AG2003/2987, Transcript of Proceedings [2003] AIRCTrans 1596 (30 April 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10338

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

AG2003/2987
AG2003/3049
AG2003/3050

APPLICATIONS FOR VARIATION OF
CERTIFIED AGREEMENTs TO REMOVE
AMBIGUITY

Applications under section 170MD(6) of the Act
by the Transport Workers Union of Australia to
vary the:
Linfox-Petroleum Distribution (Transport
Workers-South Australia) Enterprise
Agreement,
Linfox-Petroleum Distribution
(Transport Workers-Caltex Wickham) Enterprise
Agreement 2000,
Linfox-Petroleum Distribution
(Transport Workers-Victoria) Enterprise
Agreement 2000

MELBOURNE

10.39 AM, MONDAY, 14 APRIL 2003

PN1

MR L. DUFFIN: I appear on behalf of the Transport Workers Union. With me today is MS S. LEARMONTH.

PN2

MR T. OLTHOF: I appear on behalf of Linfox Australia Pty Limited.

PN3

THE COMMISSIONER: Mr Duffin.

PN4

MR DUFFIN: Thank you, Commissioner. Commissioner, these applications arise out of the application of clause 4 of the relevant agreements and in particular arise out of the set of circumstances that have developed at all three sites, in particular an application on behalf of Linfox that the matters be extended, an application on behalf of TWU that the agreements be terminated. The position of the union is that there is a clear uncertainty or ambiguity that arises in the certified agreements as a result of how one is supposed to apply or how the Commission is supposed to deal with or how the parties are supposed to deal with a situation involved in those two separate processes going off in different directions at the same time.

PN5

As I foreshadowed in the earlier matter Mr Olthof did raise with me the issue of, well, he had only seen these for two days. Our position is that we are happy to deal with this matter either here today or by way of more extensive submissions if necessary. But the simple proposition of the union in relation to it is that there is a clear uncertainty which emerges in this situation and the Commission is the appropriate place to resolve that ambiguity or uncertainty.

PN6

THE COMMISSIONER: Thank you. Mr Olthof.

PN7

MR OLTHOF: Thank you, Commissioner. Yes, it is true that Linfox only became aware of these applications I believe last Thursday. We certainly need more time to consider our position in respect of legal and other implications before responding in detail and we do request that additional time before the matters are heard by the Commission. However, I can say that Linfox does in fact oppose the applications and indeed their proposed joinder with other matters. I am not sure whether that joinder application is still being pursued but - - -

PN8

THE COMMISSIONER: Joinder is refused.

PN9

MR OLTHOF: Yes, thank you. However, I expect Linfox's reasons for opposing the applications will be many and varied but at least include the following: that we do see these applications as strategic in nature, not designed to resolve a true ambiguity. We don't believe there is any ambiguity in the provisions cited by the union in the applications before you and I put it no higher than this, and I certainly don't mean any offence, but we do see these applications as potentially an abuse of process given that they are fundamentally of a strategic nature.

PN10

I will save my other remarks on the merits of the applications for the time at which a full hearing is listed by the Commission if the Commission is not minded to hear those arguments now and I would certainly urge the Commission to give us the necessary time to properly prepare our response.

PN11

THE COMMISSIONER: Anything further to say, Mr Duffin?

PN12

MR DUFFIN: Other than to say that any comment that this is in any way an abuse of process is utterly rejected from this side of the bar table and it is not something that one throws into a submission by trying to say, well, I don't put it any higher than this. That is a remark which we find utterly offensive and inappropriate in this proceeding. Beyond that I am not opposed to Linfox having the necessary opportunity to deal with these matters. We are not - I guess the previous set of directions, we would say, is appropriate in relation to this matter as well.

PN13

It is a bit of a question then as to when the hearing date would be in the Commission's availability. Notwithstanding my earlier comments I do not believe this case either to be a three day case.

PN14

THE COMMISSIONER: Two days should suffice, shouldn't it, at the most?

PN15

MR DUFFIN: I would have thought - well, as you say advocates' capacity to judge these things is usually fairly poor but I - - -

PN16

THE COMMISSIONER: If you can finish it in one day between you I would be most grateful.

PN17

MR DUFFIN: Well, I personally believe we can. It is not a terribly complex proposition.

PN18

THE COMMISSIONER: Good. I will tell you what we will do then. I will make sure that you have all got plenty of time. My directions in the previous matter stand and added to them are directions in this matter and they will be heard on the - I will set aside 10 and 11 July. So you can both have the pleasure of my company all week and I assure you you will enjoy your week-end by the time it comes around. Thank you. Anything further, Mr Olthof?

PN19

MR OLTHOF: No, thank you, Commissioner.

PN20

THE COMMISSIONER: Are you all clear about the directions?

PN21

MR OLTHOF: Yes, Commissioner.

PN22

MR DUFFIN: Yes, crystal, Commissioner.

PN23

MS LEARMONTH: Yes, Commissioner.

PN24

THE COMMISSIONER: Well, the Commission is adjourned.

ADJOURNED UNTIL THURSDAY, 10 JULY 2003 [10.45am]