C0078/599, Transcript of Proceedings [2003] AIRCTrans 1578 (29 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT2296
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00785 of 1999
C2001/5213
C2003/1712

AUSTRALIAN WORKERS' UNION HYDROCARBONS
INDUSTRY ONSHORE CANTEEN WORKERS'
AWARD 1990

Review under Item 51, Schedule 5, Transitional
WROLA Act 1996 re conditions of employment

AUSTRALIAN WORKERS' UNION HYDROCARBONS
INDUSTRY ONSHORE CANTEEN WORKERS'
AWARD 1990

Application under section 33 on the Commission's
own motion to vary re conditions of employment

THE AUSTRALIAN WORKERS' UNION

and

EUREST AUSTRALIA PTY LIMITED
and ANOTHER

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

MELBOURNE

11.30 AM, FRIDAY, 11 APRIL 2003

Continued from 14.1.03

PN1

MS M. LAMBERT: I am appearing on behalf of the Australian Workers' Union in the two matters before the Commission today. Mr Phillips, the AWU advocate, who would normally appear in these matters is on leave and I am temporarily handling these matters in his absence.

PN2

MR W. WADE: I am from the Australian Mines and Metals Association on behalf of Eurest Australia Proprietary Limited. Like Ms Lambert my colleague, Ms O'Brien, has had carriage of this matter. She is on a secondment and wasn't available today so I am stepping in in her stead. If the Commission pleases.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, I have called all the matters on together. There are three matters. There is the item 51 matter, C number 00785 of 1999. The section 33 action on the Commission's own motion, C2001/5213 and a new matter, a section 99 matter, C2003/1712. We might just deal with that matter first. It is a notification by the AWU of an industrial dispute. Ms Lambert.

PN4

MS LAMBERT: Thank you, Senior Deputy President. With respect to this matter that is before the Commission I would like to say that there has been discussion between the parties involved and there is consent between both the company and the union as to this matter and I am sure that Mr Wade will concur with this. I have before me, and I would like to tender, documentation in relation to this matter. These documents prove that all proper required procedures as per the Australian Workplace Relations Act have been complied with. I might hand that up by your associate, please.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. You have given to me a statement as to service by Mr Phillips. That is dated the eighth day of April. He indicates that he is a national industrial officer of the union. That, by way of facsimile, the AWU served a notice of listing of the matter today and he attaches - - -

PN6

MS LAMBERT: If that is not there, sir, I have a copy for you.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. I don't think he - we will attach that. I don't have the attachments to that.

PN8

MS LAMBERT: I will just find it for you. I believe, sir, that it could be - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Well, while you are looking for that you have handed up another bundle of documents, being the notification of an industrial dispute, a letter to the Industrial Registrar notifying an industrial dispute, a formal notification of dispute signed by Mr Shorten, dated 21 March, indicating that a letter of demand and log of claims was sent to employers in the schedule and they are Eurest Australia Proprietary Limited and Spotless Group Limited. There are also in that bundle the two letters of demand, one on each company, and a copy of the log of claims; a statement of service by Carl Phillips dated 21 March 2003 indicating service of the letter of demand and log of claims; a statement by Mr Shorten indicating that he is authorised to act in the matter and a pro forma notification of hearing. That bundle of documents will be exhibit AWU1.

EXHIBIT #AWU1 BUNDLE OF DOCUMENTS COMPRISING NOTIFICATION OF AN INDUSTRIAL DISPUTE AND VARIOUS OTHER DOCUMENTS

PN10

THE SENIOR DEPUTY PRESIDENT: And you have handed to me a statement as to service by Mr Phillips dated 8 April and that indicates that he notified the two companies of the hearing today. He attaches facsimile transmittal details and I will mark that bundle of documents as exhibit AWU2.

EXHIBIT #AWU2 BUNDLE OF DOCUMENTS COMPRISING STATEMENT AS TO SERVICE DATED 8 APRIL AND FACSIMILE TRANSMITTAL DETAILS

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Lambert.

PN12

MS LAMBERT: Thank you, Senior Deputy President. We would also like the Commission to note that Spotless are no longer listed as respondents or potential respondents to this log and the resulting award. There have been discussions between the union and Spotless and there has been consent that Spotless be removed.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MS LAMBERT: In relation to this, sir, this matter is before the Commission just to make sure that if, in the initial stages prior to this, there were any irregularities that these irregularities will now be rectified by the proper service and compliance with the Act in relation to this matter.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. And you ask that a dispute be found.

PN16

MS LAMBERT: I am indeed, Senior Deputy President.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Wade.

PN18

MR WADE: Thank you, your Honour. I would support the comments of my colleague at the other end of the bar table. I have been informed that service was effected upon Eurest in accordance with the Act. Eurest have not acceded to the letter of demand and log of claims so we would say that a dispute in fact does exist. My only other instruction in this matter was that Spotless were not to be proceeded against and Ms Lambert has already cleared that matter up, your Honour. If the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Does Eurest operate throughout Australia?

PN20

MR WADE: Yes, it does, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: In all states and territories, does it?

PN22

MR WADE: I believe they do, your Honour. I may have to take instructions on that but I know that they definitely operate in Queensland, Victoria and West Australia.

PN23

THE SENIOR DEPUTY PRESIDENT: Well, at this stage should I confine the dispute to those three states?

PN24

MR WADE: I don't believe so, your Honour. I believe that this award basically deals with the Esso operations here in Victoria only.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, but at the moment I am finding a dispute. I want to know the extent of the dispute and the extent of the dispute will be the extent to which Eurest operates.

PN26

MR WADE: Yes, your Honour. As I said, I believe that they operate in Queensland and West Australia as well as Victoria.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN28

MR WADE: Thank you, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: I am satisfied that there is in existence an industrial dispute between the Australian Workers' Union on the one part and Eurest Australia Proprietary Limited on the other part. The dispute relates to pay and conditions of employment as set out in the letter of demand and log of claims served by the AWU on 20 March 2003 and the dispute exists in Queensland, Western Australia and Victoria. A formal record of finding of dispute will issue in due course. Thank you.

PN30

Now, Ms Lambert, we will deal with the other matters. The position that we had reached, as I understand it in relation to those matters, was that a new award is to be made in settlement or part settlement of the dispute that I have just found and the parties were finalising that documentation. Can you update me as to where we are with that, please?

PN31

MS LAMBERT: Yes, Senior Deputy President. It is my understanding that the parties have had fruitful discussions in relation to that matter and have prepared a document to present to the Commission today which is a draft, simplified award. I believe that - yes - Mr Wade has some copies for the Commission and I have a copy here. At this stage, sir, I do not believe there is any work that either party is able to do in relation to this matter. Mr Phillips has informed me that he has had full and fruitful discussions with Ms O'Brien and this is the result of those discussions, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. And are you able to say whether the document that you have just handed to me takes account of the comments of the award simplification unit made after a draft was presented to my associate on about 27 March this year?

PN33

MS LAMBERT: Sir, I am aware that this particular draft was reviewed very recently. I cannot say with complete assurance that it was reviewed after 27 March. I think it might well have been so, sir, because we had an earlier version, the 25 March 2003, and since 25 March there has been further work and this particular draft is dated 7 April. So I would imagine, sir, that in fact this was done after the 27th, but all I really know is that this was done after 25 March.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And is this a document that is an agreed document, is it?

PN35

MS LAMBERT: It is indeed, sir, yes.

PN36

THE SENIOR DEPUTY PRESIDENT: This is an award that you wish to have made?

PN37

MS LAMBERT: It is, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Wade.

PN39

MR WADE: Your Honour, I can possibly throw some clarification on your last question to Ms Lambert. I believe that the comments of the award simplification unit were taken on board. All relevant comments were incorporated into the document. I suppose we have all had some experience with the award simplification unit where their grammar may be somewhat different to my own. My instructions are that all relevant comments made by the unit were, in fact, incorporated by agreement between both Ms O'Brien on behalf of Eurest and Mr Phillips on behalf of the AWU. If the Commission pleases.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I notice that the parties to the award are the employers listed in schedule A in respect of persons who perform work within the classifications contained within the relevant clause. The list of respondents lists Eurest Australia (Support Services) which is not the entity against whom I just found a dispute. Can you explain that to me?

PN41

MR WADE: No, your Honour, I - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Is that a trading name?

PN43

MR WADE: No, your Honour, I cannot explain it. I wasn't aware of that. I can seek further instructions but I wouldn't be able to get them for probably an hour or so.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes - - -

PN45

MR WADE: It may well be a trading name, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. I notice that it is - the canteen at Maryvale Road, Morwell, Victoria. Perhaps it might be necessary to amend clause 5 to indicate that the party to the award is Eurest Australia Proprietary Limited and that the award applies in respect of that company only at its canteen at Maryvale Road, Morwell, Victoria. You can get back to me through my associate on that.

PN47

MR WADE: Either that, your Honour, or I would seek a brief adjournment to make a couple of phone calls.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, well, I will give you that. I will give you 10 minutes?

PN49

MR WADE: How about 15, your Honour?

PN50

THE SENIOR DEPUTY PRESIDENT: I will give you 15, okay.

PN51

MR WADE: Sorry, your Honour, a bad habit in this business, as you know, you always try to negotiate.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. We will resume at 12 o'clock.

SHORT ADJOURNMENT [11.45am]

RESUMED [12.05pm]

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wade.

PN54

MR WADE: Your Honour, I have made a couple of phone calls in the adjournment. It appears as though that is the name that appears on a website. I am uncertain at this point whether that is, in fact, the actual employing entity. I would ask the indulgence of the Commission, if I may, to return to my office and make inquiries of Eurest directly. Unfortunately, I don't have their phone number with me.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think that is desirable. But I note that the dispute is with Eurest Australia Proprietary Limited. There is no dispute with Eurest Australia (Support Services). I don't know how it could be a respondent.

PN56

MR WADE: I believe that, if anything, it may be a trading name, your Honour, but I am uncertain.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, or it may just be the operations of Eurest at that particular location in which case the application clause of the award should reflect it.

PN58

MR WADE: Yes, your Honour. I will make some inquiries as soon as I get back to my office and contact your office immediately. If the Commission pleases.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. Now, while you are on your feet - - -

PN60

MR WADE: Yes, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: How can I be satisfied that the wage rates set out in clause 26 are properly fixed minimum rates of pay?

PN62

MR WADE: Your Honour, I believe that this may, in fact, be paid rates.

PN63

THE SENIOR DEPUTY PRESIDENT: Well, I can't make a paid rates award.

PN64

MR WADE: Your Honour, they haven't been, as I understand it - - -

PN65

THE SENIOR DEPUTY PRESIDENT: I mean, you may be paying properly fixed minimum rates but I need to be satisfied as to that.

PN66

MR WADE: Yes, your Honour. Your Honour, as I understand it, Mr Phillips and Ms O'Brien have had discussions over this, and I believe that has been fairly recently, and - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Well, what I will do is I will direct the parties to put in writing - I suppose it will be a joint letter or submission demonstrating that the wage rates in clause 26 are properly fixed minimum wage rates so that I can be satisfied as to that. I direct that that be done within seven days of today's date.

PN68

MR WADE: Your Honour, there has been in a similar matter before Senior Deputy President Harrison an award simplified which was the Boyne Smelters Award in July 2002 where her Honour stated at point 4 - I do have copies of the decision if you would like those, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes. And I notice that clause 27 refers to the safety net review 1997. That doesn't seem right to me, Mr Wade and Ms Lambert.

PN70

MR WADE: Yes, your Honour. In the decision of Senior Deputy President Harrison she makes the point at paragraph 4:

PN71

I refer to clause 16, Wage Rates. I am not prepared to vary this clause to update rates of pay as requested by the AMWU. An application should be made by the union under section 113 of the Act ..... the time consideration can also be given to comments from the employer, etcetera.

PN72

The basis for that was, your Honour, as I understand it in that matter, that the unions sought on the day to simply lift the wage rates by the total amount without fully demonstrating the methodology whereby they arrived at the final figures for the various classifications. Her Honour, in that matter, did in fact still simplify the award save and except for the wage rates clause, and it was then open to the unions to seek to vary them. We would rely on this decision in still seeking to simplify the award.

PN73

THE SENIOR DEPUTY PRESIDENT: Well, that won't do you any good because I am not simplifying the award I am making a new award in part settlement of the dispute that I found today.

PN74

MR WADE: Yes, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: It must comply with section 89A of the Act. To some extent it is the same as making a simplified award because a simplified award is an award that complies with section 89A of the Act but I am making a new award here and the wage rates need to be properly fixed minimum wage rates. These may well be but I need to be satisfied as to that and they need to be up-to-date including the last national wage increase. So I direct the parties to place in writing within seven days information relating to clauses 26 and 27 and also as to the matter that we discussed earlier about how to identify the respondent to the award or whether the application clause of the award should indicate that it binds Eurest Australia in respect of its operations at Morwell, Victoria.

PN76

MR WADE: Yes. The application, I believe, your Honour, should go to, as it is, Esso Operations in the State of Victoria.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes.

PN78

MR WADE: If the Commission pleases.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Lambert, do you want to say anything else?

PN80

MS LAMBERT: No, I have nothing further to add, Senior Deputy President.

PN81

THE SENIOR DEPUTY PRESIDENT: Well, by 5 pm next Friday - oh, next Friday is Good Friday - we will make it Tuesday of the following week then, I would like to have those matters in hand. I don't want to have to re-list this matter. If I am satisfied that the award meets the requirements of the Act I will make an award in those terms. At that time I will also cancel the Australian Workers' Union Hydrocarbons Industry Onshore Canteen Workers' Award 1990. I take it that accords with the wishes of the parties.

PN82

MR WADE: Your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Well, thank you. We will adjourn the Commission on that basis.

ADJOURNED INDEFINITELY [12.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 BUNDLE OF DOCUMENTS COMPRISING NOTIFICATION OF AN INDUSTRIAL DISPUTE AND VARIOUS OTHER DOCUMENTS PN10
EXHIBIT #AWU2 BUNDLE OF DOCUMENTS COMPRISING STATEMENT AS TO SERVICE DATED 8 APRIL AND FACSIMILE TRANSMITTAL DETAILS PN11