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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
C2001/5838
ASSOCIATION OF PROFESSIONAL ENGINEERS,
SCIENTISTS AND MANAGERS, AUSTRALIA
and
WA WATER CORPORATION AND OTHERS
Notification pursuant to section 99 of the Act
of a dispute re salaries and conditions of employment
PERTH
10.08 AM, TUESDAY, 5 FEBRUARY 2002
PN1
MR D. MOSS: I appear for the Association of Professional Engineers, Scientists and Managers of Australia.
PN2
THE DEPUTY PRESIDENT: Morning Mr Moss.
PN3
MR S. ROOKE: I appear for the Water Corporation.
PN4
THE DEPUTY PRESIDENT: Mr Rooke.
PN5
MR J. DASEY: Senior Deputy President my name's John Dasey and I appear - - -
PN6
THE DEPUTY PRESIDENT: Just a Deputy President.
PN7
MR DASEY: I beg your pardon, Deputy President, I appear for the Community and Public Sector Union and I seek leave to intervene in this matter.
PN8
THE DEPUTY PRESIDENT: Okay and your interest in the matter?
PN9
MR DASEY: It's the - an associated body of the CPSU being the Civil Service Association of Western Australia is a party to the registered agreement in the State system, which covers the area of this application by
PN10
APESMA. Historically sir the clerical, administrative, professional and managerial positions at the corporation were covered by the Western Australian Public Service Award; on corporatisation they became subject to a registered agreement.
PN11
There has been I think three rounds of bargaining in regard to that and in fact an application for a first award for the corporation for our members is in front of the Western Australian Industrial Relations Commission. Our interest sir would not be so much in the actual finding of the existence of a dispute, but should that occur we would be seeking to raise section 111AAA and it will be at that point that we would seek to be heard.
PN12
THE DEPUTY PRESIDENT: Right, okay, so Mr Dasey you are at this point seeking leave to intervene so that you are kept informed of any developments should there be a finding and dispute.
PN13
MR DASEY: Yes indeed sir.
PN14
THE DEPUTY PRESIDENT: Okay Mr Dasey. Mr Moss, or Mr Rooke, do you have any objection to the intervention?
PN15
MR MOSS: Yes sir, we do object to the intervention, there is no industrial relationship between this union and any of the respondents, it's just none of their business sir. When the section - if the matter comes on for an award further down the track they can seek leave, whichever union, can seek leave to intervene at that stage sir.
PN16
THE DEPUTY PRESIDENT: Mr Rooke?
PN17
MR ROOKE: I have no objection your Honour.
PN18
THE DEPUTY PRESIDENT: You have no objection?
PN19
MR ROOKE: No.
PN20
THE DEPUTY PRESIDENT: Yes I will allow the intervention, the intervener is merely seeking to protect their right to be informed of any developments, whether there is any involvement of the union seeking leave to intervene at this point as a matter of merit, or a matter of right, that is something that can be determined at that time, so at this point I will allow you Mr Dasey intervention. Mr Moss?
PN21
MR MOSS: Sir, our union, the APESMA, has constitutional coverage of engineers in the water supply and maintenance industry. We have members employed in each of the named respondents. Over 70 members in fact in relation to the Water Corporation of WA and we are entitled to recruit, as members, engineers employed by each of the named respondents. On 8 November 2001 APESMA's Director, Industrial Relations, Mr Bruce Nadenbousch, wrote a letter of demand, together with an attached log of claims to each of the respondents.
PN22
As APESMA did not receive any replies within the specified seven days in the letter of demand on 16 November Mr Nadenbousch prepared a notification of alleged dispute to the Commission, a Form R4 form. He also completed and signed the required statements in accordance with rule 14 of the Industrial Commission. One statement was prepared in accordance with subrule (d), confirming that the respondents had been served with a letter of demand and the logs of claims and although these documents are on your file sir, I would pass them informally as exhibits, I have only got one here, but I don't think that the intervener is interested in this part of the proceedings in any event.
PN23
THE DEPUTY PRESIDENT: Okay, well if you can tender that.
PN24
PN25
MR MOSS: Sir, attached to that statement as annexure A, was a copy of the letter of demand, a standard letter which went to all the respondents and the log of claims. The letter that was attached is annexure A, was addressed to the United Water International Proprietary Limited, but the letter was the same for all the respondents and I would like to pass that and the log of claims up as an exhibit also sir, once again even though they are on your file I would like to pass them in formally.
PN26
MR MOSS: A second statement was also prepared by Mr Nadenbousch in accordance with subrule (e) and he also signed this on 16 November. This statement confirmed that Mr Nadenbousch was authorised to make the statement on behalf of APESMA, that by registered mail he had served - I beg your pardon sir, I have jumped the gun here, I should have also passed in - I withdraw that last statement sir. I will go back to exhibit 1, there was also attached to exhibit 1, the statement by Mr Nadenbousch, an annexure B, which was the names and addresses of the respondents to whom the letters and logs were served by registered mail and I apologise for that sir, I pass those in as an exhibit also.
PN27
MR MOSS: Reverting back to my submissions, sir, there was also a second statement prepared in accordance with subrule (e), signed by Mr Nadenbousch on 16 November and as I was saying this statement confirmed that Mr Nadenbousch was authorised to make the statement on behalf of APESMA, but by registered mail he had served on each of the respondents a letter of demand and a log of claims that these were served with the authority of the association and in accordance with the APESMA rules and that the respondents had not responded within the specified seven days and I would like to pass in that as an exhibit sir.
PN28
MR MOSS: The notification of dispute prepared and signed by Mr Nadenbousch on 16 November was not actually filed with the Commission until 20 November. The claims by APESMA are genuine. The claims all relate to matters pertaining to the relationship between employers and employees and the dispute extends beyond the limits of any one State. We had not been made aware that any of the respondents objected to a finding of dispute, that this is a genuine industrial dispute, until this morning, I only learnt this 15 minutes ago, that the Water Corporation are objecting to a finding on the basis that it's not a genuine dispute.
PN29
We don't know what the grounds of their objection is because Mr Rooke wouldn't tell me. He said I would find out in due course. One employer, the United Water International Proprietary Limited, has sent us a copy of the letter that that organisation sent to you, advising that it does not object to a finding of dispute, that was a letter dated 29 January and I would pass that in.
EXHIBIT #A5 LETTER FROM UNITED WATER INTERNATIONAL PROPRIETARY LIMITED, DATED 29/01/2002
PN30
THE DEPUTY PRESIDENT: Yes, I have a copy of that on file Mr Moss and they indicate that they don't oppose the dispute finding, but they don't consent to your claim and they also indicated in that letter that they will not be able to attend this morning.
PN31
MR MOSS: We are seeking a finding of dispute in accordance with section 101. That this is a genuine industrial dispute, existing between APESMA and the named respondents over the matters contained in our log of claims. May it please the Commission that concludes my submissions at this stage.
PN32
THE DEPUTY PRESIDENT: Do you have any knowledge directly of any of the others that were served with the log, Mr Moss, as to their attitude to the dispute finding?
PN33
MR MOSS: No sir, we did get a letter from Mr Murray Campbell of an employer which I will spell, A-C-T-W-A-G-L, but that letter rejects our claims, that's all that it did, and that was a letter dated 19 November, I am quite happy to tender that if you like.
PN34
THE DEPUTY PRESIDENT: Yes if you would, do you have a spare copy?
PN35
PN36
THE DEPUTY PRESIDENT: It's hard to say who the letter is from, it's a letter from Mr Campbell.
PN37
MR MOSS: Yes, there wasn't a letterhead, but it's - he says, "I am authorised of ACTEW AGL".
PN38
THE DEPUTY PRESIDENT: I have a letter from ACTEW AGL as well, dated 29 January, in which, well I will read it out in full, it's addressed to me:
PN39
Dear Sir, I refer to matter C2001/5838, listed for hearing before you on Tuesday, 5 February 2002. The three entities ACTEW AGL Distribution, ACTEW and ACTEW AGL Retail, have their own consent award, AW768190 and certified agreement, to which APESMA is a party. On this basis we assert that the terms of any award made in relation to APESMA's log of claims as a result of their WR99 notification have no application to these entities.
PN40
Mr Moss we tried to clarify just this morning with ACTEW AGL what those words "have no application to these entities" meant and as far as we can ascertain, but we are seeking written confirmation of this from them, as far as we can ascertain at this point, is that they don't oppose a dispute finding.
PN41
MR MOSS: Thank you sir and of course a dispute finding may extend the ambit of a dispute that it may exist upon which existing awards and enterprise agreements are erected.
PN42
THE DEPUTY PRESIDENT: Yes, so far as I can gather, they are not opposing a dispute finding from the proceedings this morning, but as I say we are trying to get confirmation of that, that that is their position.
PN43
MR MOSS: Thank you for your assistance there sir. Will we be getting copies of that correspondence?
PN44
THE DEPUTY PRESIDENT: I can ensure that you get a copy of that.
PN45
MR MOSS: Thank you sir.
PN46
THE DEPUTY PRESIDENT: It's from the same person, who wrote to Mr Nadenbousch, Murray Campbell, so perhaps you might cause either Mr Nadenbousch, or you directly yourself get in contact with Mr Campbell, but in the absence of you getting a copy of that letter I am quite happy to ensure you have one.
PN47
MR MOSS: And that was the 29 January you said sir?
PN48
THE DEPUTY PRESIDENT: 29 January, yes.
PN49
MR MOSS: Thank you.
PN50
THE DEPUTY PRESIDENT: Something wrong with their fax because of the date, it's actually faxed, the date of the letter is 29 January, but the header on their fax is the 23 March 2002.
PN51
MR MOSS: Thank you sir.
PN52
THE DEPUTY PRESIDENT: You have completed?
PN53
MR MOSS: Yes sir.
PN54
THE DEPUTY PRESIDENT: Just one question I did have and that was that we have the statement from Mr Nadenbousch that he has the authority to serve the log, under the rules of APESMA is there a requirement that the executive establish, or make a resolution to provide that authority and has that occurred, is that what this statement is actually saying?
PN55
MR MOSS: Yes, sir. Mr Nadenbousch, by resolution of the National Board of APESMA, has got the authority to serve logs of claims.
PN56
THE DEPUTY PRESIDENT: Okay.
PN57
MR MOSS: On employers.
PN58
THE DEPUTY PRESIDENT: So he doesn't need a specific resolution on each occasion that there is a log of claims served.
PN59
MR MOSS: He doesn't need a special resolution. That's correct sir. It's a continuing authority.
PN60
THE DEPUTY PRESIDENT: Okay, thank you. I might turn to you Mr Dasey at this stage, do you have anything further you want to add, or you just want to reserve the right to try and find out what's going on?
PN61
MR DASEY: Yes sir, I would preserve that right if I may, I think our interest comes when and if you find a dispute finding.
PN62
THE DEPUTY PRESIDENT: So you have nothing - okay, thank you. Mr Rooke?
PN63
MR ROOKE: Thank you your Honour. My friend seems a little peeved that he only found out this morning that we were opposing the finding of a dispute.
PN64
THE DEPUTY PRESIDENT: I don't think he was peeved, he was just stating what he saw as a fact.
PN65
MR ROOKE: Yes, okay. Because he could have phoned me at any time and ascertained that.
PN66
THE DEPUTY PRESIDENT: As you could have him?
PN67
MR ROOKE: I could have, but he seems to have assumed - - -
PN68
THE DEPUTY PRESIDENT: But anyway we won't stand on that, we will hear what you have got to say.
PN69
MR ROOKE: But your Honour we are opposed to the finding of a dispute in this matter. There are a number of grounds on which we present that opposition and your Honour pleases I intend to go through those in some detail.
PN70
THE DEPUTY PRESIDENT: Okay.
PN71
MR ROOKE: There are a number of elements in the case. The first is that there is no evidence of significant dissatisfaction among the employees entitled to be represented by APESMA at the Water Corporation about the terms and conditions of their employment and to find an industrial dispute we have to find that there is some dissatisfaction among the employees about the terms and conditions of employment. Secondly, any approaches by APESMA to Water Corporation about terms and conditions of employment of its members and there have been over a number of years, that being considered positively by the Corporation and to a large degree their suggestions have been adopted.
PN72
There are currently no outstanding issues between APESMA and the Water Corporation about terms and conditions of employment of its members, as far as the employer is aware. There is no evidence that the employees of the Water Corporation are disadvantaged under the current arrangements, so we would say that that is a factor to be taken into account by your Honour, in determining whether or not there is a dispute. The only dispute that APESMA has in relation to Water Corporation relates to its wish to join a union single bargaining unit.
PN73
Now, that's an inter-union dispute, it's not a dispute about terms and conditions of employment, it's not an interstate dispute. So the finding of a dispute and the making of an award, in our submission, would be contrary to the objects of the Act. Now, firstly, as far as Water Corporation is concerned, it would create inefficiencies. For your Honour to find a dispute and then proceed to deal with that dispute would cause serious disruption to - - -
PN74
MR MOSS: Sir, is this relevant to the issue of finding of dispute?
PN75
THE DEPUTY PRESIDENT: I will let Mr Rooke proceed I am conscious of what you are raising Mr Moss and I will consider that in whether I find that there is a dispute with Water Corp or not, but I will hear Mr Rooke.
PN76
MR MOSS: Thank you sir.
PN77
MR ROOKE: Thank you your Honour. As I was saying it would lead to inefficiencies, the Water Corporation has over several years, been successful in moving the industrial instruments under which its employees are covered, from six different Federal awards and agreements, to what is now one single enterprise agreement. Now that has created efficiencies for the Corporation and it has definite advantages for the employees and to any unions who happen to be party to that enterprise agreement. So it would lead to inefficiencies. There can be no doubt that it would lead to increasing costs and to the exacerbation of inter-union difficulties which is something which is certainly of concern to the employer, although in the case of an inter-union dispute we have little ability to influence the outcome of that dispute.
PN78
THE DEPUTY PRESIDENT: We don't know that there is an inter-union dispute, all we have is a log of claims that the union that has the authority to cover employees of yours have served.
PN79
MR ROOKE: Yes, your Honour. Well, I intend to provide documentary evidence in support of that assertion.
PN80
THE DEPUTY PRESIDENT: What is the Enterprise Agreement you are referring to? Are you going to tender that?
PN81
MR ROOKE: It is the Water Corporation Interim Agreement 2000. I have, your Honour, prepared a statement setting out the Industrial Awards and Agreements covering employees of the respondents to the claims, so perhaps if I tender that at this point.
PN82
THE DEPUTY PRESIDENT: This will be exhibit R1, a list of awards and agreements of the Water Corp - the WA Corp or just Water Corp or what?
PN83
MR ROOKE: Water Corporation.
PN84
THE DEPUTY PRESIDENT: Just Water Corp, is it? Actually, this is a list of awards and agreements covering employees of the respondents, not just Water Corp.
PN85
MR ROOKE: Yes.
PN86
THE DEPUTY PRESIDENT: Now, for Water Corp there is Water Corp Interim Agreement 2000, which I gather is a Certified Agreement under the Workplace Relations Act?
PN87
MR ROOKE: Yes, your Honour.
PN88
THE DEPUTY PRESIDENT: And another agreement which is what?
PN89
PN90
THE DEPUTY PRESIDENT: Okay. Thanks, Mr Rooke. Proceed.
PN91
MR ROOKE: I will come back to this exhibit a little later, your Honour. The finding of a dispute in this matter, your Honour, is also inconsistent with the objective of determining matters at the workplace or the enterprise level, which is one of the objects of the Act. It is inconsistent with the objective enabling employers and employees to choose the most appropriate form of agreement because, in my submission, the employees have already done that and I will talk a little more about that also.
PN92
It is inconsistent with ensuring that the parties abide by awards and agreements applying to them and there I am referring to the fact, your Honour, that ACTEW, the Australian Capital Territory water provider, you will see from the statement setting out the industrial awards and agreements covering employees currently has an award and it also has an Enterprise Agreements, that is the ACTEW Corporation Enterprise Agreement 1999, APESMA, your Honour, is a party to that agreement. It is a current agreement. Its term doesn't expire until 28 July this year. Clause 7 of that agreement is a no further claims clause and, in my submission, your Honour, this log of claims that has just been presented by APESMA is a breach of that agreement.
PN93
THE DEPUTY PRESIDENT: ACTEW, as best I can gather, are not disputing a dispute finding. So are you making submissions on their behalf?
PN94
MR ROOKE: No. Not at all, your Honour. I am making submissions on behalf of the Water Corporation, but what I am suggesting to your Honour is that it would be contrary to the objects of the Act for your Honour to find a dispute in this case because to do so would be inconsistent with ensuring that the parties abide by awards and agreements applying to them. That is what I am saying.
PN95
THE DEPUTY PRESIDENT: With ACTEW there may be - I am sorry if I am pre-empting what Mr Moss might say in response - but there may be no pursuit of anything until the expiration of that agreement beyond a dispute finding. So I am a little at a loss to see any weight that I could really place on the fact that ACTEW has an Enterprise Agreement that is within term.
PN96
MR ROOKE: Well, your Honour, what I would say with respect in relation to that is that APESMA has served a log of claims on the employers, it would no doubt seek to persuade your Honour that it is a genuine log of claims in pursuance of genuine issues between itself and the respondents and for you to find that it is a genuine log of claims and therefore we have a genuine dispute between APESMA and ACTEW would be contrary to the objects of the Act.
PN97
THE DEPUTY PRESIDENT: Notwithstanding that ACTEW don't object to there being a dispute finding, as best I can gather.
PN98
MR ROOKE: As best you can gather, your Honour. I don't know whether that is a fact or not.
PN99
THE DEPUTY PRESIDENT: Because their leader is a little unclear which is why we sought clarification. It says "Has no application". Okay, sorry, Mr Rooke.
PN100
MR ROOKE: Yes. Well, continuing this, your Honour, they also submit that the finding of a dispute would serve no useful purpose in relation to Water Corporation because the employees are covered by a State employment agreement, so even if your Honour were to find as a matter of law that there is a dispute the practical consequences of that are a matter which in my submission your Honour ought to take into account in coming to that conclusion and because the employees are covered by a State employment agreement the Commission in the normal course of events would decline to deal with the log of claims.
PN101
MR MOSS: Sir, I just rise again to re-state what I said earlier, this is more in the way of a matter of a section 111AAA type proceeding rather than a dispute finding.
PN102
THE DEPUTY PRESIDENT: Yes.
PN103
MR ROOKE: Well, your Honour, I intend in a little while to go on to some of the authorities which I would use to refute what my friend has just said, but if I may have your indulgence to go first of all through the outline of my case. I then intend to present some documentary evidence in support of that and finally refer to the authorities, if that is convenient to your Honour.
PN104
THE DEPUTY PRESIDENT: Yes. Proceed. Although in proceeding, Mr Rooke, I would have to say that Mr Moss has a fairly strong point, that a dispute finding and what the eventuality of that dispute finding is, is in its final form a pretty wide apart issues and instruments.
PN105
MR ROOKE: Well, perhaps, your Honour, if I go directly to the authorities so that perhaps we can get that matter out of the way first of all and, as your Honour knows, there have been a great many cases go before the High Court in relation to the meaning of placitum 35 of section 51 of the Australian Constitution and any limitations to that that are imposed on the Commission's jurisdiction by the relevant Federal Act from time-to-time. I only intend to refer to five or six of those cases but they are pertinent to the issue which Mr Moss has foreshadowed. I have prepared a list of those cases which I will hand up.
PN106
MR ROOKE: The first case listed there, your Honour, is the Caledonian Collieries case. In that case the High Court found that the Commission has no jurisdiction over an alleged industrial dispute extending beyond the limits of any one State unless it is a real and genuine dispute. The High Court also said whether it is real and genuine is always a question of fact. The 1930 case reported at volume 42 of the CLR at page 558. The passages which I will direct your Honour's attention to are at page 5, commencing 577.
PN107
I wasn't proposing to read the passages to you and take up your time at the moment but the crux of that case and the particular passage is that whether or not there is a real genuine dispute is always a question of fact. The next case is a 1938 case in the High Court of Australia. It is reported in volume 58 of the CLR at page 436. It is the Australian Tramways case and in that case the High Court held that:
PN108
Demands must have been genuinely made and not acceded to in more than one State.
PN109
That is at page 442 of the report. The High Court went on to say that:
PN110
Evidence of meetings of union members having been held in more than one State is a factor relevant to determining whether or not there is a genuine interstate dispute.
PN111
That is at page 443 of the judgment. The next case is a 1950 case, the King v Blakeley and Others reported in volume 82 of the CLR at page 54. In that case the High Court held:
PN112
If demands are made by one group of employees to assist another group of employees and not for the purpose of procuring the acceptance of demands for themselves it would be held that the dispute was not real and genuine.
PN113
That is at page 69 of the judgment. In the leading judgment in that case, your Honour, the judgment of Latham CJ, he said at page 69:
PN114
It is proper and necessary for the Commission to make a preliminary inquiry and make up its own mind whether it has jurisdiction to proceed. In making such an inquiry it is not bound by the rules of evidence.
PN115
That is at page 69 of the report. At page 70 of the report the Chief Justice also says:
PN116
If whether a dispute actually exists and whether it extends beyond the limits of any one State are questions of fact.
PN117
The next case on the list, your Honour, is the Queen v Gough and Another. That is a 1966 case, 114 CLR at page 384. In the majority judgment of that case on page 386, this is the majority judgment of Barwick CJ, Taylor, Windeyer and Owen JJ, they say:
PN118
The question is whether upon these briefly related facts the dispute which it is alleged arose upon the failure of the ...(reads)... which extended beyond the limits of any one State. We have no doubt -
PN119
their Honours say -
PN120
that it did not. It is of course no objection that the log was served upon employers in other States for the ...(reads)... single log is by no means conclusive of the fact that there was a single dispute.
PN121
Then on page 387 they say:
PN122
The Prosecutor had no interest of any kind in resisting the demand made upon the agents and the agents had no ...(reads)... and did not operate to initiate an actual dispute with them.
PN123
Now, I will be submitting, your Honour, that the purpose of this log was to effect something in relation to the first respondent, that is the Water Corporation, and the serving of the log on the other respondents was merely a device to achieve that. In the next case, the Queen v Ludeke (1985) 159 CLR page 178. This was a unanimous judgment of the High Court and I quote from page 181 of the judgment where their Honours says:
PN124
If the only purpose of serving a log of claims is to take a step enabling the Commission to settle an intrastate ...(reads)... a real and genuine interstate industrial dispute.
PN125
So my summary of the High Court cases that I have just referred to, your Honour, is that there must be a real and genuine industrial dispute extending beyond the limits of any one State, it must be industrial, it must be a dispute between the applicant and respondents and it must be relating to the terms and conditions of employment. I refer your Honour to the words of the Workplace Relations Act, the definition in the interpretations clause pertaining to the relationship between employers and employees and the wording I suggest there is deliberate "employers and employees" not employers and unions or unions and unions.
PN126
The demands must have been genuinely made against respondents in more than one State, whether or not genuinely made is a question of fact. It must be the same dispute in respect of each respondent and the same dispute in each State not different disputes in different States, and that is clear from the judgment in the Queen v Gough.
PN127
In proceedings relating to the finding of a dispute, as in all proceedings, the Commission is required to make its own inquiries.
PN128
And that was a clear message throughout the judgments but particularly in the King v Blakely:
PN129
The Commission, in determining whether or not there exists a genuine dispute, must determine matters of fact and must do so on the balance of probabilities.
PN130
And we find that in the Caledonian Collieries case:
PN131
The Commission may inform itself in any matter that it considers just and must act according to equity, good conscience and the substantial merits of the case.
PN132
That, of course, is the Workplace Relations Act, section 10(2). So it is because of those findings, your Honour, in each case the Full Bench of the High Court of Australia, that I assert that my friend's suggestion that the serving, the simple serving, of a log of claims on three employers in different States and the fact of at least one of those employers not objecting to the finding of the dispute, is not in itself conclusive. And in particular it is appropriate for your Honour to look behind the actions of the applicant in order to determine whether there is a real and genuine dispute. So to assist your Honour in doing that, I have a number of documents that I propose to hand up which suggest that the real reason we are here is not in fact a log of claims that has been served on the three employers but it is quite a different reason. The first document I wish to hand up is a letter from - - -
EXHIBIT #R3 LETTER WITH ATTACHMENT TO WATER CORPORATION FROM APESMA DATED 02/09/1997
PN133
MR ROOKE: Yes, your Honour. And there is an attachment to that letter which - a letter with attachment which I would like to refer to. The letter refers to previous discussions between APESMA and the Water Corporation relating to the future development of the Corporation's remuneration system. It says:
PN134
As agreed the Association has developed proposals aimed at providing a more private industry style remuneration system for the Corporation's professional and managerial staff.
PN135
And the attached submission sets out the ideas that were generated by a group of APESMA members at the Water Corporation. And you will see - I don't intend to read this at all but it refers to concepts such as negotiated salaries, performance pay, market parity, private use of motor vehicles, introduction of salary ranges rather than salary points. It expresses some concerns about the use of fixed term employment contracts for APESMA members. It talks about abandoning the job evaluation system traditionally used in the Water Corporation, which was a throw-back to its Public Service days.
PN136
And a matter which of particular relevant, your Honour, is the Table A which appears on page 19 of the document, which supports the statement made within the document prepared by APESMA members employed at the Water Corporation to the effect that the salaries paid to those members are around about the market mean. If your Honour looks closely at Table A, you will see that there is a comparison there between private sector salaries as surveyed by APESMA and the then salaries paid to APESMA members of the Water Corporation and the table supports the statement which is made in the body of the document to the effect that they are doing quite well.
PN137
PN138
MR ROOKE: And this letter refers to previous discussions that had taken place following the delivery to the Corporation of exhibit R3. There had been some discussions and this letter referred to those discussions and to further information that APESMA had undertaken to provide to the Corporation. You will see there it refers to administrative arrangements applying in ACTEW, some information about Sydney Water's remuneration system, a paper written by the Hay Group, your Honour, which is an internationally operating remuneration consultancy, and a paper by Dr Robert Wood on strategic compensation.
PN139
And these documents were provided as a result of constructive discussions which had taken place between the Water Corporation and APESMAs Industrial Officer, Mr Michael Kane, who was Mr Moss' predecessor. And he closes by saying:
PN140
I look forward to further discussions with you on these issues in the forthcoming months.
PN141
PN142
PN143
MR ROOKE: It refers to a meeting that had taken place on 20 April. In the body of the letter, the last sentence in the third paragraph, it says:
PN144
The Association's key proposals which it would seek to be progressed are negotiated salaries, market pay and private use of motor vehicles.
PN145
MR MOSS: Sorry, where is that, please?
PN146
MR ROOKE: The third paragraph and the last sentence. And towards the bottom, right at the bottom.
PN147
THE DEPUTY PRESIDENT: Yes, I can't - third paragraph on the first page?
PN148
MR ROOKE: Third paragraph.
PN149
THE DEPUTY PRESIDENT: Okay, yes, yes.
PN150
MR ROOKE: On the first page, the last sentence:
PN151
The Association's key proposals which it would seek to be progressed are negotiated salaries, market pay and private use of motor vehicles.
PN152
And then in the last paragraph on that first page the Association makes the observation that if the Corporation were to introduce negotiated salaries, around 20 per cent of staff at each level would see themselves as being in a position to negotiate higher salaries. Next is a letter from the Water Corporation to APESMA.
EXHIBIT #R7 LETTER TO APESMA FROM WATER CORPORATION DATED 20/10/1998
PN153
MR ROOKE: It refers to some information that had been sent to APESMA by the Corporation. In the first paragraph. And if we go directly to the third paragraph. It makes mention of the fact that:
PN154
The Water Corporation Enterprise Agreement allows for individual contracts to be entered into between the Corporation and any employees who occupy managerial positions.
PN155
And the Corporation is making a clear statement there that it would not rule out the possibility of individual contracts being offered to some reporting level 4 employees:
PN156
In the event that the Corporation adopts this course, it will be for the employees concerned to decide whether or not to seek APESMAs advice as to the form and content of the contracts.
PN157
Because APESMA had asked to see the contracts before they were offered to employees. The Corporation was saying, having considered the matter, it didn't feel appropriate that that occur but that it was certainly an option for APESMA members to consult APESMA about the contracts and whether or not they would sign them. Then we have a letter from APESMA to the Corporation dated 17 December 1998.
EXHIBIT #R8 LETTER TO THE WATER CORPORATION FROM APESMA DATED 17/12/1998
PN158
MR ROOKE: And it begins by saying that in APESMAs view the remuneration project which we had been talking about over several meetings appeared to have lost its momentum. In the middle paragraph they suggest that the reliance on a narrow two salary increment or a salary point system is not sustainable, bearing in mind that APESMA is suggesting that the Corporation move towards a more private sector-like remuneration system. Saying that what we had was somewhat archaic. And the letter ends by expressing APESMAs appreciation for the Corporation's attention to the issues:
PN159
And hopes that these issues can continue to be progressed to the satisfaction of the Corporation and Association members.
PN160
So, whilst they were saying the project seemed to have lost a bit of momentum, the tone of the letter suggests that they were still confident that a mutually acceptable outcome might occur. Then we have a letter from APESMA to the Corporation.
EXHIBIT #R9 LETTER TO THE WATER CORPORATION FROM APESMA DATED 30/04/1999
PN161
MR ROOKE: And it is from Mr Moss' predecessor. And if you go directly, your Honour, to the last paragraph on the first page, the letter says:
PN162
In considering the market positioning of its existing salary structure, the Corporation does relatively well in respect of levels 5, 6 and 7.
PN163
Now, I think he is saying the Corporation's employees do very well:
PN164
Although the level 6 and 7 bands are too narrow. At levels 8 and 9 the Corporation starts to fall behind the market and the narrow grouping of salaries at these levels is clearly a problem.
PN165
And then over the page:
PN166
Therefore, the Corporation needs to review its salary bands levels 8 and 9 and reposition its senior professional and managerial salaries. This should be done through expanding the top end of salary bands at level 6, 7 and 8.
PN167
And the last page of the letter, in the second last paragraph, refers t a number of possible options that have been outlined. And it goes on to say:
PN168
However, it has been the Association's experience that any variations to the Corporation's remuneration system should, ...(reads)... opportunities based on either market forces and/or individual performance for employees to receive or achieve higher salary.
PN169
It says:
PN170
The Association is keen for the Corporation's new remuneration projects to be finalised and for mutual benefits for the Corporation and professional and managerial employees to be achieved and looks forward to further discussions on this issue.
PN171
PN172
MR ROOKE: And this time the letter is from Mr Johnson the Director. WA Director of the APESMA. It refers to previous discussions that had taken place. And it says:
PN173
The Association has met with and discussed the EBA 2000 with members employed by the Corporation and seeks on-going discussions on a number of matters.
PN174
Then it lists the key issues from APESMAs perspective that it would like to progress. And in the final paragraphs it says that either Mr Kane or either Mr Johnson himself would be in contact to arrange a meeting. And then there is an attachment which sets out in more detail the sorts of - the concepts which APESMA had in mind for a remuneration system. Next is a letter from the Corporation to APESMA.
EXHIBIT #R11 LETTER TO APESMA FROM THE WATER CORPORATION DATED 25/10/2000
PN175
MR ROOKE: Which refers to a conference which had taken place on 16 October. That was following receipt of the letter and attachment of 5 October. In the body of the letter, your Honour, it says:
PN176
The Water Corporation welcomes your Association input on matters affecting the remuneration and conditions of members employed ...(reads)... outside of the union's single bargaining unit consisting of the CSA and the blue collar unions.
PN177
And it says:
PN178
I understand from our discussions on 16 October that you will contact me again in the near future to arrange a further conference.
PN179
PN180
MR ROOKE: It refers to an event which was called the Joint Forum which was to take place on 11 and 12 July 2001. And the letter begins by saying that APESMA found out about this event through a newsletter produced by the Corporation. And expressing its disappointment that the Association had not been invited to attend, as there were issues that APESMA would like to have input on. And requests a meeting between the Corporation and APESMA representatives about its wish to attend that particular event. That meeting took place, your Honour, on Wednesday 4 July and APESMA responded by a letter to the Corporation dated 9 July 2001.
EXHIBIT #R13 LETTER TO THE WATER CORPORATION FROM APESMA DATED 09/07/2001
PN181
MR ROOKE: And thanks to the Corporation for hearing what the APESMA representative had to say and says:
PN182
Hearing in a positive manner. Your invitation to two APESMA delegates to attend the forum is very much appreciated.
PN183
So up until this point, your Honour, things seemed to be progressing in a very positive cordial manner but it was at this point that the direction seems to change and the reason for that is set out in this next letter which is a letter from the Water Corporation to APESMA.
PN184
THE DEPUTY PRESIDENT: That is R14, there's no date on the letter but there is a handwritten to say it was faxed on 9 September, is it or 9 July?
PN185
MR ROOKE: 9 July, your Honour. That is in fact my handwriting.
PN186
PN187
MR ROOKE: In the body of the letter, as I say we get to some difficulties having arisen, and the letter says:
PN188
When we indicated last Wednesday our willingness to extend to APESMA an invitation to attend the above event -
PN189
that was the July joint forum -
PN190
it was agreed that you would phone the CSA and advise them of this development ...(reads)... and details will be forwarded to him direct.
PN191
PN192
MR ROOKE: It refers to previous discussions, it makes an assertion of fact that a substantial number of Water Corporation employees are members of the Association. It says that:
PN193
Despite significant APESMA membership the Water Corporation has denied the Association formal recognition of our members' desire for the Association to participate in enterprise bargaining negotiations.
PN194
So we are getting now down to the real issue, your Honour.
PN195
In fact, APESMA has been specifically excluded from that request.
PN196
They've raised the matter with the unions and they are asserting in the letter that there was no objection from those unions to APESMA participating as a member of the EBA negotiation process. And then the paragraph beginning on the bottom of the page, it says:
PN197
At a meeting of Water Corporation members earlier this year APESMA was requested to ...(reads)... indicative of their views in relation to industrial representation.
PN198
And then it says that:
PN199
The members of their own initiative have decided to circulate a petition among members for signature and presentation to the Chief Executive.
PN200
And that there were over 120 people signed the petition. It seeks a meeting with the Acting Chief Executive Officer for the purpose of presenting the petition and discussion the grievances of both APESMA and the Water Corporation members. Next is a letter from the Corporation to APESMA dated 16 October 2001.
EXHIBIT #R16 LETTER FROM WATER CORPORATION TO APESMA DATED 16/10/2001
PN201
MR ROOKE: It's in response to R15 your Honour: "Thank you for your letter of 4 October." And in the middle paragraph suggests the Corporation's position in relation to the matters that have been raised by APESMA in R15, it has been misinterpreted. Towards the end of that middle paragraph it says:
PN202
You are informed by the Corporation that you would need to obtain agreement ...(reads)... for the relevant unions, not for the Water Corporation.
PN203
So in that letter the Acting Chief Executive Officer is endeavouring to clarify what appeared to be a misunderstanding about the Corporation's attitude to APESMA participating as a member of a single bargaining unit in negotiations for a new enterprise agreement. And the Corporation's position in my submission, your Honour, has throughout those discussions been that: we don't mind APESMA being involved in those discussions but if it wants to be part of a single bargaining unit it's got to get the agreement of the other parties to that agreement to join. And we say in the second last paragraph:
PN204
If you have secured that agreement and can provide written confirmation to that ...(reads)... and discuss issues with you separately.
PN205
So what I'm saying, your Honour, is that to suggest that the Corporation refuses to recognise APESMA is a mis-statement of the position as confirmed in the correspondence. The next document I hand up is a petition from APESMA and there were, in fact, more than one signatories to the petition, your Honour, but I simply tender it so that you can see the content, what it was that people were signing.
PN206
MR MOSS: Sir, the Water Corporation has a copy of the complete petition and it's inappropriate that - we say that if the Water Corporation are going to tender this position they should tender it completely with all the names there, over 120 names.
PN207
THE DEPUTY PRESIDENT: I think it has been admitted that this petition had 120 signatories to it, so who the actual individuals are, Mr Moss, I don't think is critical. I'm assuming that they are people who have membership of your association and who would come within the scope of any dispute finding arising out of this. Am I correct in that assumption?
PN208
MR MOSS: Yes, sir. The point though is that - and there's nothing confidential about these people having their names revealed, who they are, what their positions are, and the point is that the positions of these people a lot of them are very senior people.
PN209
THE DEPUTY PRESIDENT: Yes?
PN210
MR MOSS: So I'm just making that point that the full petition will reveal the sort of people we are talking about and since the Water Corporation has got the full petition if they're going to tender an exhibit they should tender the full petition.
PN211
THE DEPUTY PRESIDENT: Well, I assume you've got the full petition as well, do you?
PN212
MR MOSS: Yes, of course, sir, we have, yes.
PN213
THE DEPUTY PRESIDENT: Well, if you want it tendered in full the option will be given to you to tender it in full later.
PN214
MR MOSS: Well, I will leave it to you, sir. So long as it is acknowledged that there is over 120 names.
PN215
THE DEPUTY PRESIDENT: I think that is admitted, isn't it, Mr Rooke?
PN216
MR ROOKE: There's no dispute, no. Your Honour, as to the number of signatories and the fact that a number of them were in senior positions.
PN217
THE DEPUTY PRESIDENT: Yes. Well, this is - did I mention, this is R17. It's a position, APESMA, it's one signatory but the content of the petition. What date - when was this? I think you said earlier.
PN218
MR ROOKE: It was presented - - -
PN219
THE DEPUTY PRESIDENT: Well, perhaps you can tell me later if you haven't got the exact date there now, Mr Rooke.
PN220
PN221
MR MOSS: Sir, I've got it down in my diary. We met with Dr Jim Gill, the Managing Director of the Water Corporation on Tuesday, 13 November and that was the occasion that we presented the petition.
PN222
THE DEPUTY PRESIDENT: Thank you, Mr Moss.
PN223
MR ROOKE: The petition reads:
PN224
We, the undersigned, advise you and the Board of our dissatisfaction ...(reads)... in comparison with the market.
PN225
You must bear in mind, your Honour, that the petition was put together by the employees of the Corporation who obviously didn't have the advantage of the information which had been gathered by APESMA during its own surveys and confirmed that Water Corporation employees were remunerated at around the market mean as was referred to in one of the earlier exhibits. They go on to say:
PN226
The Water Corporation has ignored APESMAs constructive suggestion to date ...(reads)... single bargaining unit to represent our interests.
PN227
Now as your Honour will have noted, the Corporation doesn't have a problem with APESMA being represented in the union single bargaining unit and it is not a matter for us to determine who are members of that unit. If they are members fine, if they are not members then we're happy to meet with them outside of that forum and we welcome their input into the processes designed to achieve a fair remuneration system, fair conditions of employment and in particular the sorts of things which they refer to in some of the earlier documentation about individual performance based pay. Next we have a letter from APESMA to the Corporation dated 25 January 2002.
EXHIBIT #R18 LETTER FROM APESMA TO THE WATER CORPORATION DATED 15/01/2002
PN228
MR ROOKE: And this confirms Mr Moss's advice earlier that the meeting was held on 13 November. Regarding the petition from the staff about industrial representation and association and participating in the enterprise bargaining process. That's what it was about. In the middle of that paragraph the sentence begins:
PN229
A meeting of APESMA members is scheduled for Wednesday 27 February 2002 ...(reads)... but we will be meeting with the CSA again.
PN230
And then the final paragraph of the letter:
PN231
At our meeting on 13 November 2001 I recollect that you said that you did not have ...(reads)... you should no longer have this obvious concern.
PN232
And I would like to say for the record, your Honour, that I as the leader of the team in those negotiations for the Water Corporation do not believe that those negotiations have broken down. We have perhaps reached a hiatus as often happens in these processes but to say that they have broken down is putting the matter too highly. And I've said that publicly in documentation that has been produced by the Corporation. Next is a letter dated 1 February 2002 from the Corporation to APESMA.
EXHIBIT #R19 LETTER FROM THE WATER CORPORATION TO APESMA DATED 01/02/2002
PN233
MR ROOKE: Referring to the letter which is R18 and some discussions that had taken place by phone in the intervening period. In the third paragraph it refers to the fact that the Corporation was in the process of preparing a written response to APESMA when it received notice of listing with this matter for today. It says:
PN234
In view of that development it was questioned whether you were still committed to your previously stated objective of participating as a member of the union single bargaining unit.
PN235
It goes on to say:
PN236
It is evidence from your latest letter that you are still pursuing that objective.
PN237
It notes that: "A further meeting with the CSA is planned" - and again the Corporation says:
PN238
I wish to make it clear that the Water Corporation has no objection to your association ...(reads)... your discussions with the CSA, please contact me.
PN239
PN240
MR ROOKE: And the front page, your Honour, deals with the status of the negotiations and the fact that although agreement has still not been reached on the terms of the new enterprise agreement, the Corporation has decided that in view of the fact that it had already concluded that a 2.5 per cent pay increase from January 2002 was appropriate, that it intended to go ahead and implement that payment in the first pay in January 2002. Over the page, your Honour. It contains information about a performance-based pay review for salaried staff who were currently on salaries below the top point in their salary ranges.
PN241
Now, this salary review was the first of its kind. It is currently underway and it includes several of the concepts which had arisen out of discussions which had been taking place between APESMA and the Water Corporation since 1997, and there was reference there to the fact that this is stage 1 of individual performance-based pay. There is an intention at some time in the future to move to stage 2, which had been outlined in a previous edition of Flowing On. Sorry, I withdraw that. Reference had been made to it in a previous edition of Flowing On although the detail had not been outlined, but stage 2, as has been explained not through Flowing On but through other documentation which has been produced and disseminated, will be a more full-blown version of individual performance-based pay, one of the things which APESMA has requested, which will have regard to market data, another thing which APESMA had requested.
PN242
So what I put to your Honour is that the evidence is that there have been amicable discussions going on between APESMA and the Water Corporation over several years. That those discussions have produced positive results for APESMA members. If there is a dispute over terms and conditions of employment, it may be with one of the other respondents to this Log of Claims, but in my submission there is not a genuine dispute between APESMA and the Water Corporation concerning terms and conditions of employment of employees of the Water Corporation. The weight of evidence, in my submission, is that the dispute is over representation in a single bargaining unit.
PN243
Now, your Honour, 90 per cent of Water Corporation employees are covered directly by the two State Section 41 agreements. One is AG21 of 2001, which is the Water Corporation Interim Agreement and the other is PSA - - -
PN244
THE DEPUTY PRESIDENT: That's a State agreement?
PN245
MR ROOKE: That's a State agreement, yes.
PN246
THE DEPUTY PRESIDENT: AG21 of 2001?
PN247
MR ROOKE: Yes. Yes.
PN248
THE DEPUTY PRESIDENT: I thought you said earlier it was a certified agreement.
PN249
MR ROOKE: I'm sorry if I said that. That was incorrect, your Honour.
PN250
THE DEPUTY PRESIDENT: Sorry.
PN251
MR ROOKE: And the other agreement, the one covering redundancy matters, is AG14 of 1995. So that's 90 per cent of the Water Corporation employees are directly covered by that. As your Honour might have noted, perhaps, in one of the items of correspondence, there is reference to the fact that the Water Corporation Enterprise Agreement provides for employees in managerial positions to enter into common law contracts and about 10 per cent of Water Corporation employees, mainly in senior positions but down to, in some cases, reporting level 4, which was the level at which APESMA in one of its items of correspondence had suggested that negotiated contracts come into place.
PN252
But the important thing about those common law contracts, your Honour, is that the terms and conditions of employment of those members are still governed by the two section 41 enterprise agreements in the sense that section 15 of the Water Corporation Act 1995 requires that:
PN253
No employee of the Corporation shall be employed on terms and conditions of employment less favourable than those to which they would be entitled under any award or agreement applicable to the Corporation.
PN254
So 90 per cent - - -
PN255
THE DEPUTY PRESIDENT: That's the Water Corporation Act?
PN256
MR ROOKE: The Water Corporation Act, yes, yes. So 90 per cent of staff are directly employed under those State registered agreements. The other 10 per cent have their terms and conditions governed by those section 41 agreements in the sense that there is a legislative requirement that they not be employed on terms and conditions less favourable than those prescribed by those section 41 agreements.
PN257
THE DEPUTY PRESIDENT: And who are the parties to the agreement 21 of 2001?
PN258
MR ROOKE: They are the Australian Workers Union - sorry, not the Australian Workers Union. The Miscellaneous Workers Union, the Metalworkers Union, the CEPU and the CSA.
PN259
THE DEPUTY PRESIDENT: And not APESMA?
PN260
MR ROOKE: Not APESMA, no. And as your Honour may have noted from some of the earlier correspondence, I did refer on one occasion to agreements that had - or an understanding that had been reached on earlier occasions when the Water Corporation and APESMA had met, that their interests were probably best served through discussions, informal discussions, with the Corporation outside of the enterprise agreement. So it's only quite recently that APESMA has sought to be involved in a formal manner. Since they have done that, our position has been: go and talk to the other unions. If that's not fruitful, then you can still talk to us. But instead of that and I submit, your Honour, there has been no - apart from the documentation that I have tendered here today - there has been no discussion between APESMA and the Water Corporation about terms and conditions of employment of Water Corporation employees.
PN261
It's only been about - in recent times, the discussions have only been about how APESMA achieves representation of its members in respect of Water Corporation matters.
PN262
THE DEPUTY PRESIDENT: But see, what I have before me, see, what you have gone through is a very precise account of pursuit or negotiations associated with the salaries for employees at the Water Corp and in particular APESMA members, but the log that's been served goes to some 99 clauses, one of which is salaries and there's a whole range of things that are included in what APESMA says are matters in dispute. APESMA has the authority. It has members in the organisation. It has the authority to pursue a dispute in this jurisdiction and it has. I'm having some difficulty seeing how the existence of discussions and the to-ing and fro-ing of discussions between the Water Corp and APESMA means there's no dispute.
PN263
MR ROOKE: Your Honour is correct in pointing out that prima facie, the serving of a Log of Claims is evidence of a dispute. But if I can take your Honour back to the authorities, your Honour has to be satisfied that the dispute is real and genuine, that it is a dispute over terms and conditions of employment, of employees of the respondent and it is the same dispute in each of the States in which it is alleged to exist. Now, it's for your Honour to - - -
PN264
THE DEPUTY PRESIDENT: And at least one of those States has said yes.
PN265
MR ROOKE: Well - - -
PN266
THE DEPUTY PRESIDENT: One of the employers in one of those other States has said: yes, it is, and the other appears to be saying yes.
PN267
MR ROOKE: Well, one says it is. One appears to say it is. If that is so, then what your Honour has is a dispute involving employers in two States. If that - if one appears to - - -
PN268
THE DEPUTY PRESIDENT: But then if I have a dispute with employers and employees in two States and what you've put to me is the content of negotiations related to salaries doesn't preclude there being a dispute in three States with the Water Corp extending to the content of the Log.
PN269
MR ROOKE: Yes. Well, your Honour, what I am putting to you is that we do not have a genuine - a real and genuine dispute in the terms that have been outlined by the High Court in a number of cases. And what I'm inviting your Honour to do is to look behind the paper dispute to determine whether or not it is a real dispute and it is a single dispute in more than one State. And what I'm submitting is that the answer to that question is no; it is not a real dispute, the same dispute with employers in several different States.
PN270
THE DEPUTY PRESIDENT: Yes. I understand the submission.
PN271
MR ROOKE: Yes. And that concludes my case, your Honour.
PN272
THE DEPUTY PRESIDENT: Okay. Thank you. Mr Moss, given that you were not aware that there was going to be argument over the dispute finding this morning, I'm quite happy to adjourn, if that's your wish and give you the opportunity to consider what's been put and respond to what's been put if you so wish. But I'm quite happy to proceed now.
PN273
MR MOSS: Yes, sir. First of all, in relation to an interstate dispute, I understand your invitation to adjourn. I say that, put aside Water Corporation, it's clearly an interstate dispute involving a number of other employers.
PN274
THE DEPUTY PRESIDENT: Well, there's a dispute clearly involving an employer in South Australia. They've admitted as much. There appears to be a dispute involving ACTEW and its various associated entities but I'm not 100 per cent certain that there is and that's why I said earlier today; I have requested some clarification from them or some precision from them as to exactly what they're saying. So there appears to be a dispute involving employers in at least two States and there may well be a dispute involving the Water Corp in a third State.
PN275
MR MOSS: Yes. What I'm suggesting, sir, is that a dispute finding should issue in relation to those two employers. Well, the ACT employers and the South Australian employer, on the basis that one employer, the employer in South Australia, does not object and irrespective of whether the ACT employers do or do not object - I don't think they object - but the reality is that we have had served on them a Log of Claims. We have proof of the Log of Claims and we have proof of their rejection, so it's not merely an alleged dispute. It's a real and genuine dispute. So far as Mr Rooke purporting to represent those other employers, he's got no brief to do that.
PN276
Obviously the mere fact that these other employers have industrial instruments of one kind or another is irrelevant to these proceedings, because of course this can be an extension of the ambit of a dispute, of an existing dispute. So we say that the Commission should issue - you should issue a finding of dispute in relation to those employers. In relation to the Water Corporation - - -
PN277
THE DEPUTY PRESIDENT: Well, if I can just stop you. I'm not prepared to do that until I have some clarification of ACTEW AGL exactly what they mean by "has no application to these entities". Now, on the appearance of it, I think you're dead right. What they're saying is that any resultant award may not have application to those entities. It may well do, it may well not, and on the appearance of it, it's right, but given that they have communicated with the Commission, given that there's some doubt over - in my mind - as to exactly what they're saying, I think it's incumbent on me to ensure I know precisely what they're saying, given that they've expressed an interest, and that's what I will intend to do with the other two organisations.
PN278
That then leaves you with what you want to do and proceed either this morning with a response to Water Corp or what I'm asking you is; do you want an adjournment to deliberate and prepare for your response? And maybe to help you in that, if there is an adjournment, I would be intending to re-list this matter within the next week or fortnight, so if that's of any assistance to you.
PN279
MR MOSS: Yes, sir.
PN280
THE DEPUTY PRESIDENT: Or do you want a brief adjournment now so that you can consider that?
PN281
MR MOSS: No. What I'm struggling with is that I don't think they've got - I don't think the Water Corporation has got a very strong case.
PN282
THE DEPUTY PRESIDENT: Well, that may well be.
PN283
MR MOSS: I'm tempted to proceed but that would seem rather arrogant of me when I haven't looked at the case law that's been spoken of.
PN284
THE DEPUTY PRESIDENT: Your arrogance might be justified but it might be risky as well.
PN285
MR MOSS: That's the point I'm making, sir. I didn't want to take unnecessary risks. I think in the circumstances I should seek an adjournment and if we could get it listed within the next week or two, that would be appreciated.
PN286
THE DEPUTY PRESIDENT: Okay, Mr Moss. Well, I will do that. I will adjourn these proceedings and endeavour to have this re-listed within - I can't guarantee a week but within the next fortnight.
PN287
MR MOSS: Thank you, sir.
PN288
THE DEPUTY PRESIDENT: Okay. These proceedings are adjourned.
ADJOURNED ACCORDINGLY [11.51am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 STATEMENT BY MR NADENBOUSCH PN25
EXHIBIT #A2 LETTER OF DEMAND AND LOG OF CLAIMS PN26
EXHIBIT #A3 LIST OF EMPLOYERS SERVED WITH LOG PN27
EXHIBIT #A4 STATEMENT OF AUTHORISATION FOR MR NADENBOUSCH PN28
EXHIBIT #A5 LETTER FROM UNITED WATER INTERNATIONAL PROPRIETARY LIMITED, DATED 29/01/2002 PN30
EXHIBIT #A6 LETTER FROM MR CAMPBELL PN36
EXHIBIT #R1 LIST OF AWARDS AND AGREEMENTS OF EMPLOYEES OF THE RESPONDENTS PN90
EXHIBIT #R2 LIST OF AUTHORITIES PN106
EXHIBIT #R3 LETTER WITH ATTACHMENT TO WATER CORPORATION FROM APESMA DATED 02/09/1997 PN133
EXHIBIT #R4 LETTER TO THE WATER CORPORATION FROM APESMA DATED 22/01/1998 PN138
EXHIBIT #R5 LETTER TO THE WATER CORPORATION FROM APESMA DATED 19/03/1998 PN142
EXHIBIT #R6 LETTER TO THE WATER CORPORATION FROM APESMA DATED 03/06/1998 PN143
EXHIBIT #R7 LETTER TO APESMA FROM WATER CORPORATION DATED 20/10/1998 PN153
EXHIBIT #R8 LETTER TO THE WATER CORPORATION FROM APESMA DATED 17/12/1998 PN158
EXHIBIT #R9 LETTER TO THE WATER CORPORATION FROM APESMA DATED 30/04/1999 PN161
EXHIBIT #R10 LETTER TO THE WATER CORPORATION FROM APESMA DATED 05/10/1999 PN172
EXHIBIT #R11 LETTER TO APESMA FROM THE WATER CORPORATION DATED 25/10/2000 PN175
EXHIBIT #R12 LETTER TO WATER CORPORATION FROM APESMA DATED 28/06/2001 PN180
EXHIBIT #R13 LETTER TO THE WATER CORPORATION FROM APESMA DATED 09/07/2001 PN181
EXHIBIT #R14 LETTER FROM WATER CORPORATION TO APESMA FAXED BY MR ROOKE ON 09/09/2001 PN187
EXHIBIT #R15 LETTER FROM APESMA TO THE WATER CORPORATION DATED 05/10/2001 PN192
EXHIBIT #R16 LETTER FROM WATER CORPORATION TO APESMA DATED 16/10/2001 PN201
EXHIBIT #R17 PETITION FROM APESMA PN221
EXHIBIT #R18 LETTER FROM APESMA TO THE WATER CORPORATION DATED 15/01/2002 PN228
EXHIBIT #R19 LETTER FROM THE WATER CORPORATION TO APESMA DATED 01/02/2002 PN233
EXHIBIT #R20 WATER CORP PUBLICATION: FLOWING ON JANUARY 2002 PN240
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