AG2003/58, Transcript of Proceedings [2003] AIRCTrans 560 (20 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N WT05843
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2003/58
AG2003/4

APPLICATION FOR DETERMINATION OF
DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Application under section 170XF of the Act
by Australian Railroad Group Employment Ltd
for determination of designated award for
certification of the ARG Forrestfield
Locomotive Operations Agreement 2002

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Australian Railroad Group Employment Ltd
for certification of the ARG Forrestfield
Locomotive Operations Agreement 2002

PERTH

2.37 PM, TUESDAY, 4 FEBRUARY 2003

THIS HEARING WAS CONDUCTED BY VIDEO LINK

PN1

MR S. HEATHCOTE: I seek leave to appear on behalf of Australian Railroad Group Employment Pty Ltd.

PN2

MR B. CHRISTIANSON: I appear on behalf ARTBRU represented here in Sydney.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Christianson. Is there any objection.

PN4

MS C. HOWELL: May it please the Commission, I should just say that as all the matters that have been called, I don't seek leave to intervene in the 170XF proceedings but I would be seeking leave to intervene in the other proceedings.

PN5

THE DEPUTY PRESIDENT: Thank you, Ms Howell. Is there any objection to Mr Heathcote appearing? Leave is granted, Mr Heathcote.

PN6

MR HEATHCOTE: Thank you, Mr Deputy President. The application before you is brought to establish a designated award for the purposes of performing the no disadvantage test in relation to the section 170LK agreement that will be the subject of a later application. Sir, the kind of work that is covered by the agreement is essentially locomotive engine driving. In the course of trying to establish what is the appropriate award for the purposes of section 170XF, we went through an exercise of trying to determine what awards might potentially apply.

PN7

Now, we recognise that the wording of the Act obliges the Commission to look, firstly, for a Federal award and only when it can't find a Federal award should it look towards a State award. So the Federal awards we have identified that could potentially be used for the purpose of no disadvantage test of the Locomotive Enginemen's New South Wales Award 2002, the Locomotive Drivers' Victoria Award 2001, the National Rail Corporation Limited Award 1995, the Locomotive Enginemen's Australian National Railway Award 1978.

PN8

Now, in looking at those we see from the legislation that the Commission's task here is to determine which is the most appropriate award or awards for the purposes of the no disadvantage test. So I have some submissions to make in relation to each of those awards that I have mentioned and then a submission in relation to which award from the applicant's point of view we say the Commission ought to select.

PN9

Firstly, looking at the New South Wales Award, and sir you won't have these in front of you so I am going to need to tell you about them rather than show them to you if you permit it. The New South Wales Award at clause 13, which is called: Rates of Pay, which is part 5 in that award, under the heading of: Wage Rates, has in italics this statement:

PN10

This clause has not been reviewed pursuant to item 51 of the Workplace Relations and Other Legislation Amendment Act -

PN11

and then it goes on to set out some - - -

PN12

THE DEPUTY PRESIDENT: Excuse me a moment, I wonder if you in Sydney might be able to adjust the microphone, perhaps move it away, it is actually transmitting quite a loud sort of staccato type noise here in Perth.

PN13

MS HOWELL: I apologise, your Honour.

PN14

THE DEPUTY PRESIDENT: It is the little black triangular object there. Thank you.

PN15

MS HOWELL: Is that better?

PN16

THE DEPUTY PRESIDENT: It certainly is at the moment.

PN17

MS HOWELL: Thank you.

PN18

MR HEATHCOTE: We will see when the papers start shuffling again.

PN19

THE DEPUTY PRESIDENT: Please proceed, Mr Heathcote.

PN20

MR HEATHCOTE: Thank you, Mr Deputy President. The rates of pay contained in that provision therefore haven't been adjusted to take account of, well, firstly, being set as appropriate minimum rates and adjusted for appropriate safety nets so we don't see those as being all that useful for the purposes of conducting a no disadvantage test which in the main is primarily about financial entitlements. The other peculiarity about this award, which we say renders it as not the most appropriate award for the purposes of the NDT here can be found in subclause (16.2) of the award. What that subclause tells us, and it relates to the hours of work, is it just describes the kind of work that is covered and refers to people driving suburban electric trains. Now, sir, whilst we accept that the scope of this award also includes freight rail it is not specific to freight rail and also covers suburban passenger transport in electric trains which - - -

PN21

THE DEPUTY PRESIDENT: If I can just interrupt, Mr Heathcote, for a moment. I would like to just establish whether or not there is going to be any dispute in relation to the parties as to what the appropriate award would be.

PN22

MR HEATHCOTE: Certainly, sir.

PN23

THE DEPUTY PRESIDENT: So I would like to ask Mr Christianson if you will be making submissions on this matter and if so whether or not you are in agreement or disagreement with the proposal that has been put to the Commission for the Government Railways Locomotive Enginemen's Award 1973 to 1990.

PN24

MR CHRISTIANSON: Nothing has been put to us. There is nothing that has been identified at all, we believe that it is going to be the LEDFNC but we have to wait around to see. If it is we don't intend to oppose.

PN25

THE DEPUTY PRESIDENT: Thank you for that, that certainly will facilitate the proceedings. Mr Heathcote, I did jump the gun a little bit there but if I could lead you perhaps, taking into account what Mr Christianson has said, to confine your submissions or to focus your submissions on that particular award, it might just speed the hearing up.

PN26

MR HEATHCOTE: Yes. I am grateful for your assistance, Commissioner. Certainly, it is our contention that the Government Railways Locomotive Enginemen's Award would have been an appropriate vehicle for assessing the no disadvantage test. That said though, I am mindful of the subparagraph (2) of section 170XF, which says that:

PN27

Upon application the Commission must determine and inform the employer organisation in writing that an award or awards are appropriate for purposes of the no disadvantage test.

PN28

It then goes on to talk about in subparagraph (3)(b):

PN29

If the Commission is satisfied that there is no such award...

PN30

Now, it is referring to an award made under this Act, that is the Workplace Relations Act. So, as I read that, it seems to me that the award that we are stuck with for better or for worse is a Federal award unless there is no Federal award, in which case we then may have recourse to a State award. Clearly, it is our preference to use the State award if that was permissible and given the union's concurrence with that, that would obviously be desirable. However, if the language of the Act is such that it precludes us choosing a State award and we must go with a Federal award then our preference then is to use the Locomotive Enginemen's Australian National Railways Award of 1978. So our preference, if you will, is that we use the Locomotive Enginemen's ANR Award 1978 if we must go with the Federal one, if we have the option of using a State one then we will obviously go with the Government Railways Locomotive Enginemen's Award as Mr Christianson suggested.

PN31

THE DEPUTY PRESIDENT: Mr Heathcote, you have according to the file made an application under section 170XF and in that application you have indicated to the best of your knowledge and belief that the Government Railways Locomotive Enginemen's Award 1973 and 1990 of the Western Australian Industrial Relations Commission may be appropriate.

PN32

MR HEATHCOTE: Yes. Deputy President, at the time that that application was made there hadn't been an exhaustive search made of Federal awards and at that time we believe that it was a case of choosing the most appropriate award whether it be State or Federal. It now seems, as I read an outline of the union's submissions which will be no doubt advanced in the next hearing, the message from that is that the legislation doesn't permit us to go that far and that we are obliged to choose a Federal award if one is available and we may only have recourse to a State award if no Federal award is available. So the position that we find ourselves in is having expressed a preference for the Government Railways Locomotive Enginemen's Award we may be in a position where even though that is perhaps both party's preference it is not necessarily an option for us.

PN33

THE DEPUTY PRESIDENT: Well, I think what would be helpful to the Commission is for you to either confirm that you are putting forward the proposal in your application or you're putting forward a different proposal.

PN34

MR HEATHCOTE: Commissioner, I am putting forward that if we are bound to use a Federal award, if the legislation means that, then of the Federal awards we would suggest the Locomotive Enginemen's ANR Award is the right one. If we have an ability to use a State award in preference to a Federal award that actually covers that kind of work then our preference would be for the State award to apply, but perhaps the way we should dispose of that question is looking at the construction of 170XF. I'm reading subsection (3):

PN35

For the purposes of subsection (2) -

PN36

which is the bit where the Commission is required to decide what the designated award would be then -

PN37

the Commission needs to determine that award or awards under this Act regulating terms and conditions of employment engaged in the same kind of work as those persons in the agreement.

PN38

So that says to me, Mr Deputy President, that we may be stuck with an award made under this Act. The subsection (b) then gives us an ability if the Commission is satisfied that there is no such award made under this Act to use a State award. So my concern here is that we don't say to you that we should use the State award when the legislation precludes us doing so if there is a Federal award available to us.

PN39

MS HOWELL: I am sorry to interrupt my friend, but speaking for the RBTU this is a development - - -

PN40

THE DEPUTY PRESIDENT: Excuse me, Ms Howell, I understood from your earlier submission that you were not seeking leave to appear in this first matter in relation to 170XF. Is that correct.

PN41

MS HOWELL: That was correct, your Honour, but that position was based on the premise that the employer would proceed on the basis of the award identified in its application. As appears to be emerging the employer is no longer proceeding on that premise, as that is the case we would have to seek leave to intervene in these proceedings and make submissions as to the appropriate award. We are taken by surprise by this, we understood the company to be proceeding in accordance with its application and our difficulty identified in the submissions was that the step of identifying a designated award - - -

PN42

THE DEPUTY PRESIDENT: Excuse me, Ms Howell, you have not been given leave to appear to make submissions. Are you seeking leave to appear in the matter of the 170XF determination?

PN43

MS HOWELL: Yes, your Honour, I am just endeavouring to explain why we would be doing it now and we said at the beginning that we weren't going to take that path. It is only because we now apprehend that the employer is putting a different position than that which was in the application and that does necessitate an application for leave to intervene.

PN44

THE DEPUTY PRESIDENT: Thank you. Your submission, Mr Heathcote, on the request that leave be granted to Ms Howell to intervene in this matter?

PN45

MR HEATHCOTE: We would oppose it, sir. We can't see any basis in which the union who is not party to this agreement hasn't opted to be bound by it ought to be invited or have an opportunity to make submissions in relation to what is a statutory exercise. It is a job that the Commission has to do on application by one of the parties to the agreement. If they have a difficulty with a determination that you make at this stage then they have an ability, if they're sufficiently affected by the decision, to run it up on appeal if that is what they want to do. I can't see any basis for them to be granted a right to intervene at this stage.

PN46

THE DEPUTY PRESIDENT: Mr Heathcote, what Ms Howell has just put to me is that she had not been intending to seek leave to intervene, basing her position upon the application which had been made. The submissions that you're putting today to me at this point in time are not entirely clear as to whether or not you are submitting that the award which is mentioned in the application be the appropriate award. I would think it may assist for these proceedings if you were able to say that it is your view, if it is your view, that the award nominated does meet the requirements of section 170XF in all of the circumstances. So I would seek your view on that before I hear any further from Ms Howell.

PN47

MR HEATHCOTE: Thank you, Deputy President. My view on this is that the legislation would preclude us going straight to the Government Railways Locomotive Enginemen's Award, unless I have misunderstood the legislation I don't see that we have an ability to go straight there unless there is no Federal award and regrettably, sir, there is, in which case the submission I must make is that we are bound to accept, since one exists, a Federal award and if we must accept a Federal award then we, in our submission, should accept the Locomotive Enginemen's Australian National Railways Award 1978.

PN48

Our concern with going with the Government Railways Locomotive Enginemen's Award, even with the union's consent, may be that if a decision based on applying the no disadvantage test in our LK Agreement is challenged it may be challenged on the basis that the incorrect award was selected for the purposes of the NDT, one that the Commission perhaps wasn't entitled to select. So my submission then is if I must nail my colours to the mast, so to speak, then I would be saying Locomotive Enginemen's ANR Award 1978.

PN49

THE DEPUTY PRESIDENT: Thank you. Before proceeding any further I would note that the Commission has been given no written submissions in relation to this proposal, indeed even in relation to the previous submission, there were no detailed supporting reasons given and the Commission is in a difficulty without having had the benefit of having read the detailed supporting reasons for the proposal for the section 170XF determination and in the circumstances where it now appears that on behalf of the ARTBRU, who I will refer to as the union, it appears from what I have heard may be seeking to intervene to put a different view to me.

PN50

It occurs to me that at this point in time the simplest thing may be, rather than for the Commission to attempt to grapple with the complexities of the point, that the parties be given the opportunity to give written submissions to the Commission. The Commission has already given the union the opportunity to put detailed reasons for seeking to intervene which I understand you have received. So before proceeding any further I will seek your view on that proposal, that this matter not be proceeded with further today in terms of any depth for further consideration by the Commission but rather that written submissions be provided and the matter be reconvened. Mr Heathcote?

PN51

MR HEATHCOTE: Your Honour, I don't know that it is necessary for us to resort to written submissions. It is possible for us to take you to the various Federal awards that are there to tell you about why one or more of those Federal awards has characteristics that would make it inappropriate to use for the purposes of the NDT and to tell you why we see the Locomotive Enginemen's ANR Award as the appropriate one.

PN52

I don't know that it is absolutely necessary for us to go to a huge amount of depth in written submissions to establish that one award is more appropriate than three others for the purposes of the NDT. If we are going to be caught with written submissions the difficulty here is that it necessarily will mean that the LK application will need to be adjourned. I am mindful of the employees concerned and if we get to the LK today you will hear evidence about the difficulties that the employees have experienced in getting this thing to this point and I am loathe to accommodate anything that is going to lead to further and perhaps even unnecessary delay. So our submission or our preference would be to press on and give us the opportunity to convince you as to the appropriateness of choosing the 1978 award.

PN53

THE DEPUTY PRESIDENT: Mr Heathcote, I have noted what you said and I certainly want to confirm from the Commission's point of view there is no intention of unnecessarily wanting to prolong or delay these proceedings, which is why this hearing is taking place today even though there was the unexpected development of the union seeking leave to intervene, but there is a request before me to grant leave to counsel on behalf of the union, which I might so grant.

PN54

If that is the case then there would be the situation of presumably some detailed submissions from both sides today and again the Commission would not have the benefit of written submissions. So I would like to put that to you, that given that the union is seeking leave to intervene and given that the Commission doesn't have the benefit of written submissions, and indeed there is a change of tack today at the hearing, then my inclination would be now to turn to the issue of the union's request to intervene in this matter and if you wish to proceed with oral submissions to come back to that in a moment but to now address the issue of the leave to intervene.

PN55

Now, you have objected. I now, having heard your further comments, am intending to invite Ms Howell to then address me further on whether or not she seeks leave to intervene on this now on the 170XF matter and then I will make a ruling.

PN56

MR HEATHCOTE: Your Honour, if it will assist, our preference would be to go as far with this as we can today. If that means granting Ms Howell leave to make submissions in relation to the XF, sir, we would prefer that than a delay, if that assists.

PN57

THE DEPUTY PRESIDENT: Thank you. Yes. Well, before ruling on the matter I would like to ask, as I understand, Mr Christianson, that Ms Howell would be representing the union in this matter.

PN58

MR CHRISTIANSON: That is correct.

PN59

THE DEPUTY PRESIDENT: I would like to ask you, Ms Howell, if you would like to put a submission forward as to why leave should be granted to intervene. Given that this matter is not the LK matter there is of course a different statutory context.

PN60

MS HOWELL: Yes, your Honour.

PN61

THE DEPUTY PRESIDENT: Yes.

PN62

MS HOWELL: There are a number of matters. Firstly, the union would submit that it has an entitlement to intervene in the LK proceedings by way of section 43(2)(a) of the Act because a relevant request has been made. I didn't intend to canvass that in any detail at this stage. If that is correct then the issue of the designation of an appropriate award is a matter which is closely connected to the issue or the various issues concerning certification of the agreements, in particular most importantly, the no disadvantage test. It is obviously essential that the Commission does designate the appropriate award so that the no disadvantage test can be properly applied and we say that the union has an interest in the ordinary sense discussed in the authorities which would warrant intervention, given that it does have an entitlement, we do submit, to intervene in the certification proceedings.

PN63

I didn't come prepared to argue, obviously, intervention in the proceedings for the designation of an appropriate award because we understood that the employer would be proceeding in a manner consistent with the application. So if your Honour wishes to be referred to the general authorities which deal with intervention then I would have to make a short supplementary submission on that.

PN64

There are a couple of other relevant points, if it please the Commission, the first is that in my submission whatever happens with the proceedings to designate an appropriate award the LK proceedings cannot proceed today because amongst other things the Commission, the union and those persons signing statutory declarations on behalf of the employer, have all proceeded on the basis that State award, the Government Railways Locomotive Enginemen's Award, is the award to be designated for the purposes of the no disadvantage test.

PN65

Now, at the very least we would submit the documentation, including the statutory declarations, must be modified, otherwise what the deponents are deposing to do is that the agreement meets the statutory no disadvantage test when measured against the State award and so nothing about how the comparison would apply with respect to a totally different award. We, for our part, would obviously not be in a position to run arguments on a totally different award, having prepared our arguments on the basis of the award nominated by the employer.

PN66

So for those reasons we say the LK proceedings cannot go on today in any event and finally, I will just mention that the ABTU union also seeks leave to appear on behalf of an individual member. We do say that the authorities on this are clear and again we seek to intervene in these proceedings as well as in the LK proceedings on that basis. The Commission, hopefully, would be in receipt of a letter and an authority which is signed by the said member and the covering letter, your Honour, does ask for confidentiality.

PN67

So, I am not seeking to address that issue further now, but we seek leave to intervene both in our own right and as agents for the nominated member and the nominated member is one whose name appears in the documentation provided by the respondent. That is a matter which can be verified and again we would say consistent with the authorities to which I can refer the Commission in that respect we would have an absolute right to appear as agents for that member. So those are the issues that we say would require consideration.

PN68

Your Honour because, if your Honour was to accept the view that the LK proceedings cannot proceed, then we would like to make some short further submissions on intervention in the XF proceedings, the proceedings to designate the award, only because, as I foreshadowed, this is a development which has taken us by surprise, I haven't fully been prepared for that argument, if it please the Commission.

PN69

THE DEPUTY PRESIDENT: Thank you Ms Howell. Mr Heathcote can you confirm for me that the statutory declarations submitted at question 6.1 do specify the award which was referred to in the application for the 170XF application?

PN70

MR HEATHCOTE: Yes your Honour, I can. Pardon me, let me answer that again. The statutory declarations were based on an assumption which in our view appears now to be an erroneous assumption that we could apply the no disadvantage test via the Locomotive Enginemen's - sorry the Government Railways Locomotive Enginemen's Award. The statutory declarations were prepared on that basis, as was the XF application, as at Friday. Our attention, if you can bear with me for one moment, our attention was drawn to this error on our part by the unions own submissions, the outline of submissions that was filed on their behalf. This is why it takes me somewhat by surprise that the union is saying that they prepared on the basis that the State award would be the one to be considered, because if we go to page 4 and I am not sure if you have Mr Thomas' outline of submissions in front of you?

PN71

THE DEPUTY PRESIDENT: Yes.

PN72

MR HEATHCOTE: He refers and quotes the relevant provisions from section 170XF and he even goes to the point of adding some emphasis. If we go down to - it is round about two thirds of the way down the page, under subparagraph (a), in my copy Mr Thomas has actually added the emphasis under the words "this Act" himself. That emphasis doesn't appear in the original, so what became clear to us as we considered Mr Thomas' submission, or the outline of submission, was that the ARTBRU hit upon an error that we had made, that is a false assumption that we had been working on that we could use the Government Railways Locomotive Enginemen's Award as the proper basis.

PN73

Now, it seems to me, unless I have misunderstood Mr Thomas' outline, the message he was trying to communicate through this submission was it would need to be an award under this Act. Now, if we go to the definitions of award in this Act, they refer to awards made under section 143. So I am not certain, perhaps I should clarify, just take a step back and clarify. The employer's position was and is that it would be quite content to have the no disadvantage test calculated, or reckoned this way. Our problem with it is, we are not sure that the legislation allows us to.

PN74

It is not a case of we have come along to the hearing today to ambush the union with a surprise submission, it is a case of we had made an error, we had been operating on an incorrect, or what we think is an erroneous assumption, that assumption Mr Thomas, in his outline of submissions, seems to have dealt with. We now find ourselves in the situation where if we proceed as we propose to do, we may well end up selecting an award that we are not entitled to select, misapplying the no disadvantage test and exposing the LK agreement if it was subsequently certified, to being knocked over on appeal. As I have indicated the employer is content to have the LEA award applied, but finds itself in the awkward situation where we don't believe the legislation permits us to do it.

PN75

THE DEPUTY PRESIDENT: Well, Mr Heathcote, it seems to me that it could be a serious matter if there is an erroneous assumption, which has been used for the basis of the swearing of statutory declarations and I mean that would raise in itself whether those statutory declarations should be withdrawn and replaced by correct statutory declarations, given that a statutory declaration is an important document under law. That is of concern. Also of concern is that as it were it appears that perhaps this may be a little bit hard, but it appears as if submissions are being made on the run, on this subject.

PN76

I mean there was an application made for a particular award to be considered and was proposed as the award for the Commission to determine to be the appropriate award. Now, you are proposing a different award, you are explaining to me orally what the reasons are and now I have in front of me a difference of view between the party that wishes to be given leave to intervene and the applicant. So it seems to me that this is getting more difficult this matter and potentially more contentious.

PN77

This is not a straightforward matter, I have dealt with a number of 170XF determinations and invariably they have been quite straightforward and this one is not. There is provision also in 170XF(3)(a) this reference to the phrase: The same kind of work, which is obviously relevant in the circumstances. I am happy to continue on with the hearing, I do have another matter listed which I would need to at least adjourn to deal with, but I do have before me an application by Ms Howell for leave to intervene and it is going to be very difficult for me to conduct a fair hearing if I don't have the opportunity of having submissions from both of the interested parties that are appearing today.

PN78

So, again I put the ball back into your court and say that, yes I am happy to proceed further with oral submissions, but on the basis of these submissions I find it very difficult to think that the Commission can make a determination today in the hearing. This would obviously in a matter of some complexity and contention, would need to be carefully considered. So, I would like you to take that into account. I would like you also to take into account that in the interests of being fair to both parties that - and I have a request by the union for leave to intervene, that I need to deal with that too. I will invite your further response to that before making some ruling.

PN79

MR HEATHCOTE: Your Honour perhaps if I might be permitted to ask a question, I have been proceeding in my submissions on the basis that the legislation does not give us the option to take a State award if a Federal award, covering the same kind of work, is available. My question your Honour is whether that is an understanding that the Commission also has, or whether there is some concern that I have misunderstood the provision?

PN80

THE DEPUTY PRESIDENT: Well, the Commission is bound to apply the law and before making any such determination, I need to be fully informed by way of submissions, from the parties as to what they think is the proper interpretation. So my normal course would be to hear both sides, reflect upon it and then reach a decision and that decision would represent the application or the interpretation of the law in the circumstances of the case. At this stage, of course, it would be premature for me to make any such decisions or rulings, without having had the benefit of fully informed submissions.

PN81

MR HEATHCOTE: Thank you your Honour, I think that enables me to take it forward then. If the concern that we need to deal with here is a submission as to the meaning of the legislation, that can be done. If the submission, or if the Commission needs to hear evidence that will enable it to form a view about whether the work being undertaken under the award that we are suggesting ought to be applied, is the same as the work that is being undertaken by the applicant employer, that is also a requirement we can deal with.

PN82

The difficulty remains to us of course in the subsequent LK proceedings and perhaps it would be worthwhile if the Commission is minded to do so, to allow us to continue with our submissions in need receive some oral evidence from an ARG employee who would be in a position to tell us about the kind of work that they do and the kind of work that is done under that ANR award and to also hear from my friend in relation to whether the State award is available to us, whether she may choose to disagree with me on my interpretation of 170XF.

PN83

So I think your Honour that we can press on and hopefully we will be able to take you at least to a conclusion that would enable you to designate an award, whether that is agreeing with us or not and then again I am mindful of not taking any action that would compromise the timeliness of the certification of the LK agreement, given the circumstances in which the employees have been placed and the urgency that they attach to getting it done.

PN84

THE DEPUTY PRESIDENT: Thank you. Ms Howell, I would draw your attention to the fact that there are two matters before me today and we are dealing with the first matter only at this point, which is the 170XF determination.

PN85

MS HOWELL: Yes your Honour.

PN86

THE DEPUTY PRESIDENT: The two matters have been listed conjointly, but I am actually, to put it sort of more precisely, dealing with the first of the two matters. I would like to invite your comment on section 43(1) of the Act, which allows the Commission to hear a person, or a body, in a more general sense than is in 43(2), which refers to 170LK and I am wondering what your view would be about me granting you leave to appear under that provision to deal, at this point, with 170XF?

PN87

MS HOWELL: Yes your Honour, we would submit that that would be appropriate. The level of interest which the union has is the designated award meets the test which is discussed in the various authorities and can I just - one such authority is R v Ludeke, ex parte, the Customs Officers Association of Australia, which is reported at [1985] HCA 31; (1985) 155 CLR 513 and I don't even have a copy of that with me your Honour, because I didn't anticipate that we would need to seek leave to intervene in these proceedings.

PN88

But the general test is the nature of the interest has to be something over and above that which a person in the street might have, so that failure to grant leave to intervene would amount to a denial of natural justice and we do rely on the fact that the designation of an award, for the purpose of 170XS is a matter which is of critical importance to the certification process and is an integral part of that process. So, it would be a denial of natural justice that the union not be heard on that issue and Commissioner, sorry, your Honour, again there is the matter of the leave to intervene on behalf of the individual named member, which, even if we failed on section 43(1), which we say we couldn't on the standard test, we would have an entitlement to intervene as agents for that individual member in any case.

PN89

Your Honour, just with respect to what Mr Heathcote said, I do have to say that we are not in a position to put detailed submissions on the issues raised by him today, simply because the first notice we got of those matters was after the commencement of the hearing when Mr Heathcote was on his feet, maybe that there is not a lot to say, but I can say one thing that Mr Heathcote has read more into our submissions than I think was intended. What our essential position was, was that there was no relevant award for the purpose of the Act and that no other award had been designated, therefore the no disadvantage test could not be assessed.

PN90

Now, we didn't hook any of the arguments which Mr Heathcote has now come up with about Federal award and those arguments may be correct, I just don't know, not having looked at it in any detail because we did proceed on the basis that we were not going to object to the designated award once the application had been made, it was the fact that no application had been made that we really took issue with in our written submissions. If it please the Commission.

PN91

THE DEPUTY PRESIDENT: Yes, thank you Ms Howell, it would concern me if I was to grant you leave that you wouldn't then be in a position to make submissions on the basis that you did have leave to make those submissions, so that makes me wonder whether in fact really there would be much benefit in granting you leave at this point if you are not able to make informed submissions.

PN92

MS HOWELL: Well, your Honour, what we can do is listen to Mr Heathcote's submissions and make an appropriate response in writing. In my submission really we can't be expected to know whether this award is the right award or not, the Federal award, without having an opportunity to get instructions, consider the circumstances surrounding the award and consider the legal issues which have been raised for the first time today. We do say that because of the way in which the employer has raised this, we should have an entitlement to be heard, but it would be really unrealistic with respect, to expect us to do it all on the spot, when we have had no notification of this other development as it were.

PN93

THE DEPUTY PRESIDENT: Yes. Well, taking that into account, it may be that the best way to proceed now, is for Mr Heathcote to proceed with his case and of course the union is present today and can certainly take note of those submissions and certainly the door would be open for written submissions to be given to me. I would propose therefore that Mr Heathcote you should commence and my next hearing is not for some 20 minutes I believe, to make the best use of the time and we will see how we go. Mr Heathcote?

PN94

MR HEATHCOTE: Thank you your Honour. I think where we were when this discussion began was I just made some observations concerning the four - identified the four Federal awards that in our view covered work of the same kind, that is undertaken by the Australian Railroad Group Employment Proprietary Limited. I have made some observations concerning the New South Wales award and those observations included that the New South Wales award didn't contain any meaningful pay rates. The pay rates that were included in there in clause 13, under Part 5, had not been reviewed, pursuant to item 51 of the WROLA Act and that the award also applied to suburban electric trains and passenger rail, which is not the business in which ARG is involved.

PN95

The next award that came up for consideration, was the Locomotive Drivers Victoria Award 2001. Now, clause 14 of that award leaves us in a worse condition than the New South Wales award did, because in Part 5, clause 14, under the heading of: rates of pay and related matters, clause 14 was deleted. So we don't know what the rates of pay in that award are at all and clearly if, as I have said earlier, if financial implications have to be weighed up for the purposes of the no disadvantage test and no doubt that is the case, then an award that contains no meaningful pay rates is not a proper or an appropriate award in which that could be done.

PN96

The next award that came under consideration was the National Rail Corporation Award 1995. Now, the difficulties we have with this one is that, well firstly it was made as a result of a certified agreement. The award itself says, at clause 3, which is headed: Operation of award, under subparagraph (a), pardon me, subparagraph (b):

PN97

This award shall supersede the National Rail Enterprise Agreement 1993, print in 0186 certified on 5 March 1993.

PN98

So the award, in this case, was made from an agreement, rather than in response to - well let us say it didn't come into existence in the normal way, that might be a better way of saying it. We also have a look at clause 5 of that same award, that explains something of the background, again under the heading of background, the award refers to subparagraph (a):

PN99

The award arises from the creation of National Rail Corporation Limited (National Rail) by its shareholder Governments as a company under the Companies Act, as a memorandum of understanding between the parties which provided the basis for its negotiation.

PN100

Note, the award was negotiated, it wasn't arbitrated in the customary sense. If we move then to clause 13 of that award, what we will find there is a heading: Classification structure and rates of pay and under that you will find a table in three columns: one describing numerically what a level is, that is level 1, through to level 10, with some smaller intervals between; a column dealing with relativities; and a column dealing with base salary. The difficulty that we find with that one is there are no descriptors to indicate where a locomotive engineman might be in the classification system.

PN101

Now, we have had some experience with this one before because in other proceedings, the union has advised us that the way you find these things out is you actually have a look at the National Rail Enterprise Agreement, which gives you the relativities, or the classification descriptors that go with the relativities. The difficulty with dealing with it on that basis, of course, is that the classification structure contained in the certified agreement wasn't arbitrated either, so we don't know whether the relativities that result from that are anything like what would be in an award concerning the same matter. So, what we are left with as a result is no ability to determine what the locomotive engineman's rate would be, no reliable way of determining what it is.

PN102

To make matters just a little more complicated from an award point of view, in terms of being an appropriate safety net for the no disadvantage test, what is understood about this award is that it is on the more generous side of employment conditions in the rail industry nationally. If I can quote from - it is an internal memorandum from the Chief Executive Officer of Pacific National who are the employer who are respondent to that award. He says:

PN103

Pacific National has the rail industry's highest rates of pay and the least flexible work practises.

PN104

So what we are left with, with this award is an award where we can't determine the rates of pay, no descriptors. It is made on the back of an agreement so it hasn't been subject to the same sort of arbitral constraints that most awards are made with and simply doesn't contain the wherewithal for us to apply no disadvantage test to it.

PN105

THE DEPUTY PRESIDENT: Mr Heathcote, can you confirm for me the correct name of that award you are referring to?

PN106

MR HEATHCOTE: Yes. National Rail Corporation Limited Award 1995. That is AW806902.

PN107

THE DEPUTY PRESIDENT: Thank you.

PN108

MR HEATHCOTE: So what we were left with then was the Locomotive Enginemen's Australian National Railways Award. Well, on the face of it, this has its flaws too. One of the flaws is that unlike the other award this one hasn't been simplified, or at least the simplification process hasn't yet been completed. So the award does contain provisions that would not be allowable in a federal award and, for that reason, possibly contains a more generous basis for conducting a no disadvantage test than one of the others. The other difficulty that we had with it because, as I said, it hadn't been through the simplification process is that the award contains paid rates rather than minimum rates.

PN109

The problems that we saw with that are capable of being overcome, in our submission, because the award, whilst the final award simplification this has not been handed down it has been heard, has been dealt with and, as I understand it, the Commission is simply waiting on a revised draft of the award before handing it down. And, as I understand it, I think that has been dealt with by Senior Deputy President Kaufman and that the award will be given an effective date of 20 January. Now, as part and parcel of that exercise the employer and the ARTBRU were required to convert that paid rates award to a minimum rates award.

PN110

That calculation has been done and the people who are involved in that exercise are available to us, Mr Thomas, on the one hand, and Mr Detez, who is in the room with us, was also involved in it. So they are able to tell us or, for that matter, table what the rates of pay in that award will be when the simplified document is handed down. That will include the paid rates conversion plus the update for all of the safety net adjustments. Now it seems to us then, Commissioner, that - pardon me, your Honour, that that will put us in a position where that award will contain the wherewithal to enable us to conduct the no disadvantage test in relation to the ARGs proposed agreement.

PN111

Now I need now to address you on a couple of other points in relation to that award. Firstly, it covers exactly the same sort of work. It is a locomotive enginemen's award. We have described our agreement as relating to locomotive engine drivers and that is exactly what this award applies to. Second thing that may be relevant about this one is it actually applies to another ARG subsidiary. The company concerned, Locomotive Enginemen's Australian National Railways Award is a little bit of a misleading name for it now. Australian National Railways - - -

PN112

THE DEPUTY PRESIDENT: Can you give me the full title?

PN113

MR HEATHCOTE: The title I have given you is correct.

PN114

THE DEPUTY PRESIDENT: Is correct.

PN115

MR HEATHCOTE: What I am saying is it is a little misleading in that it still refers to the Australian National Railways. That business has subsequently been acquired by a company called Australian Southern Railways which itself is a subsidiary of the Australian Railroad Group. It is, if you will, in the same position in terms of conducting a freight rail business under Australian Railroad Group's banner as ARGE is here. So it applies to not only locomotive enginemen, it also applies to a sister company, under the same umbrella, doing the same work. It is capable of containing all the necessary terms that the Commission may need to consider and, in our submission, has the advantage over all of those other awards for those reasons.

PN116

It isn't the obvious choice, as I said, given that it is amongst those awards that I have mentioned the only one that isn't simplified but we say that the other virtues that I have mentioned far outweigh the disadvantage of the absence of simplification in the circumstances. So it is our submission, your Honour, that, and unless you need to hear sworn oral evidence as to the nature of the work conducted in ARGE in WA and the Australian Southern Railway in South Australia to which this locomotive enginemen's ANR award applies - unless you need to hear oral evidence to further fortify the arguments that we have put to you then, sir, that that would be the end of our submissions on it.

PN117

THE DEPUTY PRESIDENT: I do not require any sworn evidence, however it is your prerogative, if you so wish, to call such evidence.

PN118

MR HEATHCOTE: Sir, we do not believe it is necessary. Thank you.

PN119

THE DEPUTY PRESIDENT: Thank you. I invite you now to suggest to me what you would like the Commission to do.

PN120

MR HEATHCOTE: Thank you, your Honour. The disposal of this matter, from the applicant's point of view, should be by way of designating the ANR award as the designated award for the purposes of conducting the no disadvantage test against the proposed section 170LK agreement. Now, given the observation my friend has made about their inability to make submissions on this, as it were, without having received prior notice and her concerns are very understandable, the suggestion I would have to resolve it is that, having heard what we have to say, that the ARTBRU be given some very modest period of time in which to make further submissions of their own in relation to what they say the designated award ought to be. That those submissions be filed and served on us and that ARG be given a somewhat briefer period of time in which to reply to them.

PN121

On the basis of those further submissions we believe, your Honour, you would be in a position to determine what the designated award would be, to notify the parties in writing, as the legislation requires, and then to proceed to the LK. In relation to the LK there is probably an ability for us to progress hearing of this to a point today but obviously we can't get to a conclusion. So we are in your hands as to whether to adjourn that application to a very short time after the designated award is determined and then come back for you to hear the oral evidence and submissions in relation to that application.

PN122

THE DEPUTY PRESIDENT: There is a question before me which is that, in effect, you appear to be seeking to vary an application before the Commission. I am sure you would agree with that observation. Is that the case?

PN123

MR HEATHCOTE: Be with you in a moment, sir. I don't know that I would agree that our submission amounts to a variation of the application. The application form says:

PN124

To the best of my knowledge and belief the Government Railways Locomotive Enginemen's Award 1973/1990 of the West Australian Industrial Relations may be appropriate for the purpose of deciding.

PN125

Your Honour, that is accurately an expression of our opinion at the time. It is not the case that we are telling the Commission that that is the award that you should decide upon and no other. So when that award was suggested it was suggested on the understanding that at the time that was our belief. It states our belief, it doesn't do any more than that.

PN126

If what the Commission is concerned about is that that amounts to an application for you to decide that that is the designated award and no other, if you are of a mind that we should amend our application then, sir, I would seek leave to amend our application such that the applicant now seeks that the Locomotive Enginemen's Australian National Railways Award 1978, which is AW787020, be inserted in in place of the Government Railways Locomotive Enginemen's Award.

PN127

THE DEPUTY PRESIDENT: Thank you. You would appreciate, of course, that in proceedings such as these there are a certain number of days that are required for the court reporters to produce a transcript which may be necessary for the Commission and parties may wish to have prior to the matter being - or an adjournment being resumed.

PN128

MR HEATHCOTE: Yes. Yes, Commissioner, I am aware of that.

PN129

THE DEPUTY PRESIDENT: From your submissions it appears to me that you are inviting a response by the union which you would wish to have submitted, not only to the Commission but also to the applicant.

PN130

MR HEATHCOTE: Your Honour - - -

PN131

THE DEPUTY PRESIDENT: The applicant would then have a right of reply to that, to the Commission. Is that correct?

PN132

MR HEATHCOTE: Your Honour, the submission that I have made is on the basis that you grant leave to intervene. If you are not of a mind to grant leave to intervene then we don't need to hear from the ARTBRU on the designated award at all, in which case all that needs to occur is for - nothing needs to occur. From our side it simply is left open to you to make a decision based on a consideration of the award itself which you would then have the opportunity to consider. Now I don't think that there is any more information that we need to put before you that would enable you to make that decision. I think it is a case, your Honour, of just looking at the award itself and the other awards that I have mentioned and satisfying yourself that the submissions that I have made are accurate.

PN133

If, as I expect you would, you come to the same conclusion that I have reached then a decision can be made forthwith. If the Commission is of a mind to entertain an intervention from the ARTBRU then it would be appropriate that they be given an opportunity to make written submissions, given that they are not in a position to make oral submissions now. So whether the union is involved or whether it is not hinges entirely on whether, in your mind, intervention is appropriate.

PN134

THE DEPUTY PRESIDENT: Thank you. Given that I need to adjourn shortly for another matter which is in fact due to be heard now, I tend to proceed to conclude this hearing shortly. Let me say first it is my intention that this matter be progressed as expeditiously as possible and that no unnecessary delays be brought about. Having said that I have heard lengthy submissions by both parties today concerning the issue of an application by the union to intervene. In relation to the 170XF matter, which is the matter which is before me today, the 170LK matter has not yet commenced.

PN135

I am mindful of the fact that the request to vary the application today, as I understand it, was in response to a submission by the union and given that the union has indicated that it would wish to make submissions in relation to the section 170XF, but it is not in a position to do so orally today, but would wish to consider the submissions and given that I have before me an application by the union for leave to intervene in relation to the section 170LK matter which has not yet been decided, I grant the union leave to intervene in this matter, being the 170XF matter.

PN136

In relation to the follow up proceedings from today's hearing I would wish to have the union, if it so wishes, to file its submissions to the Commission. I have in mind as being fair and reasonable a period within seven days but that is on the assumption that the transcript is available within a period of seven days. I am not in a position to know if that is the case. I will take some advice. Yes, I understand the transcript will be available expeditiously and thereafter there is to be a right of reply by the applicant to the submissions of the union. The union's submissions, as I said, to be served upon the applicant as well as provided to the Commission and the right of reply is to go from the applicant to the Commission, and copy to the union, a maximum of seven days thereafter. If the applicant is able to do it more quickly then that is not to hinder that more speedy response.

PN137

The Commission will act as soon as it receives the various submissions and at that point either the matter will be relisted for the determination or the determination will be made by the Commission on the written submissions and the oral submissions today. But either party is free to make whatever submissions it wishes in relation to future proceedings within the Commission in relation to this matter as well. As soon as the 170XF matter is determined then, at the earliest opportunity, the 170LK matter will then proceed.

PN138

Are there any final questions or submissions?

PN139

MR HEATHCOTE: No, your Honour. Thank you.

PN140

MS HOWELL: No. Thank you, your Honour.

PN141

THE DEPUTY PRESIDENT: I thank the parties for their assistance. We will now adjourn.

ADJOURNED INDEFINITELY [3.54pm]