C0079/598, Transcript of Proceedings [2002] AIRCTrans 816 (13 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C No 00795 of 1998

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE TUBEMAKERS MERCHANDISING
AWARD 1995 RE AWARD SIMPLIFICATION

C2001/6188

NATIONAL UNION OF WORKERS

and

SMORGON DISTRIBUTION LIMITED
AND OTHERS

Notification pursuant to section 99 of the
Act of a dispute re wages and conditions of
employment (log of claims)

C2001/6372

TUBEMAKERS MERCHANDISING AWARD 1995

Application under section 113 of the
Act to vary the above award re
award simplification

C2001/6373

STORAGE SERVICES STEEL DISTRIBUTING
AWARD 2000

Application under section 113 of the
Act to vary the above award re wages
and conditions of employment

SYDNEY

10.45 AM, WEDNESDAY, 27 FEBRUARY 2002

Continued from 16.10.01

Adjourned sine die

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN71

THE COMMISSIONER: I note there is some changes to the appearances and I'll take the appearances again.

PN72

MR P. RICHARDSON: If the Commission pleases, I'm in Melbourne for the National Union of Workers in relation to all four of the matters.

PN73

MS A. WRIGHT: If the Commission pleases, I am from the Australian Industry Group and I appear with MS K. SHERIDAN from Smorgons Steel Distribution Pty Limited, and I'm appearing on behalf of Smorgon Distribution Pty Limited, and we're only appearing in number 2001/6188 and 2001/6373.

PN74

THE COMMISSIONER: Thanks, Ms Wright.

PN75

MS S. THOMAS: If the Commission pleases, I appear for One Steel Trading Limited, in all four matters. One Steel Trading Limited previously known as Tubemakers Australia.

PN76

THE COMMISSIONER: Thank you, Ms Thomas. Some of these matters were last dealt with on 16 October 2001 and collectively they concern a number of inter-related applications with regard to the award simplification process of the Tubemakers Merchandising Award 1995 and they are matters C22198 of '98 and C00795 of '98. They also concern a section 99 dispute notification by the NUW concerning a log of claims, a dispute finding and roping-in award application concerning Steel Storage Services. The matters also concern complimentary applications to vary the respondency list of the Storage Services Steel Distributing Award 2000 and the setting aside of the 1995 Tubemakers Award.

PN77

I note that the Commission's file contains some, but possibly not all of the relevant communications and correspondence between the NUW who is the prime initiator of the latter listed matters and the AWU, I might describe them as the non-participating other union involvement and on one of the principal employers to the various applications. Insofar as these matters are bringing to a head a number of inter-related matters perhaps it might be appropriate, Mr Richardson, if you were to summarise for the transcript the issues for determination today.

PN78

MR RICHARDSON: Thank you, sir. It is essential the combined effect of the two applications and the one notification if granted by the Commission would simply be to effect the respondency of the company One Steel to the award of the Commission known as the Storage Services Steel Distributing Award, and as a consequence of that set aside the Tubemakers Merchandising Award which is before the Commission as part of an item 51 Review.

PN79

The reasoning behind the course proposed by the union is essentially summarised from approximately paragraph 14 through to paragraph 30 of the transcript of the proceedings of 16 October last year. However, I think it would perhaps be appropriate given that there are new parties at the bar table to summarise that and with your indulgence I'd intend to do that.

PN80

THE COMMISSIONER: Yes, I think that's really the purpose of asking you to do that, Mr Richardson, given as you say some new faces. Just before you do, Mr Richardson, can I indicate to you receipt immediately before commencing these proceedings of a correspondence from the AWU, the long lost AWU. But finally a fax has arrived this morning in relation to one of the matters only and that's 6372 which is the application concerning the respondency list of the Tubemakers Merchandising Award 1995, and the AWU indicates in this fax correspondence that it is unable to attend today's hearing but they do not have any objection to the application being granted. So for the sake of the record what I'll do is ensure that a copy of that is forwarded to all of the parties.

PN81

MR RICHARDSON: Thank you, Commissioner. We're in receipt of a copy of that here in Melbourne and it had been my intention to address some of the correspondence between NUW and the AWU as part of my submissions.

PN82

THE COMMISSIONER: All right, thanks, Mr Richardson.

PN83

MR RICHARDSON: Commissioner, if I could then turn to the background. Essentially, in the early part of last year a company then known as Email Limited was acquired by a company known as Smorgons Distribution Limited. Smorgons Distribution Limited was a joint vehicle bid, a 50/50 bid between two companies, namely Smorgons and One Steel Limited, and the primary objective of the acquisition of Email Limited by those companies was to acquire and manage the various skill distributing businesses of Email Limited which were known as and traded as Union Steel Pipeline Supplies Australia and Atlas Steels Metals Australia Pty Limited. That bid was successful insofar as over 90 percent of the shares were acquired and that a compulsory acquisition of the balance of the shares of Email occurred.

PN84

As a consequence of that acquisition the bidders, that is One Steel and Smorgons, gave a number of commitments to the ACCC which involved the distribution of the Email Limited Steel assets between them primarily on a geographical basis with the exception that all of the business known as Pipeline Supplies Australia was acquired by One Steel. And further commitments were given to the ACCC that the business then part of Email known as Atlas Steel would at the earliest opportunity would be sold on to a further party to avoid a monopoly or a perceived monopoly in a particular section of this industry.

PN85

Towards the middle and latter part of 2001 that distribution of assets occurred and in essence that meant that the business, Email Limited, no longer existed and that the business One Steel Limited was bound by two awards, namely, the Tubemakers Merchandising Award of 1995 and the Storage Services Steel Distributing Award of 2000. The respondency to the second award arose from the acquisition of the Email business.

PN86

As part of the Item 51 review the company through Ms Julie Miller, who at time was the national human resource manager, proposed to the union that in light of the changed ownership circumstances within like One Steel and the industry generally that it would be perhaps prudent to simply set aside the Tubemakers Award and for One Steel Limited to have its respondence return to the Storage Services Steel Distributing Award.

PN87

By way of background prior to 1995 One Steel Limited, or as it was then known Tubemakers, was respondent to what was then known as the Steel Distributing Award being a preceding award to the current industry award. However, in 1995 by consent, a separate award for Tubemakers was made. The applications before you today seek to do a number of things, but firstly by means of a section 99 notification, the union believed it to be prudent and proper that in order to effect the desired changes sought by both the union and One Steel that logs of claim should be served upon One Steel to generate a finding of dispute and provoke or to enact the Commission's jurisdiction to facilitate the desire of the parties.

PN88

To that end, by means of pre-paid certified mail on 21 November last year the National Union of Workers caused to be served upon several companies, some six companies, including One Steel, a letter of demand and log of claims. That letter of demand appears as an attachment to an affidavit sworn by Mr Lloyd Freeburn, the Assistant General Secretary of the union on 4 December and the letter of demand states:

PN89

Dear Sir/Madam,

PN90

The National Union of Workers, an organisation registered under the Workplace Relations Act 1996 ...(reads)... matters in dispute immediately.

PN91

The log of claims and letter of demand to which I've just referred was forwarded to five companies in addition to One Steel. It was forwarded to Atlas Steels Australia Pty Limited at Altona North in Victoria and then to four companies which in my submissions I'll call loosely the Smorgon companies, but those companies were Smorgon Distribution Limited, Smorgon Steel Group Limited, Smorgon Steel Distribution and Smorgon Steel Mark Metals.

PN92

Now, the reasoning for the service of logs in respect of five companies in addition to One Steel was that again as a consequence of the acquisition of Email Limited there have been other changes of ownership and again it seemed prudent as part of an overall exercise to as far as possible update the respondency and subject to the finding of dispute the ambit in relation to the various awards before the Commission.

PN93

At the conclusion of the seven day period referred to in the union's letter of demand, no response had been received from any of the companies and subsequently by means of a notification dated 4 December the union filed with the Melbourne registry the notification of an alleged dispute under section 99 which in these proceedings is 2001/6188.

PN94

After filing the notice of dispute, the union forwarded on 19 December to the managers of each of the companies with the exception of One Steel, a letter outlining its intent. Sir, I apologise, I did mean to forward a copy of this letter yesterday to your associate and perhaps with your patience I could just read from that letter and subsequently forward that to you.

PN95

THE COMMISSIONER: Yes, thanks, Mr Richardson, that would be appropriate because that's certainly not on the file.

PN96

MR RICHARDSON: Thank you. The letter is the same to each of the parties, namely Atlas Steel and the Smorgon companies and it reads:

PN97

Recently the National Union of Workers served by means of pre-paid certified mail a log of claims upon the company with the objective of notifying a dispute ...(reads)... at this office.

PN98

I indicate that attached to each of those letters was a draft roping-in award which sought at that stage to do no more than find each of the six companies, namely One Steel, Atlas and the Smorgon companies to the terms and conditions of the Storage Services Steel Distributing Award. Now, I faxed yesterday afternoon to your associate a revised draft or a draft roping-in award and perhaps it would be appropriate at this point to ask for that to be marked as an exhibit.

PN99

THE COMMISSIONER: Yes, I have a copy of both your handwritten covering notes, Mr Richardson, and the draft award faxed yesterday. But what I'll do is mark that as exhibit NUW2, given that there was an earlier exhibit, albeit in another matter, but for combined purposes we'll mark this as exhibit NUW2 of today's date.

EXHIBIT #NUW2 HANDWRITTEN NOTES AND DRAFT AWARD

PN100

MR RICHARDSON: Thank you, sir. Again, if I could indicate that both Ms Wright and Ms Sheridan are in receipt of copies of that document that has just been marked as an exhibit and I understand that so does Ms Harris. A copy was forwarded to her colleague yesterday afternoon at Blake's.

PN101

THE COMMISSIONER: Thank you, Mr Richardson. I note that this actually has a change. You might deal with the amended respondency list compared with the earlier draft order that you forwarded to the parties.

PN102

MR RICHARDSON: Yes. Perhaps to summarise the - again, I appreciate that the Commission doesn't have a copy of the letter I have just read from but the two differences of substance are firstly, exhibit NUW2 contains at clause five a date of operation, namely from today's date and the second difference is the number of companies and the names of those companies that appear at schedule A. In the original roping in award, schedule A sought to bind each of the companies who were served with a log of claims in November to the terms and conditions of the Steel Distributing Award.

PN103

In light of discussions between the parties and principally with the Smorgon group the union seeks, subject to going to a finding of dispute, to do no more than bind three companies in reverse order as they appear in the exhibit, Atlas Steel Australia Pty Limited, One Steel Trading Limited, and then Smorgon Steel Distribution Pty Limited located at 88 Ricketts Road, Mt Waverley, Victoria, which trades as Smorgon Steel Mark Metals and Smorgon Sheet Metal Supplies.

PN104

THE COMMISSIONER: Mr Richardson, is that Smorgon company, Smorgon Steel Distribution Pty Limited the same as Smorgon Steel Distribution Company that the original log was served upon?

PN105

MR RICHARDSON: Yes, it is, yes, it is. By way of submission the union casts its net wide with the original log of claims in respect of the various Smorgon companies in order to ensure that it was serving logs of claims upon those companies or it was eventually established the company that was ultimately the employer of the employees who the union seeks to have bound by an award.

PN106

THE COMMISSIONER: Yes, I understand, but the employer in each case is Smorgon Steal Distribution Proprietary Limited?

PN107

MR RICHARDSON: Correct. Arising from the notification, the union was advised of today's proceedings and in respect of 2001/6188 caused a notice of today's proceedings to be served upon each of the companies again by means of certified mail. That occurred on 12 February of this year and an affidavit was filed on 25 February in the Melbourne registry again sworn by Mr Freeburn.

PN108

THE COMMISSIONER: I have several copies of that affidavit of Mr Freeburn and the attached documentation in respect of the service.

PN109

MR RICHARDSON: Thank you. At this stage, sir, the union would submit that there is sufficient material before the Commission to make a formal finding of dispute. In our submission, the formal finding of dispute should be between on the one part the National Union of Workers and on the second part the three companies appearing at schedule A to exhibit NUW2, namely Smorgon Steel Distribution Proprietary Limited, One Steel Trading Limited and Atlas Steels Australia Proprietary Limited.

PN110

To put it another way, the union does not press for findings of dispute with those other companies. Again, variously referred to as Smorgon that appear in the documentation as filed. We submit that the finding of dispute is interstate in nature and extends throughout all states and territories of the Commonwealth and that the matters in dispute are those contained in the log of claims attached to the unions letter of demand dated 20 November 2001. But we would press at this stage in proceedings for a finding of dispute in those terms.

PN111

THE COMMISSIONER: Very well, I will hear from the other employer parties to that section 99 dispute notification before I make a formal finding, Mr Richardson. I am happy to do that now if the other parties are willing to respond to your submission to date.

PN112

MR RICHARDSON: Thank you.

PN113

THE COMMISSIONER: Perhaps if I turn to Ms Thomas first in respect of One Steel Trading. Ms Thomas, what is your position in respect of the formal application for a dispute finding and for a roping in order in part settlement of that dispute.

PN114

MS THOMAS: Yes, Commissioner, we have instructions to agree to the NUW's application in respect of the finding of a dispute and the roping in of the award. We have seen all relevant documents. They have been duly served and provided as discussed by Mr Richardson and One Steel consents.

PN115

THE COMMISSIONER: Right, thank you, Ms Thomas. Ms Wright what is the Smorgon position?

PN116

MS WRIGHT: Commissioner, Smorgon Steel Distribution does not oppose a finding of dispute in this matter. Do you want me to respond to the roping in award at this point or not?

PN117

THE COMMISSIONER: Yes, I think you need to.

PN118

MS WRIGHT: Yes, in relation to the roping in award, we don't oppose the roping in award proposed by NUW. Thank you, Commissioner.

PN119

THE COMMISSIONER: Thank you, Ms Wright. Having heard the parties, I am aware of the considerable background to all of the matters before me today but particularly in relation to the section 99 dispute notification. I will determine that I will find that a dispute exists between the NUW on the one hand and upon the three employers named in schedule A contained in the draft award marked as exhibit NUW2 in these proceedings. In making the finding I will cause a record of such finding to be issued and attached to the file in accordance with the requirements of section 101 of the Act.

PN120

In relation to the second application before me for the making of a roping in award, it is the Commission's decision that a roping in award be made in the terms sought as set out in the draft award marked in these proceedings as exhibit NUW2. The award shall operate from the beginning of the first full pay period to commence on or after today's date 27 February 2002 and shall remain in force for a period of six months. I think that deals with the matters in relation to matter C2001/6188. Mr Richardson, will you continue with your summary of the other proceedings and the outcomes that are sought as a consequence of those applications.

PN121

MR RICHARDSON: Yes, Commissioner. If I could turn next, or by way of continuing, if I could refer to 795 of 1988 being the item 51 review and as already mentioned both prior to and on the last occasion, this matter was before the Commission. It was indicated that it was the desire of One Steel to affect respondency to the industry award and that if that were achieved, and that has just been achieved as a consequence of the making of the roping in award, it was considered appropriate that the Tubemakers Merchandising Award could be set aside.

PN122

The Tubemakers Award has two unions respondent to it. Namely the National Union of Workers and the Australian Workers Union and during proceedings on 16 October, the union tendered a document which was marked as exhibit NUW1 which, in essence summarised what was sought and is in fact occurring in these collective proceedings today. Given that the AWU had not a appeared on 16 October, the Commission directed that the National Union of Workers correspond with that organisation within a reasonable time frame so as to establish what their views were.

PN123

On 30 October last year, the National Union of Workers forwarded to Mr Shorten the National Secretary of the Australian Workers Union a letter detailing our proposals and referring to these proceedings and exhibit NUW1. If my memory serves me correctly, a copy of that letter was also forwarded to yourself.

PN124

THE COMMISSIONER: Yes, I have a copy of both the covering letter and a copy of the letter forwarded by yourself to Mr Shorten.

PN125

MR RICHARDSON: Yes, it would seem to me - it would be our submission that it may be appropriate for that correspondence to be marked as an exhibit, if the Commission pleases.

PN126

THE COMMISSIONER: I will mark the covering letter dated 19 October 2001, addressed to the Commission as presently constituted, attached to which was a copy of a letter addressed to Mr Shorten of the AWU by Mr Saw, the General Secretary of the NUW dated 30 October. I will mark that package of documents as NUW3.

EXHIBIT #NUW3 LETTERS DATED 19/10/2001 AND 30/10/2001

PN127

MR RICHARDSON: Thank you, sir. I don't intend quoting from anything contained in exhibit NUW3 but do direct the attention of the Commission and the parties to the fourth last paragraph appearing in the letter to Mr Shorten from the National Union of Workers which indicates that the NUW would be pleased to receive the views of the AWU by 5 November towards my organisation's proposals. Suffice to say, sir, that no response in writing or verbally was received and if my memory serves me correctly, a subsequent letter was also forwarded to Mr Shorten indicating that no response had been received and that we were still anxious to receive their views.

PN128

Relying on memory there sir, because I don't have a copy of that in my file and perhaps I shouldn't, on that basis, put it any higher than that.

PN129

THE COMMISSIONER: I don't have a copy of it on my file either. Do you recall when the subject letter was sent to the AWU?

PN130

MR RICHARDSON: It would have been in mid-November of last year. I am positive a further letter was forwarded. I just wasn't sure whether I forwarded it back to the Commission and the fact that it doesn't appear in your file would testify to that. I think again though, the point of my submission is that consistent with your recommendation the union has endeavoured to communicate to the AWU, it's intentions, leaving aside the correspondence received immediately prior to these proceedings, there has been n formal communication from the AWU as to their view.

PN131

THE COMMISSIONER: I can further vouch for the fact that my associate has spent a considerable amount of time trying to make contact with various officers of the AWU to find someone to take responsibility for their interests and we have been singularly unsuccessful in that endeavour.

PN132

MR RICHARDSON: I am able to concur with the Commission's experience. Sir, it would be our view though, that there should be no impediment to the setting aside of the Tubemakers award. To do so as cited in the grounds of our application, would be consistent with the objects of the Act, without in any way undermining the appropriate safety net for the employees covered by that award, given that there are no material differences between the Tubemakers award and the Steel Distributing award to which a roping in award has been made.

PN133

Notwithstanding the correspondence received this morning from the AWU which in my submission perhaps doesn't fully comprehend the purpose of these proceedings, it would be our further submission that in respect of both these proceedings, that is the item 51 proceedings as well as the application in 2001/6372 to set aside the Tubemakers Award, that the AWU has as a party bound to that award been properly served with notice and a copy of the application and therefore is aware of the purpose of these proceedings and specifically the desire of the applicant being the National Union of Workers.

PN134

Again, perhaps for the record, I can indicate that Mr Freeburn sworn an affidavit again on 25 February attesting to a service of this notice of listing in respect of both the item 51 review, namely 795 of 1988 and the application to set aside the Tubemakers Award, namely 2001/6372. So in summary we say that the item 51 proceedings are most appropriately concluded by the setting aside of the Tubemakers Award and a draft order noted as attachment A which seeks to set that award aside from the date of today's hearing was filed with the original application with the registry in the latter part of 2001 on or about 13 December 2001, I believe.

PN135

Perhaps one final comment would be that in serving notice and the application upon the AWU, the union was mindful that there was a degree of change within that organisation in terms of the location of its national office and as such that notice was served on both their national office address in Sydney located in Redfern and also their national office located in Melbourne here in Victoria.

PN136

So we would seek the making of an order setting aside the Tubemakers Award with effect from today and subject to that occurring, that would in our view conclude the item 51 proceedings. If the Commission pleases.

PN137

THE COMMISSIONER: Thank you, Mr Richardson. Well, insofar as this application concerns the setting aside of the Tubemakers Merchandising Award 1995, I'm satisfied that in every respect the AWU has been properly notified of today's proceedings. Before finally determining the matter, I'll hear from the employers. Ms Thomas?

PN138

MS THOMAS: Yes, thank you, Commissioner. In respect of 6372 of 2001, I want to make it clear that One Steel Trading Limited, formerly known as Tubemakers Australia, we also have instructions to appear in fact on behalf of what was Tubemakers Merchandising Limited which are referred to in the award which is the subject of these proceedings, the Tubemakers Merchandising Award 1995. So all parties that I have just described consent to the setting aside of this award.

PN139

In respect of 00795 of '98, item 51 schedule 5 proceedings, we would respectfully submit on an administrative level that these proceedings be terminated if the Commission is so minded to set aside the award.

PN140

THE COMMISSIONER: Thanks, Ms Thomas. Now, Ms Wright, what do the Smorgon Group - - -

PN141

MS WRIGHT: Commissioner, we don't have an interest in those matters.

PN142

THE COMMISSIONER: Of course not, this is specifically the Tubemakers Merchandising Award, yes. Thank you. Then insofar as matter 2001/6372 is before me and repeating my earlier satisfaction that the AWU has been properly notified of the proceedings of both the application to set aside the award and, of course, the preceding item 51 award simplification review proceedings, it's the Commission's decision that the Tubemakers Merchandising Award 1995 be set aside. An order to that effect will be issued. The order will come into effect from today's date, 27 February 2002.

PN143

Insofar as the respondents to the award also submit that the proceedings in relation to the item 51 award simplification review are properly concluded by the setting aside of the Tubemakers Merchandising Award 1995, it's the Commission's decision that any further proceedings in respect of the item 51 matter will be terminated. Now, one last matter, Mr Richardson, in respect of matter 2001/6373.

PN144

MR RICHARDSON: Thank you, sir. Again, perhaps at the outset, I forwarded by fax yesterday afternoon to your associate a draft order and it would be appropriate in our view for that to be marked as an exhibit. The draft order relates to the schedule of respondents to the Steel Distributing Award.

PN145

THE COMMISSIONER: I note receipt of your handwritten covering note and attached draft order. I'll mark that as NUW4.

EXHIBIT #NUW4 HANDWRITTEN NOTE AND DRAFT ORDER

PN146

MR RICHARDSON: Thank you. Again for the record, the parties in Melbourne are in receipt of a copy of that document and I understand that Ms Harris also has a copy.

PN147

THE COMMISSIONER: Ms Harris or Ms Thomas. I don't think there's a Ms Harris with us today.

PN148

MR RICHARDSON: I'm sorry, I'm not sure where that came from.

PN149

THE COMMISSIONER: Ms Thomas, can you confirm you have a copy of it.

PN150

MS THOMAS: Yes, I confirm.

PN151

THE COMMISSIONER: Thank you.

PN152

MR RICHARDSON: Again my apologies. In respect of this matter, this brings in our submission a conclusion to all of the matters before us and seeks to do no more than delete the existing respondency for the award appearing at schedule A and to insert a new schedule of respondency which updates and incorporates the roping-in award made earlier today by the Commission and as appearing in exhibit NUW2. There are two minor errors in exhibit NUW4 which I seek to take the Commission to. They both appear at page 2.

PN153

THE COMMISSIONER: Yes, go ahead.

PN154

MR RICHARDSON: The first of those is a typographical error in respect of the address for One Steel Trading. It should read Chiswick and there's a typographical error there. The second relates to the company, Smorgon Steel Distribution Proprietary Limited. An examination of the current respondency to the Storage Services Award shows that currently there is a business known as Steel Mark, a division of the ANI Corporation which is also part of the Smorgon's business.

PN155

It continues to operate as a business and continues to employ persons covered by this award. The second amendment that the union seeks to make to its draft order would be to insert immediately after the name and address of Smorgon Steel Distribution Proprietary Limited the following words.

PN156

THE COMMISSIONER: Prior to the address, Smorgon Steel Distribution Proprietary Limited?

PN157

MR RICHARDSON: No, immediately after the address, sir.

PN158

THE COMMISSIONER: Yes.

PN159

MR RICHARDSON: So the variation sought would then read: and the ANI Corporation Limited -

PN160

THE COMMISSIONER: I'm sorry, this is immediately after Victoria, 3149?

PN161

MR RICHARDSON: That's correct.

PN162

THE COMMISSIONER: Insertion of the words, yes, please go ahead.

PN163

MR RICHARDSON: "and the ANI Corporation Limited, 88 Ricketts Road, Mt Waverley, Victoria, 3149."

PN164

THE COMMISSIONER: I'm sorry, are those words inserted prior to that address?

PN165

MR RICHARDSON: They're inserted afterwards, sir.

PN166

THE COMMISSIONER: So the address is repeated?

PN167

MR RICHARDSON: That is correct and the schedule would then go onto read as is so it would say: trading as Smorgon Steel Mark Metals and Smorgon Sheet Metal Supplies.

PN168

THE COMMISSIONER: Can I just ensure that I have the format correct, Mr Richardson. On page 2 of the draft order on the fourth line, it will read: Smorgon Steel Distribution Proprietary Limited, 88 Ricketts Road, Mt Waverley, Victoria, 3149 and the ANI Corporation Limited, 88 Ricketts Road, Mt Waverley, Victoria, 3149. The next line then is unchanged, trading as, and the two trading companies listed.

PN169

MR RICHARDSON: That is correct, sir.

PN170

THE COMMISSIONER: Right, thank you.

PN171

MR RICHARDSON: Sir, I apologise, I have just had one other change brought to my attention, which is again on page two, the second company which is Sheet Metal Supplies Pty Ltd. That company no longer exists. That company is part of the Smorgon Steel Distribution group. So that can be deleted from the exhibit. It would be our submission that the draft order as amended in these proceedings reflects an updated respondency and as part of that updated respondency reflects what in our submission has been a fairly significant and substantial change in the composition and ownership of businesses within this industry over the last twelve months.

PN172

On that basis we would say that the making of the order in the form sought would be consistent with the objects of the Act, and we would rely upon the three agreements cited in our application as filed upon 11 December, if the Commission pleases.

PN173

THE COMMISSIONER: Thank you, Mr Richardson. Ms Thomas, do you have a response to that?

PN174

MS THOMAS: Commissioner, only to say that we consent to the application.

PN175

THE COMMISSIONER: Ms Wright?

PN176

MS WRIGHT: We also consent to the application with the variations that have been outlined by Mr Richardson.

PN177

THE COMMISSIONER: Yes, and insofar as that draft order should have an operative date applied to it, Mr Richardson, you have spelt out today's date as being the relevant date. Do you confirm that?

PN178

MR RICHARDSON: Yes.

PN179

THE COMMISSIONER: Thank you. Thank you all. In respect of matter C2001/6373 is concerned it is the Commission's determination that an order will be issued reflecting the content of exhibit NUW4 as amended on transcript today and that that draft order which will vary the schedule of respondents in respondents' list A, shall come into effect from 27 February 2002 and shall remain in force for a period of 12 months. Is there anything further for the transcript today before we conclude, Mr Richardson?

PN180

MR RICHARDSON: Just two matters briefly, sir. It would be my intention to email to the Commission and to the parties, amended draft orders reflecting today's proceedings and I should have at the outset just expressed my appreciation for this hearing occurring by video conference. If the Commission, pleases.

PN181

THE COMMISSIONER: Thank you, Mr Richardson. Ms Wright, do you have anything further to place on the transcript?

PN182

MS WRIGHT: No, Commissioner.

PN183

THE COMMISSIONER: Ms Thomas?

PN184

MS THOMAS: No, Commissioner.

PN185

THE COMMISSIONER: Well, I can only say that in concluding these proceedings, it has been a fairly long and painful process. It has been running since the middle of 1998 but I am very pleased to be able to draw all of the related matters to a conclusion. Thank you, for your attendance at this hearing. The Commission will adjourn all matters generally.

ADJOURNED INDEFINITELY [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW2 HANDWRITTEN NOTES AND DRAFT AWARD PN100
EXHIBIT #NUW3 LETTERS DATED 19/10/2001 AND 30/10/2001 PN127
EXHIBIT #NUW4 HANDWRITTEN NOTE AND DRAFT ORDER PN146