AG2003/7742, Transcript of Proceedings [2003] AIRCTrans 4729 (24 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2003/7742

APPLICATION FOR VARIATION OF CERTIFIED AGREEMENT
TO REMOVE AMBIGUITY

Application under Section 170MD(6) of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union re insertion
of employee's performance at end of clause 6.1

BRISBANE

9.49 AM, THURSDAY, 9 OCTOBER 2003

PN1

THE COMMISSIONER: Can I take the appearances, please?

PN2

MR E. MOORHEAD: If it pleases the Commission, my name is Moorhead, initial E., on behalf of the AFMEPKIU.

PN3

THE COMMISSIONER: Very well. Thank you, Mr Moorhead.

PN4

MR A. VICKERS: Thank you, Commissioner. Vickers, A., for the CFMEU, and I've been asked to enter an appearance on behalf of the CEPU in relation to this matter and in respect of the directions hearing only, Commissioner.

PN5

THE COMMISSIONER: Very well. Thank you, Mr Vickers.

PN6

MR P. WILLOX: Commissioner, Mr Willox for Pacific Coal, trading as Tarong Coal.

PN7

THE COMMISSIONER: Very well. Thank you, Mr Willox. Does anyone have any objection to the what I assume is an application for leave?

PN8

MR MOORHEAD: Not for this hearing, Commissioner.

PN9

THE COMMISSIONER: Very well. Leave is granted, Mr Willox. Mr Moorhead?

PN10

MR MOORHEAD: Commissioner, before you is an application by the AMWU to vary the certified agreement that applies at Tarong Coal to include some matters which, we say ourselves, they should go without saying. Commissioner, we see our case will involve three witnesses. Those witnesses are to give evidence of the circumstances out of which this clause arose and the context that was in place at the time, and we see that the matter is likely to take a full day, maybe a day and a half.

PN11

THE COMMISSIONER: Very well. Thank you. Mr Vickers?

PN12

MR VICKERS: Commissioner, the CFMEU has not, at this point in time, put a huge amount of thought into the application. At best, however, or at worst, depending on which way anyone sees it, we would probably restrict any evidence to one witness. That's from my knowledge of issues arising out of this matter at Tarong in which I've been involved, and I would concur with Mr Moorhead's view that a day, perhaps a day and a half, absolute maximum.

PN13

THE COMMISSIONER: Very well. Thank you.

PN14

MR VICKERS: I have no instructions, I might add, from the CEPU as to whether they have a desire or an intention to call witnesses. Given their numbers, I suspect no more than one, but I have no instructions, Commissioner.

PN15

THE COMMISSIONER: Very well. Thank you. Mr Willox?

PN16

MR WILLOX: Commissioner, there's a couple of things I'd like to say. The first is that there are negotiations currently under way for a new certified agreement between all the parties. The AMWU has initiated a bargaining period, as have the CFMEU and CEPU and, in fact, they've all instigated industrial action, I think twice already, and more notices have been received this morning. The clause in question in this application to vary clause 6.1, as I'm instructed, has been discussed at all of the meetings during the negotiations for the new agreement and the way in which this issue was left at the last meeting on 12 September was that the company was reviewing the performance review process and that a final form of that process would be available in October or November.

PN17

The union asked that that final version, when it was available, be put to members and that their position was that if the members didn't like what was put forward then the union position would remain that they would continue to want fixed pay increases or, in other words, they wanted to revert to fixed increases regardless of differences in performance. Now, the company, in response to that, suggested that a further meeting should, therefore, be held at that point once that document was available, and the response to that was that there was no point doing that because they were too far apart on superannuation, which was another issue in the negotiations.

PN18

So to sum up, the company is quite confused about the negotiating position being taken and they do not believe that the union is bargaining in good faith, and they see this application as further evidence that the union is not bargaining in good faith. And this is evidenced by the fact that not once in the six meetings at which this - clause 6 has been discussed at every meeting - not once has this proposal for these additional words to be put into that clause been put forward. The first they heard about it was this application. Therefore, I suppose my primary submission this morning is to call upon the union to withdraw the application and to go back to the negotiating table and to bargain in good faith. If they wish to pursue the application, then we will be taking the jurisdictional point of 170N.

PN19

THE COMMISSIONER: Of, sorry?

PN20

MR WILLOX: Section 170N, which clearly says that the Commission cannot arbitrate on issues - on matters which are at issue between the negotiating parties. And we say this is clearly an issue which has been raised and discussed in all of the meetings. So on that basis, if it is to move forward, we would ask that it be set down for preliminary hearing on that jurisdictional issue.

PN21

THE COMMISSIONER: Very well. Thank you. Mr Moorhead?

PN22

MR MOORHEAD: Commissioner, these - this application before you is not connected with the current bargaining that's in place. The current application before you arises out of a matter which has been previously before you about a dispute as to the operation of the performance review process and is not connected with the bargaining that's currently in place. Out of that dispute that has been before you, I think - which was matter C2002/5631, it became obvious to the union that there was a great deal of ambiguity and a great lack of clarity in the operation of that clause 6.1 of the agreement. So we say the two aren't connected.

PN23

Now, with respect to Mr Willox's submission about section 170N, if that point is to be taken, we're happy to argue that point, Commissioner. Our position is that the arbitration power which is limited by section 170N is only that under Part VI of the Act and not that power contained - granted to the Commission under section 170MD, but it's a separate and distinct power, and that section 170N has not application. So if Mr Willox prefers that point to be dealt with up front, we're happy to deal with that point.

PN24

THE COMMISSIONER: I think there was another matter, Mr Moorhead, that I think you've answered, but I'd like it more explicitly answered, and that was the call by Mr Willox on behalf of his client that you withdraw the application for the reasons that were outlined.

PN25

MR MOORHEAD: Commissioner, we don't accede to that request at this time. We wish to continue with the application. However, obviously if there is further agreement reached on a replacement agreement that this argument - the application is academic and we would obviously withdraw it should an agreement be reached. It would put the question - it would make the question irrelevant. So we say that the two processes can proceed side by side. Our - we're happy to keep negotiating on a new agreement and - but we don't see the two as interconnected as to the extent put forward by Tarong Coal and we seek to continue with the application, Commissioner.

PN26

THE COMMISSIONER: Very well. Thank you. Well, having heard - sorry, Mr Willox?

PN27

MR WILLOX: Commissioner, I just wondered, if view of that response, whether I could get a response to a further question while we're here, and that is whether the - certainly my client is confused about the industrial action which is taking place. They're not sure exactly what they're meant to be doing to avert the action. Can I get a response on the question whether this application is at all connected with the action? I mean, we've just been told that if there's an agreement reached which would render this application redundant, which I think squarely puts it under 170N, but is the industrial action which is taking place got any connection with this application? I mean, it all seems to be interconnected.

PN28

MR MOORHEAD: Put simply, Commissioner, no. The reason why the application would become redundant is merely that the - under section 170LY the agreement which we are seeking to vary would no longer - would cease to operate. That's the basis on - we're not saying that unless you accede to our demand in this respect we will take industrial action. This isn't in any way connected to our bargaining claim or industrial action, Commissioner.

PN29

THE COMMISSIONER: I don't think the application could proceed on the event of an agreement because there would be no power to vary an agreement that no longer exists, or that is no longer in operation.

PN30

MR MOORHEAD: That's our position, Commissioner.

PN31

THE COMMISSIONER: The preliminary issue which has been described by Mr Willox will be listed for hearing at 9.30 on 6 November in Brisbane. Mr Willox, the directions that will ultimately issue in writing will require you to provide an outline - a written outline to be filed in the Commission and served on the unions, a written outline of submissions of your jurisdictional points, and that will need to be done by 5 o'clock on 23 October. The unions will be required to provide you with their written outline of submissions on the jurisdictional point by close of business on 31 October.

PN32

I'm going to tentatively list the substantive hearing for 17 and 18 October - I'm sorry, 17 and 18 November with a requirement on the unions that they file and serve their witness statements and any outlines of submissions in relation to the substantive matter by close of business on 29 October, and the respondent is to file and serve any witness statements and its outline of submissions by close of business on the 7th. Obviously in the event that it's determined that the Commission doesn't have the power to deal with the matter, the dates of 17 and 18 November will be vacated. Does anyone have any questions about all of that?

PN33

MR WILLOX: Sorry, Commissioner, I do have one question. In respect to the jurisdictional point, what we need to demonstrate, one of the things we need to demonstrate is that clause 6.1 and the matter at issue in this application is a matter at issue between the negotiating parties negotiating the new certified agreement. Unless that point is conceded, we will need to put on evidence about that.

PN34

THE COMMISSIONER: Yes. Is that contested; that you are actually talking about this issue in the current bargaining agreement?

PN35

MR MOORHEAD: Commissioner, I believe that is the case, but I can confirm in what respect the actual matters in the application are dealt - have been dealt with in negotiations, or are an issue in negotiations to Mr Willox, if - and we can concede that point. I just want to - I would like to check exactly what those negotiations have covered before I concede that point, Commissioner.

PN36

THE COMMISSIONER: Given my knowledge of the jousting between the two of you over this issue, I would be surprised if it has not been discussed in the current round of bargaining.

PN37

MR MOORHEAD: Exactly, Commissioner, I am sure that is - look, on the limited information I have I believe, in relation to the negotiations, I believe that it would be, but I would like to confirm that before I concede that officially.

PN38

THE COMMISSIONER: Can the both of you - can all three unions, either individually or collectively, respond to Mr Willox's point in writing by 5 o'clock Wednesday of next week?

PN39

MR MOORHEAD: Yes, Commissioner.

PN40

THE COMMISSIONER: Is that sufficient, Mr Willox?

PN41

MR WILLOX: It is, Commissioner, I was just thinking whether Mr Vickers had in fact been in those meetings. I don't know the answer to that, but he may be in a position to answer.

PN42

THE COMMISSIONER: I suspect the fact that he is not jumping to his feet offering much is an indication that he has.

PN43

MR VICKERS: Commissioner, I have been involved, and let me say - and this will save me writing a letter - but the CFMEU's position is that the whole of the issue of performance appraisals has been the subject of negotiations. There is a - at this stage a tentative lack of specificity about those negotiations because the company, and I am not certain whether that is Tarong Coal, Pacific Coal, or Rio Tinto, or all three of the aforementioned, are in the process of reviewing their wondrous system, and the unions, collectively at least at the last meeting that I was at, indicated that when the company sorted out what it was that it was going to do, and given the way this company operates with policies and procedures, they can let us know and then we would have another look at it and see what needed to be done from there. That is the position very clearly as I understand it.

PN44

As a consequence, technically, the industrial action which is taking place is not taking place over the issue of performance appraisals because we don't know what the company's final position is. The company has reached a final position - to answer another question of Mr Willox's earlier - clearly and specifically in respect of superannuation, and a final position has been offered to the unions which the unions have unquestionably rejected.

PN45

THE COMMISSIONER: Very well, thank you. Well, is that is sufficient for you from the CFMEU, Mr Willox, on the point - - -

PN46

MR WILLOX: Is that on the transcript?

PN47

THE COMMISSIONER: The concession of the point that it is - that this issue is currently the subject of bargaining?

PN48

MR WILLOX: I am content with that, if that is on the transcript.

PN49

THE COMMISSIONER: Yes, which it is. That leaves the CFMEU and the AMWU so that if you could organise - - -

PN50

MR VICKERS: I will advise the CEPU.

PN51

THE COMMISSIONER: Very well, thank you, Mr Vickers.

PN52

MR VICKERS: And could I suggest, perhaps - if this is satisfactory to Mr Willox - that if they don't hear from the CEPU, then they can take it that the CEPUs position is identical to that which I verbally outlined on behalf of the CFMEU. So that will again save someone at the CEPU office getting around to writing a letter, and - - -

PN53

THE COMMISSIONER: All right. So the situation for this will be that if Mr Willox doesn't hear from the CEPU in writing by 5 o'clock next Wednesday, then it is to be taken that the CEPUs position on the question of whether or not this issue is the subject of bargaining in the current round is identical to the CFMEUs?

PN54

MR VICKERS: Yes, Commissioner.

PN55

THE COMMISSIONER: Very well. Is that satisfactory, Mr Willox?

PN56

MR WILLOX: It is, thank you, Commissioner.

PN57

THE COMMISSIONER: Very well. And we will leave you in the same boat that we put you in before, Mr Moorhead, and that is that you, by 5 o'clock on Wednesday, have to write a letter on the point to Mr Willox.

PN58

MR MOORHEAD: Thank you, Commissioner.

PN59

THE COMMISSIONER: Is there anything further?

PN60

MR WILLOX: Well, just to follow on from that; if it is not conceded, we will probably file a statement and would it be - - -

PN61

THE COMMISSIONER: Yes, I understand that - - -

PN62

MR WILLOX: If we do that by 23 October, is that satisfactory; same day our submissions are due?

PN63

THE COMMISSIONER: Yes, yes, it is, thank you. If a witness statement is necessary and is so filed, Mr Moorhead, it may be that the union is going to want to call a witness to rebut that evidence, then in the event that that is a decision the union takes, then you will be required to provide that witness statement by the same time as you provide your outline of submissions.

PN64

MR MOORHEAD: Thank you, Commissioner.

PN65

THE COMMISSIONER: Unless there is anything further, I will adjourn the Commission.

ADJOURNED INDEFINITELY [10.09am]