C2003/4553, Transcript of Proceedings [2003] AIRCTrans 4234 (25 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/4553

ENTERPRISE BARGAINING AWARD

Application pursuant to Section 111(1)(b)
of the Act by the Association of Professional
Engineers, Scientists and Managers, Australia
and Others for making of the Coal Mining Industry
(Supervision and Administration) Consent Award,
1999, New South Wales and Tasmania

SYDNEY

2.55 PM, TUESDAY, 9 SEPTEMBER 2003

Continued from 28.7.03

PN31-

THE COMMISSIONER: I will take the appearances.

PN30

MR M. SANDON: If the Commission pleases, Sandon, initial M. on behalf of Thiess Pty Ltd.

PN31

THE COMMISSIONER: Yes. I note that this matter has come on some 25 minutes late due to the absence of an APESMA representative. There is correspondence from APESMA, but it doesn't relate to non-attendance today. My associate informs me that she has been in telephone contact with Mr Sheather of APESMA, who has informed her that Ms Bulger has carriage of this matter and is in Sydney this week, but has so far not shown. What do you say about this, Mr Sandon?

PN32

MR SANDON: Commissioner, I would push that the Commission deal with the matter today. The applicant in this matter has had ample opportunity to either relist the matter or seek changes to the hearing of this matter. The matter has now been going on for some period of time; the company now seeks a resolution to the matter so it can move on.

PN33

THE COMMISSIONER: Yes. I will grant your application, and in saying that, I wish to note, also, that the matter was set down last before me on 3 September 2003, on which occasion no representative from the union attended, and I was assured by Mr Sheather by phone that somebody would attend today, so your application is granted. What do you wish to do, Mr Sandon?

PN34

MR SANDON: Commissioner, the company would push that the roping-in award be made from today's date, Commissioner. The reason for that - I might just go through some of the background, Commissioner. The matter was originally before you on 24 July 2003 - sorry - it was set down for hearing on 28 July 2003. At this hearing the company imposed the roping-in application at that time and pushed the matter to be set down for hearing at a later date.

PN35

The following directions were subsequently given: that Thiess shall file in the Registry and serve on the other party an outline of submissions and any affidavits, witness-statements, or reports by close of business on Monday, 11 August 2003. By letter dated 11 August 2003 the company consented to the roping-in application. This was within the timeframe that the company had to file its submissions in opposition to the roping-in.

PN36

APESMA, at a later date, 12 August 2003, posed the date of application set out in the company's letter to the Commission. APESMA sought the application to come into effect on the date of the original hearing, 28 July 2003. The reason, and I take it the submission being put in this matter, Commissioner, was the reason cited was that its delay would penalise APESMA members. So the position we find ourselves in is the company has consented to the roping-in applications; however, the parties are apart regarding the date of application. In the current matter the company submits that the onus lies with the union as to the reason why the award should be backdated to a previous date.

PN37

THE COMMISSIONER: That is a view I fully agree with; I don't need you to address me on why it shouldn't be backdated.

PN38

MR SANDON: Okay. Well, Commissioner, the company would simply put that as such the award should come in from the first full pay period from today's date, as that would be the date that the order will be made by the Commission, and would be signed by a member of the Commission, in accordance with Section 145 of the Workplace Relations Act.

PN39

THE COMMISSIONER: I think Section 146 is fairly apposite.

PN40

MR SANDON: That is correct, Commissioner - sorry, 146. And in this instance, the company would put that there has been no exceptional circumstances that the company - sorry, the union has put forward as to why it should be backdated, so it should be made on the first full pay period today.

PN41

THE COMMISSIONER: Good, thank you, Mr Sandon. The Workplace Relations Act 1996 Act Section 146 headed Commencement of Awards provides at subsection 146(1):

PN42

An award shall be expressed to come into force on a specified date.

PN43

Subsection 146(2) provides:

PN44

Unless the Commission is satisfied that there are exceptional circumstances the date specified in an award for the purposes of subsection (1) shall not be earlier than the date of the award.

PN45

The correspondence referred to by Mr Sandon reached him by way of a copy forwarded to him by APESMA of a letter to me. The date of that letter is 12 August 2003, and I will read it into the record because, in effect, it is a submission for backdating of this consent award. So it is addressed to me at the Commission:

PN46

Dear Commissioner. C2003/4553, Application for Making of Coal Mining Industry (Supervision and Administration) Award Roping-In Number 1 Award 2003. I refer to the correspondence of 11 August 2003 from Mr Murray Sandon, HR Adviser, Thiess Pty Ltd, to the Commission wherein he advises that Thiess Pty Ltd consents to the making of the roping-in application to the Coal Mining Industry (Supervision and Administration) Award currently before the Commission. However, APESMA does not agree with proposed date of effect proposed by Thiess of the first pay period after 11 August 2003. APESMA seeks that the effective date of the roping-in award be from 28 July 2003, the date of the hearing of this matter before the Commission. On 28 July 2003 Thiess advised the Commission that they needed more time to consider their position, and whilst APESMA welcomes their decision to consent to the roping-in award, we do not believe that APESMA members should be penalised by the delay caused, particularly given, as APESMA advised the Commission on 28 July 2003, APESMA has been in discussions with Thiess on the application since we forwarded the application to Thiess on 20 June 2003.

PN47

And the letter is signed by Catherine Bulger, Director, Colliery Staff Division, and has been copied to Mr Sandon of Thiess. This brings a couple of interesting legal points to mind. The first being how one can have a consent roping-in award if one party is then also seeking to force another party unwillingly into a different date of effect. One would seem to partially cancel out the other, in my humble opinion. Secondly, I see no reason why Thiess should have to pay any penalty or APESMA gain any benefit from the fact that Thiess took a reasonable amount of time to consider its position, and in fact, then consented to the roping-in.

PN48

Had Thiess continued to maintain its opposition and the case had gone to arbitration, the date of effect would have been considerably later than today's date. Accordingly, I refuse the application by APESMA for the backdating of this consent award. I grant the roping-in award, and it will come into force on and from today's date, being 9 September 2003, in the terms of the draft order as supplied to the Commission. We are adjourned.

ADJOURNED INDEFINITELY [3.05pm]

PN49