AG2003/6545, Transcript of Proceedings [2003] AIRCTrans 3549 (19 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 10494
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2003/6545

APPLICATION TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Application under section 170MH of the Act
by ACI Operations Pty Limited t/as ACI Mould
Manufacturing for termination of ACI Mould
Manufacturing Certified Agreement 2002

MELBOURNE

2.10 PM, FRIDAY, 1 AUGUST 2003

This matter is being heard concurrently
with C2003/4533, but note that these
matters are not formally joined

PN1

DR G. SMITH: I seek leave to appear for ACI Operations Proprietary Limited trading as ACI Mould Manufacturing in both matters.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MR G. THOMPSON and the shop stewards from the site. Commissioner, I note that Dr Smith appears without the company this afternoon. For the purposes of this afternoon I don't object to Dr Smith's appearance. However, that is not to say that I concede his appearance and I reserve my rights with regard to section 42 when the matter comes before you in any substantive sense. If the Commission pleases.

PN3

THE COMMISSIONER: Thank you, Mr Addison. Mr Smith, I suppose leave is granted on those limited conditions forwarded by Mr Addison. The two matters are listed at the same time, that is the matter of section 33 under the Commission's own motion and the section 170MH which is an application to terminate the agreement. It was the Commission's - firstly -intention under its own motion to try and bring this particular matter to a head, given the length of time that the matter has been going, and that I understand it is either the ninth or tenth week of a lock-out.

PN4

It was the Commission's intention to issue directions to the parties to formulate their arguments as to why or why not the Commission should suspend or terminate the bargaining periods based upon section 170MW(3), I think it is.

PN5

MR ADDISON: Yes, (b).

PN6

THE COMMISSIONER: Understanding the application of 170MH - or under 170MH, Mr Smith, what was your intention today in regards to that matter?

PN7

DR SMITH: Commissioner, my intention was to ask you to join both matters - - -

PN8

THE COMMISSIONER: Right.

PN9

DR SMITH: - - - and to issue directions about that matter as well which marry in with directions on the other matter. I can't see why they couldn't be heard - - -

PN10

THE COMMISSIONER: At the same time.

PN11

DR SMITH: - - - at the same time; much of the evidence will overlap.

PN12

THE COMMISSIONER: Right. What timeframe were you looking at in terms of dealing with 170MH?

PN13

DR SMITH: Probably not early next week, but later on next week we would be ready. We have substantially prepared an affidavit. I need another couple of days to finalise it, so the sort of timetable I envisage, depending on the Commission's availability, is that we would file and serve our material in both matters by, say, Wednesday of next week - - -

PN14

THE COMMISSIONER: Right.

PN15

DR SMITH: - - - close of business Wednesday of next week. The union might well be asked to file their material in relation to the MW at the same time, given that that is a matter that has been called on, but the union would probably want a right to have a few days to look at our material in the MH and then put it in some material in response.

PN16

THE COMMISSIONER: Right.

PN17

DR SMITH: What I have in mind by material, is to expedite the proceeding, it would be I think helpful to everybody if the material was by way of witness statements and exhibits, so that we can minimise the surprise element and also the need for examination-in-chief.

PN18

THE COMMISSIONER: Yes.

PN19

DR SMITH: would probably need a day or so for contentions, so really we are looking at the week after next, I would have thought.

PN20

THE COMMISSIONER: I would have thought in all fairness if your material is to be available by COB on 6 August, then obviously the union would require an appropriate amount of time to be able to respond to that.

PN21

DR SMITH: Yes.

PN22

THE COMMISSIONER: Yes, okay. Thanks for that. Mr Addison.

PN23

MR ADDISON: Commissioner, we would oppose formally joining the matters. They are very, very different matters. The request that you have made with regard to positions in relation to section 170MW(3), and I presume you are talking subs (a) and sub (b) of MW(3), they require quite separate and distinct jurisdictional matters to be established, and then of course discretionary from there. So we think that should be dealt with as discrete from section 170MH.

PN24

Section 170MH - and there have not been many matters in this Commission under section 170MH, but the ones that there have been have tended to go on for long periods of time. The Mount Thorley one went for weeks and weeks and Yallourn went for quite some long time, too. So we think that the matters should not be formally joined. I hear what Dr Smith has to say with regard to similarities in evidence. We have no objection to, if you like, cross-referencing - - -

PN25

THE COMMISSIONER: Right.

PN26

MR ADDISON: - - - in terms of the evidentiary matters where there is a similarity, that would make sense. But formal joining, we say that shouldn't occur. They are very, very separate and very, very distinct matters, particularly with regard to section 170MH, the ramifications coming out of that are significant for our members. Effectively, it would see our members revert back to the award.

PN27

THE COMMISSIONER: That is right, yes.

PN28

MR ADDISON: Now, that raises quite difficult questions and serious issues for the AMWU and very, very serious issues for our members, very, very serious issues. I hear what Dr Smith says about using primarily documents for evidence-in-chief. Whilst I have got no difficulty with that in principle, I wouldn't want to be confined to documents, and we would be proposing to run evidence-in-chief that would go beyond documents. With all due respect to my friend, we don't have the resources of Clayton Utz in the AMWU, we don't have a plethora or legal secretaries to write documents and type documents and collate documents and all that sort of thing which my friend has the advantage of.

PN29

THE COMMISSIONER: But the small band of merry people you have are just as well qualified, you say.

PN30

MR ADDISON: I would doubt it, extremely doubt it, Commissioner. They do their best, but they are not legal secretaries. So we say that. With regard to the timetable, Commissioner, next week, as you are aware, is the arbitration week. I have two two-day matters listed for next week. I have one in front of Commissioner Eames Monday/Tuesday. I think I will be in South Australia Wednesday with regard to another MW application, and I have one listed before yourself, Commissioner, Thursday/Friday, Atlas Steel - Taylor and Atlas Steel.

PN31

Now, I hear what Dr Smith says, and if he gets his material in by close of business Wednesday, we wouldn't even get a chance to look at it until the Monday of the following week. We would need at least - having seen Dr Smith's materials before, we would need at least three or four days to look at that and respond, and I don't know what you are going to give me, but I have seen your materials before. I would have thought it would be appropriate for the union to respond the week after the week after next, three weeks.

PN32

These are not urgent applications. MH is not an urgent application, there is no need for urgency. There is need, in my submission, when there are extraordinarily serious consequences of an application for sufficient time to be given to both parties to prepare and both parties to bring evidence. So, Commissioner, we would say the timetable ought be realistic. If Dr Smith files and serves by the middle of next week, we would be looking to file and serve on the Monday - or two Mondays following that, and then Dr Smith could put whatever he wishes in response to that, and a hearing could be heard late August/early September. If the Commission pleases.

PN33

THE COMMISSIONER: So which matter if the matters aren't joined - - -

PN34

MR ADDISON: I don't think - - -

PN35

THE COMMISSIONER: - - - which matter - - -

PN36

MR ADDISON: You have got two matters before you, Commissioner - - -

PN37

THE COMMISSIONER: Well, hang on, just let me finish.

PN38

MR ADDISON: Sorry.

PN39

THE COMMISSIONER: If the matters aren't joined, which matter do you say should go first?

PN40

MR ADDISON: I would have thought the section 33 matter need go first, in fact should go first. It is a matter that is already before the Commission and the parties are on notice about, and during conferences last week the Commission flagged that it would be looking in this sort of direction, so it is a matter that could be dealt with fairly readily, I would have thought. I have got no difficulty with a shorter timetable in terms of evidence with regard to that matter. We would be in a position to proceed in the middle of - not next week, the week after. I only say that because next week is basically caught up for all of us, except Dr Smith, in terms of unfair dismissal arbitrations.

PN41

THE COMMISSIONER: Has there been any further negotiations between the company and the union apart from the matter that was dealt with last time on 28 July by way of conference?

PN42

MR ADDISON: My instructions are no, Commissioner.

PN43

THE COMMISSIONER: No?

PN44

MR ADDISON: No, but we stand ready obviously to negotiate with the company.

PN45

THE COMMISSIONER: It is a question of who picks up the phone first; is that right?

PN46

MR ADDISON: No, I think the company are well aware that we stand ready. Mr Thompson, the National Assistant Secretary, has clearly indicated to the company that he is willing to talk at any time.

PN47

THE COMMISSIONER: Right, okay.

PN48

MR ADDISON: If the Commission pleases.

PN49

THE COMMISSIONER: Mr Smith, what do you say about the two matters being dealt with separately, but obviously there would be a reference to both, I suppose, at some point.

PN50

DR SMITH: Yes. Commissioner, we would say in the normal course these matters would be joined. The factual substratum will be the same. The history of the negotiations between the parties, the matters at issue in bargaining and the underlying conditions of employment will be the basic - and the history of the industrial disputation on both sides is the substratum.

PN51

THE COMMISSIONER: But the gist, as I understand it, of Mr Addison's argument is that the - I suppose the implications for the termination of an agreement are far more severe than an argument as to whether or not a bargaining period should be suspended.

PN52

DR SMITH: Or terminated.

PN53

THE COMMISSIONER: Or terminated.

PN54

DR SMITH: I mean, the termination of a bargaining period has major impact as well. It takes away all of the protected action provisions of the Act.

PN55

THE COMMISSIONER: It does.

PN56

DR SMITH: It leads to an arbitration by a Full Bench of the Commission.

PN57

THE COMMISSIONER: It does, but it doesn't have the effect - or it doesn't have the same effect as if an enterprise agreement that is in existence is abolished and the employees resort to an award.

PN58

DR SMITH: Well, with respect, to have an entirely new bargain imposed by a Full Bench is as serious from the company's point of view - - -

PN59

THE COMMISSIONER: I am sure it is.

PN60

DR SMITH: - - - as I am sure is the view that the union has about reverting to award conditions.

PN61

THE COMMISSIONER: But that assumes that it eventually gets to a Full Bench by way of 170MX.

PN62

DR SMITH: Yes, but - - -

PN63

THE COMMISSIONER: As you would know, the first step would be that if a bargaining period is terminated, then the Commission tries the process of conciliation, and it is only at that point where it determines that conciliation is at an end, there is no likely prospect of success, that it then goes to a Full Bench.

PN64

DR SMITH: I am well aware of that, Commissioner, but when you look at the seriousness of the respective matters, one has to look at where they can end up.

PN65

THE COMMISSIONER: Sure.

PN66

DR SMITH: It may be that the Commission won't, in fact, cancel the agreement; you could take that view, too. So you have to look at the spectrum. So we would say they are both serious matters, they should be heard concurrently, even if not joined, and determined concurrently.

PN67

THE COMMISSIONER: Right, thank you.

PN68

DR SMITH: I just should add that having made an offer to get our material in by next Wednesday, if we are told it is not going to be read till the end of the week, I would actually ask if I could have all of next week to put in our material.

PN69

MR ADDISON: No objection.

PN70

THE COMMISSIONER: That is very generous of you, Mr Addison.

PN71

MR ADDISON: There is no point. I am not -

PN72

THE COMMISSIONER: I must say the concern that the Commission has is - what, it is 10 weeks now?

PN73

MR ADDISON: Yes.

PN74

THE COMMISSIONER: Ten weeks lock-out?

PN75

MR ADDISON: Yes.

PN76

THE COMMISSIONER: And by the time the matter is eventually heard, whether it is under the 170MW(3) provision or whether it the 170MH, that unless there is a breakthrough, that is 13 weeks.

PN77

MR ADDISON: Yes.

PN78

THE COMMISSIONER: And the possibility that it may go beyond that depending on how long it takes the Commission to issue a decision.

PN79

MR ADDISON: Commissioner, can I say the MW application seems to me to be a strategic application on the part of the company. The MW application ought be dealt with and put aside because the MW application will determine whether suspension of the agreement is a moot point or not. It becomes moot. If the Commission determines to terminate the bargaining period and then goes into the process of conciliation and then eventually arbitration, then cancellation of the existing agreement is moot. So it seems to us that the most important proposition before the Commission at this point in time would be the MW.

PN80

Mr Smith is right in terms of not wanting to file his material until next Friday because, in all honesty, I am not going to get a chance to read it. You probably won't either, Commissioner, because you will be sitting here listening to Atlas Steel all Thursday and all Friday more than likely. So I will get to read it over the weekend and I would use my best endeavours to respond to that material - and it would be easier if it was only dealing with the MW material rather than the MH material as well - by, say, Wednesday of the following week, and the matter could be listed, depending on your availability of course, for later that week, Thursday or Friday. Well, no, that is not fair to my friend. Friday or possibly the following Monday which I understand gives Dr Smith limited time to read any material that we may put forward and to respond if he needs to respond.

PN81

But if we get it in by close of business Wednesday - realistically, Dr Smith would be entitled to at least Friday, I would have thought, to respond, and then early the week after - now, that still takes us to the 12-week point, it still takes us to the 12-week point, but it is unavoidable, Commissioner. However, saying that, we say formally on the record that we are available at the most senior levels of our organisation to negotiate with the employer. I have with me the National Secretary of the Metal Division or the National Assistant Secretary or the union. He stands ready to negotiate at any time and we make ourselves available. If the Commission pleases.

PN82

THE COMMISSIONER: Yes, Mr Smith.

PN83

DR SMITH: Just one final point. Commissioner, our intention would be to just file a single affidavit for both matters and cross - rely on each - on them both.

PN84

THE COMMISSIONER: Right. How about if we do this. In terms of the 170MW, that is C4533, that the Commission issue the following directions:

PN85

That the company provide an outline of its arguments and material and witness statements and any references it intends to rely upon, they provide that to the union and to the Commission by the COB on 6 August, 2003.

PN86

That the union provide an outline of its arguments and any material witness statements and references it intends to rely upon to the Commission and to the company by the close of business on 13 August, 2003.

PN87

That Friday, 15 August, commencing at 8.30 be set down to hear the 170MW application.

PN88

In terms of the 170MH, that the company provide an outline of argument and material, including witness statements and references that it intends to rely upon, to the union by the close of business on 8 August, 2003, with the union to provide their response, outline of argument and material, including witness statements and references, to the company and to the Commission by 15 August 2003.

PN89

That the Commission set down Thursday, 21 August commencing at 8.30 am to deal with the 170MH on the basis that there has been no resolve arising from a decision under C4533.

PN90

In regards to trying to bring this matter to a further head, the Commission would issue directions under section 111(1)(t) for the company and the union, that is the AMWU, to meet at least five times in the week commencing Monday the 4th to Friday the 8th August in an endeavour to reach an agreement concerning a new enterprise. The time and place is to be agreed between the parties. If, however, there is no agreement as to the time and place in which the parties are to meet at least five times over the next week, the Commission will be advised that there is no agreement regarding time and dates and the Commission will then set the appropriate time and dates for the parties to meet and will direct them accordingly.

PN91

Mr Smith, are you okay with that?

PN92

DR SMITH: Yes, sorry, just so I understand, the direction is for the parties to meet at least five times in that week?

PN93

THE COMMISSIONER: Yes, the week beginning the 8th - - -

PN94

DR SMITH: Week commencing 4th August.

PN95

THE COMMISSIONER: The 4th to the 8th, yes.

PN96

DR SMITH: Yes, yes.

PN97

THE COMMISSIONER: And if there is difficulty with times and dates in which the parties can't meet, then the Commission will issue directions as to the times and dates in which they are to meet.

PN98

DR SMITH: Yes.

PN99

THE COMMISSIONER: And even location if necessary.

PN100

DR SMITH: Yes. Obviously I don't have any instructions about that, but I would pass on the direction to my client.

PN101

THE COMMISSIONER: Right, thank you. Mr Addison.

PN102

MR ADDISON: Commissioner, I don't think there is any difficulty with the direction per se. There may be a difficulty with availability of people, that is all. Mr Thompson is just checking his diary for that week. I think that is next week, isn't it?

PN103

THE COMMISSIONER: Not a problem. It is called a summons to fix that problem.

PN104

MR ADDISON: In that case, we have no difficulty with the direction, Commissioner.

PN105

THE COMMISSIONER: Thank you very much. All right, the Commission will stand adjourned in the first instance to 15 August 2003.

ADJOURNED UNTIL FRIDAY, 15 AUGUST 2003 [2.33pm]