C2003/760, Transcript of Proceedings [2003] AIRCTrans 3585 (19 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2003/760

THE AUSTRALIAN WORKERS UNION

and

HAMERSLEY IRON PTY LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims

C2003/4898
C2003/4906
C2003/4908

APPLICATIONS UNDER SECTION 111AAA OF THE ACT
BY THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION AND COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA THAT THE COMMISSION CEASE DEALING WITH THE DISPUTE C2003/760

SYDNEY

1.05 PM, MONDAY, 4 AUGUST 2003

Continued from 21.7.03

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN287

THE SENIOR DEPUTY PRESIDENT: I will take the appearances first here in Sydney. Are there any changes?

PN288

MS M. BUCHANAN: If the Commission pleases, appearing for the AMWU.

PN289

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Buchanan. Now, I will take appearances in - - -

PN290

MR D.H. SCHAPPER: If the Commission pleases, I am in Perth. I seek leave to appear for three unions registered under the WA Industrial Relations Act, they being the Construction Forestry Mining and Energy Union of Workers.

PN291

THE SENIOR DEPUTY PRESIDENT: Mr Schapper, could you just pause, please? I will take appearances now in Brisbane. Are there any changes to appearances in Brisbane?

PN292

MR HERBERT: No, your Honour. Your Honour, we can only just barely hear your Honour. I don't know if there is a trouble with the microphone.

PN293

THE SENIOR DEPUTY PRESIDENT: All right, is that better, Mr Herbert?

PN294

MR HERBERT: Yes, much better, thank you. Your Honour, there are no changes to appearances in Brisbane.

PN295

THE SENIOR DEPUTY PRESIDENT: I will now take appearances in Perth. Are there any changes to the appearances in Perth?

PN296

MR ALLEN: I continue to appear for the companies, if the Commission pleases.

PN297

MR SCHAPPER: If it please the Commission, I apologise for my earlier interruption. I seek leave to appear for three state registered organisations, that is organisations registered under the WA Industrial Relations Act, they being the Construction, Forestry Mining and Energy Union of Workers. Secondly, the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch and thirdly, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch.

PN298

THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Schapper. Now, I am just wondering when we should deal with the position of Mr Schapper. I had called this on this afternoon to deal with a couple of other matters. Perhaps we might deal firstly with the leave to intervene sought by Mr Schapper. I will start with you, Mr Allen. Do you wish to say something about that?

PN299

MR ALLEN: We can understand why the state unions would wish to intervene and we don't have any difficulty with that.

PN300

THE SENIOR DEPUTY PRESIDENT: Now, what about in Brisbane?

PN301

MR HERBERT: Your Honour, I don't oppose that intervention.

PN302

THE SENIOR DEPUTY PRESIDENT: Now, what about here in Sydney where the three federal unions who are applicants in relation to 111AAA are. Any objection?

PN303

MR SLEVIN: No objection.

PN304

MR FLATT: No objection.

PN305

THE SENIOR DEPUTY PRESIDENT: Now, for the time being, I will assume that's leave to intervene is granted in relation to both the dispute finding that arose out of the section 99 file and the three 111AAAs. I haven't given a lot of thought to procedurally if there is any issues there, but I think for today's purposes that should be adequate. Mr Schapper, are you happy with that?

PN306

MR SCHAPPER: Thank you, your Honour.

PN307

THE SENIOR DEPUTY PRESIDENT: Now, the reason I called this matter on is because I and the President have a few questions of the parties. In relation to some facts that are asserted and in relation to some foreshadowed evidence, we need to have a better idea of it so that particularly the President can form a view under section 36(3) of the Act. I would like also to the extent to which you are all able to today, to have the latest position in relation to the invitation that the company has given to the three - I will say the three unions and I will refer to the unions all here in Sydney before me - to become a party to the draft award that was tendered on the last occasion.

PN308

Now, I am not too concerned how we deal with those matters but it might be, given this is a video conference, everybody who wants to say something deals with all of those matters at the one time in one block of submissions. Now, in relation to the facts, what I think we will be aided by and this is perhaps aimed particularly at the unions here in Sydney, each asserts in their section 111AAA that there is in excess of 150 employees covered by the state award.

PN309

I would like to know what number of those you assert are members of your union or are eligible to be members of your union and in relation to the evidence that you say you are to lead on your current instructions, what form that would take and anything else relating to the nature of that evidence that might assist me in reporting to the President in relation to forming his view about section 36(3) and then as I say, the issue, whatever you are at liberty to tell me about, what's happening with the federal award.

PN310

Mr Allen, I suppose I will be aided by your input on the federal award issue and I don't know whether or not you want to say - no, I think I'd rather hear from the unions what they assert are some further and better particulars in relation to their 111AAAs. You might have a view about it but I'd like to hear them but what can you tell me about the federal award matter?

PN311

MR ALLEN: If the Commission pleases, I can indicate that there was a meeting convened last Friday by the ACTU which involved each of the federal unions including the AWU. That meeting involved Mr Combet, the Secretary of the ACTU and senior representatives. As a result of that meeting, we understand Mr Combet will be having further discussions with those unions and getting back to the companies about those unions position. If it has become any more solid than that between Friday and now, we are unaware of it. So that's all I can advise the Commission at this point.

PN312

THE SENIOR DEPUTY PRESIDENT: Now, Mr Schapper, I might extract the information from the other unions in relation to the matters I've raised and then come back to you in relation how you see the role of the state unions being. I think I might tackle it that way. Before I ask the unions appearing here in Sydney, I wonder Mr Herbert, I am just wondering if there's much more you can assist me with. I've seen the facts as asserted by you. I know, of course, about where you are in relation to the federal award that has been reached and a draft copy of which I've received, but is there anything else that you'd want to say at this stage?

PN313

MR SCHAPPER: No, your Honour, other than to say the AWU was represented by the federal president in the meeting that Mr Allen has referred to. There hasn't been an outcome in relation to those matters yet, I can confirm that. In relation to the 150 employees, I understand your remarks were addressed to the other unions. I think it is fair to say that the AWU membership amongst that group is small, perhaps in single digits, out of that 150. Now, its eligibility is 100 per cent, but it's actual membership is very small. That is all I think I can say at this stage, your Honour, unless there's anything further in terms of the matters that you've asked about and I can't comment on the sort of evidence that might be called in response to the evidence foreshadowed by the other unions until we understand the nature of that evidence.

PN314

THE SENIOR DEPUTY PRESIDENT: You will have an opportunity as will Mr Allen. So I think that's where we have got to now. Mr Slevin?

PN315

MR SLEVIN: Yes, your Honour. In relation to the questions about the facts and foreshadowing evidence, the unions coverage is - and we can really only go by reference to the award that is sought and clause 3 of the proposed award sets out the classifications. Level 1E, there are four classifications. Level 1E:

PN316

An employee engaged as in the role of trainee or apprentice.

PN317

There doesn't seem to be much more by way of definition to assist us, your Honour, so it is difficult to say whether there's coverage there for the CFMEU. We imagine there would be. Certainly for level 1D an employee engaged in the role of operator would be covered by the CFMEUs rules. Car examiner or supply officer is also mentioned in that classification.

PN318

Level 1C is an employee engaged in the role of maintainer, locomotive driver and the CFMEU certainly has coverage for locomotive drivers. Technical assistant, laboratory analyst or assistant controller, it's difficult to say what the category of assistant controller means simply by reference to the words, but that may well encompass coverage by the CFMEU. Level 1B, an employee engaged in the role of officer or controller, pit plant or process. Again, there doesn't seem to be much to assist us in determining the coverage of the union so far as that classification is concerned. So that's the best we can do so far as coverage is concerned given the state of the award.

PN319

So far as number of members. The CFMEU has 24 members and they fall in that group of 150. So far as the invitation to become a party, the CFMEU has not taken up that invitation to date. It did attend the meeting on Friday and as you've heard there are ongoing discussions arising from that.

PN320

THE SENIOR DEPUTY PRESIDENT: Now, in relation to the evidence that you have referred to in your grounds 111AAA, are you able to say as currently instructed what form you think that would take and how it would be presented?

PN321

MR SLEVIN: It seems to us, your Honour, there are two steps as it were. The first is to identify those that would be covered by a section 111AAA. So far as identifying, we don't take issue with the three broad groups that have been described. I have no instructions so far as the numbers that are provided on that front so far as the three groups are concerned and evidence in relation to the section 111AAA, we don't concede at this stage that the submissions of the company and the AWU are correct so far as the AWA employees are concerned.

PN322

Reference is made to decisions of the Commission about whether per se an AWA will oust the provisions of state awards and agreements, but we believe it turns on the terms of these AWAs. We are aware from one of our members who has provided us with a copy of an offer for an AWA that there may well be scope that the AWAs envisage that there are terms and conditions that may continue to be governed by state awards or agreements. Scope clause in the proposal indicates to us that that is the case. Of course, but in that instance, the offer of that AWA wasn't taken up so the question then is, is that the standard scope clause for the AWAs on the site? If it is, what does that scope clause mean? So there is that first step of determining what the AWAs say.

PN323

In relation to the second group, we don't agree with the submissions put in particular by the AWU that the 145, I think the number is, employees who are covered by state agreements that continue by virtue of the transitional provisions in the state legislation are not governed by a state award or agreement.

PN324

THE SENIOR DEPUTY PRESIDENT: Just pause there for a moment. I don't know that that's the AWU position, is it Mr Herbert? I know it's Freehills position.

PN325

MR HERBERT: No, your Honour. That was the position put by Freehills. We respectfully didn't concur with that.

PN326

THE SENIOR DEPUTY PRESIDENT: Yes, I thought that that was the one area that you're at least on the same side as everybody here in Sydney.

PN327

MR HERBERT: Yes, without being on the same side, we're not disagreeing with the legal position that there is sufficient governance of those persons by a state award for that to be governed within the meaning of the Act.

PN328

THE SENIOR DEPUTY PRESIDENT: I understand. But in any event, both you and Mr Slevin - certainly Mr Allen says - - -

PN329

MR SLEVIN: Well, I accept that, your Honour, that was an oversight by my part. I'm not sure who it is unfair of -

PN330

THE SENIOR DEPUTY PRESIDENT: I won't make a comment, but there is an issue there.

PN331

MR SLEVIN: There is an issue there. For that issue to be resolved on the evidence front, I think it is simply a case of getting hold of one of these agreements as well to see what the legal impact of those provisions are. It seems to be accepted that the nine who continue on the award are certainly caught by section 111AAA. The second step, your Honour, is the step of determining the views of the employees who might fall into that category.

PN332

THE SENIOR DEPUTY PRESIDENT: May I ask you then to pause there. Are you going to say to me soon that you want the matters you've just addressed to be subject of argument and ruled upon or not?

PN333

MR SLEVIN: Yes, I am.

PN334

THE SENIOR DEPUTY PRESIDENT: Yes, continue.

PN335

MR SLEVIN: And also subject to directions that we be provided with a copy and I've made a couple of assumptions in the submissions I've made and Mr Allen is probably in the best position to confirm whether my assumptions that these are pro forma type agreements and simply having one copy will satisfy what's required. We would seek directions that we be provided with each of the types of agreements. I was moving on to the second step of determining the employees views and just to foreshadow that on my instructions, the union's view is that the best way to determine the employees views is by way of a ballot conducted by the Commission. That is all we have to say, your Honour.

PN336

THE SENIOR DEPUTY PRESIDENT: Mr Flatt?

PN337

MR FLATT: Your Honour, from the information I've gained on site is that the CEPU has between 20 to 30 members within the 150 stated in the application. Apart from that, we would support the submissions of Mr Slevin in relation to the evidence and the procedures to follow and the coverage issue is also some of the problems raised by Mr Slevin about the vague categories contained in the proposed award.

PN338

In relation to the taking up of party status to the proposed award, the CEPU has been represented in those meetings and has also decided not to take up the offer of becoming a party to that award where there are further discussions taking place in that matter.

PN339

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Buchanan?

PN340

MS BUCHANAN: If the Commission pleases. I am unable to assist with the precise number of members of the AMWU within that 150. I have been instructed it is somewhere between 15 to 20. We concur with the approach outlined by Mr Slevin in relation to the evidence we would seek to put and the AMWU has also declined the offer offered by ACI in relation to the proposed award.

PN341

THE SENIOR DEPUTY PRESIDENT: Now, are any of the unions here in Sydney able to volunteer to me when might be the next occasion you think about whether you are any more attracted to becoming parties to the award than not and is this something that's sort of daily being considered or is it going off to identified meetings? Mr Slevin, are you able to answer that?

PN342

MR SLEVIN: If I might take a moment to get instructions. Mr Maher is here he may be able to help. Yes, I can help, your Honour. There's no structured series of meetings to occur in the timeframe set. There are discussions to occur at the ACTU level about the offer. If it assists, the inclination at the moment of the CFMEU is not to become a party to the award and to oppose it being made in its current form.

PN343

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thanks. Now, do either of the other unions want to say anything? That gives me an idea.

PN344

MR FLATT: The CEPU would agree with that position.

PN345

MS BUCHANAN: Likewise.

PN346

THE SENIOR DEPUTY PRESIDENT: I think now what I'll do is find out what role Mr Schapper, the state registered unions want to play. Then I think I will go to you, Mr Herbert, and then finally to you, Mr Allen. So, Mr Schapper?

PN347

MR SCHAPPER: Thank you, your Honour. My three clients are parties to the award of the State Commission that currently governs those who are not on AWAs on the assumption that the AWA has probably excluded the state awards and it is my clients view that the Commission should cease dealing with this matter under 111(1)(g). I foreshadow making an application under that paragraph of subsection (1) of 111 on the ground that won't be unfamiliar to your Honour and that is that this is an industry where there has been Hamersley Iron state regulation since inception and the state industrial authority is dealing with the matter and it is proper that it should deal with the matter and that this Commission should in our respectful submission cease to deal with the matter.

PN348

So, can I firstly foreshadow that we propose to make that application and assume that we would be heard on it in due course.

PN349

Can I also indicate to the Commission that there are, of course, proceedings in the State Commission under the bargaining provisions of the WA Industrial Relations Act that have been the subject of one conference before Commissioner Kenner and that conference is to resume this coming Friday for report back. The company has foreshadowed the making of an application to the State Commission that the State Commission adjourn that matter simply until all federal proceedings are completed. My clients have opposed the application.

PN350

Can I also indicate that my clients will this week file an application in the State Commission to vary the state award in respect of a number of matters and it will be our contention that the State Commission should proceed to hear the application to vary the state award and that this Commission should cease dealing with the matter to allow the State Commission to do that on simple basis - this is not exhaustive obviously, but it has always been a state regulated industry and it should stay that way.

PN351

Just to summarise, your Honour. We foreshadow making applications under 111(1)(g). We will be filing an application to vary the state award in the State Commission this week and the bargaining matter will be resumed in conference before Commissioner Kenner on Friday. We will seek to pursue our rights in the State Commission and we will put to this Commission that it should cease dealing with the matter when the occasion arises for that submission to be made.

PN352

THE SENIOR DEPUTY PRESIDENT: Mr Schapper, may I require you to put on your 111(1)(g) application as a matter of some urgency? Does that create any particular problems for you?

PN353

MR SCHAPPER: No, your Honour. I should be able to have that done by the end of the week. I think I can commit to that.

PN354

THE SENIOR DEPUTY PRESIDENT: Actually, I probably put it the wrong way. You foreshadowed applications are going to be made. You should not assume that I have formed a view that if you are going to make them, you must make them as part and parcel of the exercises before me. However, I had rather read into the fact that you sought leave to intervene today and want to express a view that you would be seeking to run those arguments as part of all these arguments, hence my request for you to put on the application urgently.

PN355

MR SCHAPPER: Yes, your Honour.

PN356

THE SENIOR DEPUTY PRESIDENT: It wasn't otherwise your view that you would abide the outcome of the 111AAA applications, then pursue 111(1)(g) was it, because if it was, I had misunderstood you.

PN357

MR SCHAPPER: No, I haven't formed a view and I'm not making a submission about what order these proceedings, the various applications should be heard in or whether they should all be heard together or some together and some after and - - -

PN358

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN359

MR SCHAPPER: I am not making any submission about that. I'm simply saying we are going to be making the 111(1)(g) application and doubtless we can talk in due course about where that fits into the scheme.

PN360

THE SENIOR DEPUTY PRESIDENT: Yes. Well, again, that may or may not be a matter that you will need some procedural rulings but I don't think I can pursue that much further today. Mr Herbert?

PN361

MR HERBERT: Your Honour, I don't think there is much I can add. There does seem to be an air of unreality in the suggestion that the employers operations are and always have been regulated by state industrial arrangements having regard to the factual material in the contentions that we filed, that Rio have filed in relation to how many of the employees are currently regulated in the federal jurisdiction, but I don't think this is the time to debate that.

PN362

There is a difficulty, however, in what was said by my learned friend, Mr Schapper, in relation to the proposal that seems to be mooted that varying the state award in relation to a number of matters will have the effect of holding this matter up in its totality. That award, if it applies to anyone, it only applies to Hamersley, it doesn't apply to Robe River at all and that any applications in relation to the state award have no application to at least one of the Rio employers. That may need to be considered as to whether the matter can or should go forward in relation to those places or those operations in respect of which there is no 111AAA application possible and no 111(1)(g) application possible. As I say, the Robe River employees are award free as we speak.

PN363

Other than that, your Honour, it seems that there are a number of logs being rolled in front of this application that would appear to be intending to string out any directions of procedural matters that are required. I can only ask that the Commission have regard to the desirability of hearing as many matters together as can be done so as to avoid the possibility of sequential hearings in relation to these matters.

PN364

I am conscious of an argument that 111(1)(g) application may only be made or may certainly may only be determined after a determination has been made under 111AAA that the dispute can be further progressed and it only becomes relevant after that point. From a practical point of view, if it be necessary to say anything about that now, there does not seem to be any reason why all of the arguments and the evidence in support of any mooted 111(1)(g) application can't also be put at the same time as any 111AAA applications and then as would happen in the Dawaller matter, your Honour or whoever hears the matter, will be in a position to make sequential rulings in relation to those matters rather than having sequential hearings which could cause considerable delay in the progress of this matter. Other than that, your Honour, I don't think there is anything I can add in respect of the matters that your Honour has asked of the AWU at this point.

PN365

THE SENIOR DEPUTY PRESIDENT: Thanks. Mr Allen?

PN366

MR ALLEN: If the Commission pleases, perhaps I should just deal with the matters raised by Mr Schapper and we would appreciate some direction as to timing to bind Mr Schapper to make that application this week because we are keen to have this matter progressed. In relation to the state proceedings already on foot and the application to vary, the approach that will be taken by Hamersley, if it is only Hamersley in relation to those two will be to urge the State Commission not to proceed to deal with those matters while the Federal proceedings determine the issue with jurisdiction.

PN367

We believe that it would be unfortunate to have the two tribunals traversing the same ground at the same time. If the State Commission declines to accept that argument, then we would have to consider our position under section 128. In terms of the other matters, we can supply the parties with a pro forma copy of the relevant documents. I will need to check whether it is a common form of AWA and also whether it is a common form of state workplace agreement. The form of agreement that comes under the heading of statutory contract, in fact, picks up by way of a transitional provisions, a range of other documents as well. We can endeavour to put those together and supply them to the parties this week.

PN368

We would simply ask the Commission to follow the approach that Mr Herbert has outlined in the sense of programming this matter for evidence and argument at the same time and perhaps to deal with the issue of the order of submissions sequentially in a manner that my learned friend has outlined.

PN369

The other matter that I think I just need to address is my learned friend Mr Slevin has made a submission as to how the views of employees should be obtained. We would wish to be heard about that matter at an appropriate time, if the Commission pleases.

PN370

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Madam Reporter if I may have the transcript of this report back prepared as a matter of urgency.

PN371

Mr Schapper, I will require you to file and serve any applications the three state registered unions wish to make under section 111(1)(g) by no later than close of business this Friday. Do you wish to say anything about that?

PN372

MR SCHAPPER: No, your Honour.

PN373

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Allen, within that same timeframe, supplying the pro forma of the relevant documents to the parties and a copy to the Commission. Now, I think then the only thing I would appreciate being informed about is the outcome of the hearing before Commissioner Kenner this Friday but I can indicate that as soon as possible after we adjourn and subject to my court hearings today and the President's, I will be giving him a report about these proceedings. I don't think I can say much more than that.

PN374

MR ALLEN: Perhaps your Honour I can just make one other observation. Insofar there are - or the door has not yet been closed in the matters within the discussions that were commenced by the ACTU, I note the position that's been put which is not particularly optimistic in terms of the three federal unions. Our position in terms of the continuation of those discussions is simply this that we would not want that to prejudice the early hearing of these matters. If the federal unions wish to change their position, well, obviously, the sooner the better, but we would not wish the continuation of those matters to prejudice the early hearing of this matter.

PN375

One of the major reasons we say that is that hinging on an outcome federally in this matter is pay increases for the 150 which arise from the separate arrangements we have with the AWU and that delay is clearly a matter that we would not wish to see happen for any lengthy period of time. If the Commission pleases.

PN376

THE SENIOR DEPUTY PRESIDENT: All right. The Commission will now adjourn.

ADJOURNED INDEFINITELY [1.35pm]