C2003/1627, Transcript of Proceedings [2003] AIRCTrans 1390 (15 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/1627

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

HANSEN YUNCKEN (SA) PTY LIMITED
AND OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re Annual Leave over
Easter Period

ADELAIDE

8.08 AM, MONDAY, 31 MARCH 2003

Continued from 27.3.03

PN121

THE SENIOR DEPUTY PRESIDENT: Good morning. Are there any changes in appearances?

PN122

MR HARRISON: If it please the Commission we are indebted to you.

PN123

THE SENIOR DEPUTY PRESIDENT: Perhaps before you begin, Mr Harrison, are there any changes in appearances?

PN124

MR M. HOWARD: There is one change in appearance, your Honour. In lieu of Mr Phil Bubner who is interstate today, MR JOHN McMICHAEL from McMahon Services Pty Ltd and unfortunately Mr Joe Cox is unable to attend this morning's hearing. He had other urgent matters already planned, if the Commission pleases.

PN125

THE SENIOR DEPUTY PRESIDENT: But you remain representing him do you?

PN126

MR HOWARD: Yes, I do, your Honour.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Harrison?

PN128

MR HARRISON: And if it please the Commission, contrary to my assertion on the last occasion I find that there is no provision for the Commission to be involved in this matter other than as a conciliator and unless the Commission is prepared to move into conciliation, there would seem to be little point in our application and foreshadowing that the Commission would not want to pursue that avenue, we would seek leave to discontinue our application.

PN129

THE SENIOR DEPUTY PRESIDENT: Well, perhaps before you do, Mr Harrison, you might explain that position to me. By which industrial instrument do you rely on?

PN130

MR HARRISON: I'm looking at the major one in this case.

PN131

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN132

MR HARRISON: The major one in this case, Hansen Yuncken EBA.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, this is the Hansen Yuncken Pty Ltd Enterprise Agreement.

PN134

MR HARRISON: As certified.

PN135

THE SENIOR DEPUTY PRESIDENT: Of 21 June 2000. Is that correct?

PN136

MR HARRISON: That is my understanding.

PN137

THE SENIOR DEPUTY PRESIDENT: It is a document that came into force on 26 May 2000 and was to remain in force until 31 December 2002.

PN138

MR HARRISON: Yes.

PN139

THE SENIOR DEPUTY PRESIDENT: Now, this is a section 99 application but I take it you are directing me to clause 2.5 being the grievance dispute settlement procedure?

PN140

MR HARRISON: Yes, and the relevant provisions which in our submission don't incorporate the powers of the Commission, subparagraph (g) and subparagraph (i). Subparagraph (g) reads:

PN141

In the event the matters remain unsolved, either party may seek the assistance of an independent arbitrator who will mediate between the disputing parties with the objective of reaching a mutually acceptable settlement.

PN142

And (i):

PN143

Failing a satisfactory settlement being achieved between the discussions outlined above, the dispute will be referred to the appropriate industrial commission.

PN144

Which of course is a matter of interpretation as to which that is but in any event even if that is said the Commonwealth Industrial Commission or something like it without any more, it would not import the powers of the Commission which we are essentially seeking to apply with our notification.

PN145

As I say, under the provisions that follow section 99 it is open to the Commission to conciliate and to the extent that it is prepared to do that we would remain with our notification of the extent that the Commission is unable to do that, we would seek to discontinue our notification.

PN146

THE SENIOR DEPUTY PRESIDENT: So can I take it from that that the union is proposing that I engage in a conciliation process?

PN147

MR HARRISON: Yes, that is our position and we could go into conference if that may be of assistance.

PN148

THE SENIOR DEPUTY PRESIDENT: And a final question then before I look to Mr Howard. You have referenced the Hansen Yuncken Agreement.

PN149

MR HARRISON: Yes.

PN150

THE SENIOR DEPUTY PRESIDENT: My recollection of the relatively brief hearing that we had last week in this matter was to the effect that there were both a number of other contractors and indeed a number of other agreements and that the union was indicating that it might well be in dispute with more than simply Hansen and Yuncken and a broader range of other contractors. What is your position on that question?

PN151

MR HARRISON: Well, we would say that whatever Hansen Yuncken do, the rest will follow for whatever reason but the major position of Hansen Yuncken is that they operate the cranes and it is my understanding that not a lot of work can be done without the cranes. So if they take a position on this issue, one would expect for that reason alone if for no other that the other contractors would follow suit.

PN152

THE SENIOR DEPUTY PRESIDENT: So in effect what you are saying there is you no longer wish to proceed with the dispute insofar as you said last week there was a dispute with the other contractors?

PN153

MR HARRISON: No, there's a dispute but we say that it can be settled if Hansen Yuncken decide to settle.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes. You see what I'm getting at is if you are saying to me that the Commission ought to engage in a conciliation process relative to the dispute between the union and Hansen Yuncken and that the Commission does not have power to go beyond that conciliation process, then the issue that I'm wanting to clarify with you is what do you say would then happen in the event that the conciliation process did not resolve the matter?

PN155

Would you then propose to proceed with any form of further proceedings in the Commission pursuant to any of the other certified agreements or arrangements applying to the other contractors?

PN156

MR HARRISON: Well, what we say is that the other contractors are part of this dispute and we wouldn't want to send them away without making their contribution in a conciliation frame.

PN157

THE SENIOR DEPUTY PRESIDENT: Yes. Look I understand what you are saying there but perhaps I'm not expressing myself clearly enough. What you are saying to me is that the dispute with respect to Hansen Yuncken is a dispute over the operation of the certified agreement and that the certified agreement limits the capacity of the Commission to a conciliation process.

PN158

MR HARRISON: No, with respect I'm not saying that. I'm not saying it is - - -

PN159

THE SENIOR DEPUTY PRESIDENT: Well, that is what I'm trying to clarify with you, Mr Harrison.

PN160

MR HARRISON: It is not. Clearly the certified agreement comes into dispute but it is not arising out of the certified agreement, no more than it is arising out of the award because the issues we are pursuing are not in contemplation in either the award or the agreement.

PN161

THE SENIOR DEPUTY PRESIDENT: I see but you are saying to me that the certified agreement limits the capacity of the Commission to a conciliation process.

PN162

MR HARRISON: That is right.

PN163

THE SENIOR DEPUTY PRESIDENT: Now, the issue that I'm wanting to clarify with you is if that conciliation process does not resolve the matters in dispute, then what would you have me do to the remainder of your application insofar as the remainder of the application referenced a number of other subcontractors?

PN164

MR HARRISON: Well, they would be part of the same conciliation.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, I understand they would be part of the same conciliation but that is not the question. The question is if the conciliation process did not resolve the issues then what would you have me do with the remainder of those other subcontractors?

PN166

MR HARRISON: Well, if the conciliation does not work we would seek to discontinue in any event which would release them.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Harrison. Mr Howard, what is your position on this matter?

PN168

MR HOWARD: Well, your Honour, the section 99 application was made on the basis of employees applying for annual leave for 3 days: 22, 23 and 24 April. The subject of annual leave is contained in either the enterprise agreements or the award. So I would have to differ from my friend there and say this matter is truly within the vicinity of the Commission and the application brings into play both the enterprise agreements or where they are silent, the award.

PN169

In respect to the dispute settling procedures, if we just take Hansen Yuncken, 2.5(g) says "may seek" and the parties didn't go seeking an independent arbitrator. What they have done is brought in 2.5(i). Obviously the union has by lodging the section 99 and that quotes:

PN170

Failing satisfaction or settlement being achieved following the discussions outlined above, the dispute will be referred to the appropriate industrial commission.

PN171

In this case which is the Australian Industrial Relations Commission. Now, we see the Commission as having the powers to hear the matter in conciliation and if conciliation does not resolve the issue to continue if the parties so desire into arbitration, we wouldn't see the powers of the Commission limited in this particular application.

PN172

THE SENIOR DEPUTY PRESIDENT: But if I can deal with this in two phases. The first phase is the conciliation process. Can I take it that you would have no objection to a conciliation process being commenced?

PN173

MR HOWARD: We wouldn't have any opposition to the conciliation process being commenced.

PN174

THE SENIOR DEPUTY PRESIDENT: Well, then Mr Harrison has indicated that if that conciliation process was unsuccessful he would by virtue of his understanding of clause 2.5(i) seek to withdraw the application or discontinue the application. Notwithstanding you might have a different view as to 2.5(i), would you oppose the proposal that the application be discontinued?

PN175

MR HOWARD: I wouldn't oppose the application for the matter to be discontinued. That would be entirely in the hands of my friend.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes. The two of you may have a different interpretation of how far 2.5(i) allows the Commission to go but it seems to me that Mr Harrison is proposing a course of action that says if conciliation is unsuccessful then the application would be discontinued.

PN177

MR HOWARD: Well, I don't see (i) as limiting the process before the Industrial Relations Commission.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN179

MR HOWARD: It is a matter of what it says, it is referred to the Commission and therefore once you refer to the Commission you are asking the Commission to exercise its powers, whatever the powers may be.

PN180

THE SENIOR DEPUTY PRESIDENT: Except that Mr Harrison is telling me that in the event that the conciliation process is unsuccessful, the application will be withdrawn.

PN181

MR HOWARD: Well, I would assume by that, my friend would be saying that there would be no point going on if the conciliation process isn't successful.

PN182

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN183

MR HOWARD: If the Commission pleases.

PN184

THE SENIOR DEPUTY PRESIDENT: I will adjourn this matter into a conciliation conference which will occur in this court room now. Thank you. I will adjourn the matter on that basis.

OFF THE RECORD

NO FURTHER PROCEEDINGS RECORDED