C2002/5383, Transcript of Proceedings [2003] AIRCTrans 2590 (23 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 3155
~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2002/5383

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

COMALCO ALUMINIUM LIMITED and OTHERS

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

MELBOURNE

10.35 AM, TUESDAY, 10 JUNE 2003

Continued from 28.11.02 in Sydney

PN33

THE SENIOR DEPUTY PRESIDENT: Good morning. May I have the appearances again please, or are they the same?

PN34

MR R. ALLEN: No, they are different, your Honour. Mr Longland previously appeared for Robe and Hammersley. I now appear with MR D. FLETCHER, who is in Sydney.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Allen. Ms Gray, you continue your appearance?

PN36

MS GRAY: I do, thank you, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I listed the matter this morning to get some idea of what is happening in relation to the notification. I also have received an application to vary, which I have not listed, but I thought I would mention this morning, to vary the Bauxite Operations, Comalco Aluminium Weipa Award 2002, and I thought I might get some indication from the parties. I realise, Mr Allen, you may not have instructions in this, but as to what the matter involved, with a view to determining whether and when to list it.

PN38

MR ALLEN: Unfortunately, your Honour, I won't be able to help you out with that, I do not have instructions for Comalco. However, our firm did appear last time for Comalco, and I can certainly pass on that and ask that they get in touch with your chambers.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, Ms Gray, that solves that one. Perhaps if you want to say something about that matter before we get to the major issue, I would be grateful to hear it.

PN40

MS GRAY: Yes, thank you, your Honour. Your Honour, when we were last before you to seek a dispute finding, I did foreshadow that the union would be seeking as a priority in part settlement of that dispute finding, if made, that we regain our respondency to that award, and briefly outlined to your Honour at paragraph number 10 through to 12 the history that the old FEDFA had been demarked out. Our rule changes subsequent to the amalgamation with the FEDFA have now enabled us to represent industrially members employed by Weipa, and that our initial priority in part settlement of the dispute found by your Honour on the last occasion was to make an application to seek to become respondent again to the Weipa award.

PN41

So there has been some delay between advising the Commission of our intention and following through on it, but we have done so now, your Honour, and we will be seeking that we do become a respondent to that award pursuant to that application made, and also then we will seek to have safety net review increases applied to the award, as I understand it has dropped somewhat behind. So that is the union's intention, your Honour, and we would appreciate a listing of that matter at your Honour's convenience.

PN42

THE SENIOR DEPUTY PRESIDENT: You would like that as expeditiously as practicable, I presume, Ms Gray?

PN43

MS GRAY: Yes, your Honour. I am going to be overseas for a month in July, starting 4 July.

PN44

THE SENIOR DEPUTY PRESIDENT: That makes two of us, Ms Gray.

PN45

MS GRAY: That is very convenient, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Would you prefer to wait till I got back, or you got back?

PN47

MS GRAY: If your Honour has no time before then, we will certainly obviously wait till afterwards. But I would be available before that date, if your Honour is.

PN48

THE SENIOR DEPUTY PRESIDENT: Well, I am pretty pressed. I will have a look at the diary and see if anything can be fitted in, but it may have to wait till afterwards. It wouldn't have to wait till long after we got back.

PN49

MS GRAY: Well, I am back on 5 August, your Honour, so I will be available any date after that.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Gray. Well, I will look at that and let you know what the position is.

PN51

MS GRAY: Thank you, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: And I will let Comalco know as well.

PN53

MR ALLEN: Yes. I will pass that information on to Comalco.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Allen. Well, the rest of the matter then, leaving aside the Comalco issue.

PN55

MR ALLEN: If the Commission pleases, the rest of the matter has not progressed, and it is certainly in terms of any discussions relating to this jurisdiction, and it is really in relation to what has been happening at a state level, and our desire to try to clarify the position with respect to this log that we have asked for this matter to be brought on today. Perhaps if I could hand to your associate a bunch of documents, and I will tender them one by one. Ms Gray has the documents in Sydney.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN57

MR ALLEN: Just by way of background, if the Commission pleases, at paragraph 10, when this matter was on in November last year, Ms Gray indicated that the union would be seeking a dispute finding today, or on that day, in respect of the three companies. And without derogating from our position that we would, of course, be pursuing all of the claims in the log of claims over time, our initial priority will be to seek to have the union's respondency restored to the Weipa award.

PN58

So by way of background, we anticipated that Weipa would be the priority, that there indeed would be claims pursued in relation to Hammersley, and it is with respect to Hammersley that I am particularly concerned about. In the meantime the state branch of the CFMEU has been pursuing claims in the state jurisdiction. And if I could tender first a copy of a letter to Hammersley from the CFMEU, Mining and Energy Division, WA Branch, dated 13 February 2002, and ask that that be marked as an exhibit.

EXHIBIT #A1 LETTER TO HAMMERSLEY FROM CFMEU DATED 13/02/2002

PN59

MR ALLEN: Your Honour, that is a notification of the bargaining period under the new section 42 of the Western Australian Industrial Relations Act, and you will see that the notice is attached to that letter. In fact, it was the second such notice. There had been a prior notice which didn't comply with the section. But in that claim the CFMEU initiated a bargaining period for an agreement for all, as it says, all full-time, part-time, casual and fixed term employees of Hammersley Iron Pty Limited who are eligible for membership of the CFMEU.

PN60

And could I indicate that similar bargaining notices were also served by the other three traditional unions, and Hammersley, namely, the AWU, the AMWU and the CEPU, or their respective state counterparts. Hammersley responded to that bargaining period in a letter of 6 March 2003, and I tender that.

EXHIBIT #A2 LETTER FROM HAMMERSLEY DATED 06/03/2003

PN61

MR ALLEN: And, if the Commission pleases, that is a letter from Michael Bissett, who is the General Manager HR for Hammersley, to the union. And it can be seen - and this is the point I wish to draw to the Commission's attention - the second last paragraph, or perhaps the two middle paragraphs, where Mr Bissett says:

PN62

We are prepared to discuss the issues that may result in an industrial agreement. Whether any agreement can be reached will obviously depend on the nature of your claims. We will also wish to discuss with you the issue of jurisdictional coverage, as our company has also received demands regarding our work force from the federal AWU and the federal CFMEU.

PN63

Now, following that there have been several meetings between Hammersley and the four state unions, and during those discussions Hammersley has attempted to clarify the position of what is happening with respect to the federal claims both of the AWU and the CFMEU. The third document I wish to tender is just a response to the union's claims from Hammersley dated 7 May 2003. It is a document headed State Agreement Negotiations 2003, Hammersley Iron Position.

EXHIBIT #A3 LETTER FROM HAMMERSLEY RE STATE AGREEMENT NEGOTIATIONS 2003 DATED 07/05/2003

PN64

MR ALLEN: And perhaps if I could just go back a step. Following the initiation of a bargaining period, the CFMEU on behalf of the four unions sent a Hammersley a two page list of claims. The bargaining period only talked about an agreement. The claims in respect of the agreement were then served. I won't tender that, it is not necessary at this stage, if the Commission pleases, but that covered such matters as a 35 per cent increase in wage rates, shifts allowances, leave, in other words, the full gamut of industrial matters were the subject of that list of claims.

PN65

During the discussions with the state unions, as I indicated, Hammersley tried to clarify their position with respect to jurisdiction. And if I could just read from exhibit A3, under the heading, modern award or state industrial agreement, where Hammersley gave this response:

PN66

An overwhelming majority, 87 per cent of employees of the company eligible to be covered by an award are now covered by an Australian Workplace Agreement made under the Workplace Relations Act 1996 ...(reads)... accepted and logical strategy adopted by the unions and employers within and outside the resources sector.

PN67

And then under the heading, jurisdiction, federal or state, the company continues:

PN68

In light of the overwhelming coverage of the company's operations by federal AWAs, Hammersley believe it is now appropriate to make the award in the federal jurisdiction ...(reads)... same issue that may arise in relation to any federal industrial instrument, and accordingly the negotiations will be useful.

PN69

Now, if I just stop there. If the Commission pleases, the position of Hammersley is set out there. It is of the view that the appropriate course is now to proceed to make a federal award, however, it is has had some difficulty clarifying the position of the unions. Certainly the state AMWU and CEPU have not served federal claims, and their representatives have indeed said that they will not be pursuing claims in the federal area.

PN70

The CFMEU has said the same, but we have been unable to get clarification of that from the federal office of the CFMEU. And I can indicate that we have also approached the AWU in relation to their position and having discussions with the AWU to clarify their position. In terms of - just to finalise this issue, on 13 May we sent a further letter to Mr Maher of the CFMEU, and if I tender that letter.

EXHIBIT #A4 LETTER TO CFMEU DATED 13/05/2003

PN71

MR ALLEN: And if I could just read that letter to the Commission:

PN72

Last year your union served a log of claims on Hammersley Iron Pty Limited and other companies in the Rio Tinto Group. A dispute was recorded by the AIRC, and the parties referred into conference ...(reads)... in that letter Hammersley Iron was advised -

PN73

And this is just quoting from that letter of the AMWU:

PN74

First, let me assure you that it is the intention of the unions to achieve a state regulated agreement under the Western Australian Industrial Relations Act 1999, not the Federal Workplace Relations Act.

PN75

And we continue:

PN76

We would like your confirmation that this is the position of your federally registered union, and therefore that you will not be pursuing any form of federal claim against Hammersley Iron ...(reads)... subject to your response we intend seeking a report back hearing in that matter.

PN77

Now, if the Commission pleases, we have not received any response from Mr Maher to that letter. The state union through Mr Gary Wood has indicated that there would be a response and that the federal claims weren't being pursued. But we would like to clarify the matter in order that we can make a final decision as to the future of those state proceedings. If the Commission pleases.

PN78

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Allen. Ms Gray?

PN79

MS GRAY: Thank you, your Honour. Your Honour, as I understand it, the negotiations that have been occurring between Hammersley and the state counterpart union to the CFMEU, has involved the four unions, the AWU, the CFMEU, the CEPU and the Metal Workers. I also understand that there has been a federal dispute finding between the same three companies as the dispute finding made by your Honour on 28 November last year, but with one additional company, and that was Australian Magnesium Operations Pty Limited.

PN80

That was made by her Honour, Senior Deputy President Harrison, on 30 January this year. That was something which our union wasn't a party to obviously. So in respect to the parties who are negotiating on terms and conditions of employment for their respective memberships at Hammersley Iron, two of those have a federal dispute finding, and two do not. Mr Allen, in representing Hammersley and Robe in the matter before her Honour Senior Deputy President Harrison, on 30 January, said that, in transcript at paragraph number 36 and 37, that the companies would be pursuing federal regulation and that they intended to write to both the CEPU and the AMWU to draw their attention to the dispute findings which had been made with the AWU and the CFMEU.

PN81

Now, as I understand it from Mr Wood, who is both an officer of the state union and an officer of our federal union, those two trades unions, the Metal Workers and the Electricians, have not and are reluctant to seek a federal dispute finding. I also understand, or I am also advised that the companies have not sought to create a dispute finding with those two companies by the service of a log which, of course, they are quite at liberty to do. So the difficulty - - -

PN82

THE SENIOR DEPUTY PRESIDENT: But there are difficulties in doing that, aren't there, Ms Gray?

PN83

MS GRAY: There are, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: You can't bind the non members.

PN85

MS GRAY: Yes. Yes, I understand that, your Honour. But nonetheless we have, in effect, a single bargaining unit negotiating with the company, two unions of which have a federal dispute finding, and two which do not. Now, I think that the commonsense approach which is exhibited by Hammersley in exhibit A3, in the last paragraph read by Mr Allen, is a good one in terms of Hammersley's continuing to bargain, continuing to negotiate to see whether or not issues can be resolved on a without prejudice basis as to whether the results of those negotiations lies in the federal or the state jurisdiction.

PN86

Your Honour, the union, the federal CFMEU most certainly is genuine in its service of its log of claims and will be pursuing all of the claims in the log served on Hammersley and Robe, as well as Comalco over time. Nonetheless our state union is in a situation of being in, in effect, what used to be known as a single bargaining unit with other unions, one of which has a federal dispute finding, and two of which don't. Now, it would seem to us, your Honour, that before moving to an award making process, that the parties should exhaust the negotiation avenue, and that is being undertaken by Mr Wood as our representative, or the representative of the state union over in Western Australia, and the other three unions.

PN87

At least in those circumstances, your Honour, the negotiations can result in, if not agreement on all issues, at least a narrowing of the issues which may at a future stage require arbitration. We are unaware of whether or not Hammersley and Robe have sought to, in respect to its federal dispute finding with the AWU, what it is seeking in this matter today in terms of seeking clarification with the assistance of the Commission of the AWUs intention. But we would assume that the AWU is in much the same position as the CFMEU federally, that seeking a federal dispute finding, proceeding to try to resolve and have the claims in the log of claims met over time, over a period of time, has not dissuaded them from being actively involved through their state bodies in negotiations with Hammersley on the issues which have been pursued through the state bargaining period.

PN88

So, your Honour, we would just assure the Commission and the company that the CFMEU at a national level certainly intends to pursue all of the claims in the log served on Hammersley, Robe and Comalco over time, and in the meantime our state counterpart is in negotiations certainly with a view of the CEPU and the Metal Workers, a fixed view that it should be regulated by a state agreement, but in a similar situation to the AWU, having a federal dispute finding, but nonetheless wanting an agreement that binds all of those four unions.

PN89

Of course, at the end of the day, your Honour, it may be that agreement is reached on formalising any arrangement met through that body through a division 3 agreement with the CEPU and the Metalworkers seeking their own federal dispute finding. I don't think that we can really elaborate much further because, as I understand it, the parties are still negotiating on the substance of the claim, although reserving their rights and their positions in terms of the form of regulation and the jurisdiction in which that agreement should be made.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Can I just make sure I fully comprehend it. I don't think anybody is challenging the genuineness of the CFMEUs claims. Am I to understand that the real position taken is this. Because of the negotiations at state level the CFMEU and maybe the AWU have resolved not to at this stage press their federal claims pending the outcome of those negotiations?

PN91

MS GRAY: Yes, I think that is a very succinct way of saying what I did in the very rambling method, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: No. Well, you are entitled to put it the way you like, but I just want to crystallise as clearly as I can where we sit, because obviously this is an important issue and it bears on a lot of things, including 111AAA of the Act, and a number of other issues, so it is an important issue.

PN93

MS GRAY: Yes, your Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: Mr Allen, did you want to say anything else?

PN95

MR ALLEN: If the Commission pleases, I think we have probably received as much clarity as we are going to get. We are in a position where the state negotiations have reached a point where we believe it is necessary to make a decision on jurisdiction, and from what Ms Gray has said today, I will take that back and discuss it with Hammersley. I should just confirm there is no discussions in relation to Robe River, all of whose employees are covered by an LK agreement in any event, so there have been no state discussions with Robe.

PN96

THE SENIOR DEPUTY PRESIDENT: Is it your intention ultimately - I appreciate you are only appearing for Hammersley - but to seek a safety net award in relation to Robe?

PN97

MR ALLEN: Well, Robe's position, Robe is 52 per cent owned by Rio Tinto, and the two companies are certainly looking at amalgamating their operations, and that process is under way. And the intention of the companies has been to look at a safety net award which would cover both companies. Now, it seems that if the state unions are proceeding on the basis that they are seeing whether there is an agreement, we are proceeding on the basis of trying to clarify jurisdiction and with a preference for a federal award. It seems as though it is going to be necessary for the companies to make a decision about that matter and convey it to the unions, in the light of what we have heard today.

PN98

THE SENIOR DEPUTY PRESIDENT: Well, thank you, Mr Allen. Well, I don't think there is anything else we can do, Ms Gray. I indicate, as I did earlier, that I too will be overseas during the month of July. I think I am returning on about 5 August too. I will examine the question of whether the other matter in relation to whether it can be listed before I leave. If it can't, it will be dealt with - and we would only need about half a day to deal with it, wouldn't we?

PN99

MS GRAY: I would think so, your Honour. I will correspond with Comalco and seek their position on the application, and the other unions, of course. If it is going to be a consent matter it should be very short, your Honour, but if there is any difficulties I would certainly want to know that in advance, as would your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And as to the other matter, well, we have clarified the matter as far as we can take it today. I think as Mr Allen says, it is up to his client if they want to activate the matter any further. And, of course, the union is also at liberty to make any application it sees fit. We will adjourn on that basis.

ADJOURNED INDEFINITELY [11.03am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER TO HAMMERSLEY FROM CFMEU DATED 13/02/2002 PN59
EXHIBIT #A2 LETTER FROM HAMMERSLEY DATED 06/03/2003 PN61
EXHIBIT #A3 LETTER FROM HAMMERSLEY RE STATE AGREEMENT NEGOTIATIONS 2003 DATED 07/05/2003 PN64
EXHIBIT #A4 LETTER TO CFMEU DATED 13/05/2003 PN71