C2003/4036, Transcript of Proceedings [2003] AIRCTrans 3263 (1 August 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 3758

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/4036

THE ASSOCIATION OF PROFESSIONAL
ENGINEERS, SCIENTISTS AND
MANAGERS, AUSTRALIA

and

AUSTRALIAN RAILROAD COMPANY
PTY LTD and OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re salaries and
conditions of employment

MELBOURNE

4.35 PM, THURSDAY, 17 JULY 2003

PN1

MR M. BALL: I appear for the Association of Professional Engineers, Scientists and Managers, Australia.

PN2

MR G. CHARLES: I appear for Evans Deakin Pty Ltd.

PN3

MR C. SHAW: I appear for Freight Australia.

PN4

MR G. GOSLING: I appear on behalf of Thiess Infraco Pty Ltd.

PN5

MR P. BLACKMAN: I appear for Alstom Melbourne Transport Limited.

PN6

MR B. LARKINS: I appear for the State Rail Authority of New South Wales and Rail Infrastructure Corporation.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ball.

PN8

MR BALL: If the Commission pleases. This is an application in accordance with section 99 of the Act and it arises out of the serving of a letter of demand and a log of claims relating to salaries and conditions of employment for professional officers employed by 19 companies that operate in the transport industry. Service of the log was effected on 5 June 2003 and the resultant notification of a dispute which included the registered mail postal receipts were lodged with the Industrial Registrar on 13 June 2003.

PN9

Further attached to the notification of dispute were two statements signed by Mr Bruce Nadenbousch who is the Director of Industrial Relations for the Association indicating that a particular officer had knowledge of the facts and was authorised by the Association. I understand that these documents have been lodged with the Commission and are on file.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR BALL: The application has been the subject of further statements signed by Mr Nadenbousch on 25 June 2003 to the effect that the details of the time, date and place of this hearing have been served on the parties and again, Commissioner, I understand that that document should be on file.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR BALL: Unfortunately an error within our office meant that six companies originally to be logged had been left out of the process and for these six companies the service of the log was effected on 2 July 2003 and the resultant notification of a dispute which included the registered mail postal receipts were lodged with the Industrial Registrar on 4 July 2003. Further attached to the notification of dispute were the two statements signed by Mr Bruce Nadenbousch. I understand that these documents have also been lodged with the Commission and are on file.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR BALL: The application had been the subject of further statements signed by Mr Bruce Nadenbousch on 14 July 2003 to the effect that the details of the time, date and place of the hearing had been served on those six parties. Again, Commissioner, I understand the documents should be on file. Your Honour, a total of 25 companies were originally served with the letter of demand and a log of claims and since that time the Association had discussions with a number of the parties and we have agreed to delete one company, the New South Wales Department of Transport.

PN16

Two companies have indicated in writing that they will not be challenging the Commission's finding of a dispute, Yarra Trams and the Australian Railroad Group Pty Ltd, the last name providing a letter to the Commission.

PN17

THE SENIOR DEPUTY PRESIDENT: Just a moment. The New South Wales Department of Railways, did you say?

PN18

MR BALL: The New South Wales Department of Transport.

PN19

THE SENIOR DEPUTY PRESIDENT: Department of Transport. Yes, can I just indicate that I have a letter that has been forwarded to my Chambers addressed to Mr Nadenbousch from Transport New South Wales referring to a discussion with Mr Phil Marchionni, is it?

PN20

MR BALL: Yes, it is.

PN21

THE SENIOR DEPUTY PRESIDENT: Who had agreed to the Department's request to be withdrawn from the dispute.

PN22

MR BALL: That is correct.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

MR BALL: And that is what I am verifying here now.

PN25

THE SENIOR DEPUTY PRESIDENT: All right.

EXHIBIT #APESMA1 LETTER OF DEMAND

EXHIBIT #APESMA2 DOCUMENT MARKED AS ANNEXURE B TO THE STATUTORY DECLARATION OF BRUCE NADENBOUSCH DECLARED ON 10 JUNE 2003 LISTING THE COMPANIES THAT THE LETTER OF DEMAND WAS SERVED ON

EXHIBIT #APESMA3 NOTIFICATION OF INDUSTRIAL DISPUTE DATED 4 JULY 2003

EXHIBIT #APESMA4 LIST OF RESPONDENTS ATTACHED TO THE STATUTORY DECLARATION OF BRUCE NADENBOUSCH DATED 14 JULY 2003

PN26

THE SENIOR DEPUTY PRESIDENT: Was there another one after that you said or not?

PN27

MR BALL: There was just the two.

PN28

THE SENIOR DEPUTY PRESIDENT: That is right.

PN29

MR BALL: There was the original 19 - if it helps, your Honour, I have actually got a table that includes all of those.

PN30

THE SENIOR DEPUTY PRESIDENT: That will help and I will mark that as a separate exhibit if you don't mind.

EXHIBIT #APESMA5 CONSOLIDATED LIST OF RESPONDENTS

EXHIBIT #APESMA6 LETTER FROM MR RENO LUCARINI IN TRANSPORT NEW SOUTH WALES

PN31

THE SENIOR DEPUTY PRESIDENT: I also have a letter addressed to me from Australian Railroad Group writing in respect of Australian Railroad Group Pty Ltd and Australian Railroad Group Employment Pty Ltd confirming that those companies received the letter of demand and log of claims dated 6 June 2003. It says that ARG is not an employer in its own right, however, its fully owned subsidiary, ARGE, does employ persons who are members who are eligible to be members of APESMA and goes on to say that neither of those companies object to the finding of a dispute. However, there would not be any attendance here today.

EXHIBIT #APESMA7 LETTER ADDRESSED TO SDP LACY FROM AUSTRALIAN RAILROAD GROUP DATED 6 JUNE 2003

PN32

THE SENIOR DEPUTY PRESIDENT: Sorry, I haven't actually marked - yes I have - the letter of demand as APESMA1, that is right. That includes the log of claims of course.

PN33

MR BALL: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR BALL: Thank you, your Honour. It is our submission that there is an alleged industrial dispute and that it exists in all States and it is also our submission that the subject matter contained in the log of claims is capable of inclusion in the industrial dispute and formally we would request that a dispute be found in accordance with section 111 of the Act.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Ball. Mr Charles.

PN37

MR CHARLES: Thank you, sir. Sir, I can confirm that my company has received the log of claims from APESMA. However, we don't accede to the demands contained within that log but nevertheless we don't oppose a finding of a dispute but reserve our rights under the Act. Sir, I should say that the log has been served on Works Infrastructure. In fact the proper name of the company is Evans Deakin Pty Ltd, trading as Works Infrastructure.

PN38

THE SENIOR DEPUTY PRESIDENT: Is that its full - oh, trading as?

PN39

MR CHARLES: Trading as Works Infrastructure.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR CHARLES: Thank you, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you, very much. Sorry, is Evans Deakin a proprietary limited company or a limited - - -

PN43

MR CHARLES: Yes, it is.

PN44

THE SENIOR DEPUTY PRESIDENT: So it is Evans Deakins Pty Ltd?

PN45

MR CHARLES: Evans Deakin, singular.

PN46

THE SENIOR DEPUTY PRESIDENT: Evans Deakin?

PN47

MR CHARLES: Yes, Evans Deakin, singular.

PN48

THE SENIOR DEPUTY PRESIDENT: Sorry, proprietary limited?

PN49

MR CHARLES: Yes, it is.

PN50

THE SENIOR DEPUTY PRESIDENT: Trading as?

PN51

MR CHARLES: Trading as Works Infrastructure.

PN52

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

PN53

MR SHAW: Thank you, sir. I confirm that Freight Australia has received the log of claims from APESMA. We have advised the union that we are not in agreement to that. We have no objection to a dispute being found over this matter. Thank you.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Shaw. Yes, Mr Gosling.

PN55

MR GOSLING: Thank you, your Honour. Your Honour, on behalf of Thiess Infraco I can also confirm that Thiess Infraco received the letter and log of claims dated 6 June 2003 from APESMA and the company wish to indicate that it does not agree and will not accede to those claims. It has no - does not take exception to a dispute being found. However, your Honour, under section 101 you are required to determine the parties to an industrial dispute and I can indicate, your Honour, that the letter of demand and log of claims was served on Thiess Infraco Pty Ltd - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Sorry, Thiess?

PN57

MR GOSLING: Infraco Pty Ltd.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes.

PN59

MR GOSLING: The proper companies, your Honour, are Thiess Infraco (Swanston) Pty Ltd and Thiess Infraco (Bayside) Pty Ltd. There are two companies who commonly operate under the name of Thiess Infraco but the proper registered names of the two companies are as I have outlined. Additionally, your Honour, the log of claims and letter of demand were served at an address given as E Gate, Footscray Road, West Melbourne. The registered address of both of those companies is Level 2, 493 St Kilda Road, Melbourne 3004, and Thiess Infraco offers no objection to you finding, pursuant to section 111(1)(q) to amend the documentation to reflect the changes I have outlined. If it please the Commission.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Gosling. Mr Blackman.

PN61

MR BLACKMAN: Thank you, your Honour. We acknowledge that we received the letter of demand dated 6 June from APESMA. Once again we cannot agree to the claim as detailed in the log and we have no objections to the Commission finding a dispute in this matter. Thank you.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Blackman. Yes, Mr Larkins.

PN63

MR LARKINS: Thank you, your Honour. My instructions are that both the State Rail Authority and the Rail Infrastructure Corporation have both received an identical letter of demand from APESMA and that both organisations formally reject the log of claims contained in there. There is a position, however, that relates both to Rail Infrastructure Corporation and State Rail Authority in that both organisations already have an award with APESMA which underpins federally registered agreements and on those grounds we would oppose inclusion into any award which results or which may result from this dispute finding, and both organisations accordingly reserve all rights in relation to any award created as an outcome. Thank you.

PN64

THE SENIOR DEPUTY PRESIDENT: But you have no objection to finding a dispute?

PN65

MR LARKINS: In that regard, no. No, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: No, subject to you reserving your rights?

PN67

MR LARKINS: Yes, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Larkins. Mr Ball, do you want to say anything about the names that have been identified of the companies?

PN69

MR BALL: I thank the companies for that information and I have taken note of it as well, and I would be happy if it was amended accordingly. Thank you, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, very well, I will amend the list of respondents according to the submissions or identifications made by Mr Charles on behalf of Evans Deakin and Mr Gosling on behalf of Thiess and I thank the respondents for their cooperation in that regard. Does anybody wish to say anything else in relation to the matters before me? No, very well. Pursuant to section 101 of the Workplace Relations Act I determine and find as follows.

PN71

That there is in existence an industrial dispute within the meaning of the Workplace Relations Act in the States of Victoria, New South Wales, Tasmania, Queensland, South Australia and Western Australia. Have I got them all? The parties to the industrial dispute are the Association of Professional Engineers, Scientists and Managers, Australia of the one part and the named parties listed in the schedule, exhibit APESMA5 as amended to reflect the change in name of Thiess Infraco Pty Ltd and Works Infrastructure, and contained within the file C2003/4036, they are the other parties to the finding of a dispute.

PN72

Subject matters which are in dispute insofar as they are industrial matters within the meaning of the Workplace Relations Act are set out in the log of claims and letter of demand. The letter of demand is signed by Mr Nadenbousch of APESMA, a copy of which is attached to the record of findings. Anything else? Thank you. I direct the parties to confer with a view to resolving the issues set out in the logs of claim. I note also by the way that Mr Larkins on behalf of State Rail and Rail Infrastructure, was it - - -

PN73

MR LARKINS: That is correct.

PN74

THE SENIOR DEPUTY PRESIDENT: - - - reserves his clients' positions in relation to the making of any award arising out of the finding of a dispute. I thank the parties and the matter is adjourned.

ADJOURNED INDEFINITELY [4.54pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 LETTER OF DEMAND PN26
EXHIBIT #APESMA2 DOCUMENT MARKED AS ANNEXURE B TO THE STATUTORY DECLARATION OF BRUCE NADENBOUSCH DECLARED ON 10 JUNE 2003 LISTING THE COMPANIES THAT THE LETTER OF DEMAND WAS SERVED ON PN26
EXHIBIT #APESMA3 NOTIFICATION OF INDUSTRIAL DISPUTE DATED 4 JULY 2003 PN26
EXHIBIT #APESMA4 LIST OF RESPONDENTS ATTACHED TO THE STATUTORY DECLARATION OF BRUCE NADENBOUSCH DATED 14 JULY 2003 PN26
EXHIBIT #APESMA5 CONSOLIDATED LIST OF RESPONDENTS PN31
EXHIBIT #APESMA6 LETTER FROM MR RENO LUCARINI IN TRANSPORT NEW SOUTH WALES PN31
EXHIBIT #APESMA7 LETTER ADDRESSED TO SDP LACY FROM AUSTRALIAN RAILROAD GROUP DATED 6 JUNE 2003 PN32