C2389/400, Transcript of Proceedings [2003] AIRCTrans 4945 (7 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 23894 of 2000

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

HONEYBANK CORPORATION PTY LTD
and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

SYDNEY

1.02 PM, FRIDAY, 24 OCTOBER 2003

Continued from 19.2.01 before Senior Deputy President Polites

PN40

MR R. THOMAS: If the Commission pleases, I appear on behalf of the Rail, Tram and Bus Union.

PN41

THE COMMISSIONER: Yes, thank you Mr Thomas. You'd be aware, Mr Thomas that I've received correspondence on this file from Mr Detez from Australian Railway Group Pty Ltd.

PN42

MR THOMAS: Yes I am Commissioner, and we are also in receipt of a copy of that correspondence.

PN43

THE COMMISSIONER: Yes. Well, you'll address that then in your submissions.

PN44

MR THOMAS: Yes I will.

PN45

THE COMMISSIONER: Yes. Thank you. Whenever you are ready.

PN46

MR THOMAS: Commissioner, this matter was last before you on 19 February 2001. At that time and in a subsequent record of findings, dated 22 February 2001, the Commission found an industrial dispute to exist between the RTBU and Distinct Personnel, a company based in Adelaide, and with respect to two other employers, they being the ARG or Australian Railroad Group and Honeybank, the Commission placed those companies on a leave reserve list. With respect to ARG, the reason for it being placed on a reserve list concerned the matter of whether or not at the time it was an employer of labour, in other words, whether it actually employed any employees.

PN47

However, Commissioner, it is now beyond doubt that the ARG is an employer of labour. That admission is acknowledged in a letter to the Commission dated 15 October 2003. Commissioner, the fourth paragraph of that letter states, and I quote:

PN48

Recently ARG has become an employer in its own right ...(reads)... to be members of the ARTBIU.

PN49

It goes on to refer to negotiations that are currently taking place for a certified agreement to cover operations that ARG is commencing to perform in New South Wales. It is further noted in that letter that ARG does not have any objection to the finding of a dispute presuming that the other jurisdictional requirement of this Commission are met. With respect to the formal jurisdictional requirements of the Commission, I refer to the transcript of the proceedings before the Commission on 19 February and further to the finding of a dispute with respect to Distinct Personnel, who submit, that with respect to ARG, now that it is acknowledged or it is an acknowledged employer of labour, that the requisite jurisdictional requirements have been met.

PN50

In summary, Commissioner, the interstateness requirement is met. ARG are based in both Western Australia and New South Wales. At least at this point, Distinct Personnel is an employer of labour, essentially in South Australia, so that requirement has been met. ARG would, it could uncontroversially be said, operate in or in connection with the Railway Industry which comes within the constitutional coverage of the RTBU. Accordingly, Commissioner the RTBU seeks that a dispute be found between the RTBU and ARG - - -

PN51

THE COMMISSIONER: I'm sorry, Mr Thomas, for interrupting but the dispute, and correct me if I'm wrong is to be found with Australian Railway Group Pty Ltd?

PN52

MR THOMAS: Yes. I'm sorry, I'm just using ARG - - -

PN53

THE COMMISSIONER: As an abbreviation.

PN54

MR THOMAS: - - - as an abbreviation.

PN55

THE COMMISSIONER: Yes.

PN56

MR THOMAS: Yes, in terms of the name of the company in receipt of the log, what has occurred since that time, Commissioner, is a change of address. They are now, as you will note on the letterhead - have an address at GPO Box S1422, Perth, Western Australia, 6845. So we might need to record that as the current address. The appropriate address at the time I think was actually in Adelaide, but it has since moved.

PN57

THE COMMISSIONER: But service is not an issue that's raised and addresses in a sense can change but for the record, you're noting - - -

PN58

MR THOMAS: Yes. For the record I'm just noting that Commissioner, clearly service is not a question otherwise they wouldn't have written to you I suppose. So, in that regard, Commissioner, we seek that the Commission either issue new findings or amend the current record of finding to remove the Australian Railway Group Pty Ltd from the leave reserve list and formalise the dispute. The other company listed in the dispute finding, Commissioner, is a company by the name of Honeybank Corporation. On 16 October, the RTBU wrote to the Commission and attached a copy of a letter which was sent to Honeybank. For reasons that are outlined in that letter, the RTBU informed the company that it intended to withdraw the letter of demand and log of claims on that company.

PN59

Honeybank, Commissioner, were a company involved initially in the ownership and control of what was known as the APT Wilderness Railway. The Commission as currently constituted may recall some dealings at the time with that organisation or another manifestation of it known as the APT Wilderness Railway Company. Since that time, Honeybank and APT Wilderness no longer have anything to do with the railway. It was subsequently purchased by Federal Holdings Tasmania Pty Ltd trading as the Westcoast Wilderness Railway and we have indeed only yesterday, filed an application to the Commission for a making of a new award with that company.

PN60

That being the case, Honeybank is no longer of any interest to the RTBU and there are no reasons why it should remain on a reserved list. We would seek, as part of this matter, that the Commission withdraw Honeybank from this matter.

PN61

THE COMMISSIONER: Well there's no dispute that's been found with them and I think transcript will be maintained on the original file, Mr Thomas and will reflect the situation as you've just outlined.

PN62

MR THOMAS: Thank you Commissioner. That is my submission.

PN63

THE COMMISSIONER: Yes. Thank you Mr Thomas.

PN64

MR THOMAS: If the Commission pleases.

PN65

THE COMMISSIONER: This matter concerns a log of claims served by the Australian Rail, Tram and Bus Industry Union on Australian Railway Group Pty Ltd and others. The details of that service are set out in the papers on the Commission's file. The RTBU now submits that a finding of dispute pursuant to section 101 should be made, having considered the documents which form the basis of this notification of dispute under section 99 of the act and having heard Mr Thomas in proceedings this morning and considered the letter dated 15 October 2003 from the Australian Railway Group Pty Ltd, who do not oppose a finding of dispute, I will now make a finding that a dispute does exist within the meaning of the act in relation to the log of claims and letter of demand served by the RTBU dated 6 November 2000.

PN66

The parties to the dispute are on the one hand the RTBU and on the other, the Australian Railway Group Pty Ltd. The matters in dispute are contained in the log of claims and letter of demand dated 6 November 2000, which are attached to the notification of the alleged industrial dispute. I will make a finding to give effect to this decision and I will refer the parties into conference in relation to these matters and issues. The matter may be listed again on application of any party to the dispute. If there's nothing further, thank you for those submissions Mr Thomas. I'll adjourn.

ADJOURNED INDEFINITELY [1.13pm]