BP2003/5159, Transcript of Proceedings [2003] AIRCTrans 3163 (23 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 3653

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

BP2003/5159

APPLICATION FOR NOTICE OF
INITIATION OF BARGAINING PERIOD

Application under section 170MI of the Act
by The Australian Workers' Union re
Pioneer Construction Materials Pty Ltd -
notice of initiation of bargaining period

MELBOURNE

10.35 AM, THURSDAY, 10 JULY 2003

Continued from 30.6.03

PN143

THE COMMISSIONER: Yes, Mr Winter.

PN144

MR WINTER: Thank you, Commissioner. Since we were last before and you issued your decision in relation to this matter, the parties - or from an AWU point of view, we have visited the quarries and met with the consultative committee in relation to it and the process - I believe the company has complied with that decision, although there was some, I suppose, niggling issues that were brought to a head but basically, both parties have complied with that decision.

PN145

There is two outstanding issues that we still seek the assistance of the Commission to deal with and I understand one of those issues the company may have resolved the process and that is the issue of the vote. You may recall at the previous hearing there was an issue on how the votes were counted because each of the quarries - and there was a number of quarries, each of the quarries they had listed beside who voted yes and who voted no, basically. They didn't put names in place but clearly, I don't believe it is a fair way about going to a vote. I understand that the company has another process in line and I would like to hear that formally what that process will be, to make sure that any vote in relation to the LK is not only fair but seen as fair and the members and the employees concerned can be guaranteed that there will be no way anyone will know how individuals voted.

PN146

The second point I wish to seek the assistance of the Commission over was basically only mentioned at the last hearing but it is a significant issue of fairness in relation to the future of employees who are now employed by Pioneer. What has occurred over the last few months, there is a company called Excel, which operated a number of quarries within Victoria and other states but in particular Victoria for a number of years. That business has now been sold.

PN147

Now what occurred was that CSR bought a number of quarries of Excel's outright and Pioneer, as I understand it, actually purchased the shares of Excel and thus took over ownership of a quarry here at Diggers Rest. Now the Excel employees were covered under - and if I could hand up an exhibit, Commissioner - the Excel quarries employees were covered under this 170LJ agreement between the AWU and Excel Quarries Pty Ltd. Now that agreement had a nominal expiry date of 30 June 2003, so the agreement has now passed its expiry date.

PN148

Now the company has, as I mentioned, purchased Excel's shares and operations and thus the proposal is to cover those Diggers Rest employees, those ex-Excel employees, under the new Pioneer LK agreement. Now there is a substantial problem with that and if I could hand up another exhibit, it may make it easier for the parties to go through and if I could just bring the Commission's attention to the last page of that document. The first page and the second page relates to the vote of the LK; the third page is a outline of rates of pay of the current Diggers Rest EBA or the current Excel EBA and the future Pioneer LK and that has been put in place as an explanation to employees.

PN149

Now if you look at page three of that document, the Diggers Rest employees or the old Excel employees, the provisions of their agreement contained a higher hourly rate. For instance, the hourly rate, even under that now expired agreement, for Diggers Rest employees, was $18.61 per hour. That included built-in penalties, if you like, because they had the higher hourly rate within their EBA and traditional penalties didn't come in until after they had worked the 48 hours but their base rate was significantly higher. Under the new - and bear in mind that it is the new proposed LK agreement, the hourly rate of pay ranges from $15.94 per hour to $16.34 and then to $17.18, significantly the hourly rate of the new proposed LK is worse, so - - -

PN150

THE COMMISSIONER: Has this been explained to the employees by the company?

PN151

MR WINTER: I have explained it to the employees at Diggers Rest.

PN152

THE COMMISSIONER: No, that wasn't the question I asked you.

PN153

MR WINTER: To my knowledge, no.

PN154

THE COMMISSIONER: But this is a proposal from - - -

PN155

MR WINTER: This is - - -

PN156

THE COMMISSIONER: Just a moment please, Mr Winter, I was saying something. This is a proposal by the company for an LK agreement that you are talking about?

PN157

MR WINTER: Yes.

PN158

THE COMMISSIONER: So one of the things that you are saying to me is that to your knowledge, no explanation of the effect of the making of this agreement in this particular respect, as to hourly rates of pay, has been provided by the company to the employees concerned.

PN159

MR WINTER: I am not saying that ..... and I will be fair to the company, that sheet has been given to the employees and I have got that sheet from the employees, so the employees know that they are worse off in relation to the LK. Now where the employees are worse off, and we acknowledge that where overtime is worked etcetera under the Pioneer agreement, their overtime, time and a half and double time kicks in earlier, etcetera, and depending on the amount of overtime worked, they may not be significantly worse off but if it is, for instance, based on the 38 hour week, then they are significantly worse off by - bear in mind 18.61 where the employees - for instance the majority would be employed at level two, would be on 16.34 per hour. Now where they are really going to be losers is that the employers have worked for the company for a number of years, the old Excel, and they weren't paid out by Excel; the continuity was passed over to Pioneer; Pioneer picked up the continuity. So for instance there is questions in regard to annual leave. They have accrued the annual leave at Excel. Now under Excel, they would have been paid out 18.61 per hour for annual leave purposes. For long service leave they will be disadvantaged and other - - -

PN160

THE COMMISSIONER: Has this been the subject of any explanation?

PN161

MR WINTER: Explanation by the company? No. They are also disadvantaged in other areas. For instance, redundancy. We have a redundancy provision within the Excel agreement that is significantly better than the Pioneer LK agreement.

PN162

THE COMMISSIONER: Has this been the subject of explanation?

PN163

MR WINTER: No. Now it is - I know the issue in regard to transmission of business and the issue in regard to the provision of comparing these agreements to the award but if you have worked at Diggers Rest Excel quarry for the last ten years, they are now expecting - if the LK gets up, to go to significantly inferior rates of pay and conditions. In relation to one other matter, they are also going to be worse off in relation to superannuation because of the issue of hourly rate also. So we are looking for a process of dealing with it. We don't believe that the Excel employees, or previous Excel employees, should be disadvantaged and bear in mind, Commissioner, the Excel agreement - the 18.61 which is in the current or the expired Excel agreement, we would have done another agreement with Excel and probably got an extra three or four per cent there anyway and they would have been up even higher, so clearly it is not a matter of maintaining a level playing field between Excel and Pioneer. Clearly, we believe, that the Excel employees, should they go under the LK, will be significantly worse off, if the Commission pleases, and we just seek some sort of guidance on how we could deal with that.

PN164

THE COMMISSIONER: So these are the two concerns that are before me today.

PN165

MR WINTER: Yes. I believe we can fix the first one in relation to the vote and I believe that the company has come up with some proposals there that we would be satisfied with and that is not going to be an issue, so the LK, the vote would go ahead. But the real concern we have got is to fix this problem for the Excel employees who are really going to be disadvantaged.

PN166

THE COMMISSIONER: Although you may not have said it explicitly in the exchanges between you and I, it seems to me that an issue is the explanation of the terms of the agreement.

PN167

MR WINTER: That is fine but say, for instance, the Excel people are part of the vote, then the Pioneer people would swamp them with votes. It could get to a situation where there is only five Excel employees. There will be 80 Pioneer employees. If the Pioneer employees are going to be better off under the new LK, they will vote in favour of it. The Excel people, their five votes will be meaningless. They will be just swamped by the process. And it is an issue of fairness.

PN168

THE COMMISSIONER: Mr Smale.

PN169

MR SMALE: Thank you, sir. Could I deal with the voting matter first, just get that out of the way.

PN170

THE COMMISSIONER: Yes.

PN171

MR SMALE: There has been - since the comments were made at the least hearing, there has been discussion in the EBA consultative committee about this matter and what has been resolved is that the vote will be done the following way, that each worker who elects to vote will hand a sealed envelope at the site to his or her EBA consultative committee rep. Two of those reps, who are being collection officers, will visit around the sites on the day in question and collect all of the piles of envelopes on each site. They will then shuffle all of the enveloped into a random order. The envelopes will be taken to head office of Pioneer at Doncaster and they will be opened and counted in the presence of the two collection officers and the Pioneer representative on the EBA committee, Mr Palander. I presume Mr Boris Hlede, who is with us today as well, will be present, and I explained that to Mr Winter prior to you coming on the bench and I understood that he said he finds that unobjectionable. So far as the - does that satisfy the Commission's - - -

PN172

THE COMMISSIONER: Well I am just listening for the time being.

PN173

MR SMALE: Yes, all right. Well I have nothing further to add about that unless you have got some matter you want to ask me about.

PN174

THE COMMISSIONER: No, it is clear to me how you propose to conduct the ballot.

PN175

MR SMALE: Thank you, sir. Now so far as the people at - the employees at Diggers Rest are concerned and the comments that have been made about that, first of all I should say, sir, that this sheet, as you have been handed it up as page three of the last exhibit tendered, that was in fact prepared by one of the members of the - one of the employee members of the consultative committee and has been distributed widely, including at Diggers Rest. Now the consultative committee itself includes a representative of the Diggers Rest workers, elected by the Diggers Rest workers. All of the issues - I am instructed that all of the issues raised by Mr Winter have been discussed in the consultative committee, that is the effect on long service leave, superannuation, annual leave accrued etcetera, and they have all been discussed openly and it is the company's understanding that they have been discussed by the representatives at the site.

PN176

THE COMMISSIONER: At which site?

PN177

MR SMALE: At the Diggers Rest site.

PN178

THE COMMISSIONER: Yes.

PN179

THE COMMISSIONER: Isn't what is being raised the issue of the prejudicial effect of the proposed agreement - or the alleged prejudicial effect of the proposed agreement in relation to the Diggers Rest employees - - -

PN180

MR SMALE: Well - - -

PN181

THE COMMISSIONER: - - - and the fact that because of the composition of the workforce, that there is an issue of equity as between the current conditions of employment there at Diggers Rest and the fact that a number of people who won't be disadvantaged by that but would be disadvantaged by the agreement may vote in favour of the agreement and may do so without a full understanding of the alleged prejudicial effect on the employees at Diggers Rest?

PN182

MR SMALE: Well, sir, that - if - I haven't got instructions about that point but I understand that all of these issues have been canvassed openly in the consultative committee and the - - -

PN183

THE COMMISSIONER: I am thinking moreso of the people who are not members of the consultative committee. If you would just sort of look down this piece of paper, it might be superficially misleading if you said oh well, how does Diggers Rest outcome compare with everybody else's and you looked simply at the numbers in the column but I don't think, with all due respect to the author of the document, it is transparent. There are no point to point comparisons, are there?

PN184

MR SMALE: Yes, sir.

PN185

THE COMMISSIONER: Well not that are readily discernible from the document.

PN186

MR SMALE: Well as I understand it the - well the comparisons are the three figures of $1072 compared with, depending on whether you are on level two, three or five, the comparison is 988.19, 1029.99 and 1060.10.

PN187

THE COMMISSIONER: Yes, I understand that, but it is not so much the sum of all of the calculations or each of them that I am drawing your attention to; it is the factors. I don't follow what the nature of the comparison is.

PN188

MR SMALE: The comparison - - -

PN189

THE COMMISSIONER: 48 hours at 18.61 per hour with - - -

PN190

MR SMALE: That is the EBA at the old - or the EBA currently in force. Sorry, the Excel EBA provided for a flat rate of $18.61 for the first 48 hours and I should say that that 18.61, that is the figure - Mr Winter said there would be an increase on that figure; that is the figure in fact applicable under that EBA from 1 July this year. It includes a three per cent increase, operative from 1 July. The difference is that at Pioneer - that the 48 hour week at a flat rate of $18.61 per hour, after that, all overtime is worked at the rate of 1.6 times ordinary hours, ordinary pay, whereas at Pioneer there is a 40 hour week and then after 40 hours, the first 10 hours are worked at time and a half and after that 10 hours, at double time and so you have a calculation at Diggers Rest of 48 hours at $18.61 and then 2.25 hours at the flat overtime rate, whereas at Pioneer - - -

PN191

THE COMMISSIONER: That is for 50.25 hours of work, is it?

PN192

MR SMALE: Yes.

PN193

THE COMMISSIONER: 50.25?

PN194

MR SMALE: That figure was selected - - -

PN195

THE COMMISSIONER: Mr Smale, if you and your instructors are trying to make sense of this now to explain it to me and they are the authors of the document, I am trying to look at it from the perspective of a person to whom it is given and who is going to have to decipher this document as a part of the information to be provided in accordance with the Act, in particular section 170LK(7) for the explanation. That is a mandatory provision of the Act. If it is not satisfied, the agreement can't be certified - well it is not even before the Commission.

PN196

MR SMALE: Yes.

PN197

THE COMMISSIONER: Now I am trying to read this from the point of view of an employee receiving it and I go to the first calculation and I cannot understand what the comparative basis of calculation one and two is.

PN198

MR SMALE: Yes.

PN199

THE COMMISSIONER: And I am not unfamiliar with the terms and conditions prescribed by agreements and terms and conditions of employment generally. I am a member of an expert tribunal and it is not apparent to me what the nature of the comparison is.

PN200

MR SMALE: Yes.

PN201

THE COMMISSIONER: How can there be a comparison between 50.25 hours and 52.5 hours?

PN202

MR SMALE: I understand that. I have grasped finally the point you are alluding to.

PN203

THE COMMISSIONER: Well I think the fact that it does challenge ones analysis to actually then realise why you can't necessarily quickly make sense of it is because there is an issue as to the analogy.

PN204

MR SMALE: Yes.

PN205

THE COMMISSIONER: Anyway, this is not something that is incapable of remedy.

PN206

MR SMALE: No.

PN207

THE COMMISSIONER: But the point that I make is the very first time I tried to look at what the explanation being given to the employees actually was, I did have some difficulty with it and I think you have conceded you did too, and your instructors, and we then identified a numerical aspect of the comparison which is questionable. It goes to, I think, this, that what - at the very least, if the Pioneer employees, who outnumber the Diggers Rest employees, just for want of a classification of the two groups, are going to vote on an agreement that potentially, and I don't know whether it is right or wrong because I don't think the information actually can satisfy me one way or the other now, will prejudice the Diggers Rest employees, that a relevant consideration, I would have thought, in the particular circumstances of this matter, is that those Pioneer employees ought to know exactly what they are voting for.

PN208

MR SMALE: Yes.

PN209

THE COMMISSIONER: If they are told after they voted and the agreement is certified that it has led to, for example, and I am not suggesting there is, but hypothetically, a significant reduction in the income of their colleagues at Diggers Rest, they might regret that and they may not have been prepared to endorse the terms of the agreement if that was the effect of it and that is undesirable. At the very least, they should be informed - the people at Diggers Rest should know but also the other people should know, because the proposition is for one agreement to cover everybody. Isn't that right?

PN210

MR SMALE: That is so, sir.

PN211

THE COMMISSIONER: And the other proposition is this ballot is going to be conducted site by site. There is going to be no meeting of all of the employees at which these issues are going to be discussed, is that right?

PN212

MR SMALE: None is planned at the moment.

PN213

THE COMMISSIONER: That is right. So the only information that the people at sites other than Diggers Rest are going to have about the effect of their vote on their colleagues at Diggers Rest and vice versa is whatever documents are distributed with the agreement. That is right, isn't it?

PN214

MR SMALE: Yes, sir.

PN215

THE COMMISSIONER: I think those documents have to be informative, readily understandable and they have to be - they have to have some rigour in terms of any analysis, so if you get a document like this which on the surface presents itself as a comparison, if it is a comparison, then it has to be a point to point, in my view, because I don't think we can expect people working in quarries, you know, driving equipment and whatever they are doing, blasting or whatever operations are involved in these particular quarries, to necessarily bring a technical understanding to the terms of the agreements and their effects without some appropriate information about the terms of the agreement and the way in which the terms will effect the conditions of employment of everybody who is going to be covered by the agreement.

PN216

So I would say to you that I think that document is misleading and it needs to be redrafted, or something better needs to be produced and with all due respect, I think it means that there has to be 14 days from when the reasonable explanation has been presented, because I think that is the effect of section 170LK. Strictly speaking, possibly not. 170LK(7) simply requires that reasonable steps be taken to ensure that the terms of the agreement are explained to all the persons employed at the time whose employment will be subject to the agreement. That is a different provision to access to the agreement. What is the date of the proposed ballot?

PN217

MR SMALE: Next Friday, the 18th, sir.

PN218

THE COMMISSIONER: Yes. Well I think, you know, there may be something for you to consider as to, given there is some dissatisfaction being expressed, it would be undesirable for the employer to face a situation that if this agreement were to be approved by a valid majority, that the union were to submit that 170LK(7) wasn't met because the explanation was deficient, because if that was the case, then the agreement would never have been approved. Do you agree with that?

PN219

MR SMALE: Unfortunately I left my copy of the Act back at my chambers but in general - - -

PN220

THE COMMISSIONER: There is Full Bench authority for the proposition that these decisions - I am sorry, these provisions and these requirements of section 170LK are mandatory.

PN221

MR SMALE: Yes.

PN222

THE COMMISSIONER: They are jurisdictional in nature. There is no jurisdiction to consider an application for certification unless they are met.

PN223

That is in the Grocon case that was recently sought to be reviewed by the Minister. The review was rejected by a Full Bench and in Grocon, and in other decisions, the Commission has found that the provisions of section 170LK are all mandatory provisions of the Act.

[11.02am]

PN224

MR SMALE: I do not, at this stage anyway, seek to contest that in any way or differ from what you say, in that respect, however I do - I do submit that it is not necessary for that to take place 14 days before the ballot.

PN225

THE COMMISSIONER: I think that is strictly correct.

PN226

MR SMALE: So long as the intent, or the explanation, can be regarded in all the circumstances as reasonable.

PN227

THE COMMISSIONER: Well, the steps yes, the steps are reasonable.

PN228

MR SMALE: Yes.

PN229

THE COMMISSIONER: Well, what I am saying is that I think there is a little bit of a cloud over it when I read this comparison.

PN230

MR SMALE: Yes. What I am - - -

PN231

THE COMMISSIONER: For the reasons which I think you have conceded.

PN232

MR SMALE: Yes. What I am saying, sir, is that it may, in my submission, it would be entirely reasonable for there to be another document within the next day or so and that still to comply with the - that if the document itself complies that it is an explanation that the time involved - that the time line would still be reasonable.

PN233

THE COMMISSIONER: I think that is up to you.

PN234

MR SMALE: Yes.

PN235

THE COMMISSIONER: It is not for me to make a decision about that now. I think the appropriate role for the Commission is simply to draw your attention to it, given that this dispute has been brought before me and I am just making the observation that the information that I have been provided with there, concerning rates of pay at least, I think is questionable and I doubt that, you know, an employee being required to read that and make sense of it would have - sort of been subject to reasonable steps, an explanation having been taken.

PN236

The other aspect of the matter is that as I understand it from Mr Winters' submissions there are matters affecting the Diggers Rest employees which will be prejudicial to them which have not been explained and they are the issues concerning the way - the way in which leave entitlement is accrued under the previous agreement will be paid for in the future, the question of the redundancy benefits prescribed by the existing Diggers Rest agreement and the redundancy benefits which are apparently included in the proposed section 170LK agreement, is that right?

PN237

MR SMALE: I understand all those matters have been discussed at the Consultative Committee.

PN238

THE COMMISSIONER: Yes, but that is not the Consultative Committee that is going to produce the valid majority and it is not the Consultative Committee to which the Act is directed. The Act is directed towards all of the employees whose terms and conditions of employment will be covered by the agreement. The Act makes no mention of a Consultative Committee.

PN239

MR SMALE: However, it is a - in my submission, a reasonable process for the company to satisfy itself that the - the employees and representatives have met and discussed matters and are given time back at their sites to have discussions with and meet with and explain things to the employees, but that is a mechanism - - -

PN240

THE COMMISSIONER: Well, once again that is a matter for you to determine. The explanation require is one that involves steps being taken to ensure that the terms of the agreement are explained to all the persons employed at the time.

PN241

MR SMALE: Yes.

PN242

THE COMMISSIONER: Now, I mean it may be that these steps have given rise to the sorts of explanations that you are contemplating but we do not know that at the present time. All that we know as a matter of fact is that the Consultative Committee has discussed these issues. I think if I could just make this observation and very much as an observation I do not think that the Consultative Committee can be a proxy for either the employees or the union. The Act does not involve making agreements with Consultative Committees.

PN243

There are two models of agreement making under the Workplace Relations Act. They are with industrial organisations, the collective agreement making I mean - with industrial organisations registered under the Act, or, alternatively with and between an employer and the employees the Act does not erect some alternative representative model for the purposes of making an agreement and I think an interpretation of the Act involves seeing the employer proposing to the employees - that is to each of them, an agreement. Not basically inducing some sort of proxy representative arrangement for the purpose of an agreement making process.

PN244

MR SMALE: As a gloss on that - - -

PN245

THE COMMISSIONER: I understand that people may see this as perfectly legitimate from their own perspectives and I am not being critical of that, there may be other representative models than registered organisations which might attract you know positive perceptions. All I am drawing attention to is in the strict legislative framework for collective agreement making, the model is registered industrial organisations or the employer and the employer's employees. Now, using a consultative committee as a channel of communication seems not unreasonable or unobjectionable but it just seems to me, with all due respect, that what has been happening is that this proxy representative model is playing a very, very crucial role in the negotiation of this agreement and the difficulty I think for the employer is that it - it could rely on that to some degree whereas in fact the law contemplates that it is the employer directly dealing with each of its employees in relation to the collective agreement and that the avenue of communication is between the employer and the employees, and the steps prescribed by the Act for that communication are of that nature.

PN246

MR SMALE: Yes.

PN247

THE COMMISSIONER: Now, as I say, it is up to you how you wish to go about proposing the agreement. That is a provision sanctioned by the Act that you can propose an agreement. Certain pre-conditions are required to be satisfied before the agreement can be considered by the Commission for certification. In this case, the issues that have arisen are essentially about the explanation of the terms of the agreement to the employees, not to the Consultative Committee. And the party that is responsible for the explanation is not the Consultative Committee. The Act under the Act that is responsible for the communication for the reasonable steps, is the employer.

PN248

MR SMALE: Yes. Well, the only thing that I can add to that, sir, is that it - it would - it is not necessarily unreasonable for the company to utilise representatives of the - of the employees as a channel of communication of the company's position.

PN249

THE COMMISSIONER: As I said, that is unobjectionable.

PN250

MR SMALE: Yes.

PN251

THE COMMISSIONER: But, ultimately, at the end of the day the party - - -

PN252

MR SMALE: It is the employees that must be communicated to.

PN253

THE COMMISSIONER: - - - the party to be measured in so far as the reasonable steps are concerned is not the Consultative Committee. It is the employer. So what I am really cautioning against is if you delegate some of the responsibilities imposed on the employer under the legislation to the Consultative Committee that could create problems. You may - it may not because the way it actually works out may be just fine but you can see the potential that I am identifying is if some employee was to come along, for instance and say, "Look, I did not ever know that if I approved of this agreement that this and that and the other would be a consequence of its terms", the Consultative employees, they talk to me about the agreement but they did not actually explain that to me in that way. The bucks stops with the employer, not the Consultative Committee.

PN254

MR SMALE: I do not seek to derogate from that in any way.

PN255

THE COMMISSIONER: Yes. All right. So I am going to leave the question of whether you change any of the arrangements for the actual conduct of the ballot aside for my considerations with just, as I said, those observations - - -

PN256

MR SMALE: Yes.

PN257

THE COMMISSIONER: - - - as opposed to any determination direction or recommendation of any kind, they are simply my observations about the way the Act impacts upon this situation.

PN258

MR SMALE: Before resuming my seat, sir, could I - I should place on record that at the bar table is Mrs Julie Duck. She has been elected, should we say, by the Consultative Committee, to come here today to - to listen and to give any evidence if any was required, as to what has been happening, and it is fortuitous that she has heard the various interchanges and can take them back to the work place.

PN259

THE COMMISSIONER: Well one of my - one of my concerns is actually is for people who are members of the Consultative Committee because I would not want them to think that ultimately they are carrying statutory responsibilities in relation to this matter. They do not. The employer carries all the statutory responsibilities in this matter. They are being consulted by the employer about what the employer might do but ultimately it is the action of the employer that is motivating this particular process and so my comments are primarily directed towards the employer to ensure that all of the responsibilities are not perceived as some how or other to be delegated to or sort of indirectly attributed to the Consultative Committee.

PN260

MR SMALE: The other thing that needs - perhaps does not need to be said, but I would wish to put on the record is I discussed earlier with Mr Winter that of course the concerns that he expresses on behalf of the employees at Diggers Rest can be, if the employees affected so wish it, be raised by the union directly with the company during the 14 day period under the process of - - -

PN261

THE COMMISSIONER: Well, I think they have been raised today.

PN262

MR SMALE: Yes.

PN263

THE COMMISSIONER: And I mean it is not an entirely unreasonable proposition that the employees in Diggers Rest would like to maintain their redundancy benefits in that the historical levels that they did, there may even be a legal question as to whether or not, regardless of the certification of this agreement, they have at least up until the point that if this agreement is approved and it is certified, accrued certain rights. Isn't that right?

PN264

MR SMALE: Yes. There is no question about that. Yes.

PN265

THE COMMISSIONER: And should they know that?

PN266

MR SMALE: The - well, whether they - I mean the rights have either accrued or they have not. That is the position.

PN267

THE COMMISSIONER: But it is a subject at least that they ought know about, isn't it? I mean there is a plausible proposition is there not - you know, I am inviting your legal opinion on this, Mr Smale, that for all of the time that the employees at Diggers Rest worked under the agreement either during its nominal terms or during the time when it continued in operation, or continues in operation by virtue of the statute, they continue to accrue redundancy benefits in accordance with the terms of the agreement and that they may carry those forward. What the employer intends to do about that question might be a relevant issue to be explained to them.

PN268

MR SMALE: Yes. That is something that I will look into further and advise the company about appropriately.

PN269

THE COMMISSIONER: Yes. And what about the question of long service leave? Do you think that that also may require some consideration of the Long Service Leave Act?

PN270

MR SMALE: The question of - of all of the rights that have accrued up to the time that the new agreement is certified will have to be examined.

PN271

THE COMMISSIONER: Yes, but I am saying that and I guess I have just sort of left a little bit out of my question about the Long Service Leave Act, in a sense that I am suggesting that I do not know whether the agreement at Diggers Rest actually deals with long service leave. I do not think it does, but the issue that is presented in that respect is that accrued long service leave entitlements, if taken under the proposed agreement according to Mr Winter, would be paid for at a lower rate.

PN272

Now, I am not particularly familiar with the Victorian Long Service Leave Act and I suspect it only prescribes a right to be absent plus payment of ordinary wages. What is the effect of that Act on the accrued long service leave? Are they the ordinary wages at the time of taking leave, or are they you know, is it to be split between the rate that existed up until the proposed 170LK agreement is - let us presume validated by a majority? Now they should at least know - - -

PN273

MR SMALE: Yes.

PN274

THE COMMISSIONER: - - - the answer to that question, whatever it is, that is the answer. So it may be also that the employer has some view about that regardless of whether it is legally correct and has an intention about how it is going to apply the terms of the Long Service Leave Act if the 170LK agreement is - I take it you, you - sorry, in relation to Diggers Rest, there is a single award is there not?

PN275

MR WINTER: Yes, there is.

PN276

THE COMMISSIONER: And regardless of the effects of the super cessation of the Diggers Rest agreement the proposed 170LK agreement would significantly exceed the no disadvantage test?

PN277

MR SMALE: Yes. I do not think there is any dispute about that.

PN278

THE COMMISSIONER: No, well, I have just assumed that. All right. Now can I just check with Mr Winter about the ballot and see if that matter is settled. Is that right, Mr Winter?

PN279

MR WINTER: Yes, I have no objection in regards to the ballot.

PN280

THE COMMISSIONER: No. All right. Well, it is not a matter for me to concern myself with, is that all right?

PN281

MR WINTER: I no, we are not asking you to deal with that. But might I suggest a practical to - to the outstanding issue in regard to Diggers Rest because what I would hate to see, I suppose, would be the company to go away and focus on the processes but not the fairness of the matter.

PN282

THE COMMISSIONER: Well I think you need to put some claims on them don't you.

PN283

MR WINTER: Yes. And I would like to meet with the company and do that.

PN284

THE COMMISSIONER: Well, I understand Mr Smale is saying there is no problem with that.

PN285

MR WINTER: And prior to a vote taking place, because if we can sort out the Diggers Rest issues then a new vote will be held and it may - may be the difference between getting up and not getting up so what I would seek would be - - -

PN286

THE COMMISSIONER: Well the vote is not taking place, as I understand it, until the 18th is that right?

PN287

MR WINTER: No, it is taking place now. They have asked for it to be returned - sorry, I am wrong?

PN288

MR SMALE: The ballots will be collected on the 18th - - -

PN289

MR WINTER: They are out there.

PN290

MR SMALE: The EBA and ballot papers have been distributed.

PN291

MR WINTER: And what I am asking is that the vote should cease and a new vote should occur until we have met to try and resolve some of the Diggers Rest issues. I think it is - - -

PN292

THE COMMISSIONER: The vote is - is really probably not necessarily influential until the 18th, is that - - -

PN293

MR WINTER: But the vote is - the people have their ballot papers and have filled them in.

PN294

THE COMMISSIONER: I understand that - I heard what you said.

PN295

MS DUCK: They are not being picked up - sorry - - -

PN296

THE COMMISSIONER: Yes, I understand that. They are not being collected until the 18th, is that right?

PN297

MR WINTER: So we would seek to meet with the company to finalise - - -

PN298

THE COMMISSIONER: Well, I think you should meet with the company but I do not know that I want to start confusing the balloting process. If you meet with the company and there are changes to the terms and conditions of employment which the company would be prepared to observe in relation to the Diggers Rest employees, whether they are being incorporated into the 170LK agreement that is currently proposed, or into some other instrument, is one thing. Whether or not that will have to give rise to a recommittal or not is a matter that will depend upon the nature of any agreement that was reached.

PN299

MR WINTER: But my argument would be that the terms of the current LK that is on offer that the employer has - has not explained in detail, to the Diggers Rest - - -

PN300

THE COMMISSIONER: Well, I have said to Mr Smale that I am not going to interfere with that. I am going to leave that to the company to make their decision about it. They may need to reconsider whether or not, given you know, you are agitating this issue of adequate explanation and reasonable steps - - -

PN301

MR WINTER: It may put us in a position though that if, once the vote has occurred, because people - some of them may have already voted already - then we would have to oppose the - - -

PN302

THE COMMISSIONER: Well that is up to you. That is one of the reasons why I have told Mr Smale that as a matter of observation these are issues that should be attended to and decisions made by the company. It is the - it is the initiator of the agreement in accordance with the legislative proposal - so the points that he has made about what constitutes reasonable steps, and what does not, are matters ultimately for determination if an application for certification is made. And I have to comply with that, Mr Winter. I do not have any choice about that.

PN303

Whether or not there exists jurisdiction to certify the agreement is - is dependent upon whether or not reasonable steps were taken. What they constitute could be a subject of disagreement between reasonable people in certain circumstances. It will be for a member of the Commission if the application comes before that person, and you agitate that the agreement should not be certified because there were no reasonable steps taken and therefore there is no application before the Commission to decide that, in light of all the history of what has happened. It is not appropriate for me to pre-empt that now.

PN304

MR WINTER: Yes.

PN305

THE COMMISSIONER: Now, you obviously represent people who - who would be bound by the terms of the agreement.

PN306

MR WINTER: Correct.

PN307

THE COMMISSIONER: You have members. You have a right under the Act to seek the necessary certificate. You are familiar with that I take it?

PN308

MR WINTER: Yes.

PN309

THE COMMISSIONER: If you appear, you are entitled then to either intervene or appear if you seek to be bound by the terms of the agreement and what you say about it, it seems to me, is a matter for you to determine at the time.

PN310

MR WINTER: And I am fully aware of that and - but my concern is of a - a practical nature. We do not want to delay anyone getting a pay rise whether they are members or non members.

PN311

THE COMMISSIONER: Yes, but you see you are - we are talking about the problem. What I am really trying to say to you is that I do not think the solution is for me to intervene in the balloting process and the reason why I have reached that conclusion is because I think you can meet with the company between now and the 18th when this vote is potentially operative. You may reach an agreement with the company. The company might say to you for instance, "Look, we are prepared to do this and that and the other thing", in relation to the Diggers Rest employees, "and what we will do is you know, we will agree with you that we will make an application to vary the section 170LK in due course to give effect to these things, but we do not want to interfere with the process we are setting in train at the moment, but we would prefer a different means of achieving the end of converting our commitments into legally enforceable terms and conditions of employment".

PN312

Now it is not for me to pre-empt that. You want to talk to the company about these things. I am not going to start before you even have said boo to one another, telling you how to go about the negotiation.

PN313

MR WINTER: Well, we will meet with the company and we will outline those issues of concern about Diggers Rest and - - -

PN314

THE COMMISSIONER: That is right. And there is still a fair - there is still a fair bit of water to go under the bridge before the 18th.

PN315

MR WINTER: Yes.

PN316

THE COMMISSIONER: And there are a number of issues about the making of this agreement but I am not in favour of de-railing the whole process because I think in fact a suspension of the ballot would be highly prejudicial to the making of the agreement, or any agreement, whether it be with you or with a 170LK agreement to which you are either bound or not bound, or indeed to your rights to actually seek a certificate indicate that you are bound, exercise your rights under the Act in terms of being a part of the proceedings for the purpose of any potential application for certification, and what you might say. I do not want to interfere with that, nor do I want to interfere with what has been happening so far simply because what I think is desirable is that the parties meet and confer about the effect of - the potential effect of the agreement on the Diggers Rest employees, quite separately from the question of what constitutes reasonable steps in relation to explanation in this matter which I have already alluded to by way of observation.

PN317

MR WINTER: Thank you, your Honour.

PN318

THE COMMISSIONER: So, what I think you need to do is to tell me when you are going to meet because I have predicated these things on my assumption that you are going to meet urgently to discuss the Diggers Rest terms and conditions that are unsatisfactory to the union.

PN319

MR WINTER: I can meet tomorrow.

PN320

THE COMMISSIONER: All right. Is that possible?

PN321

MR SMALE: Yes, sir.

PN322

THE COMMISSIONER: Well, I direct the parties confer tomorrow and report to the Commission on the outcome of the conference in relation to the terms and conditions of employment of the employees at Diggers Rest.

PN323

MR SMALE: There can be a meeting tomorrow. I could meet tomorrow, sir. The Executive Manager responsible for the core operations is away till Monday. If Monday was satisfactory - - -

PN324

THE COMMISSIONER: All right. The most important thing is for the union to put to you what it wants in detail so that you understand what concessions you are being asked to make; isn't that right?

PN325

MR SMALE: Yes.

PN326

THE COMMISSIONER: Then you contact this person. You can ring them up and get instructions and you can respond on behalf of the company to the union and can I suggest that you do that as urgently as possible.

PN327

MR SMALE: Yes.

PN328

THE COMMISSIONER: And if the union is dissatisfied with the process if you notify my office I will list the matter urgently for further conciliation proceedings if necessary. All right.

PN329

MR WINTER: Thank you for your assistance.

PN330

THE COMMISSIONER: I would also appreciate it, Mr Smale, if you gave me some idea of what the company intends to do in relation to my observations about the reasonable steps.

PN331

MR SMALE: Yes, sir, that would be tomorrow I would be able to do that.

PN332

THE COMMISSIONER: Yes. My view of the situation is this - could I just give you the big picture view from the Commission.

PN333

MR SMALE: Yes.

PN334

THE COMMISSIONER: There is an industrial dispute. The dispute is likely to be satisfied in some respects by the making of an agreement to which the union may or may not be bound. The union is representing people who are - in relation to the dispute who are subject to the 170LK proposal. The Commission is, therefore, by virtue of its finding and by virtue of the referral of conciliation to me by the relevant Senior Deputy President, to whom I have reported my awareness of the industrial dispute, and who has assigned the matter to me for conciliation, the Commission is clothed with its powers of conciliation in relation to the dispute.

PN335

If necessary I could make certain directions in relation to the conduct of the parties for the purpose of the settlement of the dispute. I just wanted to ask a question if I could. Ms Duck, are you actually appearing for the employees or for the consultative committee?

PN336

MS DUCK: The employees are the consultative committee.

PN337

THE COMMISSIONER: Right. Could you just explain to me, if you would, and if you don't mind standing - you propose to enter an appearance in the matter or you are not appearing with Mr Smale?

PN338

MS DUCK: I was here to answer any questions if there are any anomalies or whatever.

PN339

THE COMMISSIONER: Right.

PN340

MS DUCK: Can I just say that the employees didn't feel that we were in dispute. We felt that we were still negotiating and we were all pretty shocked to hear that we are in dispute. Yes, we had voted against the agreement obviously, 41 to 26, but we were still negotiating with the company.

PN341

THE COMMISSIONER: Yes.

PN342

MS DUCK: And we were all shocked to find that we are in dispute.

PN343

THE COMMISSIONER: Well, I think what you might be shocked about is something that you perceive to be the meaning of dispute.

PN344

MS DUCK: We were negotiating basically.

PN345

THE COMMISSIONER: Yes, well, that is right, but negotiations are usually for the purpose of settling disagreements, so so long as the parties are actually in negotiations and not agreed, there is a dispute between them as to the terms and conditions of employment. What constitutes a dispute for the purposes of the Workplace Relations Act may be different to your perceptions of it and the employees' perceptions of it. Their perceptions may be that a dispute involves some sort of industrial action or some level of adversarial sort of hostility or something of that nature between the employer and the employees. That is not the case.

PN346

What is constituted as a dispute for the Workplace Relations Act is that employees and an employer - or employers are in disagreement as to what the terms and conditions of employment as between them should be. Whether or not it is manifest in courteous and polite discussions about that disagreement, or whether it is manifest in industrial action of a protracted nature, those things are merely manifestations of the disagreement. They only come into existence because there is a disagreement.

PN347

So the negotiations are directed towards the settlement of the dispute and in my decision, as I said, I thought that the only steps that the Commission should take would be to reconcile the differences between the parties for the purpose - by means of arranging meetings and conferences. But there is a need to make the finding that I have referred to because the Commission cannot act unless it is satisfied that it has jurisdiction to do so, and in order to have any jurisdiction to act the Commission must be satisfied that there is a set of circumstances that give rise to an industrial matter that is in disagreement between parties.

PN348

So if the Commission becomes aware of that the Act says that I have to record that and make a finding under section 101 of the Act and I have to identify who the parties to the dispute are and what the subject matter of the dispute is. What I was informed of by the union was that it was in disagreement with the company, and the union is a registered organisation under the Workplace Relations Act and it is entitled to be a moving party in having the Commission find that there exists an industrial dispute between itself as an organisation and an employer.

PN349

MS DUCK: We were told that the AWU was being restricted from entering our sites and they had entered a lot of our sites, so as far as the employees were aware - - -

PN350

THE COMMISSIONER: Right. Well, I don't think I told anybody that, so whoever told you you should probably take that up with them if that is untrue. Would you mind just sort of explaining to me how the consultative committee was formed and how you fit into the picture? [11.33am]

PN351

MS DUCK: The consultative committee is voted on by the employees, each site has a member of a consultative - - -

PN352

THE COMMISSIONER: Right.

PN353

MS DUCK: And an EBA rep for their site.

PN354

THE COMMISSIONER: So each site elects that person.

PN355

MS DUCK: That is correct except Westall/Brooklyn, there is not many employees, they are depots so they elect one rep between them. I was actually asked to join the consultative committee because I represent basically the weighbridge people because it was felt that maybe they weren't represented as much as they could be and with the new agreement coming in we wanted to make sure that the weighbridge people were incorporated the same way as the other - - -

PN356

THE COMMISSIONER: And they are going to be covered by this agreement, are they?

PN357

MS DUCK: They are covered. They were always covered by it but - - -

PN358

THE COMMISSIONER: Oh, they are.

PN359

MS DUCK: Yes.

PN360

THE COMMISSIONER: All right.

PN361

MS DUCK: Yes.

PN362

THE COMMISSIONER: So when you say "representation" you mean their voice wasn't - the view of the weighbridge employees was that there was voice wasn't loud enough in the process?

PN363

MS DUCK: Basically, yes.

PN364

THE COMMISSIONER: And do you work on a weighbridge or - - -

PN365

MS DUCK: I am the weighbridge co-ordinator.

PN366

THE COMMISSIONER: Right.

PN367

MS DUCK: I do relief work on the weighbridges.

PN368

THE COMMISSIONER: Right. When you say you are a weighbridge co-ordinator, is that a classification that will be covered by the terms of the agreement?

PN369

MS DUCK: I am covered in the EBA, yes.

PN370

THE COMMISSIONER: Right. And has the consultative committee nominated you as their spokesperson for the purpose of the Commission proceedings?

PN371

MS DUCK: For here, yes.

PN372

THE COMMISSIONER: Good. All right. Thank you. So really I think it is appropriate that if you want to actually be a part of the proceeding you should probably make an application for leave to intervene.

PN373

MS DUCK: For what, sorry?

PN374

THE COMMISSIONER: You should probably make application for leave to intervene in the proceedings if you want to contribute to these proceedings. I mean Mr Smale has sort of more or less invited you to do so. Now, perhaps you don't want to make this decision right now, you may want to consult with your colleagues about this.

PN375

MS DUCK: I have got a few things like the employees have basically felt, like aside from the Diggers Rest employees, the rest of the employees have sort of felt that the enterprise bargaining agreement is something separate to what Pioneer should be negotiating and doing with the Diggers Rest, like if there is disputes, if I could use that word, between what they feel they are entitlements are and what they are getting, we sort of feel that the enterprise bargaining should go through and any of those disputes - Diggers Rest should be consulting with Pioneer separately so what you were saying before about all their entitlements prior to Pioneer taking over on 2 June, well, obviously all those entitlement should be carried forward.

PN376

If they have got leave accrued at $18 whatever an hour, that leave will be paid at $18 whatever an hour and if it wasn't - - -

PN377

THE COMMISSIONER: Well, no less than.

PN378

MS DUCK: Pardon.

PN379

THE COMMISSIONER: Well, no less than, going forward.

PN380

MS DUCK: Yes, like going forward, I would assume that we would all sort of feel that they have to slot in with what the rest of us are on and just with their 48 hour week, some of our members did want to go to a 48 hour week but the bulk of them are happy with their 38 hour week. Now, with a 38 hour week - and it is because of the amount of overtime we work and that is why the 48 hour was - you are disadvantaged because you don't get the double time etcetera once you are working the longer hours and so the 48 hour week wasn't, I don't know, to some of us, it wasn't properly looked into but the bulk of our older employees weren't interested in it so it was sort of defeated.

PN381

And most of our employees feel we have come a long way from what the agreement was to start with and especially with that defeated one and just one other comment, like the AWU is coming in and telling us how bad our agreement is. The original agreement was negotiated with the AWU contributing so if we have got a bad agreement but like we haven't felt our agreement is that bad.

PN382

THE COMMISSIONER: Well, I don't have any view on the merits of the agreement or not and it is inappropriate for me to do so because it is not an issue in these proceedings, that is the existing agreement.

PN383

MS DUCK: But if Diggers Rest are going to be disadvantaged - - -

PN384

THE COMMISSIONER: That is the existing agreement that you are referring to.

PN385

MS DUCK: Yes.

PN386

THE COMMISSIONER: And generally issues that have been raised before me are, so far at least, are the way in which the parties should go about negotiating a new agreement and secondly, issues concerning the effect of the proposed new agreement on the employees at Diggers Rest in terms of their terms and condition of employment. Is that right, Mr Winter?

PN387

MR WINTER: That is correct, Commissioner.

PN388

THE COMMISSIONER: Right, so that is all I am going to think about, there is no point - - -

PN389

MS DUCK: I don't think that has properly been - - -

PN390

THE COMMISSIONER: I haven't got a - you know, I don't have a roving brief to be a gratuitous industrial relations consultant on anything that catches my eye so I am focussing purely on what has been brought forward to the Commission for its attention so my attention is focussed on how the parties have been going about their negotiations and now there are some issues about Diggers Rest, that is going to dealt with by a conference directly between the union and the company tomorrow and hopefully in the next 48 to 72 hours we will hear what is going to happen about those terms and conditions of employment.

PN391

My interest in sort of understanding how the consultative committee works and your position within it is this: That Mr Smale is appearing for the company, he is not appearing for the consultative committee.

PN392

MS DUCK: Can I just - the consultative committee that - - -

PN393

THE COMMISSIONER: Yes, you will probably have to stand.

PN394

MS DUCK: Sorry, the meetings are scheduled for 10 o'clock, the consultative committee basically comes in at 9 o'clock, has their own meeting prior to the meeting with the company. After the meeting with the company we also have our own meeting for half an hour or whatever to discuss how it has gone, then we all go back to our people and tell them - - -

PN395

THE COMMISSIONER: That is right, yes.

PN396

MS DUCK: - - - everything that has happened at the meeting.

PN397

THE COMMISSIONER: So you see the distinction I am making is Mr Smale - whatever Mr Smale says, he can only speak on behalf of the company.

PN398

MS DUCK: Yes.

PN399

THE COMMISSIONER: He is not a member of the consultative committee. Is that right?

PN400

MR SMALE: No, sir.

PN401

THE COMMISSIONER: Right. He represents the corporate legal entity that is wanting to make this agreement and I have got to pay attention to that because the company has certain responsibilities under the Act, they are not the responsibilities of the consultative committee. The company has got to take all the responsibility for what it is responsible for.

PN402

MS DUCK: Right.

PN403

THE COMMISSIONER: And what I am interested to know is if this matter does go any further, I think if you wish to attend at the Commission and in particular if you want to contribute to the proceedings, it will probably be necessary for you to make application for leave to intervene, that gives you a certain status in the proceedings. Do you understand what I mean? Now, you can come along - - -

PN404

MS DUCK: Well, Mr Smale will explain it.

PN405

THE COMMISSIONER: Yes. Well, he might but I am suggesting to you that it is probably better that you consider these matters independently - - -

PN406

MS DUCK: Okay.

PN407

THE COMMISSIONER: - - - because there are some reasons for that and that is that it would be inappropriate if any perception was formed that the employer was unreasonably influencing members of the consultative committee or that it had somehow or rather appropriated or taken control of the committee's deliberations. Now, it may not be desirable for you to seek leave to intervene. If you don't you can attend the Commission as observers but those who sit at the bar table are usually people that are either parties principal to the proceedings or people who are seeking to apply to intervene.

PN408

So if the consultative committee has an independent status in the scheme of things then procedurally the appropriate thing to do is, if it wishes to participate in the proceedings, it should make an application for leave to intervene. Now, you are happy to talk to Mr Smale about that if you wish but the point that I am trying to make is that I have got a responsibility to work out who is speaking for who at the bar table and you are obviously not here appearing on behalf of Pioneer Concrete. No.

PN409

Mr Smale is doing that so if you wish to be a participant in the proceeding, the committee itself or you as an individual in the role that you have been attributed by the members of the committee and the employees, then you probably need to make an application to me and that may be consented to or it may be objected to by the union. It would be then incumbent upon me to decide whether or not I should grant you leave to intervene in the proceedings so your choice I think is this: You can attend as observers or participants.

PN410

If you want to attend as participants then I think you probably need to consult one other and decide on that and make an application if you wish and have that dealt with in due course. Now, my suggestion is it is probably premature to do that today and it may be ultimately completely unnecessary.

PN411

MS DUCK: For today's purposes, it was just as an - - -

PN412

THE COMMISSIONER: As observer.

PN413

MS DUCK: - - - observer, as a witness.

PN414

THE COMMISSIONER: Yes, but I have been happy to hear what you have had to say but I just wanted to - - -

PN415

MS DUCK: Yes.

PN416

THE COMMISSIONER: - - - explain to you, independently of the company, some of the issues that I consider confront the consultative committee in terms of whether it wishes to participate in the proceedings. But I don't want there to be any confusion when you report back to your colleagues as to what actually transpired in the Commission and that is why I have gone to the extent of explaining that and also what the nature of the finding of a dispute that I made was. It is something that is bound up in the operation of the legislation.

PN417

It has got both a every day and a technical dimension that people should be aware of particularly if any perceptions about these proceedings are contributing to considerations of employees about the wisdom of the agreement or otherwise. Thank you.

PN418

MR SMALE: Can I just make one observation arising out of that, sir?

PN419

THE COMMISSIONER: Yes.

PN420

MR SMALE: I suspect part of the difficulty that the - that Mrs Duck alluded to about the issue of dispute is that in your finding as to there being a dispute you said that the matters in dispute were those matters listed in the notification of the bargaining period filed by the union. From the point of view, as I understand what Mrs Duck was saying, is the matters listed there are not matters in which the employees are in dispute with the company.

PN421

THE COMMISSIONER: But there is - I didn't find that the employees were in dispute with the company.

PN422

MR SMALE: I understand that, sir.

PN423

THE COMMISSIONER: Yes.

PN424

MR SMALE: - - - but I am just trying to - - -

PN425

THE COMMISSIONER: Well, you might explain that - - -

PN426

MR SMALE: Yes.

PN427

THE COMMISSIONER: - - - if necessary although I must say what I am trying to do, Mr Smale, is promote a certain clarity of distinction between the role and function of the consultative committee and the company because I am sure you would appreciate that it becomes problematic if a perception develops that there is no effective distinction between the two.

PN428

MR SMALE: Yes.

PN429

THE COMMISSIONER: And I - from what Ms Duck has told me, there clearly is a distinction - - -

PN430

MR SMALE: Yes.

PN431

THE COMMISSIONER: - - - between the consultative committee and the company.

PN432

MR SMALE: Yes.

PN433

THE COMMISSIONER: How they choose to relate to one another is a matter for them but the distinction should be clear.

PN434

MR SMALE: Yes.

PN435

THE COMMISSIONER: And for purposes of members of the consultative committee, the dispute found to exist is a dispute between the Australian Workers Union, a registered organisation under the Workplace Relations Act and Pioneer Concrete.

PN436

MR SMALE: Yes.

PN437

THE COMMISSIONER: There was a dispute to any individual person - I am sorry, there was not a finding of any individual person was in dispute. Under the law the registered organisation is entitled to represent its members.

PN438

MR SMALE: Yes.

PN439

THE COMMISSIONER: And when it acts on behalf of its members it is entitled to a dispute finding.

PN440

MR SMALE: Yes.

PN441

THE COMMISSIONER: If a dispute exists as a matter of fact.

PN442

MR SMALE: Yes. The only reason I raised the matter, sir, is I think that the consultative committee of employees may be benefited by those observations just made that clarify - - -

PN443

THE COMMISSIONER: Yes, all right.

PN444

MR SMALE: - - - the distinction.

PN445

THE COMMISSIONER: Well, I hope it is.

PN446

MR SMALE: Yes.

PN447

THE COMMISSIONER: I hope it is because, as you well know, this is a jurisdiction that has its own mysteries and the finding of industrial disputes is one of the most mysterious.

PN448

MR SMALE: Yes.

PN449

THE COMMISSIONER: So the parties will meet tomorrow, they will address the issue of terms and conditions of employment concerning Diggers Rest. I am asking that by at least Monday I am informed of what has become of those negotiations and what the way forward is from the respective points of view of the parties and I would also like to know from the company what it is doing about the issues in terms of communication, an explanation of the terms of the agreement early next week.

PN450

MR WINTER: If that could be forwarded us also, Commissioner.

PN451

THE COMMISSIONER: Yes, very well. And I will adjourn these proceedings and I will restore them to the list at short notice on the application of either party, particularly given the imminence of the potential production of a valid majority in relation to the proposed agreement, in all of the circumstances that we have been discussing. Thank you.

ADJOURNED INDEFINITELY [11.47am]