AG2003/9577, Transcript of Proceedings [2003] AIRCTrans 5592 (15 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG 2003/9577

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH of the Act
by Harnischfeger of Australia Ltd t/as
P & H Minepro Services (Australasia) South
East Region and Others to terminate P & H
MinePro Services-South East Region Workshop,
Repair, Manufacture, Field Repair and
Maintenance Agreement 2001

SYDNEY

2.23 PM, MONDAY, 1 DECEMBER 2003

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

HIS HONOUR: This is the first listing before me of matter AG 9577 of 2003. It is an application lodged on 13 November by Harnischfeger of Australia Pty Ltd t/as P & H MinePro Services (Australasia) South East Region seeking the termination of an Agreement made in 2001 that expired, so far as its nominal expiry date, earlier this year of a similar name. The matter had been listed for hearing on 4 December. What is before, a video conference today, brought on at short notice is an application for directions. Could I have appearances please?

PN2

MR A. HERBERT: If it please, your Honour, I seek leave to appear on behalf of Harnischfeger of Australia Pty Ltd.

PN3

MR I. MORRISON: Your Honour, if it pleases the Commission, I appear on behalf of the Trade Manufacturing Works Union.

PN4

HIS HONOUR: There are no appearances, I take it, by the AWU and CFMEU?

PN5

MR MORRISON: They have not contacted our union, or contacted Mr Neilson either.

PN6

HIS HONOUR: I see, very well. I think they were notified of the hearing today - yes, they were. Is there any objection to leave being granted?

PN7

MR MORRISON: Yes, there is, your Honour, the AMWU opposes the appearance of counsel. We do not see that the matters before the Commission today are of such issue that they require that representation and that there are other parties able to safely represent the issues of the company in this matter.

PN8

HIS HONOUR: What do you say, Mr Herbert?

PN9

MR HERBERT: Your Honour, the matter is - as is seen by the material that has been file, there is some fairly compendious material - the matter is, certainly at a factual level, of some complexity. There is a necessity for at least one witness to be called to deal with those factual issues. We have assumed that there are to be witnesses to be called to put the contravening case and that it will be necessary for those witnesses to be examined and certainly cross-examined from our point-of-view. The matter is also the subject of some authority and some little controversy in the circles of the Commission as to the true operation or the correct operation of section 170MH and will require some elucidation as to how the various authorities are to be reconciled against the facts of this matter.

PN10

The matter has been conducted from the outset by the solicitors in Brisbane who have been dealing with the matter. There are some reasonably complex and difficult issues involved. The primary person for the conduct of the matter on behalf of the company will, in fact, be the witness. Mr Buckman will be the witness who will be called in the proceedings and he will be unable to represent the company in those proceedings. I am not aware of who else may be able to represent the company but it would only be a junior personnel officer of some kind.

PN11

It is an appropriate matter, in my submission, for the grant of legal representation. Particularly, as there is a desire, certainly on the part of my client, for the matter to be dealt with as expeditiously as possible on the day set for hearing. There is a long history in front of this matter and the company would like to bring some of these matters to an expeditious conclusion. It is certainly part of my brief to deal with the matter as quickly and as expeditiously as possible.

PN12

HIS HONOUR: Do you know, Mr Herbert, the name Harnischfeger is familiar to me in the context of Joy Mining. Harnischfeger Industries of the United States was the parent corporation of Joy Mining which is engaged in a somewhat similar area of enterprisal activity. Is the company in this matter a related company to Joy Mining, do you know.

PN13

MR HERBERT: Your Honour, I think there is a common parentage, as your Honour suggests. I am not sure of the detail of that. Harnischfeger is engaged in the repair and manufacture primarily of mining and earthmoving equipment. This particular venue is situated in the Hunter Valley. So to that extent they have a similar - I am only aware of activities of Joy Mining through the published decisions, I don't act for Joy Mining. But I understand that there is some joining at the top of that. That there is some sense of common ownership in the corporate group and that their operations are somewhat similar to those conducted by Joy Mining.

PN14

HIS HONOUR: Do you wish to put anything against what Mr Herbert has said, Mr Morrison.

PN15

MR MORRISON: No, I don't wish to, your Honour.

PN16

HIS HONOUR: I will grant leave. I consider that the probability is that there are matters of sufficient complexity and unusualness for leave to appear to be granted. In doing so I take into account what I have read of the affidavit of Mr Buckman and my knowledge of the background of this and perhaps similar disputes. Yes, Mr Herbert.

PN17

MR HERBERT: Your Honour, if I can just briefly add to what I said before. I am instructed that Joy Mining is involved in the construction and maintenance of underground mining equipment. Whereas Harnischfeger is mostly involved in open-cut equipment. This particular entity is involved in open-cut equipment. But there are a number of similarities.

PN18

Your Honour, this matter has been brought on as your Honour may see - could I ask if your Honour has read a short affidavit of Phillip Douglas Copeland that was filed with this application for directions? It was filed today.

PN19

HIS HONOUR: Yes.

PN20

MR HERBERT: It is simply for the purposes of setting out the matters which have occurred to give rise to this application. Shortly stated, your Honour, the position is that the matter is listed for hearing on Thursday of this week. To date, my instructing solicitors have been unsuccessful in securing any form of indication - written or otherwise - from any of the respondent unions as to the basis either on an evidentiary level or on a submission level upon which they propose to deal with this application. We only have it that the application is not consented to, but beyond that we have no indication whatsoever as to whether evidence is to be called. If so from whom, and what it might generally say. And whether and what submissions might be put. That is despite the fact that the vast majority, if not the totality of the material upon which we propose to rely, was filed and served on 13 November 2003; and served on the unions on that same date; and this matter has been set down for hearing for some little time.

PN21

On that basis, so as to avoid the possibility that we may have turned up to the hearing on Thursday and heard evidence and submissions of which we had no notice, and which may be able to be shortly answered if we had the relevant people having notice of those matters. To avoid that situation and the possibility of the hearing date going off for some reason, we asked the unions - firstly in correspondence - would they respond without the necessity for directions. The only response we received was the letter from the AMWU on 27 November - I think I can put it fairly - saying that the time frame that we proposed for directions was too tight, but otherwise not responding in any meaningful way that they weren't prepared to give us any form of submission, witness statement, outline of witness evidence or anything else that might be of some assistance to know what sort of case is to be mounted against the comprehensive case which we have put in writing.

PN22

Your Honour, this application is an attempt to secure some form of substantial indication as to the nature of the defence, if any, that is to be brought in relation to these proceedings. So that, if necessary, we can have witnesses or evidence, or submissions prepared on the day to deal with those issues. Hopefully to confine the evidence in this matter to the day that has been allocated for the hearing on Thursday of this week.

PN23

Your Honour, we weren't sure who was going to turn up or what they were going to say today. We don't have a draft of any directions but we do ask that your Honour direct that any respondent who proposes to oppose the hearing provide a statement of any witness on whom they intend to rely by close of business on Tuesday, or at the very latest, by close of business on Wednesday. Together with a brief outline of the submissions that are intended to be made. If it is only by Wednesday the directions that we have asked for in the application were for the material to be by 1.00pm tomorrow. Your Honour, I accept the tightness of that. We intended, however, to have an opportunity to respond within 24-hours to that material. If your Honour is to be told that the material is not available and can't physically be prepared by tomorrow then the making of directions which have no capacity to be adhered to might be a little pointless. Your Honour, the bottom line of all this is that we really need to have some indication of what is going to be put so that we don't waste the Commission's time on Thursday.

PN24

HIS HONOUR: Yes, Mr Morrison?

PN25

MR MORRISON: Well, your Honour, firstly the AMWU say this is totally inappropriate for this hearing to occur while our members - the company is taking industrial action against our members who are locked out and have been locked out for some period of time and that - - -

PN26

HIS HONOUR: When were they locked out?

PN27

MR MORRISON: My understanding was approximately two weeks ago. Mr Neilson from my office has main carriage of this matter and because we are involved in what is called the section 19 reviews in the State Commission at this moment in time and I have taken on that work, that Mr Neilson has been conducting the matter of P and H MinePro and I have had very little interplay with him to be aware of where it is going except from a minor overseeing role which it is required to do but it is my understanding that the lock out has been in place for a couple of weeks. It is still in place.

PN28

HIS HONOUR: Under a separate bargaining period or under the bargaining period notified by the AMWU?

PN29

MR MORRISON: I think in regard to the bargaining period notified by the AMWU. There was protected industrial action taken by the union at the site prior to the lock out occurring.

PN30

HIS HONOUR: What, recently or - - -

PN31

MR MORRISON: It has been ongoing for some time, the protected industrial action at the site.

PN32

HIS HONOUR: Yes.

PN33

MR MORRISON: But it is my understanding that the company forwarded letters to all employees informing them that they were locked out for a considerable period of time including up until - including today.

PN34

HIS HONOUR: When was that done?

PN35

MR MORRISON: Again my understanding it was approximately two weeks ago but I am willing to be - more accurate details to be presented and perhaps Mr Herbert would have those details at his fingertips. However that is the problem that the union faces. Most of the people who the union would be requiring for witness statements and for evidence and for background information apart from the union organiser seem to have, for lack of a better word, not be available and we are unable at this time to basically put together a defence against the application.

PN36

Secondly to that point, if we were required to gather that information, the site itself is located at Singleton in the Hunter Valley and Mr Neilson would be required to travel, as is the nature of gathering these statements, to - because he is not a lawyer. Our members are not lawyers or HR managers but in fact are simple workmen and tradesmen and it would require a great deal of coaxing to put together the statements and therefore that would be another burden as to the time lines that have been proposed and why we would be strongly opposing them if the hearing on the 4th progresses.

PN37

And so that is the situation we find ourselves in. The time lines are incredibly too tight for the union to be able to move.

PN38

HIS HONOUR: Well, let us go back to the first point in that proposition. You are opposing the making of the order to terminate the agreement?

PN39

MR MORRISON: Certainly we are, your Honour, yes.

PN40

HIS HONOUR: And what is the nature of the case you are making against the termination of the agreement? That is Mr Neilson's task I take it?

PN41

MR MORRISON: That is very much Mr Neilson's task. As I said I have very limited knowledge on the matters relating to the case. I understand there is a requirement for the Commission to obtain the views of the persons bound. Well, I think for the AMWU which is historically, to my knowledge of 170MH applications, the union have taken the role of speaking on behalf of the employees. We wouldn't presume to do that without actually speaking to those employees and - - -

PN42

HIS HONOUR: How many employees are involved, about 50, is it or not as many as that?

PN43

MR MORRISON: Yes. I thought it was 47, from my reading of some documents, your Honour, but it is approximately 50. And we would be very much mindful of seeking as broad a range of opinions and views as possible and we are not in a position to do that until (a) the workers are back at work or secondly, Mr Neilson can put in some considerable time in the Singleton area because the - - -

PN44

HIS HONOUR: When is the lock out to be terminated or has it no definite date?

PN45

MR MORRISON: My understanding is actually it terminates on the 4th but again Mr Herbert would have greater knowledge of that detail than I would.

PN46

HIS HONOUR: I see. And has the conciliation before Commissioner Redmond done and dusted or is that ongoing in any sense?

PN47

MR MORRISON: It is my understanding that that has had its day and it is no longer - I mean the union are quite willing to sit down and talk with the company but it is the company that has precipitated this method so we assume it is no longer possible to continue with conciliation.

PN48

HIS HONOUR: Well, I note that you were involved in some of the discussions or at least up until the date when Mr Buckman's affidavit ceases to narrate events. You were mentioned I think in one of the last attachments. Mr Buckman's affidavit, as I understand, asserts that there are four fundamentals on which the company is adamant at least one of which has some sort of familiarity to me, the KPIs question and any agreement going forward the must haves.

PN49

Secondly, the maintaining of ordinary hours work done any day, that is Monday through Sunday and ability to implement rosters. Thirdly, option for AWAs to be introduced should the business needs indicate and fifthly, wage increases to be prospective. The KPIs in any agreement going forward, has the current agreement got KPIs?

PN50

MR MORRISON: I don't know, your Honour, where you understood my involvement in the matter to be except that unfortunately nearly everything that comes out of the AMWU has my name on it but I am not sure - I can't recall what appearances I would have made apart from perhaps signing documents or notices of protected action.

PN51

HIS HONOUR: I could be in error, Mr Morrison, it wouldn't be the first time. I thought I did see your name on some document towards the end of these, in fact I thought it was - yes, well, your name is signing something on 7 November writing in response then you sent a copy to Fitzpatrick of McCullough Robertson and Mr Murphy but that is just something you signed, is it?

PN52

MR MORRISON: Well, without seeing the document, I can't recall it, your Honour. It is - as I said - - -

PN53

HIS HONOUR: What it says is:

PN54

The AMWU is of the opinion it would require to the close of business to be able to give a measured, detailed and collective position to the company.

PN55

That was dated 7 November. It asks for the 21st and I think these is proceedings were lodged on the 13th.

PN56

MR MORRISON: Yes. I recall that, it was simply the State Secretary, Mr Bastian, asking me to quickly draft a letter along those lines and basically what I did was just formalise his verbal instructions to me.

PN57

HIS HONOUR: Yes. That was in response to the observation by I think it was Mr Leonard, the Acting General Manager of what seems to be abbreviated as SER to the effect that the making of an EBA is now exhausted.

PN58

MR MORRISON: Yes, that is basically my recollection as well, your Honour.

PN59

HIS HONOUR: Well, am I to take it that any discussion at all about the making of an EBA is entirely exhausted?

PN60

MR MORRISON: No. I had understood that Mr Bastian, the State Secretary, has now taken a more involved interest in this and has had discussions with Mr Murphy who is the Union Organiser for that particular - for the Hunter region and I think there is a great capacity for the parties to move at least not completely one way or the other but I think from the union's point of view we are prepared to talk about issues that seem to be uppermost in the company's mind. We will talk about them, I am in no position to there is agreement because that ultimately depends on the members.

PN61

HIS HONOUR: Well, you are apart on money as I understood it from this narrative?

PN62

MR MORRISON: I am aware of that.

PN63

HIS HONOUR: 18 per cent playing something of the order of 13 per cent plus or minus the KPIs. You are apart on the detail of the KPIs although from - I hastily recall, I can't remember whether the KPIs are in the existing agreement, a second will tell me that. No, I don't think they are because the existing agreement looked to be very close to a take from the award so it is a 2001 agreement, the KPIs, if one is wildly predeterminative and thinks that there might be some parallel between the policy approaches being adopted on both sides and those that seem to emerge from the Joy Mining encounter between at least some of the players involved. The KPIs did end up in the Joy Mining agreement and they are being pursued perhaps for the first time by the company with a gloss. So you are apart on those but there are precedents in the industry.

PN64

MR MORRISON: Well, the AMWU has in the past, signed off on some agreements ultimately that did contain KPIs as you would be aware.

PN65

HIS HONOUR: Yes, well, there is a date of operation where the company seems, on my hasty reading, such of the 106 attachments as I could apply in my mind to have vacillated a little bit but presumably if it all operates from prospectively, if there is to be an agreement of any kind, then the approach in the past some times commends itself as to whatever was going into the agreement, from the original date of effect goes into it prospectively and you would at least argue about bottom line.

PN66

In relation to the question of hours-of-work. Unless I am mistaken, the existing provision allows a fair bit of flexibility for 10-hour operations or other hour operations over any days. Clause - I think it is 8.14 or thereabouts. No, it is clause -Saturday and Sunday work flexibility of shift-change - clause 8, anyhow, seems to be - - -

PN67

MR MORRISON: My understanding is it is a fairly generous hours of duty clause.

PN68

HIS HONOUR: Broad hours of duty but with penalties attached to the period. So unless that is being changed - - -

PN69

MR MORRISON: From my recollection, no.

PN70

HIS HONOUR: - - - the way in which the companies must have seems to say that it must continue what it has got. Then there is the question of the AWA's which seems to be agitating people's minds. Could I suggest this, that - whether it is a matter of direction or not - that before Thursday Mr Bastion and Mr Murphy do what is practicable to get a very specific clarification of what are the real differences between the negotiating parties to the AMWU bargaining period. I take it the company hasn't yet notified a bargaining period in relation to any other form of agreement, so far as you are aware?

PN71

MR MORRISON: As far as I am aware, no.

PN72

HIS HONOUR: Well you are saying it is all very difficult to respond to the requirement for directions in terms sought by Mr Herbert. Is that the gist of what you are putting?

PN73

MR MORRISON: Well it is well night impossible for Mr Neilson to firstly get to Singleton in the next couple of days. Then he has got the other issue of actually finding the members and being able to get at least a consensus position of the union membership.

PN74

HIS HONOUR: Mr Herbert, I wonder whether the most practical course is not this. I don't know that you require a direction but what I am going to suggest is tantamount to a direction; I can reduce it to writing. The first element of it will be the matter that I have already spelled out to Mr Morrison, that I will be directing the AMWU to use its best offices to clarify the points that separate it and the company as a negotiating party to the bargaining period that is related to developing a replacement for the Agreement that you seek to terminate in these matters. And that that be done prior to the commencement of the hearing on Thursday. I would direct you, also, to put on all the material that you are going to rely upon. I would have in mind that the company present its case on Thursday so far as is practicable. I will be likely to require the union, so far as is practicable, to cross-examine or at least to commence cross-examining on Thursday.

PN75

In proposing that form of direction I note that the affidavit of Mr Buckman extends to some 81 paragraphs; 106 attachments; and some 350 pages of those exhibited attachments. Notwithstanding the fact that it was served on about 13 November, the date on which it was lodged with the Commission, it is a relevantly substantial document for purposes of preparing a response. That assumes, of course, that all that is relevant to the matter that is before the Commission and some of it is simply a narrative of rather fitful progress in negotiations.

PN76

That might assist in clarifying how the proceedings would run. It would follow, Mr Herbert, that I would not be making a direction in the terms you seek which aims to truncate the hearing and list of the matter, if not the determination, between now and Thursday. That seems to be to be an impossibly tall order. What I would hope the parties might have a hard look at is whether litigation is to be preferred course in this matter. Presumably you are here following the litigational course so all I can do is try to make it as orderly as it can be.

PN77

MR HERBERT: Your Honour, that course would tend to suggest fairly strongly that the matter won't conclude on Thursday, even if our evidence does.

PN78

HIS HONOUR: I would have to say I doubt very much it will, by the nature of section 170MH and the nature of the matter that is before the Commission.

PN79

MR HERBERT: Can I flag at this stage that in answer to one of your Honour's earlier questions, the current lock-out was implemented on 12 November in response to a long series of protected industrial actions taken by the union. It currently due to finish on 15 December. The current reactive, predicated industrial action by the employer.

PN80

HIS HONOUR: That is not mentioned, I don't think, in Mr Buckman's affidavit; is it?

PN81

MR HERBERT: That part wouldn't be - the termination date, I don't think, because I think that has been extended since Mr Buckman's affidavit was filed. I think the industrial action, the lock-out, was originally dated to terminate on 5 December and that has been now extended to the 15th; and that is quite recent. Your Honour, the matter has, of course, been going on now since about March or April of this year. That is the negotiations and the industrial action which has all been one-sided up until 12 November when there was a response by the company. But there are now mutual industrial campaigns being conducted. The termination of the current Agreement is of considerable importance in turning some sort of a corner in relation to the current stand-off between the parties. I only say that, your Honour, to ask whether it is possible that your Honour would have a further hearing date in this calendar year?

PN82

HIS HONOUR: It is possible, Mr Herbert. I don't think I will be drawn into a much more succinct acceptance of it. Let me put it this way. Let us hear how far the matter is going to progress on the 4th. If necessary, I might aim to perhaps produce something around the 15th. I would need to look at my calendar or perhaps even in the meantime I have available dates. But on the 4th I will hear you in some detail both as to your availability and the availability of others with a view to scheduling whatever further hearing and directions may be necessary to resolve the matter. The question of seeking the opinion of Members is something, too, that I haven't applied my mind to. That may need to be done also in that context.

PN83

I can indicate that I had broadly that in contemplation when I foreshadowed that I would refuse the direction that you are seeking that there will be a direction made that would require the AMWU to put on its response within a relatively short time after it has heard your case on Thursday. And that would be before Christmas that I envisage that. So Mr Neilson may have to face, with such fortitude that he can muster the arduous trip to Singleton.

PN84

MR HERBERT: Your Honour, we will put on a short further affidavit simply updating the events from the date of Mr Buckman's affidavit to the present time so far as they are relevant to the Commission's decision. That should be tomorrow that affidavit will be available. We will also, your Honour, prepare as best we can the most concise list of the issues that we think remain between the parties that are intractable; and we should also be able to provide that list to the AMWU and the Commission tomorrow.

PN85

We may persist with - even though the CFEMU and the AWU have shown no interest in these proceedings we may persist with copying them into the correspondence as well, just in case there is some - - -

PN86

HIS HONOUR: Do they have any membership there at the Mount Thorley workshop, do you know Mr Herbert?

PN87

MR HERBERT: Very minimal I am told, about three. But they have played no active part in this particular dispute as I understand it. But, still, they are parties to the Agreement which it is proposed to terminate so we have given them notice accordingly.

PN88

HIS HONOUR: Yes, well that is necessary and nothing I have said should be assumed to indicate that I don't see them as parties to the proceeding. I noted simply that our of Mr Buckman's narrative it appears that neither of those unions had played any significant part - or at least insofar as I could detect - in the negotiations up to this point. And I assumed that probably they had a fairly minimal presence at the site.

PN89

MR MORRISON: Your Honour, if I could just interrupt for a moment. Could all documentation and faxes please be sent to the New South Wales branch of the AMWU, as distinct from the federal office. One of the problems we are experiencing is a delay in receiving documentation from our national office.

PN90

McCullough Robertson are aware of Aaron Neilson's fax number however his address is level 3, 133 Parramatta Road not the national office on level 4. It seems it can take some times a day and a half, two days for the documentation to make the journey of one floor so it would be far more suitable if the documents were delivered to the 3rd floor of the union building rather than the 4th floor.

PN91

HIS HONOUR: And I take it that Mr Neilson is the nominated AMWU representative?

PN92

MR MORRISON: Mr Neilson is the nominated union official.

PN93

HIS HONOUR: Yes. Well, we will note in our records.

PN94

MR HERBERT: We have taken a note of all that, your Honour.

PN95

HIS HONOUR: I think, Mr Herbert, to - you will need to take account that the hearing will be in Sydney and unless it is absolutely unavoidable this modern means of communication will be sparingly resorted to.

PN96

MR HERBERT: Yes.

PN97

HIS HONOUR: But perhaps if, at some stage, there should be some identification and I think it is now accepted that both sides will do it of the issues that if resolved might lead to a resolution of the bargaining period dispute at least in the course of that discussion which presumably will involve both Mr Neilson and perhaps Mr Bastian from your side and Mr Buckman from Mr Herbert's side.

PN98

There might be some clarification if the matter must go ahead what would be the more satisfactory days for both sides between now and Christmas for a resumed hearing. And that would need to take into account the difficulties of travel from Singleton and from Brisbane.

PN99

MR MORRISON: Yes.

PN100

HIS HONOUR: All done? Is it necessary that - I will arrange for transcript to be provided as soon as practicable but the direction effectively is sort out what are the industrial issues as quickly as possible.

PN101

MR MORRISON: Yes, I have that.

PN102

HIS HONOUR: Be ready to be put on an answer after the hearing on Thursday. Come prepared as far as practicable on Thursday to commence cross-examination at least of the witnesses who are presented. And from the company's viewpoint to put on as much of - or it has undertaken to put on the material by tomorrow and lodge and serve that to Mr Neilson in particular. You don't know, do you, informally, who if anyone in the AWU or CFMEU would be most interested in this?

PN103

MR MORRISON: It is my understanding that there is little or no interest from both those unions.

PN104

HIS HONOUR: Yes. So there is no particular person in the State office?

PN105

MR MORRISON: No, I have not heard or any involvement by either union.

PN106

HIS HONOUR: Well, the company is presumably serving on the basis that the Federal body is the organisation party to the matters so it should continue to serve I suppose the Federal secretaries of those respective bodies until advised otherwise. All done?

PN107

MR HERBERT: Yes, your Honour.

PN108

MR MORRISON: Yes, your Honour.

PN109

HIS HONOUR: Very well, the Commission will resume at 10.15 on Thursday, 4 December in Sydney. The Commission will adjourn.

ADJOURNED UNTIL THURSDAY, 4 DECEMBER 2003 [2.51pm]

PN110