278

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

D No 2001/20

APPLICATION UNDER SECTION 204(1) OF THE ACT
BY AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION FOR
CONSENT TO ALTER ELIGIBILITY RULES RE RULE 1E -
VEHICLE DIVISION

OBJECTIONS THERETO

MELBOURNE

11.39 AM, THURSDAY, 8 AUGUST 2002

Continued from 27.6.02

THIS HEARING WAS CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN108

THE SENIOR DEPUTY PRESIDENT: Could I first of all apologise to the parties for the delay. I might say it is through no fault, at all, of human error, it appears to be a fault in the technical system that has caused us this delay. Could I take appearances, starting in Melbourne and starting with the applicant.

PN109

MR A. SACHINIDIS: Yes, I appear on behalf of the Australian Manufacturing Workers Union.

PN110

MR L. DUFFIN: I appear on behalf of the Transport Workers Union of Australia.

PN111

MS S. BURNLEY: I appear for the Shop Distributive and Allied Employees Association.

PN112

MR L. FREEBURN: For the National Union of Workers.

PN113

MR K. REDFERN: Appearing for the Victorian Automobile Chamber of Commerce, together with MS E. HAYES.

PN114

MR C. PHILLIPS: I appear for the Australian Workers' Union.

PN115

THE SENIOR DEPUTY PRESIDENT: And in Sydney.

PN116

MR D. PERKINS: I am appearing for the CPSU but in relation to 2002/21, I think that was called, but - - -

PN117

THE SENIOR DEPUTY PRESIDENT: No, we haven't called that one, yet, Mr Perkins.

PN118

MR PERKINS: I see, okay, thank you.

PN119

MR A. THOMAS: Yes, your Honour, I am from the Rail Tram and Bus Union.

PN120

MS S. BELLINO: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers' Union.

PN121

THE SENIOR DEPUTY PRESIDENT: And in Western Australia.

PN122

MS J. MOSS: From the Motor Trade Association.

PN123

MR N. BORLASE: From the Chamber of Commerce and Industry of Western Australia. And, your Honour, we could not hear any of the people, other than yourself, in Melbourne.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that, Mr Borlase, I believe that is going to be a bit of a problem because we are talking to you by land line and talking to Sydney by video.

PN125

MR BORLASE: Right.

PN126

THE SENIOR DEPUTY PRESIDENT: Because of the technical problems we have experienced, does that mean that you are unable to hear the advocates, in Melbourne, as well?

PN127

MR BORLASE: That is correct, we can hear yourself but we cannot hear the any of the advocates.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes, I just might move then the speaker, so that we can attempt to improve that. Now, I hope that is some improvement, I have moved myself closer to the advocates down here as well, that is only physically, I might say, not in relation to their cases. Are you able to hear me now?

PN129

MR BORLASE: We can, sir, yes.

PN130

THE SENIOR DEPUTY PRESIDENT: Well, see how we go with the advocates. Mr Sachinidis, what is the position with AMWU?

PN131

MR SACHINIDIS: Yes, your Honour, since the last time we were before you, on the last occasion, you will recall that the union had provided all objectors with an amended without prejudice proposal. Now, at the last hearing, several of the objectors expressed a view as to that position and I understand the MTA in Western Australia, the VACC and the NUW expressed the view that the proposal was not capable of being resolved or was difficult for them to deal with.

PN132

In terms of the remaining objectors, in particular, AWU, SDA, LHMU and TWU, the union has not had any formal discussion and or correspondence to that proposal. Accordingly, the union, in light of that situation, has contacted the NUW or has had discussions with the NUW and with the Rail Tram and Bus Union, in order to deal with the situation. So what we have done is, we have amended our original application. That amendment has significantly narrowed the original application and that position has now been forwarded to all objectors, effective from 6 August this year.

PN133

I would like to take the opportunity to tender an exhibit of the amendment by the union. And the amendment is - a covering letter, obviously, has gone to all objectors, with the position reflected in annexure A, as is before the Commission at the moment.

EXHIBIT #AMWU1 AMENDMENT BY THE UNION

PN134

MR SACHINIDIS: AMWU1, as I understand it and the parties are here to report back, as well, will and has the significant potential of meeting the objectors' concerns, with respect to the application and AMWU1, indeed reflects the applicant's position, at this stage. The TWU - my colleague from the TWU has indicated that they have received the correspondence, inclusive of AMWU1 and they indicated that, in light of their secretary being away at the moment, they would require a three week period to formally respond to that.

PN135

I would, in light of that position, I would press your Honour for the matter to be for directions and timetabling for the matter to be determined today. The period in which I envisage there is that we could have a four week period, from today, which takes us to September 11, I understand. That could be, of course, if that is acceptable to the Commission, that could be the day in which the matter progresses for determination. That will also allow the remaining objectors sufficient time to formally consider AMWU1.

PN136

THE SENIOR DEPUTY PRESIDENT: Do you seek directions for actual listing, at that time, for the hearing?

PN137

MR SACHINIDIS: Yes, I do.

PN138

THE SENIOR DEPUTY PRESIDENT: You don't seek the provision of statements or anything like that?

PN139

MR SACHINIDIS: Well that would be, yes I do and I mentioned, for example 11 September, I understand that is a four week period. My colleague mentioned three weeks and we could, your Honour, identify the exchange of statements and or witness material, on that date and then a date, prospectively from that, as far setting down for determination.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN141

MR SACHINIDIS: That, I understand, is the position at the moment.

PN142

THE SENIOR DEPUTY PRESIDENT: Mr Duffin. Sorry, before we do that. Western Australia, were you able to hear that?

PN143

MR BORLASE: Sir, I think we managed to get a vague idea that Mr Sachinidis submitted a document, which he forwarded to us a couple of days ago, and it has been marked as exhibit AMWU1 and annexure A and I think heard him asking for the matter to be set down for hearing and determination on 11 September. Is that the gist of what he was - - -

PN144

THE SENIOR DEPUTY PRESIDENT: I think his original position, in relation to that date, was for a hearing but now it seems that he is suggesting that there be an exchange of material by that date and that on that date we fix a date for hearing. Is that correct, Mr Sachinidis?

PN145

MR SACHINIDIS: Your Honour, you could - I mean that is one way of looking at it - I was more thinking of a date to be determined today, on that, but I am open on that.

PN146

THE SENIOR DEPUTY PRESIDENT: But you were saying that the date of hearing would not, necessarily, be 11 September?

PN147

MR SACHINIDIS: That is correct, yes.

PN148

THE SENIOR DEPUTY PRESIDENT: Do you understand that, then, Western Australia?

PN149

MR BORLASE: Yes, we do, sir.

PN150

THE SENIOR DEPUTY PRESIDENT: Mr Duffin. If you could keep your voices up, just so that Western Australia can hear you.

PN151

MR DUFFIN: Mr Sachinidis reflected a conversation that we had on Monday of this week, which was that our federal secretary is overseas at present and doesn't return to Australia until the week commencing 28 August. In those circumstances we wouldn't be in a position to give him any formal response to annexure A or AMWU1, as it now is, until at least that time. In those circumstances, what we were anticipating and I think, my understanding is, that the matter would be in a position whereby the parties should, if they have not reached accommodation, on the proposed rule change, would be then put in a position to formally progress the matter.

PN152

And so, perhaps, our submission would be, that at that time there be that exchange of witness statements or other appropriate material, that the applicant wishes to rely upon. So that is our position at the moment, as indicated, that 11 September seemed - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Well you are saying that if you haven't settled by that date, you will be in a position to provide that your material.

PN154

MR DUFFIN: Well we would anticipate, perhaps, the applicant providing material and perhaps week for us to make a response to that.

PN155

THE SENIOR DEPUTY PRESIDENT: I think you will find that the practice, in these matters, is the objectors go first.

PN156

MR DUFFIN: So be it.

PN157

THE SENIOR DEPUTY PRESIDENT: It is certainly, my practice, often.

PN158

MR DUFFIN: I am loathe to alter your practice, your Honour. So we would do that in that circumstance.

PN159

THE SENIOR DEPUTY PRESIDENT: So you would be in a position, then, to provide your material by the 11th?

PN160

MR DUFFIN: I believe so, your Honour.

PN161

THE SENIOR DEPUTY PRESIDENT: Ms Burnley.

PN162

MS BURNLEY: We have also received annexure A, which is AMWU1. At the moment we are still considering that and having some discussions, internally in the SDA. Trying to pin everybody down has been difficult, over the last day, so we haven't had time for formal discussions over the proposal. We would need four weeks to finish that and to also discuss the proposal of the AMWU, in that time. I am not too sure whether 11 September we would be prepared to have our objections and our witness evidence ready by that time and we would probably need until the 18th to complete that part of the process, if we haven't been able to reach agreement by the 11th.

PN163

THE SENIOR DEPUTY PRESIDENT: Mr Freeburn.

PN164

MR FREEBURN: Your Honour, we have had discussions with the AMWU, about this matter and have reached, what I can call a without prejudice agreement in principle. That agreement we will propose to go and needs to be put to our National Committee of Management, which is meeting on 3 September. I anticipate after 3 September being able to advise the AMWU and the Commission, that we have settled our objection or are able to settle our objection for the completion of a formal agreement.

PN165

THE SENIOR DEPUTY PRESIDENT: Mr Redfern.

PN166

MR REDFERN: Thank you, your Honour, I wrote to Mr Sachinidis, earlier this week, on Monday, advising that as we hadn't heard from him, indicating we were still prepared to discuss what was then the original application or rather, I should say, the second version of the original application. Subsequently, I received some correspondence from Mr Sachinidis, which had attached to it, what is now AMWU1.

PN167

I have replied to Mr Sachinidis, indicating that my federal council is prepared to consider that new proposal but, frankly, given the time frame and given the receipt of the correspondence, we would need some two to three weeks before council can give, what I would think, would be a proper and considered response. As to the timing, I would have thought a better approach would have been to either have a further report back to you then followed by the exchange of materials and witness statements, if that is required.

PN168

I would have to say, from our position, that 11 September date, as far as the witness statements and other material are concerned, that is probably a little bit tight and I would ask your Honour's indulgence on that point. Because, frankly, I don't think we are going to be in a position, on that time frame, to be able to provide that. We would need some further time, if your Honour was prepared to indulge us, on that matter.

PN169

THE SENIOR DEPUTY PRESIDENT: Mr Phillips.

PN170

MR PHILLIPS: Thank you, your Honour, the AWU confirms that we have received correspondence from Mr Sachinidis, concerning this matter. Currently, Mr Short, the National Secretary of the AWU, is undertaking union business in the United States. We have not had an opportunity to consider the amended application, if I can put it in that terms. However, at this point, we would probably put that the timing is a bit ambitious for 11 September, in the event that the AWU does not accept the proposal from the AMWU and maybe that a report back and directions could be put forward on 18 September, which would be more of a reasonable period of time, considering that the AWU received this correspondence on midday on 6 August.

PN171

THE SENIOR DEPUTY PRESIDENT: Mr Thomas.

PN172

MR THOMAS: Thank you, your Honour. Your Honour, we, like the other parties, received the correspondence from the AMWU, earlier this week and have also, perhaps, unlike some of the other parties, had the opportunity to discuss the matter with Mr Sachinidis. The position of the RTBU, your Honour, is, that subject to what is now exhibit AMWU1 becoming the rule change that will be sought, in these proceedings, the RTBU will withdraw its objection.

PN173

In saying that, your Honour, I am just a bit confused, at this point, because whilst AMWU1 has been tendered, I am not aware that there has been a formal application to vary the rule change application that is currently before you, to wit, inserting AMWU1. And further that indeed the Commission has accepted that this amendment would be acceptable. So that is, I guess, a procedural thing but we just need to be sure that when the matter proceeds that what does proceed as the rule change is AMWU1.

PN174

THE SENIOR DEPUTY PRESIDENT: Well, in that respect, Mr Thomas, the Commission doesn't have to formally accept it as an amendment. I appreciate there is a section in the Act referring to a similar sort of situation but the practice in relation to rule change matters, eligibility rule change matters, has been that if an applicant seeks to amend the application or seeks to have the application granted in a limited form, then the power of the designated Presidential Member is to grant an application in part.

PN175

So the practice that I follow is that if the applicant says, "What we are now seeking in this particular case is what set out in AMWU1," and I am in due course satisfied that it is less than the theme sought in the original application and, not withstanding objections that might be pursued, should be granted, then I grant the application in part. But the case would be argued on the basis that what is being sought is AMWU1, not what was originally gazetted.

PN176

MR THOMAS: Thank you, your Honour. That clarifies the matter for us. In that case I can say that based on AMWU1 the RTBU would be prepared to withdraw its objection.

PN177

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Thomas. Ms Bellino?

PN178

MS BELLINO: Thank you, your Honour. The LHMU can confirm that we have received the AMWU correspondence. My difficult is that our national council has been meeting in Sydney all this week and I have been unable to get any instructions or have any conversations with the relevant national officials in relation to AMWU1. I can undertake to do that within the next seven days. It does involve having discussions with a number of our branches who initially raised the concerns with the original application. And I can formally write to the AMWU and the Commission outlining the union's response to AMWU1.

PN179

I guess our major area of concern has been with respect to car detailing work at sites in car yards where some of our branches state they have State Awards in operation. So I would need to send this out to all of those involved and get a formal response in the next week or so, your Honour.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Moss?

PN181

MS MOSS: Thank you, your Honour. I confirm I am in receipt of the Exhibit AMWU1 and the position of the Motor Trade Association is to continue to object to that amendment. The main concern is that the stated postions included in the exhibit still are covered by State organisations and adequately ..... So we will continue to object to the amendment.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Borlase?

PN183

MR BORLASE: Yes, sir. We have received AMWU - what is now AMWU1 on the 6th. We haven't been able to, you know, obviously canvas the members that we represent in the matter in respect to that alteration. And we would have to go through that process first. That would be likely to take a couple of weeks and then depending on what that feedback was would depend on, really to what extent it would be appropriate and so I would support the position has been put by some of the other advocates thus far that there be a further report back conference in respect of this matter after we have all been able to consult with our relevant constituents in the matter.

PN184

The timing then, if that takes two to three weeks, from what I have gathered, from what I have been able to hear from some of the others, I think that would be a very similar timeframe that we would require as well, And then to have a report back conference after that I think that would then leave a timeframe of exchange of statements or material, the 11 September is a fairly ambitious target date. I would also just indicate that I am not available between 7 September and 20 September in any event, which would make it a little bit difficult for us ..... occurring in that particular period of time as well. And so we would ..... report back where we have the opportunity to consult with our members, receive appropriate instructions and then have a - certainly report back to yourself.

PN185

THE SENIOR DEPUTY PRESIDENT: Does your unavailability, Mr Borlase, mean that there would be no-one available to report back in that period between the 7th and the 20th?

PN186

MR BORLASE: In terms of report back we would be able to have somebody available to do that. If it were actually set down for hearing and determination that would probably raise a great difficulty. But certainly for a report back in that period of time, we would arrange somebody else.

PN187

THE SENIOR DEPUTY PRESIDENT: Well, I think that is all the objectors. Mr Sachinidis?

PN188

MR SACHINIDIS: Your Honour, in respect to the Western Australian objectors, there is - the reality is that the Vehicle Industry Repair Services and Retail Award which applies in Western Australia, only applies to - - -

PN189

MR BORLASE: I am sorry to interrupt, but I heard something about referring to Western Australia and that is about all we managed to hear from that.

PN190

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will ask Mr Sachinidis to start again and speak up.

PN191

MR DOUGLAS: Thank you, your Honour. The issue in respect to the award having coverage in Western Australia, the Vehicle Industry Repair Services and Retail Award, for the benefits of all the parties and the Commission, at this stage, I indicate that it has limited application in the State of Western Australia. And in that regard Mr Borlase would understand that the - any alteration to the union's eligibility rule, and with respect to application in Western Australia, can only be in relation to tyre retreading classifications which apply wholly in the State of Western Australia as opposed to all other classifications which then - there are named respondents to those employers that apply those awards.

PN192

Now, Mr Borlase understands that situation so when, for example, they indicate that they object and they would need to have advice from their members, I indicate that clearly those members would only be those specified in Schedule E of that award. Other than that the potential rule has limited scope there. Now, as far as the proposed dates, your Honour, as far as report back and or for the matter to be determined, I have heard the parties position on that. I leave it to the Commission to determine the dates in respect of the matter going forward because it is difficult to accommodate everyone's position.

PN193

But I would maintain that at least by the 11th it would become evident of the position of all the objectors and the need, if any, for the matter to progress in a formal sense. If it please the Commission.

PN194

THE SENIOR DEPUTY PRESIDENT: Thank you. What I propose to do in relation to the matter is to list it again at 11 o'clock on 11 September with, one would hope, technically - it is technically by then possible, video conferencing to Western Australia - to Perth and to Sydney. It would be listed for report back because at this stage I don't think it is appropriate to make directions. I am reluctant to make directions which require objectors to spend time and effort on the preparation of documents which in due course, if these final negotiations are successful, would be a waste of time and effort.

PN195

But I will on that occasion, subject to being convinced to the contrary, be making directions for the provision and exchange of appropriate material and for the hearing of the matter. And the provision of the documentation, or the directions, will provide a timetable which will be of a reasonably short span. So what I am doing is putting everyone on notice so that if it looks like they are not going to settle their objections then the objectors will need to be prepared to comply with a reasonably tight timetable, one that I stress will be reasonably tight and not unreasonably tight, in my view.

PN196

And I would also expect the parties to on that occasion, that is 11 September, be in a position to advise me as to venue for any hearings. Specifically I am concerned about if the objectors in Western Australia are pursuing their objections then they may be seeking to call evidence in that State. So I would ask the parties to bear that in mind. The matter is therefore adjourned for report back on that basis to 11 o'clock on 11 September, here.

ADJOURNED UNTIL WEDNESDAY, 11 SEPTEMBER 2002 [12.09]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 AMENDMENT BY THE UNION PN134