C2003/2024, Transcript of Proceedings [2003] AIRCTrans 4243 (25 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2003/2024

APPLICATION UNDER SECTION 118A BY
AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
RE REPRESENTATION RIGHTS OF EMPLOYEES
RE INDUSTRIAL DISPUTE - DEMARCATION

SYDNEY

12.10 PM, TUESDAY, 9 SEPTEMBER 2003

Continued from 1.9.03 in Melbourne

PN192

THE SENIOR DEPUTY PRESIDENT: Are there any changes in appearances today?

PN193

MR PENNING: No, your Honour.

PN194

MR SHARIFF: No, your Honour.

PN195

THE SENIOR DEPUTY PRESIDENT: Yes, well, the matter is listed today. We will now deal with the application for leave to intervene on behalf of the New South Wales Road Transport Association, so Mr Shariff, perhaps you will start off.

PN196

MR SHARIFF: Yes, your Honour. Perhaps I could firstly make a point of clarification. On the last occasion I indicated to you that I was withdrawing the appearance for Waste Contractors and Recyclers Association and only pressing the application to intervene by the New South Wales Road Transport Association. I have since been instructed, and Mr Creswell's evidence goes to this somewhat that I had unintentionally misled you. I wish to make this application on behalf of the Waste Contractors and Recyclers Association but withdraw the application on behalf of New South Wales Road Transport Association.

PN197

The reason for that, your Honour, is on 1 July 2003 WCRA entered into a services agreement with the Road Transport Association, where only industrial interests would be represented. WCRA entered into a services agreement with the Road Transport Association where only industrial interests would be represented. WCRA remains a registered industrial organisation and it is the relevant organisation with members in the waste management industry.

PN198

Having said that, your Honour, this is an application by the Waste Contractors and Recyclers Association who I will refer for the sake of convenience as WCRA. For the purpose of the record that is W-C-R-A. It is an application made pursuant to section 43 of the Act. WCRA is a registered industrial organisation pursuant to the New South Wales Industrial Relations Act and it is an employer body that represents the interests of the employees in - by its rules defined the waste management industry.

PN199

WCRA is also represented in the relevant State Conciliation Committee being the Waste Collection and Recycling Industrial Committee, that is equivalent to an industrial tribunal empowered to make awards in the State of New South Wales. Under section 43 of the Workplace Relations Act of course the Commission has been empowered with a fairly wide discretion to allow persons or organisations to intervene in any matters which, of course, includes demarcation matters.

PN200

There is a significant body of law setting out what an intervener must show in order to be successful in the application to intervene. Suffice to say, WCRA need to demonstrate today that it would be directly affected by these proceedings or indirectly affected but in such a way that considerations of fairness would justify the intervention and that of course applies to WCRAs members as well. The test is also being put another way. That is, does the applicant for intervention have a substantial relevant or necessary interest in the matter.

PN201

It is our respectful submission that evidence will show that not only WCRA but also its members have such relevant interests. We submit that WCRA and the members that it represents ought to be permitted to intervene as it satisfies these grounds and we say this because put simply if the AMWU is successful in these proceedings it will firstly adversely affect the provision of services by WCRA to tis members and its member Visy Recycling, and secondly, it would set a precedent that would potentially affect other members operating material recycling facilities which I will refer to as MRFs, M-R-Fs.

PN202

We say that WCRA rights will be affected in this way because firstly, the AMWU seek an order, which is order 2, acknowledging the Federal Graphic Arts General Award 2000 as the relevant award governing the terms and conditions of employees at the company's Blacktown MRF. The evidence will show that WCRA is not a respondent to the Federal Graphic Arts Award. The evidence will show that one of the primary reasons why Visy are a member of WCRA is to receive services in relation to the relevant industry award which we say is the State Transport Industry Waste Collection and Recycling Award.

PN203

Therefore, if the AMWU are successful in obtaining their order, number 2, WCRA would be unable to represent Visy in relation to that State Award. This would directly affect the business of WCRA and its legal rights in wishing to continue to represent Visy. Secondly, the AMWU seek orders which are their orders 1 and 4, and the purpose of those orders is that they seek to cover all employees at the Blacktown MRF. This includes both drivers and sorters.

PN204

The AMWUs grounds for doing so is that all employees engaged in the Blacktown site are capable of falling within the AMWUs eligibility rules. If the AMWU are successful in obtaining this determination it would be tantamount to a finding that employees engaged at the Blacktown MRF are engaged in fact, in the paper manufacturing and associated industries. This will directly materially and substantially affect WCRAs interest as WCRAs rules or constitution, as it were, permits WCRA only to undertake various activities in relation to only the waste management industry, hence WCRA would be unable to represent Visy Recycling's interest either industrially or commercially by way of the limitations in its rules.

PN205

Thirdly, both of these two matters, these orders that firstly seek the application of the Federal Graphic Arts Award and secondly, the seeking of coverage of these employees at the Blacktown MRF, we say would have the potential, if not do affect WCRAs other members who operate MRFs. these members, the evidence will show, operate MRFs at Gosford, Belrose, Wollongong, Chullora and Wyong which are all locations in the State of New South Wales.

PN206

We say that once there is a finding, and if there is a finding that employees engaged at the Blacktown MRF are engaged in the paper manufacturing industry, it fundamentally changes the nature of the industry of WCRAs members who operate MRFs. It sets a precedent that will no doubt be followed, and for our members not to be heard in regard to that matter would be a denial of natural justice.

PN207

Another direct consequence would be it would lead to a definitive disadvantage of costs in the New South Wales waste industry. We say that would arise because the cost set at the Blacktown MRF would be disproportionate or there would be a lack of parity with the other labour costs that are incurred at other MRFs in New South Wales. That would be a direct consequence of the orders that the AMWU seeks.

PN208

Finally, I will say at the outset that notwithstanding any direct or indirect legal effect, WCRA nevertheless has a substantial relevant and necessary interest in these proceedings in that should the AMWU be successful it would affect and jeopardise WCRAs interest which, as the evidence will show has been quite historic in the development and establishment of the waste and recycling industry in New South Wales, and that applies not only in relation to industrial matters, but the general commercial matters and regulatory matters that have gone to establishing that industry.

PN209

In putting these arguments in a much simpler way we say that these proceedings will affect not only the capacity but the legitimacy of WCRA continuing to provide services to Visy Recycling, if not, all of its other members who operate MRFs it will further raise the competitive disadvantage in the New South Wales industry as to labour cost. Your Honour, that is all I wish to say by way of opening. At this stage I am inclined to call my evidence. The first witness I have today is Mr Michael Creswell.

PN210

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN211

MR PENNING: Your Honour, might I rise at that time in respect of the calling of witnesses, and I am in the Commission's hands on this matter. We received the witness statements yesterday afternoon. I informed Mr Shariff's office this morning that we would not require the witnesses who for cross-examination on the basis that the statements as provided to us were tendered and able to be read by the Commission for the purpose of the intervention application only and on the basis that we sought to reserve our rights in respect to firstly raising grounds of objection on the material in the witness statements and secondly, in respect of cross-examination and seeking to have leave to cross-examine those witnesses at an appropriate time if intervention is granted.

PN212

THE SENIOR DEPUTY PRESIDENT: And what was Mr Shariff's reply to that?

PN213

MR SHARIFF: My reply to that, your Honour, was if that is the case well we would seek to reserve our rights to file further evidence if we were successful in our application.

PN214

THE SENIOR DEPUTY PRESIDENT: Well, as I understand it these statements have been filed for the purpose of supporting an application for intervention. To what extent, if intervention they were granted, or if not - if they weren't granted to what extent they might be available to the parties in the hearing of the merits of the substantive application is another matter altogether and the parties are perfectly correct in reserving their rights in that respect.

PN215

MR SHARIFF: Yes.

PN216

THE SENIOR DEPUTY PRESIDENT: It may be that, for example, if intervention were granted Mr Shariff might in due course seek to rely on them but he would indicate that as part of complying with any of the directions that were made.

PN217

MR PENNING: Yes, your Honour. In those circumstances it would be highly likely that we would require the witnesses for cross-examination.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. But you are prepared to have this matter of intervention dealt with purely on the basis of them being admitted for the purposes of this application for intervention. I can indicate that I have read them.

PN219

MR PENNING: Yes.

PN220

THE SENIOR DEPUTY PRESIDENT: I can't say that I have read in detail all the attachments but I have certainly read the statements.

PN221

MR PENNING: Yes. That is correct, your Honour, and I say that at this time if Mr Shariff was intending on putting the witnesses in the witness box just to indicate that I am not intending to cross-examine them at this point in time, one, simply, I haven't had the opportunity to obtain instructions that sufficiently would allow me to cross-examine them, but two, I am of the view that the intervention application can be determined on the basis of a reading of those statements without the necessity for leading further evidence and without the necessity for cross-examination.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Longland, you are about to say something?

PN223

MR LONGLAND: Yes, thank you, your Honour. I simply wanted to indicate that whilst we will be supporting the application for intervention we will not obviously be duplicating or in any way repeating the submissions that are made. We have short, sharp submissions to make from our perspective which go to supporting the applications for intervention. There are a series of very - a short series of questions that I would seek to ask of Mr Creswell, or indeed of each of the witnesses, to support that submission. In those circumstances I would say that it is appropriate that Mr Shariff be given the opportunity to put his witnesses in the box so that they can attest to their statements.

PN224

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Kaine?

PN225

MR KAINE: No, the TWU has nothing to add. It doesn't oppose the WCRA application for intervention. While I am on my feet, your Honour, might I just foreshadow that at some time before you adjourn today that it would be necessary for the Federal and State TWU just to clarify its position in these proceedings and I will put to the Commission the content of discussions that the two unions have had in relation to that.

PN226

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN227

MR PENNING: Your Honour, might I raise very briefly just to respond to the matter that Mr Longland has raised? Could I say that I would seek to place on the record our opposition to the approach foreshadowed by Mr Longland. What he would effectively be doing would be - he has clearly indicated that he supports the intervention application, there is no doubt about that, he wouldn't be cross-examining these witnesses in reality, he would be leading further evidence.

PN228

And again, I would be in a position of some considerable procedural disadvantage because I am not in a position to in any way question or cross-examine the witnesses because of the time period involved. It would be prejudicial to us for Mr Longland to either lead further evidence, which is in reality what he would be doing, or as he would describe it, to cross-examine the witnesses.

PN229

THE SENIOR DEPUTY PRESIDENT: Mr Longland?

PN230

MR LONGLAND: The matter which has been listed for today is an application for intervention. We are a party to the proceedings. We support the application. We ought to be given the opportunity to lead evidence, cross-examine evidence, however one wishes to categorise it. In the event that I do so in such a way that my friend is caused some disadvantage, and I indicate that I won't - we are talking about three minutes per witnesses here - then Mr Penning's interest can be protected.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes, I propose to allow you to do this, Mr Longland, on the basis that you restrict yourself to matters that are pertinent to the question of intervention.

PN232

MR LONGLAND: Yes.

PN233

THE SENIOR DEPUTY PRESIDENT: And, to the extent that any evidence that is forthcoming as a result of any questions you ask of these witnesses, will only be available for use in respect to this particular application for intervention not in relation to any merits application; that is another matter at another stage.

PN234

MR LONGLAND: Yes, thank you, your Honour.

PN235

THE SENIOR DEPUTY PRESIDENT: It appears, therefore, Mr Shariff, it will be necessary for you to go through the formality of putting your witnesses in the witness box, having them swear up to the statements and I will admit them and then Mr Longland can ask his questions.

PN236

MR PENNING: Your Honour, there is just one further thing I wish to add - - -

PN237

THE SENIOR DEPUTY PRESIDENT: Mr Penning, I will let you reserve your rights in relation to that issue of whether you then wish to ask questions of any of the witnesses.

PN238

MR PENNING: Thank you, your Honour.

PN239

MR SHARIFF: So, your Honour, in all of that there is just one point I wish to add, which was I actually need to ask some points of clarification of the witnesses, so in any case I would have had to call them into the box. On that basis, I call Mr Michael Creswell.

<MICHAEL JOHN BARLING CRESWELL, AFFIRMED [12.27pm]

<EXAMINATION-IN-CHIEF BY MR SHARIFF

PN240

THE COMMISSION: Please state your full name and address?---Yes, Michael John Barling Creswell, of 3/54 Lucerne Street, Belmore, 2192.

PN241

MR SHARIFF: Mr Creswell, you have prepared a statement for the purposes of these proceedings?---I have.

PN242

And you have got a copy of that statement with you?---If this is it, yes.

PN243

You have read a copy of that statement this morning, Mr Creswell?---I have.

PN244

Do you say that the contents of that statement are true and correct in every particular?---I do.

PN245

I seek to - - -?---Well, there is one thing I did notice, it is a small thing in that it is a misprint or a little technical error, and that is where you refer - well, where it refers to the conciliation committee I think that the words "State of New South Wales" were left out. It says, "In the State of, excluding the county of Yankawinna," there is a New South Wales omitted.

PN246

THE SENIOR DEPUTY PRESIDENT: What paragraph number are you referring to?

PN247

MR SHARIFF: Is it paragraph 26, Mr Creswell?---It is, yes.

PN248

And it is in the text in inverted commas?---Yes.

PN249

In the third - - -?---In the third line from the bottom. It should be, before the comma, after "of", State of New South Wales. A small point.

**** MICHAEL JOHN BARLING CRESWELL XN MR SHARIFF

PN250

Well, subject to that one amendment, do you say that the contents of this statement are true and correct in every particular?---Yes.

PN251

I seek to tender that statement.

PN252

THE SENIOR DEPUTY PRESIDENT: With the attachments, I take it?

PN253

MR SHARIFF: Yes, with the - - -

PN254

THE SENIOR DEPUTY PRESIDENT: I will mark the statement and the attachments as WCRA1.

EXHIBIT #WCRA1 WITNESS STATEMENT OF M.J.B. CRESWELL

PN255

MR SHARIFF: Mr Creswell, is there anything you want to clarify from your statement at all?---There is a point which I should have made in that statement, and that is that prior to MRFs coming into operation the majority of the material which now goes to MRFs went directly to land fill. So as the pressure grew to reduce the amount of waste going to land fill then these facilities came into operation.

PN256

I have no further questions for Mr Creswell.

PN257

THE SENIOR DEPUTY PRESIDENT: Mr Longland?

PN258

MR LONGLAND: Thank you, your Honour.

<CROSS-EXAMINATION BY MR LONGLAND [12.30pm]

**** MICHAEL JOHN BARLING CRESWELL XXN MR LONGLAND

PN259

MR LONGLAND: Just briefly, Mr Creswell, correct me if I am wrong, I think your affidavit indicates that your involvement with this industry dates back to 1974; would that be right?---1974, yes.

PN260

To your knowledge, at any time since 1974 has it ever been asserted that the activities carried on at MRFs are activities which fall within a manufacturing industry?---Not to my knowledge and not within my experience.

PN261

Has it ever been, in your experience, asserted that the AMWU or any of its predecessor unions have coverage of that work?---Until this application, no.

PN262

Thank you, your Honour.

PN263

THE SENIOR DEPUTY PRESIDENT: Is there anything, Mr Penning, you want to ask?

PN264

MR PENNING: No, there is not, your Honour. I have indicated generally that we would seek to reserve our position in respect of each of the witnesses.

PN265

THE SENIOR DEPUTY PRESIDENT: Anything further of this witness?

PN266

MR SHARIFF: No, your Honour.

PN267

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Creswell, for your assistance. You are excused.

<THE WITNESS WITHDREW [12.32pm]

PN268

MR SHARIFF: Your Honour, I now wish to call Mr Tony Khoury.

<TONY KHOURY, SWORN [12.34pm]

<EXAMINATION-IN-CHIEF BY MR SHARIFF

PN269

THE COMMISSION: Could you state your full name and address, please?---Tony Khoury, Level 4, 162 Goulbourn Street, Darlinghurst.

PN270

MR SHARIFF: Mr Khoury, you have prepared a statement for the purposes of these proceedings?---Yes, I have.

PN271

Do you have a copy of that statement with you?---Yes, I do.

PN272

Have you read a copy of that statement today?---Yes, I have.

PN273

Do you say that the contents of that statement are true and correct in every particular?---Yes, I do.

PN274

I seek to tender that statement.

PN275

THE SENIOR DEPUTY PRESIDENT: I think there are two attachments to it. I will mark it as WCRA2.

EXHIBIT #WCRA2 STATEMENT OF TONY KHOURY

PN276

MR SHARIFF: Mr Khoury, there are just a couple of questions I want to ask you by way of clarification. Do you have any knowledge of what occurs in terms of activities at MRFs?---Yes, I do.

PN277

Can you tell us what type of employees are generally engaged in MRFs?---Generally, labourers, pickers and sorters who stand on recycling lines and sort through the materials as they come along on a conveyor belt.

**** TONY KHOURY XN MR SHARIFF

PN278

What types of materials would they be?---Typically, they would be paper, cardboard, plastics, aluminium cans, tin cans, the various types of glasses that are generated domestically; and they would come along on a conveyor belt and there'd be different individual labourers, sorters or pickers nominated along either side of the picking belt to segregate those items into different bayed areas.

PN279

And how do those materials get into MRFs?---They're generally generated mostly in either domestic or small-to-medium-sized operations but, mostly, domestic households. They're collected curb-side in a co-mingled container and they're brought by compactor truck to MRFs and, generally, those compactor trucks will work in a geographical area around a particular MRF and bring the contents of their collection once they've completed their payload to that MRF.

PN280

Have you actually had any direct or indirect involvement with any MRFs, in your experience?---Yes, I have.

PN281

What is that?---The particular Visy MRF that's in question here, I used to be the operations manager at Cleanaway and we used to own that MRF prior to Cleanaway selling it to Visy.

PN282

When you were in that position what types of employees did Cleanaway employ at the Blacktown MRF?---Labourers, sorters and pickers predominantly to work on the lines; you know, the odd loader-driver to move materials around the site, but predominantly loaders, pickers and sorters.

PN283

What about the drivers who bring the material into the MRF?---Yes, they are transport workers, the drivers that brought the materials in, employed under the relevant, you know, Waste and Recycling Award.

PN284

Yes. I have no further questions, your Honour.

**** TONY KHOURY XN MR SHARIFF

PN285

THE SENIOR DEPUTY PRESIDENT: Mr Longland?

PN286

MR LONGLAND: Thank you, your Honour.

<CROSS-EXAMINATION BY MR LONGLAND [12.36pm]

PN287

MR LONGLAND: Mr Khoury, can you just tell us briefly what happens to - correct me if I miss some out - the paper, cardboard, plastic, aluminium, tin and glass after it has been sorted - and I think you said it is put into bays?---That's correct. Put into bays or bins and the individual contents, the material types, are then transported out to the various reuse, reprocessing facilities.

PN288

Is it the case with some or all of those products that they are sold by the MRF operator to other persons?---They're generally sold to other persons and the better the sorting and the segregation that takes place, the higher the value that can generally be placed on those individual components, yes.

PN289

To your knowledge, is there competition between operators of MRFs to produce product for that market?

PN290

MR PENNING: I rise to object at that point, your Honour. There are several general issues that will arise in respect of Mr Longland's examination of that style that perhaps are raised by that question. Firstly, it raises the question very directly as to whether this is cross-examination - which it certainly would appear to be in that it is leading of evidence rather than evidence-in-chief, as would be the case if it was Mr Shariff's witness, Mr Khoury, but Mr Longland is seeking to have the advantage of effectively cross-examination and lead evidence on various matters. But this question generally as to competition is one that really is far more properly dealt with, in my submission, not on the run, not on the hop in this way but by material that was properly led and considered in due course on a question of merits possibly.

**** TONY KHOURY XXN MR LONGLAND

PN291

THE SENIOR DEPUTY PRESIDENT: Mr Longland?

PN292

MR LONGLAND: The procedural question first, your Honour, I am not seeking to achieve some forensic advantage by leading and if it is ruled that my question is leading, I will reframe it. On the substance, your Honour, it is absolutely critical in this application for intervention, it is absolutely critical to establish that Visy, my client, competes with the operators of a range of other MRFs for the commercial profit derived from the sale of those goods. Now, the order that is being sought here, as a matter of fact, will impose a substantial and a significant competitive disadvantage on Visy. So, in the proceedings generally that we will be submitting, the Commission must have the assistance of the relevant industry body to be able to give evidence about that sort of thing before it can decide whether it is proper to burden my client with that significant competitive disadvantage.

PN293

THE SENIOR DEPUTY PRESIDENT: Isn't that evidence, though, that you could call in the hearing of the minutes?

PN294

MR LONGLAND: Well, it is not, your Honour, because of this: we don't have knowledge of the operations of the other members of the applicant for intervention. Those other members, quite properly might seek to give evidence in the proceedings through their industry association.

PN295

THE SENIOR DEPUTY PRESIDENT: But, assuming that they were not given leave to intervene, what would stop you from calling evidence or indeed seeking to give Mr Khoury to give evidence.

PN296

MR LONGLAND: It is proper we say in the first instance for those bodies and for the Commission to be able to make some assessment of competitive disadvantage by reference to evidence given by the relevant industry association.

PN297

THE SENIOR DEPUTY PRESIDENT: Well, I am not convinced that I should hear that evidence for the purpose of this application, Mr Longland.

**** TONY KHOURY XXN MR LONGLAND

PN298

MR LONGLAND: Yes, thank you, your Honour. Well I won't proceed. I have nothing further.

PN299

THE SENIOR DEPUTY PRESIDENT: Mr Penning, do you wish to ask anything?

PN300

MR PENNING: No, thank you, your Honour.

PN301

THE SENIOR DEPUTY PRESIDENT: Mr Shariff, anything further?

PN302

MR SHARIFF: Yes, your Honour. Perhaps I could re-examine Mr Khoury?

PN303

THE SENIOR DEPUTY PRESIDENT: Well, if you limit yourself to proper re-examination, yes.

PN304

MR SHARIFF: Oh, absolutely.

<RE-EXAMINATION BY MR SHARIFF [12.41pm]

PN305

MR SHARIFF: Mr Khoury, you were asked a question by Mr Longland along the lines of what happens in the industry generally?---Yes.

PN306

Would you be able to tell us whether the Blacktown MRF is similar or different to other MRFs in this industry?---It's very similar to other MRFs that operate. I mean, I could draw a parallel with the Thiess MRF that's operated on behalf of Waste Service at Chullora or other MRFs that are operated by either URM at Artarmon, SITA at Gosford, all operated along similar lines where materials that are brought to the MRF are dealt with in the same manner, along the conveyor belt typically by sorters, pickers and the material that's produced as a consequence of that sorting and picking is then sent off for beneficial re-use.

**** TONY KHOURY RXN MR SHARIFF

PN307

You were also asked some questions about cost. What is your view on cost across MRFs? Do they change, do they vary, are they similar in your experience?---Well, look, the labour component of your MRF operation is quite significant. It is a very significant factor in the operation of a MRF. It's quite similar across operations in that an operator who is exposed to a higher cost structure on labour it would make him uncompetitive in the marketplace for sourcing materials.

PN308

But when you say that the cost is significant, what does that mean?

PN309

MR PENNING: Oh, your Honour, that - I don't mean to butt in all the time - but it is just starting to raise a whole range of new matters that really go to far more detailed questions.

PN310

THE SENIOR DEPUTY PRESIDENT: I do think you are probably going beyond re-examine, Mr Shariff.

PN311

MR SHARIFF: All right. Well, I will cease then. I have nothing further.

PN312

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Khoury. You are excused from further attendance?---Thank you.

<THE WITNESS WITHDREW [12.43pm]

PN313

MR SHARIFF: I now seek to call Mr David Wood.

<DAVID RUSSELL MURRAY WOOD, SWORN [12.44pm]

<EXAMINATION-IN-CHIEF BY MR SHARIFF

PN314

MR SHARIFF: Mr Wood, you have prepared a statement for the purposes of these proceedings is that correct?---I have.

PN315

Have you got a copy of that statement with you?---Yes, I do.

PN316

Have you read that statement? Sorry, have you read a copy of that statement?---Yes, I have.

PN317

Do you say the - sorry. Do you say that the contents of that statement are true and correct in every particular?---Yes, to the best of my knowledge.

PN318

Mr Wood, you talk about in your statement the operations of the Blacktown MRF - sorry. I seek to tender that statement, sir.

PN319

THE SENIOR DEPUTY PRESIDENT: I will mark it as WCRA3.

EXHIBIT #WCRA3 STATEMENT OF MR WOOD

PN320

MR SHARIFF: Sorry, Mr Wood. In your statement you talk about Visy operating the Blacktown MRF. Can you describe for us the operations at Blacktown?---Blacktown materials recovery facility receives material from kerbside collection and also some other commercial operations. It's in the process of sorting that waste into separate streams and then on-selling it to other organisations as well.

PN321

And what type of employees do you engage at site?---We employ sorter operators and loader drivers of mobile equipment.

**** DAVID RUSSELL MURRAY WOOD XN MR SHARIFF

PN322

I have nothing further.

PN323

THE SENIOR DEPUTY PRESIDENT: Mr Longland?

<CROSS-EXAMINATION BY MR LONGLAND [12.45pm]

PN324

MR LONGLAND: Just very briefly, Mr Wood. Can you just explain whether you are aware of what occurs to the product that is picked and sorted at Blacktown after it has been picked and sorted?---After the product comes into our facilities it's separated into the various streams so we have plastic, glass, aluminium, tin, paper. That is then on-sold or sent out of the plant to various other organisations including our - other parts of our own organisations and for other use.

PN325

Yes, is that the same thing that occurs at other MRFs which are operated by Visy?---Yes, it is.

PN326

Yes. Can you tell us yes or no is that market a competitive market?---The market is very competitive. It operates with extreme margins - sorry, low margins across it - so any shifts now are cost-based and one of those is labour so any movement in that labour cost to us would be - have an effect on our commercial competitiveness.

PN327

Yes. Thank you, your Honour.

PN328

THE SENIOR DEPUTY PRESIDENT: Mr Penning?

PN329

MR PENNING: No questions, your Honour.

**** DAVID RUSSELL MURRAY WOOD XXN MR LONGLAND

PN330

THE SENIOR DEPUTY PRESIDENT: Mr Shariff?

PN331

MR SHARIFF: I have nothing further.

PN332

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wood, for your assistance. You are excused from further attendance.

<THE WITNESS WITHDREW [12.47pm]

PN333

MR SHARIFF: Well, that is the entirety of the evidence that WCRA seeks to call, your Honour.

PN334

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is anyone else seeking to call evidence?

PN335

MR LONGLAND: No, your Honour.

PN336

MR PENNING: No, your Honour.

PN337

THE SENIOR DEPUTY PRESIDENT: Well, you go ahead, Mr Shariff, if you have got any further arguments you want to put?

PN338

MR SHARIFF: Well, I was just wondering, I am a little bit in Mr Penning's hands if - I am not sure if he wanted to make any opening remarks before I made some submissions?

PN339

THE SENIOR DEPUTY PRESIDENT: Well, I will hear from you and then I will hear from Mr Longland, then I will hear from Mr Kaine if he wishes to say anything, then I will hear from Mr Penning.

PN340

MR SHARIFF: Yes, your Honour.

PN341

THE SENIOR DEPUTY PRESIDENT: And you will have the right of reply.

PN342

MR SHARIFF: Yes, your Honour. Your Honour, there have been various statements put before you. Those statements consistently show evidence. The first material evidence is that of Mr Wood. In his statement Mr Wood says that one of the primary reasons why he chooses to be - or why his organisation chooses to be a member of WCRA is to obtain industry representation in relation to the relevant industry award as well as industry representation in relation to a whole gamut of commercial regulatory matters. We also have evidence, your Honour, that WCRA is not only an industrial organisation that is registered under the New South Wales Industrial Relations Act but it also is one of the four representative parties on the State Conciliation Committee. That committee is, of course, charged with the power to make awards within the constitution of that relevant committee and that is set out in Mr Creswell's evidence, your Honour.

PN343

We also have evidence from Mr Creswell and Mr Khoury that sets out that WCRA has several other members who operate facilities that are similar to the Blacktown MRF not only in terms of the activities that are conducted there but in terms of which award applies to them in New South Wales. It is in light of that evidence that we say that WCRA has a direct interest in these proceedings and to put it another way it has a material or substantial interest. We say that firstly because these proceedings must affect Visy, they will affect Visy, and in so doing they affect WCRA. Specifically they will affect WCRAs rights to represent Visy in relation to relevant industry awards.

PN344

These proceedings will affect WCRA in that way because the AMWU seek an order acknowledging the Federal Graphic Arts Award as being applicable to the Blacktown MRF and that is order 2. By doing it, and because WCRA is not a respondent to that Federal award, it just takes away WCRA's rights to represent Visy in relation to the Blacktown MRF. It has no rights. Not only that, it takes away WCRA's rights as a participant in the State Industrial Committee to make awards with respect to the Blacktown MRF because a Federal award would apply if the AMWU are successful.

PN345

We further say that if the AMWU are successful they are seeking to cover all employees of the Blacktown MRF. Their argument is that the AMWUs rules entitle them to cover the types of employees who carry out work at the Blacktown MRF. That would, in our view, amount to a finding that employees engaged at the Blacktown MRF are not engaged in the activities related to waste management and recycling but that they are engaged in activities related to the manufacture of paper and cardboard.

PN346

This has a direct effect to WCRA and its members. It affects WCRA because WCRAs rules do not permit it to cover the manufacturing industry or to advance causes in the manufacturing industry but they are limited to advancing causes, whether industrial or commercial, in the waste management industry. They have always done so and they have done so in relation to the Blacktown MRF. If the AMWU are successful it would take away WCRAs right. There would be a finding that these employees are not engaged in waste management.

PN347

That, we further say, sets a precedent for the rest of the industry. The rest of the industry and the rest of WCRAs members - and we have seen in evidence that they include Thiess, they include SITA, they include SMS, they include sites as far as Gosford and Wyong, and they include sites at Belrose. These are all sites where the same activities are undertaken. These activities have always been regarded as falling within the waste management industry within recycling.

PN348

What the AMW seeks here to do is to seek eligibility over the employees engaged there and thereby seeking a determination that these employees are engaged in the manufacture of paper. This would directly affect the business of WCRA. WCRA would not be able to represent constitutionally through its rules the rights of those employees - sorry, the rights of the employers who engage those employees.

PN349

We further say that if the AMWU are successful in the orders that they seek - and the two orders of most concern to us is first they seek acknowledgment of the Graphic Arts Award and secondly, they seek to cover all employees of Blacktown MRF through their eligibility rules, if they are successful in obtaining those two orders it would create a cost disadvantage in the recycling industry in New South Wales.

PN350

The labour cost of - sorry, the labour cost involved in the recycling industry in New South Wales have hitherto been set by the Transport Industry Waste Collection and Recycling Award. What the AMWU seek to do is to impose a new award, new regulations, new cost structures. This would not only accept the industrial harmony that has existed in New South Wales but it would affect the members that WCRA has who operate sites such as the one at Blacktown MRF.

PN351

It would place, firstly, Visy at a competitive disadvantage and thereby it would also set up a precedent in the rest of the industry. Finally, can I make some mention, your Honour, of the historical role that WCRA has played in the establishment and development of the recycling industry in New South Wales. WCRA has always been at the forefront, or if not, the pioneer of regulatory developments in this industry in New South Wales, whether they be industrial or commercial.

PN352

In fact, WCRA has participated in Parliamentary inquiries both Federal and State that have led to the development of legislation that governs the recycling industry in New South Wales. WCRA has been involved in the development of codes of practice in occupational health and safety and in an environmental sense for operations such as the Blacktown MRF. Mr Khoury's statement refers to an occupational health and safety guide developed for the waste management industry that sets out codes of practice for the entire industry including MRFs.

PN353

WCRA has been quite pivotal in the development of these codes of practice and other regulatory matters. Now, what the AMWU seek to do is to take that away. They take that away because WCRAs legitimacy in continuing to represent those interests, in continuing to represent the interests of employees engaged in MRFs and those of employers will be taken away, we say, because there will be a determination that those employees are no longer engaged in the waste management industry but they are engaged in the paper manufacturing industry. That is what it amounts to.

PN354

THE SENIOR DEPUTY PRESIDENT: Doesn't - if you go to the outline by the AMWU, the first two paragraphs of that outline indicate that firstly an order is sought under subsection (1)(a) of section 118A and in the alternative an order is sought under subsection (1)(b). As I apprehend it, an order made under section - subsection (1)(b) is made where the applicant does not have the eligibility to cover the employees in question. Wouldn't it therefore be possible - I only say possible but it is probable - would it therefore be possible, if the evidence justified it, that an order were made that notwithstanding the fact that they don't have eligibility they should be entitled to represent these people - or they should be given the right, notwithstanding eligibility? I mean, that is not an unusual section 118A order.

PN355

MR SHARIFF: I accept that, your Honour.

PN356

THE SENIOR DEPUTY PRESIDENT: And - sorry, but if that were the case, that would not necessarily involve, would it, a finding as to them being employed in an industry which was an industry other than waste management or recycling?

PN357

MR SHARIFF: I accept that, your Honour, but in applications to intervene we are dealing with suppositions, we are dealing with what ifs. What if the - - -

PN358

THE SENIOR DEPUTY PRESIDENT: You are saying that there are matters before me - and indeed, again going to the outline, there is reliance placed on the eligibility rule and on the terms of the Graphic Arts Award and if I were to accept that as justification for making a subsection (1)(a) order then it would have affects on your members' interests?

PN359

MR SHARIFF: Absolutely. That is what I am putting.

PN360

THE SENIOR DEPUTY PRESIDENT: And indeed, on your association.

PN361

MR SHARIFF: Absolutely. That is precisely what I am putting. I don't know, we can't know what your Honour may wish to decide in the final analysis but we have got to deal with all the permutations before us. I do find that a convenient time to close my submissions, your Honour.

PN362

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Longland?

PN363

MR LONGLAND: Thank you, your Honour. I will be very brief. Can I just, before I commence, there are only two main issues that I wish to address you on. Can I just pick up on the last exchange that you had with my friend concerning the distinction between a 1A and a 1B order - and I do concur with your Honour's - the way your Honour contextualises the application. It is put that 1A is appropriate and that an order should be made, if you like, confirming some pre-existing or already existing right to represent.

PN364

The only point I wish to add is if we do get to 1B, because your Honour is not persuaded that the 1A argument is appropriate, part of the merit that is put to you to make the order sought on a discretionary basis is this what is called a memorandum of agreement or understanding said to arise from some proceedings that occurred in I think 1992. Now, that is a wholly, we say, irrelevant document because it refers to another industry and it doesn't refer to these employees and we will call a lot of evidence about what has occurred since that agreement was signed, but I simply make the point, your Honour, that even if we do go to a 1B point, there will be consideration of whether that memorandum of agreement is relevant and that might impact upon the interests of my friend's members.

PN365

Just having addressed that issue, can I say that there the respondent supports the application for intervention and adopts and supports each of the submissions my friends made this morning. It is clear, and can I say really uncontested, my friend Mr Penning knew we were coming here today for an application for this industry body to intervene and ought to have been sufficiently on notice to notify you if this were not the case, your Honour, but what is clear in my submission is that what is sought to be done here is something which has never been done before.

PN366

It is a departure from a practice which extends over decades. On that basis alone before the Commission considered a departure from a decade's old industrial practice, a departure which is not a minor one, a departure which is, in our submission, a significant one, the Commission would at least want to hear from the relevant industry body. The industry body which, as the evidence before you indicates, is indeed responsible for the establishment and maintenance of that decade old industrial history.

PN367

The second point we wish to make, your Honour, and I will make it briefly, I am cognisant of the comments you made during the evidence, is that what is sought to be done here is that one employer is sought to be picked out from all those employers that are operating in an industry and it is said that something different should apply to them. Now, your Honour, I have reflected upon the comments you made and of course it is possible for my client to seek to call evidence from other operators. Indeed, it is possible for my client to seek to call evidence from WCRA in order to say there is nothing about us and our operations at Blacktown which justify some circle being put around us.

PN368

However, your Honour, if that approach was taken then it would never be appropriate for an industry body to be given a right to intervene. The objects of the Act - I think (g) is the object that deals with industrial organisations - they do foreshadow that they will have a role to play and in my submission, one employer shouldn't be forced to go out to all of his competitors to beg and scrape and bow and ask that they come along and bear their souls when an industry association, as I have indicated, that has been involved in the maintenance and establishment of this industrial regulation, is perfectly placed to come along and give that evidence.

PN369

They are the only two additional merit points, your Honour. Can I just make a couple of points by way of, if you like, they are housekeeping points and nothing more. I know that this application was to be dealt with some weeks ago and my friends have informed me of some concerns of the timetable falling behind. these might be - - -

PN370

THE SENIOR DEPUTY PRESIDENT: I am very well aware of that, Mr Longland, it is a matter which I would have proposed to address myself. I don't want to lose the hearing dates but I would have been proposing that because of the delay in my determining the matter of intervention that some additional time be given to the respondents and interveners and additional time for reply which would still, in my view, give you sufficient time to prepare for hearing.

PN371

MR LONGLAND: Does your Honour want to deal with those matters after we finish the submissions on intervention?

PN372

THE SENIOR DEPUTY PRESIDENT: Yes, I think we should.

PN373

MR LONGLAND: Yes, thank you, your Honour. I have nothing further.

PN374

THE SENIOR DEPUTY PRESIDENT: Mr Kaine, do you wish to say anything at this stage?

PN375

MR KAINE: Your Honour, I have already made clear that neither the Federal union nor the State union opposes the application made although I note in making that submission that the Commission hasn't formally made a determination on the status of the union at this stage.

PN376

THE SENIOR DEPUTY PRESIDENT: Well, I think the Federal organisation is a party - - -

PN377

MR KAINE: Yes, well, I was - - -

PN378

THE SENIOR DEPUTY PRESIDENT: The State registered body I think on the last occasion when they weren't there I indicated that leave to intervene was granted because it was no longer being opposed. I think the transcript does record that.

PN379

MR KAINE: Yes.

PN380

THE SENIOR DEPUTY PRESIDENT: So that that makes the State registered union an intervener.

PN381

MR KAINE: Yes. Yes, thank you, your Honour. I for some reason was not aware of that. There have been a number of date changes and time changes. I appreciate that.

PN382

THE SENIOR DEPUTY PRESIDENT: Mr Penning?

PN383

MR PENNING: Thank you, your Honour. My submissions are also short. The AMWU has five general grounds for opposition to the application. Your Honour, as initially filed the application was indeed broad in its scope and potential coverage. The application as amended and as filed on 14 August, very substantially narrows the scope of the application. Where previously the application potentially had certainly New South Wales wide application but also Australia wide application, the current application only seeks orders in respect of the Visy Recycling MRF at Blacktown, New South Wales.

PN384

The application covers at present only a limited number of employees. There are approximately 25 permanent employees at Blacktown who are relevantly affected by the application. Either 23 or 24 of the 25 permanent employees are AMWU members and have been AMWU members for virtually the whole of this year. One, I believe, of the employees at the Blacktown MRF is a TWU member. The second ground of opposition is that the interests of Visy and the interests of the TWU are very adequately able to be represented by the representatives that they have engaged to appear in the matter.

PN385

Visy is in no sense a small employer that requires or necessitates the assistance of intervention of an employer association. Visy has elected to be represented by Freehills. Visy is the largest paper and cardboard recycler in Australia. The TWU also has interests in this matter. Clearly the TWU will be in a position of substantial support of the Visy opposition to the application and as I am instructed or informed, the TWU proposes to be represented by counsel in the proceeding.

PN386

So in no sense are we dealing with a small employer who requires industry-wide representation to adequately put its point of view before the Commission. The third general ground is that Visy has in a sense made an election. Visy has elected in this matter to be self-represented. It has not sought to be represented in the proceedings by the Waste Contractors and Recyclers Association.

PN387

The fourth general ground is that there is a history of industrial regulation at the Blacktown MRF which is one that is regulation specific to and peculiar to that particular workplace. It is not a case of there being in general industry-wide regulation of the workplace. That is evident from documentation annexed to the witness statements as filed and also although this hasn't been read at this stage Mr Kaine's witness statement filed for the TWU. At present it is said that the Blacktown MRF Agreement 2000 which is an unregistered agreement applies to the employment of the Workers Act of the Blacktown MRF.

PN388

That is not an agreement that has general application outside the Blacktown MRF. Prior to the 2000 agreement the employment of workers at the Blacktown MRF was regulated by a Cleanaway agreement. Again, Cleanaway agreement is entirely peculiar to and specific to that one site. The RTA or the WCRA were not parties to the negotiation of the agreement 2000, that is the Blacktown MRF Agreement 2000, nor is there a history of the WCRA being a party negotiations prior to that. The negotiations have always been directly between the employer at that site and the TWU.

PN389

The fifth general ground for opposition to the granting of intervention largely deals with procedural matters, your Honour. In our submission where an intervention to the WCRA has the significant potential to lengthen the hearing to increase costs to all parties and to create in many respects a significant procedural disadvantage for the applicant, procedural disadvantage would arise in that effectively the same arguments and the same grounds of opposition would be put by three separately-represented parties at the bar table, they being Visy, the TWU and the WCRA.

PN390

In many respects that procedural disadvantage which the applicant union would potentially face was evident today. We had the situation where for example evidence is led, or sought to be led, by the WCRA from David Wood and David Wood is the Union Resources Manager for Visy Recycling. Then we have a situation where Mr Longland gets up and either examines in-chief or cross-examines Mr Wood, Mr Wood purportedly being the representative or the witness of the WCRA, but also being the Human Resources Manager for Visy Recycling.

PN391

Further difficulties arise for us, for example, in the cross-examination of - for our witnesses will effectively be in a position where there will be three parties all of the same interest cross-examining witnesses giving evidence for the applicant union. There is no good reason on our submission, your Honour, why a person such as Mr Wood or indeed Mr Khoury or Mr Creswell could not give evidence as appropriate on issues of merit and if - compare the advantage or disadvantage that is sought to be argued by Visy as an issue of significance for the Commission in the exercise of its discretion, there is no good reason why that evidence cannot be directly called by Visy by statements that are put on through Visy.

PN392

Mr Shariff made a general submission that there would be precedent consequences that would flow from this matter and that that was a relevant consideration as to why the WCRA fought the granted right of intervention. In response to that submission, your Honour, we go back to the general submission that there is no reason why concerns of that nature could not adequately and fully be raised by Visy itself by the calling of evidence by Mr Longland and the making of submissions by him. Those are our submissions. If the Commission pleases.

PN393

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Shariff?

PN394

MR SHARIFF: Yes, thank you, your Honour. I will go to Mr Penning's discrete grounds in turn in a second but can I just say at the outset it seems to me Mr Penning's submissions don't address the fundamental question. The fundamental question is could WCRAs interests be affected by this dispute or could the interests of WCRAs members be affected by this dispute; that is the fundamental question. I will go through each of Mr Penning's concerns in turn. His first concern is that initially the application is quite broad and he has narrowed it. Well, that just misses the point. What Mr Penning doesn't address is our concern that in the orders that he seeks he wants a finding that the AMWU is entitled to cover these employees of the Blacktown MRF.

PN395

Now, no doubt - and I don't want to pre-empt anything here - but no doubt in doing that Mr Penning and the AMWU are going to lead evidence as to what industry the Blacktown MRF correctly fall in, otherwise how can you run an eligibility argument? You can't. And once there is a finding of eligibility if it occurs - and we are talking about the ifs - if it occurs it will affect WCRA. WCRA has limited rules. It has limited objectives. It is confined to the waste management industry. You take that away through an order of this Commission, we no longer have the legitimacy to represent not only Visy Recycling but any other member who operates MRFs and that is a potential outcome of the orders that the AMWU seeks.

PN396

That hasn't been made at all. They still seek eligibility based on the industries and callings in their rules. Mr Penning's second point is that the interests of Visy and TW are already adequately represented and his third point is very similar, that is Visy have elected to use Freehills in this matter and not WCRA. Well, that misses the point for two reasons. Firstly, the evidence of Mr Wood quite clearly sets out that a fundamental rationale for Visy being a member of WCRA is for industry representation at the industry level on industry awards and on industry issues and once again I come back to the point, what the AMWU seeks here is the application or the acknowledgment of a Federal Graphic Arts Award and eligibility over the employees and they are two potential outcomes.

PN397

Well, they're quite different interests, quite different interests to Visy's interests. That is, the way they will affect WCRA are quite distinct to the way they will affect Visy. For Visy, it may affect the terms and conditions of employment they provide to employees. For WCRA, it affects the way that it can represent constitutionally by its rules Visy in industry negotiations because it won't be able to.

PN398

It also goes to another point. Once you have eligibility over there, it affects WCRA in a totally different way. Day to day, Visy may have to deal with the AMWU rather than the TWU, but how does that affect WCRA? It's a distinct interest. Our interest is entirely separate. The way if affects WCRA, no doubt, is that it will, if it's successful, amount to a finding that these employees are engaged in a different industry. It takes away the legitimacy of what WCRA does in that part, in that segment of the industry.

PN399

So I would submit to Mr Penning that I can understand his point on the fact that he says the AMWU and TWU are already adequately represented but we say we have different interests that we represent here and we lead different evidence. What evidence Visy chooses to lead will no doubt overlap with some of the evidence that WCRA leads but WCRAs evidence will be at the industry level and it will go to the question of what is this industry? That is an entirely different type of evidence to be led.

PN400

Mr Penning in his final submission says there are procedural matters and he says that WCRAs involvement in the proceedings will lead to a protracted matter and an unduly over manned matter. Well, quite frankly, the case law demonstrates that the relevant question in applications to intervene is one of natural justice. That is, if we don't permit WCRAs intervention, are we denying them natural justice?

PN401

What Mr Penning is saying effectively is, well, put natural justice to one side, the matter is just going to be over manned.

PN402

THE SENIOR DEPUTY PRESIDENT: Natural justice concerns the right to be heard, doesn't it?

PN403

MR SHARIFF: Absolutely.

PN404

THE SENIOR DEPUTY PRESIDENT: As distinct from fairness as to whether they ought to be heard. It might be a situation where you can say that the principles of intervention are that if you have a direct interest, you have a right to be heard. Where you have an indirect interest, then it's a matter of discretion or a greater discretion as to whether fairness requires you to be heard.

PN405

MR SHARIFF: I agree with that but the consideration of those two matters, whether you categorise them as a direct interest or an indirect interest in considerations of fairness apply, the Commission making a decision as to those matters, what the Commission ought not to take into account in my respectful view is matters of procedural over manning, the types of witnesses that are to be led. The question really has to be, is there an interest here whether direct or indirect and if it's indirect, does fairness require them to have an opportunity to be heard?

PN406

How is consideration of over manning relevant to that question? I just can't see it because what we say is, our interest in the matter is quite distinct to the interest of Visy so even if we did have an opportunity to be heard, our right to be heard would be confined to what our interest is. I can't foresee that we have a right to be heard and lead evidence on all kinds of matters that might be relevant to the substantive matter.

PN407

What I'd foresee is that we have intervention but we lead evidence on matters that affect us. That is, how do they affect our interests and no doubt they'll be matters, if I can forecast, they'll be matters going to well, what has this industry historically been? How has it been defined? How has it been regulated and how do we define it now? How do we identify with the industry and what awards would apply here because what we'd be attacking is their order seeking eligibility which must fundamentally inherently lead to a finding that these employees are engaged in one form of activity and not another.

PN408

Finally, Mr Penning sought to rebut an assertion I have made in relation to the potential of these proceedings setting a precedent for the rest of the industry. He once again repeats his argument that these proceedings are confined to the Blacktown site and in reply to that, I have to once again repeat my arguments, that's quite a narrow view of the way the orders have been framed. The way these orders have been framed have the potential to lead to findings about what is the industry we're operating in here? Is it waste management or is it paper manufacturing? That's the nature of the orders the AMWU propose. They require the Commission to turn its mind to those issues and if it happens that the Commission makes that decision, well, it affects us. That's all I have to say, your Honour.

PN409

THE SENIOR DEPUTY PRESIDENT: Thank you. The Commission will adjourn for 10 minutes. I'll return then and advise the parties of my decision on the question of intervention and we'll also deal with the further directions for the hearing of the matter. So we'll adjourn for 10 minutes.

SHORT ADJOURNMENT [1.26pm]

RESUMES [1.40pm]

PN410

THE SENIOR DEPUTY PRESIDENT: Of necessity for the purposes of expeditiously dealing with this application for leave to intervene and indeed subsequently with the substantive application, I will be brief. I would reserve, however, the right to issue more detailed reasons should I consider that I should do so.

PN411

The AMWU is seeking orders under section 118A of the Act as it was before the coming into operation of the Workplace Relations Legislation Amendment Registration and Accountability of Organisations Act 2002. The Waste Contractors and Recyclers Association of New South Wales seeks leave to intervene in the proceedings. Under section 43(1) of the Act, the Commission has a discretion to grant leave to intervene to an organisation, person or body where it is of the opinion that such organisation, person or body should be heard in the matter before it.

PN412

In my view, the following principles are applicable to an application for intervention under section 43(1) of the Act. Firstly, the Commission has the power to grant leave to intervene to an organisation, person or body in a matter before it. Secondly, the power is one which allows the Commissioner wide discretion. Thirdly, intervention in litigation inter partes should not be lightly allowed. Fourthly, intervention should not be allowed for the purposes only of strengthening or adding weight to a position being taken by a party to the matter and fifthly, an applicant for intervention needs to establish a substantial, relevant or necessary interest in the matter before the Commission for it to be granted intervention in that matter.

PN413

Having heard the submissions from the WCRA supported by Visy Paper Proprietary Limited and the submissions in opposition from the AMWU and having considered all the material presently before me, I am not convinced that the WCRA has a direct interest in the outcome of the substantive proceedings such as would give it a right to be granted leave to intervene.

PN414

The making of an order under section 118A does not in my view necessarily contemplate legal consequences for the WCRA. Natural justice does not require that that association be heard in these proceedings. However, the question remains as to whether or not the WCRA has an interest of an indirect kind that would invoke the Commission's discretion under section 43(1). It must be remembered that the subsection empowers the Commission to exercise that discretion where it is of the opinion that the applicant for leave should be heard.

PN415

From the material presently before me, it appears that the AMWUs case for orders under section 118A is predicated at least in part on a contention that the work in question is work that is covered by the Graphic Arts General Award 2000 and by the AMWUs eligibility rules. That contention involves matters of interpretation that are of substantial interest to the WCRA in the sense that the interpretation is relevant to its continued capacity and entitlement to represent the industrial interests of a number of its members, whether that be in the federal or state industrial relations system.

PN416

I am satisfied that in the circumstances of this case, I should exercise my discretion in favour of the WCRA and leave is granted for that body to intervene in the matter. In view of the delay that has occurred in determining this particular question of intervention, what I propose, subject to the parties making any submission on the matter is that the directions that I issued be varied so that the respondents and interveners would have until Wednesday, 1 October 2003 to file and serve their material and the AMWU would then have until Wednesday, 15 October to file and serve material in reply. Is there any difficulty for the parties that they wish to address in relation to that changed time -

PN417

MR PENNING: Not from our perspective, your Honour. We can certainly accommodate that immediate timetable and appreciate the Commission suggesting that.

PN418

MR LONGLAND: Your Honour, I just note that the applicant's material did arrive a couple of weeks after it was due. We will work assiduously towards Wednesday, 1 October. I think I indicated on the prior occasion when your directions were originally made, from our perspective we wanted to see what evidence, if any, would be coming on from other parties before we settled on our evidence. We'll certainly do our best to meet your Honour's directions. I don't apprehend there's any reason why we will not be able to at this stage.

PN419

THE SENIOR DEPUTY PRESIDENT: Mr Shariff?

PN420

MR SHARIFF: I have nothing further to add.

PN421

MR KAINE: Nothing further, your Honour.

PN422

THE SENIOR DEPUTY PRESIDENT: Mr Kaine, thank you. Now, in relation to the hearing, there was a suggestion on the previous occasion that there be some inspections.

PN423

MR LONGLAND: Yes, your Honour.

PN424

THE SENIOR DEPUTY PRESIDENT: Has there been any further discussion about that?

PN425

MR LONGLAND: I did have a brief word with my friend, Mr Penning, before the hearing this morning. I think the position is as follows. We certainly want to inspect the Blacktown site. That can be done in a matter of a couple of hours. It's a very small physical, geographical location.

PN426

THE SENIOR DEPUTY PRESIDENT: Coming from Victoria, I've been informed that Blacktown is not that close to Sydney. Is that right?

PN427

MR LONGLAND: Well, it's closer than Victoria is, your Honour. I would anticipate that we'd meet out there perhaps at 9 or 9.30 and we'd be able to resume around the middle of the day in the city. We would, however, your Honour, also seek to take you to a paper manufacturing plant, conveniently one is located, I understand basically across the road at a place called Smithfield.

PN428

The reason for that, of course, is that the 1A point that the work which is being conducted is in or in connection with manufacturing. We want to draw a distinction on in our evidence between, in or in connection with manufacturing on the one hand and the waste recycling industry on the other hand. Given that the sites are very close together, we say it would make our evidence more readily ascertainable if it was able to be heard after having viewed those two sites.

PN429

The only other issue about inspections, your Honour, is I think my friend Mr Penning indicated that he had some interest in going to Laverton. I know that Laverton is a site which is mentioned in the applicant's outline in - - -

PN430

THE SENIOR DEPUTY PRESIDENT: Which is closer to Melbourne than Sydney.

PN431

MR LONGLAND: From our perspective, we certainly have no objection to that, your Honour. We'll be saying that there are a whole range of reasons why the AMWU has an agreement that applies to the MRF at Laverton so we don't have any objection to conducting inspections down there. The only additional issue is that the AMWU seemed to rely in their material upon an agreement that applies at a MRF site that my client operates in Queensland. We don't foresee any necessity to go to Queensland to see a MRF, notwithstanding what my friend says.

PN432

I think his contention rather relies upon a couple of words that the Commission inserted on the certification certificate rather than anything which specifically happens at that MRF so unless he has an application to go there, I wouldn't have thought that was necessary. I think that's all I can say at the present, your Honour.

PN433

THE SENIOR DEPUTY PRESIDENT: Mr Penning?

PN434

MR PENNING: No, we're not making any application to go to Queensland. It would certainly be agreed by the AMWU that it would be appropriate to inspect the Black MRF. We do say it would be useful for the Commission and the parties to inspect the Laverton site on the basis that it is, as I'm instructed, substantially similar to the Blacktown site. Your Honour, are you familiar with Laverton and -

PN435

THE SENIOR DEPUTY PRESIDENT: Yes, I pass it regularly.

PN436

MR PENNING: Well, that would be a site that the union would think would be appropriate. We don't seek to go to Queensland.

PN437

THE SENIOR DEPUTY PRESIDENT: Well, I think Visy has two sites, one in Laverton North and one in Laverton, is that correct or are they both the same site?

PN438

MR LONGLAND: No, I'm instructed, your Honour, that one is a glass recycling site and we have no objection to any suggestion that inspections should occur there. If we're in Laverton, I suppose it would be convenient.

PN439

MR PENNING: Well, possibly, your Honour, that's something we can discuss off the record and deal with, with your associate.

PN440

THE SENIOR DEPUTY PRESIDENT: Well, perhaps I could just go off the record and discuss this now because I think we need to get it sorted out.

OFF THE RECORD [1.50pm]

RESUMES [1.54pm]

PN441

THE SENIOR DEPUTY PRESIDENT: I've had a discussion with the parties regarding the future processing of the matter. There is to be an inspection arranged at Laverton, hopefully on 21 October and the parties will advise my associate whether (a) that's possible and (b) an appropriate time on that day to do it. The matter will then resume for inspections at Blacktown and Smithfield at 9 o'clock on the 22nd and thereafter at 2.15 here for the hearing of evidence.

PN442

I'll await further advice about the Laverton inspection before a listing is sent out containing those details and if some specific addresses could also be provided to my associate of each of these places so we don't get lost.

PN443

MR LONGLAND: We can certainly do that, your Honour.

PN444

THE SENIOR DEPUTY PRESIDENT: Thank you. As I've indicated, the directions in any event are varied accordingly in relation to those dates for the provision of material by, on the one hand, the respondent and the interveners or the respondents and the interveners and by the applicant in reply. The matter is adjourned on that basis. The Commission itself is adjourned.

ADJOURNED UNTIL WEDNESDAY, 22 OCTOBER 2003 [1.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL JOHN BARLING CRESWELL, AFFIRMED PN240
EXAMINATION-IN-CHIEF BY MR SHARIFF PN240
EXHIBIT #WCRA1 WITNESS STATEMENT OF M.J.B. CRESWELL PN255
CROSS-EXAMINATION BY MR LONGLAND PN259
WITNESS WITHDREW PN268
TONY KHOURY, SWORN PN269
EXAMINATION-IN-CHIEF BY MR SHARIFF PN269
EXHIBIT #WCRA2 STATEMENT OF TONY KHOURY PN276
CROSS-EXAMINATION BY MR LONGLAND PN287
RE-EXAMINATION BY MR SHARIFF PN305
WITNESS WITHDREW PN313
DAVID RUSSELL MURRAY WOOD, SWORN PN314
EXAMINATION-IN-CHIEF BY MR SHARIFF PN314
EXHIBIT #WCRA3 STATEMENT OF MR WOOD PN320
CROSS-EXAMINATION BY MR LONGLAND PN324
WITNESS WITHDREW PN333