AG2003/2143, Transcript of Proceedings [2003] AIRCTrans 1783 (15 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT2452
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/2143

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Maintenance Resource Engineering Pty
Limited for certification of the Maintenance
Resource Engineering Pty Limited Shell
Geelong Refinery Electrical Enterprise
Agreement 2003-2005

MELBOURNE

10.17 AM, WEDNESDAY, 30 APRIL 2003

Continued from 29.4.03

PN907

THE DEPUTY PRESIDENT: Where did we get to, Mr Burchardt?

PN908

MR BURCHARDT: Good morning, your Honour. Yesterday, as I saw it, we were perhaps a little bit involved with the issue as to when the agreement is made, when the valid majority made that agreement and the like.

PN909

THE DEPUTY PRESIDENT: I recall that debate, yes.

PN910

MR BURCHARDT: And there are two things I am going to do this morning which I hope will assist your Honour with that and resolve any clouds of doubt that might obtain. The first thing I should say and I am not the first person to have said this is that this legislation is not perfectly drafted, in many ways hard to construe.

PN911

THE DEPUTY PRESIDENT: You surprise me, Mr Burchardt.

PN912

MR BURCHARDT: Yes. It is not simple. I should say that when one looks at division 2 and I don't seek to take your Honour through it chapter and verse.

PN913

THE DEPUTY PRESIDENT: I am sorry, we will need to go through.

PN914

MR BURCHARDT: I appreciate that, but just by way of introductory remark, all the references to the agreement, particularly as it appears to be defined in section 170LI, really do seem to refer to the written memorandum of agreement that is ultimately reached and filed for certification. That is contrary to at least superficially the decision of the Full Bench of this Commission in the ASUQ case where they said an agreement could be oral so that in formal terms, at least, in case this matter were to in some way go further, because Mr Borenstein is going to read the transcript he assured me yesterday, I do submit that ASUQ is wrong and that agreement means the written agreement that the parties file for certification, but we are not ultimately concerned with that possible issue today because I went back to basics, your Honour.

PN915

It seemed the most simple thing to do and your Honour's question yesterday was, well, when was the agreement made and as a matter of first principles, could I assist your Honour by handing up an extract from the Australian Legal Dictionary published by Butterworths and there is a copy that may assist the people taking the transcript. Your Honour, the relevant definition is that of agreement. If you could turn over to the first page of the text, your Honour will see at about point 8 in the left hand column:

PN916

Agreement. In contract law, the stage at which the negotiations between the parties are complete ...(reads)... by the other party (the offeree) to the offeror of an unqualified assent to that offer.

PN917

Now, your Honour, I did put in the definition of certified agreement which is on the next page, simply because it exists and I wouldn't want to be accused of misleading you by omitting it, but it doesn't really help us very much because that just says at the righthand column at about point 3, a certified agreement is:

PN918

A memorandum of the terms of an agreement reached by the parties to an industrial dispute or industrial situation.

PN919

That rather supports the proposition I was earlier advancing, but that I don't particularly rely on. Just in order to sort of hammer home the fairly fundamental and straightforward proposition about acceptance, I have extracted the relevant extract of an admittedly now out of date copy of Cheshire and Fifoot's Law of Contract. I think they are up to about the eighth edition now, but this passage hasn't changed and if your Honour sees the extract on section 4, acceptance, paragraph 118:

PN920

What is an acceptance? Acceptance of an offer creates contractual relations. An acceptance is a communication to the offeror of an unqualified assent both to the terms of the offer -

PN921

And then there is other matters that aren't material, so as a matter of first principles, your Honour, agreement happens when the person who is making the offer is told by the person to whom it is made that it is accepted. It is not the time at which the person to whom the offer is made may themselves decide they are going to take it. It is the time when you tell the first party, okay, the deal is done. Now, against that introductory background, could I seek to tender an affidavit of John Douglas which deals with some factual matters of the sort that your Honour foreshadowed yesterday?

PN922

THE DEPUTY PRESIDENT: Thank you very much. I suppose we should mark that, should we?

PN923

MR BURCHARDT: Yes, I think so, if your Honour pleases.

PN924

THE DEPUTY PRESIDENT: What are we up to?

PN925

MR BURCHARDT: I think we are only up to MRE2, your Honour.

EXHIBIT #MRE2 AFFIDAVIT OF J. DOUGLAS

PN926

MR BURCHARDT: Your Honour, could I invite you first just to read it briefly, please?

PN927

THE DEPUTY PRESIDENT: Certainly. Thank you. I have read it.

PN928

MR BURCHARDT: Yes, you will see, your Honour, it does go directly to the issue as to when the agreement was made. The agreement quite plainly was made on 11 March because that is when the offer was accepted and the acceptance of that offer was communicated to the employer.

PN929

THE DEPUTY PRESIDENT: Let us just read this in conjunction with the previous statutory declarations, if we could.

PN930

MR BURCHARDT: Yes, certainly, your Honour.

PN931

THE DEPUTY PRESIDENT: Unless you have something more to say about that.

PN932

MR BURCHARDT: Well, your Honour, this document responded to your Honour's inquiry in terms - - -

PN933

THE DEPUTY PRESIDENT: Yes, yes, indeed. I just want to see where it fits with - - -

PN934

MR BURCHARDT: And if your Honour sees paragraph 5.4 of Mr Quinn's affidavit which I think was the one we were looking at yesterday in some detail, the proposed agreement was provided to the employees at a meeting with the employer on 24 February. They were informed that they could ask any questions. On 11 March we again met with Mr Lockyer. We informed him in writing that we did not wish to be represented by any organisation in relation to the negotiation of this agreement and we supported the proposed agreement. So that is what is said there.

PN935

THE DEPUTY PRESIDENT: All right, I have got direct sworn evidence from Mr Lockyer that he provided the agreement to the employees on 24 February.

PN936

MR BURCHARDT: That is right, your Honour.

PN937

THE DEPUTY PRESIDENT: That is in the statutory declaration of Mr Lockyer, then Mr Douglas's statutory declaration, is it, or affidavit?

PN938

MR BURCHARDT: It is an affidavit, your Honour.

PN939

THE DEPUTY PRESIDENT: Mr Douglas's sworn affidavit.

PN940

MR BURCHARDT: Yes.

PN941

THE DEPUTY PRESIDENT: It states that on 11 March he attended the offices for the purposes of overseeing the process as to whether the electrical employees would indicate their support or otherwise for the agreement. Okay, so the 11 March date on the basis of this direct evidence is the date at which that support was indicated and therefore the date on which the agreement was made.

PN942

MR BURCHARDT: I think that is right, your Honour.

PN943

THE DEPUTY PRESIDENT: So I think we have dealt with the 14 days issue.

PN944

MR BURCHARDT: Yes, if your Honour pleases.

PN945

THE DEPUTY PRESIDENT: I think that was the only point of exhibit MRE2, wasn't it?

PN946

MR BURCHARDT: It was, your Honour.

PN947

THE DEPUTY PRESIDENT: Or that was the central issue.

PN948

MR BURCHARDT: It was and, your Honour, where we had reached yesterday was that your Honour was concerned as to when the agreement was made, that there was no evidence to that effect, so we have crossed that bridge in my submission, your Honour, and that I think took us to - we were at the sort of combination of LK1 and 2 at that point and that evidence disposes of the difficulties in those sections that were concerning your Honour in my submission.

PN949

THE DEPUTY PRESIDENT: Yes, I think it does.

PN950

MR BURCHARDT: Your Honour, then there is subsection LK(3). It is plain from the affidavit of Mr Lockyer and indeed that of Mr Quinn that the employer took steps to provide that every person had ready access to the proposed agreement in writing because they were both given a copy of it on 24 February 2003.

PN951

THE DEPUTY PRESIDENT: Yes.

PN952

MR BURCHARDT: Could I also say your Honour will appreciate that subsection 7 of section 170LT also touches on this aspect of the matter because the steps that have taken - the employer has to show that the explanation of the terms of the agreement to persons as mentioned in section 170LK(7) must take place in ways that are appropriate. It is common cause that these gentlemen have been employed at the site for about a year and Mr Quinn's affidavit, MRE1, makes that plain that he was and there has been former material to that effect filed before the Commission in respect to Mr Sweeney, so they are not unfamiliar in the general sense with the operation of these because there are two other agreements in almost identical terms that have been applying, anyway, but they did get a proper explanation in that sense, if your Honour pleases. Representation by organisation is addressed by the attachment 1 to the statutory declaration of Mr Quinn. I can take your Honour to it, but it does follow the terms of the - - -

PN953

THE DEPUTY PRESIDENT: Sorry, say that again.

PN954

MR BURCHARDT: Mr Quinn has attested directly that he received a notice conformable with section 170LK(4) and, indeed, that is annexed to his statutory declaration.

PN955

THE DEPUTY PRESIDENT: I see, yes. Well, let us have a look at that, shall we?

PN956

MR BURCHARDT: Yes, by all means, your Honour.

PN957

THE DEPUTY PRESIDENT: Or look at it again.

PN958

MR BURCHARDT: There should be annexed to Mr Quinn's - - -

PN959

THE DEPUTY PRESIDENT: I have Mr Quinn's, yes.

PN960

MR BURCHARDT: - - - a letter dated 24 February 2003.

PN961

THE DEPUTY PRESIDENT: I have it.

PN962

MR BURCHARDT: I will take you through that, if it is convenient, your Honour.

PN963

THE DEPUTY PRESIDENT: Please, yes.

PN964

MR BURCHARDT: You will notice it says:

PN965

Dear John, the company intends to enter into an enterprise agreement with all the electrical/electronic employees ...(reads)... in the Australian Industrial Relations Commission pursuant to section 170LK of the Act.

PN966

Now, that is referable to section 170LK(2), obviously, your Honour:

PN967

In substantial terms, the agreement reflects the conditions contained within the -

PN968

I won't read its full title out -

PN969

the agreement which has been certified by the Commission on 24 January 2003 ...(reads)... a copy of the proposed agreement is attached to this letter for your perusal.

PN970

Now, relevantly here:

PN971

If you are a member of an organisation of employees which is entitled to represent your interests in relation to the work ...(reads)... confer with the under-signed in relation to the proposed agreement.

PN972

And it goes on to set out a facultative mechanism to enable any such discussions to take place. Your Honour will see that in the remainder of the paragraph.

PN973

THE DEPUTY PRESIDENT: Just bear with me for a moment.

PN974

MR BURCHARDT: Yes, of course, your Honour.

PN975

THE DEPUTY PRESIDENT: Yes.

PN976

MR BURCHARDT: Well, that really follows the terms of section 4A and B pretty much to the letter.

PN977

THE DEPUTY PRESIDENT: I can't see any difference, except that it is I think broader.

PN978

MR BURCHARDT: It is slightly broader.

PN979

THE DEPUTY PRESIDENT: There is no reference to eligibility.

PN980

MR BURCHARDT: No, so in a sense they have gone further than they needed to.

PN981

THE DEPUTY PRESIDENT: Indeed.

PN982

MR BURCHARDT: If your Honour pleases, yes, that is right. In respect of subsection 170LK(5), that doesn't apply because no such request was made, nor does 6 and in terms of 7:

PN983

Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained to the persons employed at the time whose employment will be subject to the agreement.

PN984

Well, we have already dealt with that in a sense, because they met on 24 February. A copy of the agreement and this notice was given to them.

PN985

THE DEPUTY PRESIDENT: There is a statutory declaration on that issue.

PN986

MR BURCHARDT: There is, yes.

PN987

THE DEPUTY PRESIDENT: Where is that issue dealt with?

PN988

MR BURCHARDT: Paragraph 5.4 of both of the statutory declarations filed, your Honour.

PN989

THE DEPUTY PRESIDENT: Let us have a look, shall I?

PN990

MR BURCHARDT: By all means.

PN991

THE DEPUTY PRESIDENT: So LK(7) requires reasonable steps to ensure the terms of the agreement were explained prior to the agreement.

PN992

MR BURCHARDT: Yes.

PN993

THE DEPUTY PRESIDENT: So when did that reasonable explanation take place?

PN994

MR BURCHARDT: The reasonable explanation is contained in the provision of the agreement to them, together with the letter we were just noting which pointed out that the terms of this agreement were the same as the agreement that was already extant at the site, your Honour.

PN995

THE DEPUTY PRESIDENT: The stat dec doesn't talk about reasonable explanation. What it talks about was the employees were informed that they may ask me any questions.

PN996

MR BURCHARDT: Yes.

PN997

THE DEPUTY PRESIDENT: Let us have a look at that letter again.

PN998

MR BURCHARDT: Certainly, your Honour. Your Honour will note the second paragraph of the letter.

PN999

THE DEPUTY PRESIDENT: I do. I am just reading that. All right, well, let us have a look at the other statutory declaration and see what it says on the subject. It is in the same terms.

PN1000

MR BURCHARDT: It is, your Honour. If your Honour is in any way troubled that that may seem to be too shorthand, I can call Mr Lockyer, who was present, and instructs me he did discuss and inform the employees of the nature of the agreement on that day, but in my submission, what is in the statutory declarations is sufficient for these purposes because in circumstances where the employees were familiar with the terms of the agreement in any event, the amount of additional explanation is a bit like sort of talking about carrying coals to Newcastle, to use a simile of which at least I am very familiar.

PN1001

THE DEPUTY PRESIDENT: It may be the case, but to remove any doubt, why don't we call Mr Lockyer?

PN1002

MR BURCHARDT: I will call Mr Lockyer, if I may, your Honour.

<EDWARD ALEN LOCKYER, SWORN [10.34am]

<EXAMINATION-IN-CHIEF BY MR BURCHARDT

PN1003

MR BURCHARDT: Mr Lockyer, you have already given your name and address. Would you formally for the record, though, repeat your name, address and occupation?---Edward Alen Lockyer, company director, 2C Grosvenor Street, South Yarra.

PN1004

Thank you. Now, you have already deposed your relationship with MRE. I don't need to go into that again. I will cut straight to the chase and 24 February of this year. You have already deposed to the fact that you met the employees on that occasion?---Yes.

PN1005

What, if any, steps did you take to ensure that the terms of the agreement that you gave to the employees were explained to the persons employed at that time?---I went through the agreement with the employees over probably a two-hour period. I sat down and explained to them the agreement and that the agreement was exactly the same as the two other agreements that applied to the project.

PN1006

Were there any questions from the employees?---No. They were very familiar with the agreement because that is what they were currently employed under, the agreement currently at the refinery.

PN1007

When you say that, do you mean you were applying the terms of the extant agreement, even though it didn't cover them technically?---Yes, that is exactly right.

PN1008

I have nothing further.

PN1009

THE DEPUTY PRESIDENT: Thank you very much. While the witness is in the box, do you wish to deal with any other issues, any of the LT issues, for example? I simply ask that to save time, Mr Burchardt.

**** EDWARD ALEN LOCKYER XN MR BURCHARDT

PN1010

MR BURCHARDT: Yes. Well, your Honour, I will ask another question dealing with LT(9), your Honour. I think that is the other one that might be said to arise.

PN1011

Did you coerce any employee in any way to enter into this agreement?---No, I didn't.

PN1012

Were both the persons employed persons from an English-speaking background?---Yes, they were.

PN1013

And are they young persons? Under 21, for example?---No, no, middle 50s.

PN1014

I don't think, your Honour, there would be any other matters under section 170LT.

PN1015

THE DEPUTY PRESIDENT: Thank you very much. Thank you for giving evidence.

<THE WITNESS WITHDREW [10.37am]

PN1016

THE DEPUTY PRESIDENT: Have we dealt with 170LK?

PN1017

MR BURCHARDT: I think we are through 170LK, your Honour.

PN1018

THE DEPUTY PRESIDENT: I guess the final thing is LM.

PN1019

MR BURCHARDT: Yes, the application does state that it is made under this division. That is from the document that was filed, your Honour, and it was made well within the 21 days of the making of the agreement.

PN1020

THE DEPUTY PRESIDENT: Is there anything else you want to say about division 2 tests? I think we have covered them, haven't we?

PN1021

MR BURCHARDT: I think we have, if your Honour pleases.

PN1022

THE DEPUTY PRESIDENT: Just to check.

PN1023

MR BURCHARDT: No, I don't think there is anything else. I think we have been very thorough, if I may respectfully say so.

PN1024

THE DEPUTY PRESIDENT: Well, there is an Act we have to apply, like it or not.

PN1025

MR BURCHARDT: Indeed, your Honour. That I think would take us to the - - -

PN1026

THE DEPUTY PRESIDENT: Well, I think at this stage, if you recall, I said, didn't I, that the first step was that I was going to determine whether there was an application under division 2?

PN1027

MR BURCHARDT: I beg your Honour's pardon. I do apologise, your Honour. You are quite right and it would perhaps now be appropriate for you to rule on that aspect of the matter.

PN1028

THE DEPUTY PRESIDENT: Having regard to the submissions made, the statutory declarations filed and the sworn evidence provided today, I am satisfied that the requirements of division 2 of part VIB of the Act are met and that there is an application before the Commission under that division. Accordingly, I am required by section 43(2)(b) to dismiss the application by the CEPU for leave to intervene and I now do so.

PN1029

MR BURCHARDT: If your Honour pleases.

PN1030

THE DEPUTY PRESIDENT: Right, 170LT.

PN1031

MR BURCHARDT: Certainly, your Honour.

PN1032

THE DEPUTY PRESIDENT: The joys of 170LT.

PN1033

MR BURCHARDT: The great joys of section 170LT, your Honour.

PN1034

THE DEPUTY PRESIDENT: The no disadvantage test, is that the first?

PN1035

MR BURCHARDT: I think it is, your Honour. There is before you an application under XF.

PN1036

THE DEPUTY PRESIDENT: Let us find that. I have it.

PN1037

MR BURCHARDT: Your Honour will see that that is an application in the prescribed form for the determination of a designated award or awards for the purposes of the certified agreement. Your Honour will note that the position is that it is asserted that the National Metal and Engineering On-Site Construction Industry Award may be appropriate and it details the kind of work. It follows the relevant statutory and rule requirements in terms.

PN1038

THE DEPUTY PRESIDENT: Why isn't the National Electrical Award the relevant award, out of interest?

PN1039

MR BURCHARDT: This is the Metals Construction Award, your Honour.

PN1040

THE DEPUTY PRESIDENT: Yes.

PN1041

MR BURCHARDT: That is the award that, as it were, has been adopted for the whole of the project.

PN1042

THE DEPUTY PRESIDENT: Let us have a look at 170XF.

PN1043

MR BURCHARDT: Yes, certainly, your Honour.

PN1044

THE DEPUTY PRESIDENT: 170XF(3), I am required to determine one of two things, an award regulating terms and conditions of employment for employees engaged in the same kind of work, that is out of those persons in the agreement, or if there is no such award, etcetera, so the question is why is the Metal, Engineering and Construction Industry - I am sorry, why is the Metal Industry Award 1984 part 1, is it an award which covers employees engaged in the same kind of work as those of persons under the agreement - sorry, the National Metal and Engineering On-Site Construction Industry Award.

PN1045

MR BURCHARDT: The MECA Award, as it is generally referred to by way of acronym is an award which governs work of the sort that these employees are going to be doing. My instructing solicitor is in a position to give evidence about that if it is of any assistance. My instructing solicitor reminds me that - your Honour may recall that we certified an agreement in relation to mechanical work some time ago in respect of - well, you have done so many, you may not recall it, but - it wasn't done by your Honour. That is why your Honour doesn't recall it, but there is in existence a certified agreement with the AMWU and in that agreement which has as its parent award the MECA Award, there are in fact electrical classifications and those classifications are exactly the same as the classifications of work in this agreement.

PN1046

THE DEPUTY PRESIDENT: Was there a designation decision?

PN1047

MR BURCHARDT: Yes, there was, your Honour.

PN1048

THE DEPUTY PRESIDENT: And so you are saying that is precedent for - - -

PN1049

MR BURCHARDT: It is, your Honour, yes.

PN1050

THE DEPUTY PRESIDENT: Do you have a print number or is there any date on the decision? Is that MRE number 2, for example?

PN1051

MR BURCHARDT: We could undertake to forward that to your Honour, if that is convenient.

PN1052

THE DEPUTY PRESIDENT: That would be useful. Thank you.

PN1053

MR BURCHARDT: As I say, it is a fact, as I am instructed, that the work that these electrical employees are doing is work that is governed by the MECA Award and, of course, your Honour isn't required, as it were, to calibrate between one award and another. Your Honour is only required to be satisfied that there is - the Commission must determine an award regulating terms and conditions of employees engaged in the same kind of work.

PN1054

THE DEPUTY PRESIDENT: Is that right?

PN1055

MR BURCHARDT: Yes, because you will see in subsection 2 - - -

PN1056

THE DEPUTY PRESIDENT: I follow the test, but - - -

PN1057

MR BURCHARDT: You can determine one award or another award. It doesn't have to be any particular one. There has just got to be an award that touches on the work that the people actually do, governs the work that they are going to be doing.

PN1058

THE DEPUTY PRESIDENT: All right, what we will do on that - what you say may be quite correct, but I am not entirely sure that it is at the moment.

PN1059

MR BURCHARDT: Right.

PN1060

THE DEPUTY PRESIDENT: It may well be - what you say may well be true. Perhaps we can deal with it on this basis, that you provide me with some authority for that statement in letter following today's hearing and which deals with the issue, for example, if the Electrical Contracting is also an award, why I am able to designate this award as you propose or why I should.

PN1061

MR BURCHARDT: We may also accompany that with a further statutory declaration putting in evidence the agreement that is already in place.

PN1062

THE DEPUTY PRESIDENT: Indeed.

PN1063

MR BURCHARDT: And giving your Honour a proper factual foundation for the finding that the MECA Award is indeed an appropriate award, if that would be convenient.

PN1064

THE DEPUTY PRESIDENT: That would be convenient. Thank you, and I will examine those and subject to consideration of that, I will designate or otherwise.

PN1065

MR BURCHARDT: If your Honour pleases.

PN1066

THE DEPUTY PRESIDENT: Have further hearings or whatever, depending - - -

PN1067

MR BURCHARDT: Yes, depending on if your Honour is still troubled or whatever, yes, certainly.

PN1068

THE DEPUTY PRESIDENT: If it is satisfactory, I may designate it on the basis of the written material.

PN1069

MR BURCHARDT: Yes. Against the possibility that we have crossed that bridge - - -

PN1070

THE DEPUTY PRESIDENT: The designation point, so what is next?

PN1071

MR BURCHARDT: I think the next point, your Honour, is LT(6).

PN1072

THE DEPUTY PRESIDENT: Yes.

[10.47am]

PN1073

MR BURCHARDT: And your Honour will recall that there were - that is the question of the majority having made the agreement.

PN1074

THE DEPUTY PRESIDENT: Yes, a valid majority. Have we dealt with that already?

PN1075

MR BURCHARDT: We have already, your Honour, yes.

PN1076

THE DEPUTY PRESIDENT: There is nothing in LT(6) additional to 170LK, given the marvellous structure of this Act?

PN1077

MR BURCHARDT: No. Indeed, one wonders why it is there, your Honour, but we have dealt with it and we have also dealt with 7 in the course of our earlier discussion.

PN1078

THE DEPUTY PRESIDENT: Does the agreement include a dispute settlement procedure?

PN1079

MR BURCHARDT: It does, indeed, your Honour. The dispute settling procedure is clause 7 and schedule 1 of the agreement.

PN1080

THE DEPUTY PRESIDENT: At paragraph 5 it says:

PN1081

The parties shall jointly or individually refer the matter to the Industrial Relations Commission for assistance in resolving their dispute.

PN1082

What does that mean? In particular, do the parties intend the Commission to arbitrate the issue to finality or determine the issue to finality or simply to conciliate?

PN1083

MR BURCHARDT: I am sorry, your Honour?

PN1084

THE DEPUTY PRESIDENT: It is a question I commonly ask in relation to dispute settlement procedures of that sort.

PN1085

MR BURCHARDT: Your Honour, I am terribly sorry, you have lost me. I don't know what you are inquiring after. I was in the actual clause itself.

PN1086

THE DEPUTY PRESIDENT: I am sorry, attachment 1, dispute settlement procedure.

PN1087

MR BURCHARDT: Yes.

PN1088

THE DEPUTY PRESIDENT: As I understand it, that is the dispute settlement procedure.

PN1089

MR BURCHARDT: Yes, yes, yes.

PN1090

THE DEPUTY PRESIDENT: At paragraph 5 it says - - -

PN1091

MR BURCHARDT: Could I just have a moment, your Honour?

PN1092

THE DEPUTY PRESIDENT: Of course.

PN1093

MR BURCHARDT: What was contemplated was that all the relevant provisions of the Act would be available, whether it be private arbitration under 111AA or dispute prevention under part VI.

PN1094

THE DEPUTY PRESIDENT: Just let me get this straight. I can imagine a situation arising where the parties - a dispute arises under the dispute settlement procedure, the parties are not clear what powers the Commission does or does not have. That is a common issue that arises in relation to these matters. What I am asking you is does that provision enable the Commission to determine an issue referred to it under that clause to finality and be binding on the parties without prior agreement to determination or does it confine the Commission to conciliation functions only?

PN1095

MR BURCHARDT: No, it doesn't, your Honour.

PN1096

THE DEPUTY PRESIDENT: So it enables the parties to determine the issue to finality?

PN1097

MR BURCHARDT: Yes.

PN1098

THE DEPUTY PRESIDENT: Thank you. It is a question I commonly ask in relation to these clauses for the purposes of safety.

PN1099

MR BURCHARDT: I have come across that difficulty myself in the past, your Honour, yes.

PN1100

THE DEPUTY PRESIDENT: Yes. LT(9).

PN1101

MR BURCHARDT: Yes, well, I dealt with that in Mr Lockyer's evidence and LT(10), clause 1(d) of the agreement, your Honour, provides that the agreement shall - it has a cut-off date of 20 February 2005.

PN1102

THE DEPUTY PRESIDENT: Yes. LU(1). It is not applicable, is it?

PN1103

MR BURCHARDT: No, it isn't, your Honour.

PN1104

THE DEPUTY PRESIDENT: 2 is, isn't it?

PN1105

MR BURCHARDT: Well, it is applicable in the sense that it would have some work to do if any of those preconditions were extant, your Honour.

PN1106

THE DEPUTY PRESIDENT: But none of them are.

PN1107

MR BURCHARDT: None of them are, your Honour.

PN1108

THE DEPUTY PRESIDENT: 2(a), LU(2)(a), there are no such provisions in the agreement?

PN1109

MR BURCHARDT: No such provisions, your Honour.

PN1110

THE DEPUTY PRESIDENT: All right, 3.

PN1111

MR BURCHARDT: No, there is no suggestion that there is a contravention of that sort, your Honour.

PN1112

THE DEPUTY PRESIDENT: I understand that, but I would like you to tell me if any such conduct has occurred or has not occurred.

PN1113

MR BURCHARDT: No, no such conduct has occurred as I am instructed, your Honour.

PN1114

THE DEPUTY PRESIDENT: Thank you.

PN1115

MR BURCHARDT: Subsection 5, there is no discrimination against any employee because of reasons there specified.

PN1116

THE DEPUTY PRESIDENT: LU(8).

PN1117

MR BURCHARDT: No, it is tested that it is - those matters are dealt with in Mr Lockyer's - in the statutory declarations, your Honour. Those circumstances don't arise.

PN1118

THE DEPUTY PRESIDENT: Is there anything else?

PN1119

MR BURCHARDT: One hesitates to say it, but with the greatest regret, I don't think there is, your Honour.

PN1120

THE DEPUTY PRESIDENT: I am not prepared to certified prior to the designation of the award.

PN1121

MR BURCHARDT: No, if your Honour pleases.

PN1122

THE DEPUTY PRESIDENT: I think the Commission and the Saizeraya Full Bench decision indicated the first step is to designate the award. Correct me if I am wrong.

PN1123

MR BURCHARDT: I think that is right, your Honour.

PN1124

THE DEPUTY PRESIDENT: So what we will do is we will await the documentation in relation to the issue of designation. Following that, I can now indicate that if that is satisfactory, I will certify the agreement as sought by you on the basis of the submissions, the statutory declarations and the sworn evidence provided and so as soon as you get that information to me - - -

PN1125

MR BURCHARDT: We will attend to that as a matter of - it is not desirable that this hang around. We will get that done as a matter of urgency, your Honour.

PN1126

THE DEPUTY PRESIDENT: I will act as a matter of urgency as well.

PN1127

MR BURCHARDT: If your Honour pleases.

PN1128

THE DEPUTY PRESIDENT: I hope a further hearing isn't necessary.

PN1129

MR BURCHARDT: We will have to see how we go. Thank you, your Honour.

PN1130

THE DEPUTY PRESIDENT: Thank you very much. This matter stands adjourned.

ADJOURNED ACCORDINGLY [10.53am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MRE2 AFFIDAVIT OF J. DOUGLAS PN926
EDWARD ALEN LOCKYER, SWORN PN1003
EXAMINATION-IN-CHIEF BY MR BURCHARDT PN1003
WITNESS WITHDREW PN1016