C0079/499, Transcript of Proceedings [2002] AIRCTrans 519 (19 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N VT02353
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C No 00794 of 1999
C No 00796 of 1999
C No 00812 of 1999
C2002/668

BP MARKETING OPERATIONS AWARD 1991

BP OIL (KWINANA) REFINERY CLERICAL
EMPLOYEES AWARD 1992

NUW CASTROL MANUFACTURING AND
DISTRIBUTION INTERIM AWARD 1991

Reviews under section 51, item 51, schedule 5,
Transitional WROLA Act 1996 re conditions of
employment

NATIONAL UNION OF WORKERS

and

BP LUBRICANT SERVICES PTY LTD

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

MELBOURNE

11.34 AM, MONDAY, 4 FEBRUARY 2002

Continued from 13.12.01

PN193

MR P. RICHARDSON: I appear for the National Union of Workers.

PN194

MR W. ANDERSON: I appear on behalf of BP Australia, BP Lubricant Services Pty Limited.

PN195

MR RICHARDSON: Thank you, your Honour. Your Honour, this is a notification of an alleged dispute under section 99 of the Act;by means of pre-paid certified mail in December of last year, in fact on 19 December last year, the National Union of Workers caused to be served upon BP Lubricant Services Pty Limited a letter of demand and attached log of claims. That letter of demand said, and I quote:

PN196

The National Union of Workers being an organisation registered under the Work Place Relations Act 1996, demands that you pay and observe in respect of all your ...(reads)... you reject the demands prior to this seven day period, the union will seek to determine the matters in dispute immediately.

PN197

I end the quote there, and indicate that the letter was signed by the general secretary of the union. An affidavit attesting to service of the letter of demand and log of claims are sworn by Mr Freeburn, the assistant general secretary of the union, and dated 8 January, should appear on the Commission's file as an attachment to the notice, dated the same date and filed with the Registry here in Melbourne on 10 January. Subsequent to filing the notice, the union caused a letter to be forwarded to the Registrar asking that this matter be listed before the Commission as presently constituted, and that was in large part due to the fact that subject to a dispute being found the part settlement sought by the union facilitates the conclusion of the item 51 review in the award of the Commission currently known as the BP Marketing Operations Award.

PN198

Upon receipt of the notice of listing in this matter, the union caused a copy to be served upon BP of the listing. And again, an affidavit sworn by Mr Freeburn on the 16 January and filed with the Registry on the same day here in Melbourne, should appear upon the Commission's file as to the service of the notice of listing. Your Honour, we submit that a dispute exists between the parties, namely the National Union of Workers and BP Lubricant Services Pty Limited. The matters in dispute are those contained within the log of claims attached to Mr Sword's letter of demand of December last year, dated 18 December, and that the dispute is of the required, or pre-requisite nature, in so far as BP Lubricants employs persons and conducts operations in two states, namely Victoria and New South Wales.

PN199

Subject to the finding of a dispute, the union seeks the making of two roping in awards, and I have provided copies of those to your associate prior to the hearing. The first roping in award goes to respondency of BP Lubricant Services to the Oil Industry Long Services Leave Award 2000, and I would ask that that be marked as an exhibit.

EXHIBIT #P1 DRAFT ORDER IN RELATION TO OIL INDUSTRY LONG SERVICES LEAVE AWARD

PN200

MR RICHARDSON: And the second is a draft roping in award which goes to the Standard Hours Oil Award 1974.

EXHIBIT #P2 DRAFT ROPING IN AWARD

PN201

MR RICHARDSON: Thank you, your Honour. Your Honour, again, subject to a dispute being found, the union seeks the making of roping in awards in the forms of exhibit P1 and P2; such awards if made do no more than bind the company BP Lubricant Services Pty Ltd to the two awards, namely the Long Service Leave Award and the Oil Companies Award. The making of such awards we say is consistent with the Act, consistent with the principles and facilitates the respondency to the BP - I beg your pardon, I withdraw that.

PN202

Facilitates the conclusion of the item 51 review process to the BP Marketing Operations Award, insofar as the business BP Lubricant Services was previously known as Castrol Australia Pty Limited, and those operations, it is intended, would come under the BP Marketing Operations Award, if the Commission pleases.

PN203

THE SENIOR DEPUTY PRESIDENT: Mr Anderson.

PN204

MR ANDERSON: If the Commission pleases; obviously, the company would have put the position in relation to the union's log of claims, dated 10 December, that it rejects the demands. And, on that basis, Commissioner, as to whether the dispute is therefore found and whether we then move to whether we are in fact roped in to those two particular awards. But, basically I suppose, we are not in opposition to what is proposed here - - -

PN205

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Anderson. Could I just check, Mr Richardson? You want the finding against both BP Australia and BP Marketing Services Pty Limited? Now, you seem to have served both, if I look at the letter of demand, it is addressed to both companies.

PN206

MR RICHARDSON: I am sorry, I think the actual letter of demand was addressed to BP Lubricant services. It perhaps should have said care of BP Australia - - -

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MR RICHARDSON: - - - Limited, and that doesn't appear.

PN209

THE SENIOR DEPUTY PRESIDENT: Listed them both; so, you only want the finding against BP Lubricant Services?

PN210

MR RICHARDSON: Correct, your Honour.

PN211

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, I can proceed to do that now; in this matter, I am satisfied that there exists an industrial dispute between BP Lubricant Services Pty Ltd on the one part, and the National Union of Workers on the other part. The subject matter of the industrial dispute are those matters set out in a letter of demand and log of claims, dated 18 December 2001, served by the National Union of Workers upon BP Lubricant Services Pty Limited. The dispute exists throughout the Commonwealth.

PN212

A formal finding to that effect will be made and placed on the file. Unless there is any objection, I will move to make the draft awards contained in exhibits P1 and P2, and then stand the matter over generally, while we confer about the BP Marketing Award.

PN213

MR ANDERSON: I have no objection.

PN214

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, I am also satisfied in part settlement of the dispute just found in C2002/668, I should make two roping in awards; the first will be the form of exhibit P1 on the file, which is a draft award roping in BP Lubricant Services Pty Limited to the Oil Industry Long Service Leave Award. The award will be known as the Oil Industry Long Service Leave Roping In Number One Award 2002. It has the effect, as I have indicated, of roping BP Marketing Services Pty Limited into that award.

PN215

It will operate from the first pay period to commence on or after today's date, and have a nominal life of 12 months. The second award will be known as the Standard Hours Oil Companies Roping In Number One Award 2002. The effect of this award will be to bind BP Lubricant Services to the provisions of Standard Hours Oil Companies Award 1974; that award will be in the form of exhibit P2, and it will commence operation from the first pay period to commence on or after today's date, and have a nominal life at 12 months.

PN216

In respect of both awards, I am satisfied it is appropriate to make them. The effect of them is simply to rope the operative division of BP, who are the operative company in BP Australia Limited, into the relevant awards following their taking over of the previous respondent, Castrol, or the business of that company insofar as it is relevant. As I have indicated, I will formerly make those awards, and publish my reasons for decision in due course. Now, is it convenient if we adjourn into conference and discuss what we are doing in relation to the Marketing Award? I will come and join you down there.

SHORT ADJOURNMENT [11.43am]

RESUMED [12.01pm]

PN217

THE SENIOR DEPUTY PRESIDENT: I have chaired a conference with the parties in relation to these matters, to which I will, for the purposes of award simplification only, join the dispute that I found earlier this morning in matter C2002/668. As a result of the discussion - well, I should indicate for the record that Mr Richardson on behalf of the NUW has circulated a proposed award to be known as the BP Marketing Operations - I am sorry, to be known as the Oil Industry BP Marketing National of Workers Award 2002.

PN218

The draft is incomplete and Mr Richardson indicated in conference a number of areas on which further work will need to be done. In relation to that matter, there is also some risk of overlap with the ASU, and that matter will be discussed between Mr Richardson and Mr Nucifora with a view to sorting out any proposed difficulties in that area. It has been agreed in relation to that matter that there will be an exchange of documents between the parties, and it is hoped that the matter can be finalised before Friday 15 March.

PN219

In any event, we will list the matter for a report on that day, but it is hoped that by that day we may be able to publish the new, simplified award. In relation to the clerical employees position which is formerly the BP (Kwinana) Oil Refinery Clerical Employees Award 1992, work is progressing in relation to a draft prepared by Mr Nucifora and circulated. There are a number of matters that these parties need to discuss in relation to that matter, which they have agreed to do before 15 March. There is also the question of the scope of the award, and the exemption rate, if I could use the vernacular; which is said by the ASU to operate beyond the BP position, and to be a matter which affects other companies in the oil industry.

PN220

There are proceedings in that regard before Senior Deputy President Cartwright in relation to the Shell Company of Australia Limited. And, a simplified award has been issued in relation to that company, but exempting those matters. The parties will discuss whether that position can be adopted in relation to the BP situation, and whether an award excluding those matters which will need further consideration can be made and we will report on that matter on the 15th. The parties have also agreed that an eye needs to be kept on what is happening in relation to the matter of the exemption rates, and the classification structure, and if the matter is to be determined in relation to the Shell Group of Companies, then, of course, the other companies will need a - well, I presume, adopt a watching position in relation to that.

PN221

If it is to be determined on a more general basis, then all I can say is somebody needs to make an application somewhere to have that happen. Unless there is anything the parties want to add to that, I will simply adjourn all of the matters to 15 March as I have indicated. I am sorry, there is one further matter that I should indicated; it has been agreed as a result of the proposed making of the BP - I am sorry, the Oil Industry BP Marketing National Union of Workers Award 2002, that the National Union of Workers Castrol Manufacturing and Distribution Interim Award 1991 will have no further work to do.

PN222

And the parties have agreed that it is appropriate to set that award aside with effect form 7 February 2002. I will do that on or after that date, with effect from that date. Now, Mr Nucifora, have you got anything to add to - - -

PN223

MR NUCIFORA: No, your Honour.

PN224

THE SENIOR DEPUTY PRESIDENT: Mr Richardson?

PN225

MR RICHARDSON: No, your Honour.

PN226

THE SENIOR DEPUTY PRESIDENT: Mr Anderson?

PN227

MR ANDERSON: We haven't.

PN228

THE SENIOR DEPUTY PRESIDENT: Well, on the basis that I have just indicated, all of the matters other than C No 00812 of 1999, which is the award to be set aside, will be re-listed on 15 February 2002 at 10.30am in Melbourne. I thank the parties for their attendance.

ADJOURNED UNTIL FRIDAY, 15 FEBRUARY 2002 [12.06pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 DRAFT ORDER IN RELATION TO OIL INDUSTRY LONG SERVICES LEAVE AWARD PN200
EXHIBIT #P2 DRAFT ROPING IN AWARD PN201