AG2003/3152, Transcript of Proceedings [2003] AIRCTrans 1953 (23 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2003/3152

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Beltana Highwall Mining Pty Ltd to vary the
Beltana No. 1 Salaried Staff Certified Agreement
2001 re interpretation of clauses 2.6 and 4.2
of the agreement

SYDNEY

2.22 PM, THURSDAY, 8 MAY 2003

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: Can I take appearances please?

PN2

MR H. DIXON: May it please your Honour, I appear for the applicant in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dixon. Can I apologise for the delay in starting. We were trying to ascertain the whereabouts of the respondent union in this matter and we've been thus far unsuccessful. I thought we should probably commence the proceedings, but bearing in mind that that does create not insignificant difficulty, at least potentially.

PN4

MR DIXON: May it please your Honour, our client appreciates your Honour's urgent attention to the matter. Your Honour, might I just very briefly indicate to your Honour what the circumstances are which, in our respectful submission, justifies some urgency.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Perhaps I should indicate for the record that I have listed this urgently at the request of the applicant but for directions only at this stage.

PN6

MR DIXON: Yes, I understand that. Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Dixon.

PN8

MR DIXON: Your Honour, Beltana has made two certified agreements, one was made with the ACSA for staff employees which is still within term. It subsequently made a certified agreement which was certified by the Commission with the CFMEU in relation to production and engineering employees. It's the classic coalmining division. The P&E Certified Agreement has expired and the CFMEU has served notices for a bargaining period and there has been, over a period of time, notices of industrial action in support of a new certified agreement by members of the CFMEU and that industrial action is ongoing.

PN9

There is industrial action, the subject of a notice which is due to commence at midnight tomorrow evening. The difficulty which has arisen is that there is now a suggestion and it appears advice from the CFMEU to some of the staff employees who my client says are bound by the Staff Certified Agreement that unless they are members of ACSA or APESMA they are not bound by the Staff Certified Agreement and therefore that they are entitled to join in the industrial action on the part of the P&E employees and therefore that their conduct is protected.

PN10

Now, your Honour, we have no reason to believe that APESMA ACSA will take issue with our application because on my instructions and on the evidence that has been filed it was always the intention of the parties to the certified agreement that salaried staff employees would be covered by the certified agreement. There appears, though, to be a contrary view which is put forward by way of legal advice which is also attached to the papers so that the contradictor in these proceedings in a sense, if they emerge, would be the CFMEU. May I briefly indicate to your Honour what attempts we've made to advise the other parties of this afternoon's proceedings?

PN11

My instructing solicitor has made contact with an official of APESMA in the Hunter Valley and did advise Mr Schether, S-c-h-e-t-h-e-r, I believe is how one spells his name, that the matter was listed today, but obviously he's in the Hunter Valley and we haven't been able to reach him this afternoon despite efforts to do so. Your Honour, the CFMEU, although it's not a party to the proceedings and although we're not obliged to give it notice of the proceedings, we have done so and may I hand to your Honour a copy of the letter from Freehills to the proper officer of the mining and energy division of that union of 7 May enclosing a copy of the application and a letter of 8 May advising them of this afternoon's directions hearing.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, I'll mark each of them as an exhibit. The letter dated 7 May will be exhibit D1 and the letter dated 8 May will be exhibit D2.

EXHIBIT #D1 LETTER DATED 07/05/2003

EXHIBIT #D2 LETTER DATED 08/05/2003

PN13

MR DIXON: Thank you, your Honour. Your Honour, it appears that the hearing of the matter, if it could occur in a reasonably expeditious manner and a determination of the arguments, are likely to contribute significantly to a resolution of this question of whether staff employees who are the subject of staff contracts can legitimately engage in the industrial action that presently is under way. May we respectfully suggest that it is unlikely that there would be significant evidence in the matter. It is primarily a question of whether the jurisdictional fact, namely sufficient ambiguity or uncertainty, can be established and, if so, whether the Commission would then grant the relief which is being sought.

PN14

In the absence of APESMA, in my respectful submission, your Honour, it won't suffer any prejudice if your Honour were to set the matter down as soon as is convenient to your Honour and if your Honour is prepared to take counsel's commitments into account, that would assist and then we would give notice to APESMA and to the CFMEU. It hasn't shown any interest yet and the matter could then proceed to a hearing. I don't know what your Honour's commitments are, but the sooner the better would probably be very helpful, but I say that without knowing your Honour's other commitments.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you're saying. I'm not sure whether you've got instructions on this, Mr Dixon, I would suspect not, but we received this morning a section 99 notification and a 127 application from the CFMEU in respect of this mine, against the mine. Those matters were allocated to Commissioner Roberts and at that stage I was unaware of this application because I've been interstate and they're listed for 10 o'clock tomorrow morning. I'm just not fully sure of the inter-relationship, if any, between this, this in a legal sense, technical sense, obviously there's no relationship, but in terms of the wider dispute, the industrial action that the CFMEU has taken and what it alleges has happened as a result of that action to its members, whether or not that has any bearing or could have potentially any bearing on the resolution of this matter. Is that something you - - -

PN16

MR DIXON: I know nothing about that. Would your Honour just bear with me for a moment please?

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR DIXON: Your Honour, I haven't seen the papers but I am instructed by my instructing solicitor that he is aware of the proceedings and it is his understanding that the complaint in the 127 matter goes to alleged conduct on the part of the company when the P&E employees have returned from industrial action.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, that's right.

PN20

MR DIXON: If that is correct, then it doesn't appear to me at first blush to have any real relationship with the issue that's presently before your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: I raise it because if it emerges that it does, it may be something that's got to be reviewed because clearly we don't want two members of the Commission dealing with an inter-related dispute. It makes absolutely no sense at all and it's not fair to the parties either.

PN22

MR DIXON: Yes, I understand that.

PN23

THE SENIOR DEPUTY PRESIDENT: So I just put that on the record and perhaps see what emerges tomorrow. All right, then, I think what you've said is reasonable. You've asked me to take into account your convenience and my convenience and since we're the only people here I think I am entitled to do that. Do you have any suggested dates?

PN24

MR DIXON: Well, it depends on how soon your Honour can hear it. We were thinking of early next week.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I can deal with it next week certainly.

PN26

MR DIXON: Is your Honour able to deal with it on Monday or Tuesday?

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, I can certainly deal with it on Tuesday.

PN28

MR DIXON: Well, we would ask for the matter to be set down for a hearing on Tuesday, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, if we send that listing out this afternoon for Tuesday and we notify both the employer organisations, I think that gives them sufficient time, because it's now Thursday afternoon and maybe make it a little later because they do come from the Hunter Valley so there can be no question of not being able to get here.

PN30

MR DIXON: Yes, one of our reservations is that we don't know whether the staff employees will engage in the industrial action tomorrow evening. It might be that if your Honour were to make some recommendation or comment of the undesirability of such conduct while the matter is pending that that would obviate the necessity for that.

PN31

THE SENIOR DEPUTY PRESIDENT: Well I've got a difficulty with that because I'm not clear whether or not they're taking protected or unprotected action until I've decided this case.

PN32

MR DIXON: I understand that, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes and obviously that's a material consideration in making a recommendation in relation to industrial action. Notwithstanding the common sense thrust of what you say, bearing in mind the provisions of the Act, I think it's probably sufficient to list the matter, if Tuesday is convenient to you.

PN34

MR DIXON: Thank you, your Honour. We will also endeavour to advise everyone as soon as possible of that position.

PN35

THE SENIOR DEPUTY PRESIDENT: If you could do that also I would be grateful, yes. So would 10.30 be convenient?

PN36

MR DIXON: Thank you, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: So I will list the matter, the 170MD(6) variation of certified agreement to remove the ambiguity, for hearing at 10.30 on 13 May. If there is to be evidence along the lines of the affidavit that has been filed, perhaps that should be served on the parties to enable them to be in a position to cross-examine.

PN38

MR DIXON: Yes, the affidavit material has been served. The exhibit has not been served, your Honour, and I wonder if your Honour would accept the exhibit - the attachments to the affidavit are not attachments, they're exhibited and we can hand up by way of a volume the exhibits referred to in the affidavit of Mr Romcke, R-o-m-c-k-e, that was filed with the application, thank you and those will be served promptly.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Did you indicate or can I ask you to serve them on the other two parties prior to Tuesday morning, in fact I'd say as soon as practicable.

PN40

MR DIXON: We will attempt to do so this afternoon, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, for obvious reasons, yes. Very well, then, is there anything further?

PN42

MR DIXON: No, thank you, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned until 10.30 next Tuesday.

ADJOURNED UNTIL TUESDAY, 13 MAY 2003 [2.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 LETTER DATED 07/05/2003 PN13
EXHIBIT #D2 LETTER DATED 08/05/2003 PN13