C2001/3317, Transcript of Proceedings [2002] AIRCTrans 806 (13 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N VT02744
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/3317
C2001/6511

TECHNICAL SERVICES, MINING
AND MANUFACTURING,
PROFESSIONAL ENGINEERS AND
SCIENTISTS, BHP AWARD 1998

Applications under section 113 of the Act
by Hatch Associates Pty Limited and
Another to vary the above award re deletion
of employer from Schedule A and respondency

MELBOURNE

10.36 AM, WEDNESDAY, 27 FEBRUARY 2002

PN1

MS G. CAPASSO: Just before I enter an appearance, may I ask if the Commission would be pleased to deal with both applications together? Thank you, Commissioner. Commissioner, I appear for each of the respondents named to the award and for clarification those companies are Hatch Associates Proprietary Limited, BHP Billiton Limited, BHP Steel (AIS) Proprietary Limited, BHP Steel Limited, BHP Coal Proprietary Limited, BHP Billiton Iron Ore Proprietary Limited, Groote Eylandt Mining Company Proprietary Limited, OneSteel Manufacturing Proprietary Limited, BHP Refractories Proprietary Limited and the Tasmanian Electro Metallurgical Company Proprietary Limited.

PN2

MR M. BUTLER: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN3

THE COMMISSIONER: In all matters.

PN4

MR BUTLER: Yes.

PN5

THE COMMISSIONER: Yes, Ms Capasso.

PN6

MS CAPASSO: Thank you, Commissioner. Commissioner, in matter application C2001/3317 this matter - this application was filed with the Commission on 5 June of 2001. The other application C2001/6511 was filed with the Commission on 5 February 2002. Both applications and the amended notice of listing were served on the Association of Professional Engineers, Scientists and Managers Australia on 12 February 2002 by registered post. I seek to tender an affidavit of service relating to the service on the Association.

EXHIBIT #C1 AFFIDAVIT OF SERVICE BY MS CAPASSO

PN7

THE COMMISSIONER: Who is the affidavit of?

PN8

MS CAPASSO: Myself, Commissioner.

PN9

THE COMMISSIONER: All right. Thank you very much. Thank you.

PN10

MS CAPASSO: The applicants, Commissioner, seek an order of the Commission to vary schedule A respondents of the Technical Services Mining and Manufacturing Professional Engineers and Scientists, BHP, Award 1998 to give effect to the correct corporate name and addresses of some of the respondents to the award and to delete other respondents who are bound by another award made by this Commission by the consent of the parties, being the Association and each of the applicants.

PN11

Subject to one change which I will refer to in a moment, it is submitted that the amended schedule A which is contained in attachment A to the application, if I could just ask at this moment, Commissioner, do you have a copy of that application with the attachment?

PN12

THE COMMISSIONER: Yes.

PN13

MS CAPASSO: I am referring there to amended schedule A and attachment A reflects the correct corporate name and addresses of the respondents and deletes those respondents who are party to a separate award made by consent before you, Commissioner, on 9 April 2001. Those awards that were made by the Commission by consent are the One Steel Manufacturing Proprietary Limited, Professional Engineers and Scientists Award 2000, print number 910899 and the Hatch Associates Proprietary Limited Professional Engineers and Scientists Award 2000, print number 910900.

PN14

The one change that is required to amended schedule A is to delete the corporate name BHP Steel (JLA) Proprietary Limited and insert the name BHP Steel Limited. This amendment is sought as a result of a recent change in the corporate name. I seek to tender a revised amended schedule A.

EXHIBIT #C1 AMENDED SCHEDULE A

PN15

MS CAPASSO: Thank you, Commissioner. If it assists the Commission, I intend to take the Commission through each of the changes proposed to schedule A, respondents, of the BHP Award. Would that assist, Commissioner?

PN16

THE COMMISSIONER: Yes. There is one thing I wanted to ask you as well.

PN17

MS CAPASSO: Yes.

PN18

THE COMMISSIONER: And if you are dealing with it, come to it in your own time, the underpinning disputes, there are separate disputes in relation to each of these matters?

PN19

MS CAPASSO: Yes, Commissioner.

PN20

THE COMMISSIONER: Should any variation be made to the underpinning disputes to reflect the correct employer? Or should any of the under - yes, because you are going to take some out of one award that has a dispute finding underpinning it, put it into another. So do I need to join disputes, for example? Do I need to - do you see the point that I am raising?

PN21

MS CAPASSO: Commissioner, I would have thought that they could be dealt with in this manner separately, given that the applications have been made separately in relation to the two different dispute matters.

PN22

THE COMMISSIONER: Yes. All right. And I may need to vary the dispute findings to reflect the correct name.

PN23

MS CAPASSO: Yes, Commissioner.

PN24

THE COMMISSIONER: Of the corporation.

PN25

MS CAPASSO: Yes, Commissioner.

PN26

THE COMMISSIONER: Because it is possible under section 149 to alter a respondency list, but it is certainly preferable to ensure that the underpinning dispute properly identifies the correct employer. There are some decisions that say as long as you get close enough. Gray J has made some observations in this area, but my preference is always to know that the right employer is bound by the right dispute.

PN27

MS CAPASSO: Yes, Commissioner.

PN28

THE COMMISSIONER: All right. Well, that is not dealt with in your application. Could you turn your mind to that for me as well and let me know at an appropriate time.

PN29

MS CAPASSO: Yes, Commissioner.

PN30

THE COMMISSIONER: Thank you.

PN31

MS CAPASSO: The one change that is required to amended schedule A which was tendered as C2 is to delete, as I mentioned, the corporate name BHP Steel (JLA) and insert the name BHP Steel Limited. As mentioned, this amendment is sought as a result of a recent change in the corporate name. Just to take - - -

PN32

THE COMMISSIONER: Sorry, did you say that - that has already been amended in C2?

PN33

MS CAPASSO: In the amended schedule, yes. It is in amended - it has been amended in exhibit C2.

PN34

THE COMMISSIONER: In C2.

PN35

MS CAPASSO: In C2, yes, Commissioner.

PN36

THE COMMISSIONER: Thank you.

PN37

MS CAPASSO: Now, just to take the Commissioner through each of the proposed changes. Referring to the currently existing schedule A of the award, BHP Coal Proprietary Limited has changed its name to BHP Coal Proprietary Limited. BHP Iron Ore Proprietary Limited has changed its name to BHP Billiton Iron Ore Proprietary Limited. BHP Refractories Proprietary Limited retains the same corporate name.

PN38

BHP Steel (AI&S) Proprietary Limited has changed its name to BHP Steel (AIS) Proprietary Limited. The correct corporate address is now Five Islands Road, Port Kembla, New South Wales, 2505. BHP Steel (AWI) Proprietary Limited has changed its name to OneSteel Wire Proprietary Limited. BHP Steel (JLA) Proprietary Limited has changed its name to, as mentioned before, BHP Steel Limited. The correct corporate address is Old Port Road, Port Kembla, New South Wales.

PN39

The Tasmanian Electro Metallurgical Company Proprietary Limited retains the same corporate name. The Broken Hill Proprietary Company Limited has changed its name to BHP Billiton Limited. Tubemakers of Australia Limited has changed its name to OneSteel Trading Proprietary Limited. BHP Engineering Proprietary Limited has changed its name to Hatch Associates Proprietary Limited.

PN40

BHP Steel (RP) Proprietary Limited has changed its name to OneSteel Reinforcing Proprietary Limited. And Groote Eylandt Mining Company Proprietary Limited remains the same. OneSteel Manufacturing Proprietary Limited is the employer of employees of OneSteel Wire Proprietary Limited, OneSteel Trading Proprietary Limited and OneSteel Reinforcing Proprietary Limited.

PN41

OneSteel Manufacturing Proprietary Limited is bound by the OneSteel Manufacturing Pty Ltd Professional Engineers and Scientists Award 2000, print number 910899. Clause 8.2 of the OneSteel Award provides:

PN42

This award supersedes and rescinds the Technical Services Mining and Manufacturing Professional Engineers and Scientists (BHP) Award 1998 to the extent that the 1998 award would otherwise apply to the employer respondent to this award.

PN43

It is submitted that it is appropriate to delete the respondents whose employees are employed by OneSteel Manufacturing Proprietary Limited, as the employer is bound by the OneSteel Award. This has the effect of deleting BHP Steel (AWI) Proprietary Limited, Tubemakers of Australia Limited and BHP Steel (RP) Proprietary Limited from schedule A of the BHP Award. Hatch Associates Proprietary Limited formerly named BHP Engineering Proprietary Limited, is bound by the Hatch Associates Proprietary Limited Professional Engineers and Scientists Award 2000, print number 910900. Clause 8.2 of the Hatch Award provides similarly as the OneSteel Award:

PN44

This award supersedes and rescinds the Technical Services Mining and Manufacturing Professional Engineers and Scientists (BHP) Award 1998 to the extent that the 1998 award would otherwise apply to the employer respondent to this award.

PN45

It is submitted in this case that it is appropriate to delete the respondent whose employees are employed by Hatch Associates Proprietary Limited as the employer is bound by the Hatch Award. This has the effect of deleting BHP Engineering Proprietary Limited from schedule A of the BHP Award. Commissioner, on 14 June 2001 I appeared before Boulton J and my friend Mr Butler also appeared on that occasion. The appearance was in relation to a hearing of the safety net review application by APESMA in relation to the BHP Award, the subject of this application.

PN46

The application by Hatch Associates Proprietary Limited, C No 2001/3317 was also set down for hearing with the safety net review application. An order was made by consent to give effect to the safety net review wages May 2001 decision in the BHP Award. At this hearing submissions were made on behalf of respondents to the award seeking an order to amend the respondency to the award in accordance with exhibit C1, which is contained in attachment A to this application.

PN47

At the time of this hearing Mr Butler of APESMA was not prepared to consent to the application to vary the respondency as sought on the basis that a signed order of the OneSteel Manufacturing Award and the Hatch Associates Award had not been pursued by the Commission at that time. Boulton J, reserved his position on the applications which sought to vary the respondency to the BHP Award. He said:

PN48

In relation to schedule A and exhibit C1, I will simply reserve my position on that. In relation to the application regarding Hatch Associates ...(reads)... that the changes be made to the awards.

PN49

That was in transcript on 14 June 2001, paragraphs 97 and 98. A sealed copy of the consent orders in relation to the OneSteel Award and Hatch Award were received by the parties from the Commission on 12 November 2001. Agreement has been reached with APESMA regarding variations to the respondency to the BHP Award, and a letter was sent to the Commission dated 19 December 2001, seeking an order to vary the award to amend schedule A in the terms of the amended schedule A.

PN50

It is submitted that the order to vary the award sought in the terms of the amended schedule A, exhibit C2 today, reflects changes in the legal corporate names and addresses of the respondents. It will also give effect to clause 8.2 of the OneSteel and Hatch Awards and remove ambiguity or uncertainty by deleting respondents.

PN51

THE COMMISSIONER: So I don't have to do anything in relation to the Hatch Award?

PN52

MS CAPASSO: No, Commissioner.

PN53

THE COMMISSIONER: That will be done by Boulton J, or has already been done?

PN54

MS CAPASSO: We would be seeking for today's purpose that an order be made in respect of the amended schedule A, which is exhibit C2. That reflects the change to delete BHP Engineering Pty Ltd, which was the former name of Hatch Associates.

PN55

THE COMMISSIONER: Yes, but that variation is to the Technical Services Mining Manufacturing Professional Engineers and Scientists BHP Award, isn't it, and there is no variation I need to make to the Hatch Award?

PN56

MS CAPASSO: No, Commissioner.

PN57

THE COMMISSIONER: But that file has been drawn to my attention to make sure that I know why.

PN58

MS CAPASSO: For the purpose I think that we had asked for the application to be brought on, the application in that file will refer to the application that has been brought on today as C number 3317 of 2001.

PN59

THE COMMISSIONER: Yes. You delete from schedule A of that award.

PN60

MS CAPASSO: BHP Engineering Pty Ltd.

PN61

THE COMMISSIONER: Yes. Now, has that been done by Boulton J?

PN62

MS CAPASSO: No, it hasn't, Commissioner.

PN63

THE COMMISSIONER: I see. Has a letter gone to Boulton J, asking him to do that?

PN64

MS CAPASSO: A letter went to the Registry, Commissioner, in relation to the matter because Boulton J, was on leave at that time and requesting that both applications be brought on to deal with all parties.

PN65

THE COMMISSIONER: I see. So rather than the parties being put to the inconvenience of going to Jakarta to see his Honour, I will simply pick up his file and vary it in terms of deleting BHP Engineering Pty Ltd from the Hatch Award.

PN66

MS CAPASSO: Yes. That is what is sought, Commissioner.

PN67

THE COMMISSIONER: Yes. Thank you.

PN68

MS CAPASSO: Commissioner, you made mention earlier in relation to the dispute matters relating to the award. The company's position is that the applications before the Commission today relate to an application to vary a specific award, being the Technical Services Mining Manufacturing Professional Engineers and Scientists BHP Award 1998, in the terms of exhibit C2. It is submitted that it would not be necessary to make any further amendments to the dispute finding in relation to the matter, that there would be flow-on consequences as a result of the applications that are made today. However, if the Commission were minded that such amendments were necessary we would be guided by that, Commissioner.

PN69

THE COMMISSIONER: Thank you.

PN70

MR BUTLER: If the Commission pleases - - -

PN71

THE COMMISSIONER: Well, it is as simple as all that, Mr Butler.

PN72

MR BUTLER: I am sorry?

PN73

THE COMMISSIONER: It is as simple as all that.

PN74

MR BUTLER: I was just about to say that I agree with the history and the facts as outlined by Ms Capasso and the Association consents the application. On the issue of any amendments to the dispute finding, the Association would be prepared to expedite matters by asking that those particular dispute findings be called back on. That was the preferred - - -

PN75

THE COMMISSIONER: I can probably do them of my own motion as a consequence of hearing the parties. I think it is better to amend the dispute findings. Prior to the variation of 149, if you look at section 149, 149 says:

PN76

Subject to an order of the Commission an award determining an industrial dispute is binding upon.

PN77

The language subject to any order of the Commission is only a recent introduction and that has provided grounds for other applications in the Commission. But prior to that it was not possible to amend respondency lists, respondency lists were a mere administrative indication of who was bound as a consequence of 149. So the real focus is always on the finding of dispute. But I think it is tidier if we do the dispute finding as well. Very well, I am content to vary the awards in the manner sought, the variations will apply from today. Ms Capasso, I do not think - have you put in the materials a draft order?

PN78

MS CAPASSO: No, I haven't Commissioner. I can make that available.

PN79

THE COMMISSIONER: Thank you. If you could forward a draft order within seven days for both of those matters. Would you also turn your attention to the underpinning dispute findings and do a draft of a variation to the dispute findings which I will call on of my own motion, and I will simply vary those dispute findings as a consequence so that each award then, you can look at the parties to that award will have a fairly clear dispute finding. Thank you for your assistance.

PN80

MS CAPASSO: Thank you, Commissioner.

ADJOURNED INDEFINITELY [10.56am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 AFFIDAVIT OF SERVICE BY MS CAPASSO PN7
EXHIBIT #C1 AMENDED SCHEDULE A PN15