C2002/5962, Transcript of Proceedings [2003] AIRCTrans 772 (11 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/5962

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

RAVENSWORTH EAST OPEN CUT COAL MINE

Notification pursuant to section 99 of the Act
of a dispute re alleged failure of the company
to meet with employees and the union for
discussions and/or negotiations

SYDNEY

11.45 AM, WEDNESDAY, 19 FEBRUARY 2003

Continued from 24.1.03

PN335

THE COMMISSIONER: I'll take the appearances, please.

PN336

MR K. ENDACOTT: If the Commission pleases, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division.

PN337

MR J. WHALE: May it please the Commission, I appear together with, MR DE FLAMINGH and MR FARRAR, on behalf of the company, and both myself and Mr de Flamingh have previously been granted leave to appear before the Commission in these proceedings.

PN338

THE COMMISSIONER: You have. Mr Endacott?

PN339

MR ENDACOTT: Thank you, Commissioner. The Commission would have had supplied to it three letters or correspondence, one dated 7 February 2003, from the union to Mr Farrar, of Ravensworth East Management Pty Limited.

PN340

THE COMMISSIONER: Yes, I've read the correspondence.

PN341

MR ENDACOTT: Yes, and a further one from Mr Farrar to myself dated 14 February 2002, that purports to be a response to our 7 February 2003, and a further correspondence dated 18 February 2003 in which we identified some issues with respect to the company's response to our correspondence that we've not as yet, and I've rang the office up before I arrived and received your response to that correspondence.

PN342

Now, I know that the Commission has read the correspondence, and I don't essentially wish to add much more than what was set out in the correspondence other than to say we press for the matter to go to hearing and I understand that today was to be set aside and one of the reasons was to consider if any directions will be made and to that end I have prepared draft directions that we would press upon this Commission and I previously supplied a copy of those directions to the company this morning and I tender a copy to the Commission.

PN343

THE COMMISSIONER: Do you want the correspondence marked?

PN344

MR ENDACOTT: Yes, I would wish it marked.

PN345

THE COMMISSIONER: A letter from the CFMEU to Mr Farrar dated 7 February 2003 becomes exhibit A16 in these proceedings.

EXHIBIT #A16 LETTER FROM THE CFMEU TO MR FARRAR DATED 07/02/2003

PN346

THE COMMISSIONER: A letter from Ravensworth Operations and signed by Mr Farrar dated 14 February 2003 to the CFMEU becomes exhibit A17 in these proceedings.

EXHIBIT #A17 LETTER FROM RAVENSWORTH OPERATIONS SIGNED BY MR FARRAR TO THE CFMEU DATED 14/02/2003

PN347

THE COMMISSIONER: What's the next one, Mr Endacott?

PN348

MR ENDACOTT: That's 18 February, Commissioner, it should be A18, correspondence to Mr Farrar.

PN349

THE COMMISSIONER: A letter in response to Mr Farrar from the CFMEU dated 18 February 2003 becomes exhibit A18 in these proceedings.

EXHIBIT #A18 LETTER IN RESPONSE TO MR FARRAR FROM THE CFMEU DATED 18/02/2003

PN350

THE COMMISSIONER: That's the end of it isn't it?

PN351

MR ENDACOTT: Yes. I did supply a copy of the directions to your assistant, I just can't recall.

PN352

THE COMMISSIONER: I have it now.

PN353

MR ENDACOTT: I can go through the directions.

PN354

THE COMMISSIONER: This is the first I've seen so take me to it.

PN355

MR ENDACOTT: Yes, thank you. These are, we submit, standard directions that would be issued in proceedings for arbitration in resolution of the dispute and they form in two parts in a number of subsections, that is Part I, and we would submit to the Commission that appropriate directions are the CFMEU or the Construction, Forestry, Mining and Energy Union, is to file and serve by close of business 12 March 2003 a copy of the interim award they press.

PN356

The witness statements in support of application going to the issues required to be determined, and an outline of their arguments, and they would be the directions that we would request that this Commission should appropriately make on the CFMEU for the preparation of the case. With respect to Ravensworth East Coal Management Pty Limited, we submit that the directions should be as follows. File and serve their response to each of the issues the CFMEU identified for the client to be determined in their correspondence to the respondent dated 7 February 2002 by close of business 26 February 2003. Now, I note that I've used the word, file and serve, their response to each of the issues, the primary word is to each of the issues.

PN357

THE COMMISSIONER: Can you mean 26 February?

PN358

MR ENDACOTT: Yes, I do in that we submit that the company hasn't appropriately responded to each of the issues. They made a generic response for the purposes of placing the issues into three grounds and we would submit that if you look at our correspondence, CFMEU 16, there are a number of issues that could have very easily been responded to by the company.

PN359

They didn't respond to point 2, even though its implied, which says currently the company is not respondent to the industry production engineering award with no conditions of employment being regulated directly by that award. There was no response, specific response to point 3 about the things that the contracts were in standard form between the two, with the small numbers being eight people having that additional wording in their contract.

PN360

They didn't respond to number 4 which was an allegation that their common law contracts purport to satisfy the provisions of the award and they had not issued to that regard. Then with respect to the detail of where I set out a number of specific points the company, and I'll sort of generalise their response says:

PN361

In a number of respects the contentions of the CFMEU on these matters are simply wrong.

PN362

Well, that's not a response to each of the issues, and I understand that it is a function of this Commission to regulate the effective arbitration of disputes, the processes, and we would submit that I would expect the company would have responded to each of the issues, either just said we don't agree or we refute them or it is not agreed, and we say that the Commission should require them by direction to respond.

PN363

I note to the Commission that when we had a conference with the company and they were to provide a written response on the issues we raised the sort of response we got was that set out in exhibit A10. If you look at exhibit A10 it was just, you know, a totally inappropriate response we would submit if you're trying to resolve issues which basically says, you know, we are satisfied with the current employment arrangements and we want you to discuss them further, that's what they call a response.

PN364

So we submit it is appropriate for the Commission to direct that no response was issued and that we should not be required to start preparing our material or finalisation preparation of material until we've had that response on each of the issues. I also note with respect to our directions we say witness statements in support of application going to the issues required to be determined and that's why we would say that I've used the date 26 February 2003.

PN365

I also make a general submission that this company made it quite clear on the last occasion their approach to conciliation with the assistance of this Commission. So I would submit that the Commission in making directions can have in the back of its mind that this may be a company that will hamper resolution of the dispute, certainly it has clearly hampered it by conciliation, virtually saying it would not participate even if directed and that's paraphrasing their position.

PN366

THE COMMISSIONER: They declined my kind offer.

PN367

MR ENDACOTT: So we would submit that that should be taken into account in making directions that it can be suspected that this company will hamper resolution by conciliation, well, it has, and may well consider hampering it in the arbitrary process. With respect to B2, it says:

PN368

File and serve by close of business on 26 March 2003.

PN369

their witness statements going to the issues required to be determined, and also an outline of their arguments. That is, two weeks after we file our material they would respond. Then there is the third point which we would ask the Commission to direct, because we would submit we need that material for the preparation of our case which set out in 2C, which reads:

PN370

Produce to the CFMEU by close of business 26 February 2003 the following: a copy of the series of documents that the employees were ...(reads)... the requirements of their position.

PN371

Mr Whale at paragraph 304 of the transcript of 24 January 2003, starting on the fourth line of paragraph 304, says:

PN372

Commissioner, we went to some lengths to explain to the Commission and to provide the Commission with these series of documents ...(reads)... and the requirements of the position.

PN373

Now, I cannot recall that material being provided to the Commission, it may have been an oversight by Mr Whale in making that reference. I know that previously they provided material that they said they contained that proves they said certain things at pre-interviews. I think they hold to the position that they did provide information and certainly for the determination of the matters that they required we would say that is relevant. The next point, (ii):

PN374

A copy of the different types of contracts of employment that have been entered into between the respondent and their production and engineering employees.

PN375

You will recall that was an issue that we have put in Issues to be Determined that the company hasn't appropriately responded to, so we need evidence to prove what we contend. Point (iii):

PN376

A copy of the position description if any that was listed as Attachment 3 to the Offer of Salary Employment in August 2000.

PN377

That document, the Offer of Salary Employment, now forms exhibit A14 in these proceedings and you will see on the third page of that it lists a whole series of documents that were meant to be attachments to the contracts, so we basically ask for what we feel are the relevant attachments to the Issues to be Determined.

PN378

We ask for a copy of the Ravensworth operations procedures for issuing new contracts to employees dated October 2002 and all previous versions and any like documents. You will recall, Commissioner, that in previous proceedings they have relied upon notes that were taken, pro forma notes that were supplied to the interviewers to say that proves what they said at the interviews, at the meetings, and therefore the contracts of employment have to be read in accordance with those. We have said that that material as with the other material is capable of being relevant.

PN379

I have missed point (4), I apologise, Commissioner, point (iv) of 2C, we would ask for that material which is Attachment 10 to the contract. I referred to Attachment 3, but that is Attachment 10 of exhibit A14. I will skip (v), that was the last one I referred to, and go on to 2C(vi), which is a copy of the Ravensworth East Salary Employment Contract, the benefits and changes, a presentation that was to be made to employees in October and November 2002, we say it is capable of being relevant to these proceedings, and (vii), a copy of the Ravensworth East Offer of Salary Employment Explanatory Notes as at August 2000 and any subsequent amended or varied versions.

PN380

We say all that is capable of being relevant to the issues that we submit are required to be determined, so we would ask the Commission to make those directions.

PN381

THE COMMISSIONER: I understand what you seeking as far as 2B(ii) but the rest of it is really in the nature of a summons to produce documents, isn't it?

PN382

MR ENDACOTT: Well, the rest is in the nature of a summons to produce documents, that's right, Commissioner, but the Commission is capable of directing that they be produced under its general functions and it is common in proceedings that the Commission does issue directions about material that is required to be produced by the parties. Certainly I am capable of putting that in the form of a summons and going to the Commission asking that they summons it, but we would say - - -

PN383

THE COMMISSIONER: Well, we will see what the other side says anyway, they may have some word on it. I took it that what the CFMEU was initially seeking was the roping-in of Ravensworth to the PNA award.

PN384

MR ENDACOTT: That's correct on an interim level and certainly the process of arbitration we submit is one of creating new rights with comparison of existing rights. We say that information is all relevant to us pressing our position.

PN385

THE COMMISSIONER: You see, I, like the company, am just a little intrigued by the reference in the union's letter of 7 February 2003 to Mr Farrar, the penultimate paragraph of that letter:

PN386

The applicant presses on an initial and interim basis for Ravensworth East Coal Management Pty Limited to be roped into the industry award -

PN387

That I understand:

PN388

with separate awards that regulate the employers behaviour with respect to all the specific issues that have been raised.

PN389

I know that they need response, for one of their letters asked what you meant by that and I would like to know as well.

PN390

MR ENDACOTT: Well, I meant what I said by that, Commissioner, that we would be seeking an interim award.

PN391

THE COMMISSIONER: Yes, that much I understand.

PN392

MR ENDACOTT: In partial resolution of a dispute which I think is pretty well what normally happens and then we would be seeking specific awards that would regulate - - -

PN393

THE COMMISSIONER: At what stage will you specify what specific awards you want?

PN394

MR ENDACOTT: For one thing, when an award issue was determined.

PN395

THE COMMISSIONER: How many awards will there be at the end of this? You are talking about awards, how many do you anticipate there would be?

PN396

MR ENDACOTT: Well, it may be that one additional award can be made or each interim award can be varied. The question, Commissioner, is would I require 20 different awards. If that caused your confusion, I can understand that. No, we wouldn't require 20 different awards. We are asking for this matter to be dealt with in accordance with the antecedent dispute finding which the Commission in exercising all jurisdictions to resolve disputes, essentially that is what they are doing on the vast majority of occasions. In those cases initial awards are made in part resolution of a dispute and then other awards are pressed.

PN397

We have an unusual situation here, Commissioner, where a company, unusually, seems to have taken a very hostile approach to the Commission conciliating issues of dispute, which leads us no other choice other than on each and every issue to say, well, arbitration has to occur if it can't be resolved by some other means.

PN398

THE COMMISSIONER: That much I understand, as I said I was just intrigued by the prospect of an endless list of new awards covering specific issues.

PN399

MR ENDACOTT: No, in saying that we wouldn't submit 20 different awards. It could be that the interim award issue is determined and then in partial resolution of the antecedent dispute these issues that are within the antecedent dispute, if necessary, there may be a variation to that award or a similar award, yes.

PN400

THE COMMISSIONER: Well, that's a much less frightening prospect.

PN401

MR ENDACOTT: Yes, thank you, Commissioner.

PN402

THE COMMISSIONER: Mr Whale.

PN403

MR WHALE: Thank you, Commissioner.

PN404

THE COMMISSIONER: Do you need any time to confer before you respond to these matters?

PN405
MR WHALE: I don't believe so, Commissioner. Perhaps in the course of the Commissioner delving into these matters we may well need to take some time, but I'm going to be brave and see what I can do to kick the ball off, so to speak. Commissioner, if the company presents itself as being somewhat perplexed, then I'd suggest that the Commission is in exactly the same boat. In the proceedings last before you on 24 January from PN322 up until the conclusion of the proceedings which results in the Commission putting together a structure for what was to happen, but if we look at P322 onwards, Commissioner, I could categorise from there on where what the company was seeking to do was to have it made clear what case the union sought the company respond to, what relief the union was seeking from this Commission, the form of orders and awards that the union sought this Commission make as a consequence of an application.

PN406

The company said in the course of those proceedings, well, what is the application. Isn't the application filed with a section 99 dispute or is it something else? What the company was seeking to do is to invite the CFMEU to put squarely, succinctly, the orders that it sought, the relief it sought. Once the company was appraised of that relief, the company would then be in a position to make an informed response. Now, if I could take the Commission to 322, 323 and 326 which are all consistent with the same theme of what does the union want, what is it that they're seeking the Commission determine. 327, I trust I don't misrepresent the Commission, but I think the Commission was in exactly the same boat and the Commission is none the wiser today as to what it is that the union is seeking as a consequence of the letter served on the company on 7 February in accordance with the directions of the Commission.

PN407

The company's response to the union on 14 February does not seek to, in Mr Endacott's words, hamper anything. What it simply seeks to do is draw out from the union precisely what they want. We understand that one thing they want is that the company be roped in on an initial and interim basis into the Production Engineering Award. The company's response in its letter of 14 February to that is essentially that the company opposes a piecemeal settlement to the resolution of this dispute, whatever this dispute is. The company is not in a position to adequately respond to any issue until it understands precisely what the union wants and the union has not made that clear.

PN408

THE COMMISSIONER: But I think partly what the union is putting is that it won't know all of its position until it sees these documents.

PN409

MR WHALE: Could I get to the documents a little later on in my address, Commissioner?

PN410

THE COMMISSIONER: Yes.

PN411

MR WHALE: I do intend to get there and really they become matters of relevance. In fact, I'd better deal with them now.

PN412

THE COMMISSIONER: No, deal with them at your leisure.

PN413

MR WHALE: The company's attitude to those documents, Commissioner, is that, well, they may be relevant or they may not be relevant, depending upon what the union is seeking. If the union is seeking as Mr Endacott says in his letter of 7 February, you're drawing him to the penultimate paragraph, that he seeks in addition to the company being made a respondent on an initial and interim basis to the P&E Award, that he seeks separate awards that regulate the employer's behaviour with respect to all of the issues that have been raised.

PN414

Now, Commissioner, the company can't really form a view as to the relevance of any of those documents until the company understands what it is that the union seek those awards contain. Indeed, the company is not in a position to even consider what jurisdiction the Commission may have to make awards in the form sought by the union until it sees the draft award. It's a chicken and egg situation. Now, Commissioner, if we look at the letter of 7 February, if we start off with the first paragraph, and I don't want to be taking you chapter and verse through a comparison of Mr Endacott's document and the contract of employment and where they may differ relative to an award that may or may not be made in the future.

PN415

But the first paragraph says that "listed below are the issues of dispute that are acquired to be determined by the Commission". What then follows, surely, is a series of submissions in relation to various issues, various allegations which go to the content of the company's contract, whether the company has or hasn't met with the union as a representative of employees, whether the employer has refused to meet with the union, whether the company is or is not contemptuous in relation to its unpreparedness to participate in conciliation.

PN416

How does this Commission properly come to a view as to the form of an award or awards regulating those issues until such time as the company and the Commission see the form of those orders. That's the difficulty we have with all of that and the company's letter which Mr Endacott takes objection to on 14 February essentially says that, show us what you want so we can adequately respond to it. The company's position also, Commissioner, is that making - and Mr Endacott's draft directions which I'll get to shortly. But the union presses for interim awards, interim relief and the company in its letter of 14 February in substance opposes a piecemeal settlement to the matters that the Commission will have jurisdiction to decide.

PN417

We don't concede the Commission does have jurisdiction on the multitude of issues that are raised in Mr Endacott's correspondence. The company does concede the Commission does have jurisdiction with respect to a roping-in award and in relation to that the company's position is that it should not be made respondent to that award where that respondency is on an interim or initial basis without knowing the substance of all other aspects of awards the union will be seeking as a consequence of these proceedings.

PN418

We also think that the Act is instructive in terms of the role of the Commission in determining how it should proceed with interim awards. Section 111(1)(d) of the Act we say is relevant to whether the Commission should or should not proceed with interim awards and indeed the weight that should be given to any application which comes before it. Now, 111(1)(d) which is the quickness required in making interim award, the Commission must decide as quickly as it can whether to make an interim award if the Commission considers that such an award may be necessary to protect, and I emphasise, to protect for an interim period the wages and conditions of employment of employees whom the award would cover.

PN419

So it's simply not sufficient for Mr Endacott on behalf of the CFMEU to say, well, we want you to make the company initially respondent to one award and then, when that's determined, we'll then decide what other awards we want made by this Commission. We say, look, that is an abuse of process. The making of an interim award should be approached with caution. It should be approached as being one of a special circumstance. We would say that relevant aspects of it go to the urgency of the situation. The question of whether in fact the award is sought to avoid the real likelihood of disadvantage to employees or injustice to employees and indeed the making of an interim award can be seen in the context of it being an exceptional circumstance.

PN420

It should not be approached in a piecemeal manner and we certainly regard the union's approach to the company being made to any awards on an interim or initial basis, Commissioner, as not one that should be lightly treated by this Commission and in fact we say it should be rejected by the Commission. Commissioner, the company's - - -

PN421

MR ENDACOTT: If I could just ask if my friend's submission is that the Commission should reject hearing the interim nature or should reject an initial award. I'm not too sure. If you could clarify that position because I don't know if the Commission can reject hearing it. It might reject it.

PN422

THE COMMISSIONER: I will find out what he meant.

PN423

MR WHALE: What I'm putting forward, Commissioner, is the company's position to be made respondent to the Production and Engineering Award on an initial or interim basis which is we oppose it, Commissioner, as part settlement of a dispute and without knowing what is the full context of the awards that are sought by the union. The company's letter of 14 February makes it very clear. The final paragraph of the letter of 14 February says, and I quote:

PN424

Until the CFMEU has made clear that the totality of the relief it seeks ...(reads)... dispute that is before the Commission.

PN425

Now, we don't believe, Commissioner, that that is an unreasonable position to put forward given that it is our view that the CFMEU are engaged in a fishing expedition. The letter of Mr Endacott and the allegations and the list of issues that he raises and the draft directions that he's put in these proceedings today simply confirm that view.

PN426

THE COMMISSIONER: As I take it the union is arguing that your company should be roped in to the P&E Award to provide protection to its members on an interim basis and that depending on what comes out of these documents may seek further orders from the Commission. Is that a fair summary, Mr Endacott? I'm not inviting a long submission, just - - -

PN427

MR ENDACOTT: I realise that but it's the nature of the dispute, there is existence under section 101 in antecedent disputes. So my friend says tell us exactly what you want, well, the Commission's found a dispute in the terms of the log. Now, the practicality of industrial relations is disputes are resolved piecemeal. I mean it's the demand you want over time. So I can't give him an award that says this resolves all the issues in dispute.

PN428

THE COMMISSIONER: I'm not inviting a full response from you, okay?

PN429

MR ENDACOTT: But the position we make is that there is ongoing dispute and there are ongoing matters that have manifested itself and that we seek as an initial basis an interim order.

PN430

THE COMMISSIONER: Is what I said a fair summary of what you're - - -

PN431

MR ENDACOTT: Well, we do reserve our right to change the nature of what we say about the first hearing should be about a roping-in award pending the material coming out of it. But I don't say because this is a dispute that's found under section 101 that that's the only nature we'll ultimately seek at the end of the day. But you are right in that regard, we do press the position that it may arise. But the material we've requested and I make this clear is also, we say, capable of being relevant to the roping-in award finding, the initial matter.

PN432

THE COMMISSIONER: Well, that answers my question. We can go back to Mr Whale. Do you have anything further to put to me, Mr Whale?

PN433

MR WHALE: Commissioner, the CFMEU letter of 7 February - - -

PN434

THE COMMISSIONER: It might be better to refer to this correspondence by its - - -

PN435

MR WHALE: Sorry, exhibit A16, Commissioner. My apologies. Commissioner, A16 notwithstanding what Mr Endacott has put to you so far today the second last paragraph says:

PN436

The applicant presses on an initial interim basis for Ravensworth East Coal Management to be roped into the industry award.

PN437

That is clear and the Commission understands the company's position with respect to that. The company's objection to that is that it is sought as interim and initial. It is our submission that the making of interim awards is very much guided by the Act and in our view the union's position falls short of that. But putting that aside as a view, it is our view that the resolution of that part of this dispute comes to the or rests upon the union providing to the company the nature of such other awards or separate awards which is the second part of this paragraph that regulate the employer's behaviour with respect to all of the specific issues being raised.

PN438

Now, there is a cross over between being roped into the industry award and the subject matter or some of the subject matter of the issues that the union has raised in that correspondence. To take a very simple issue, Commissioner, annual leave. The common law contracts provide for annual leave. The award provides for annual leave. There is a cross over between the concept of annual leave albeit in different terms. The company being roped into the award may well resolve that issue of annual leave but leave the company, obviously, with its common law contracts being different or potentially different and we don't concede that they are different, to the award position.

PN439

So the resolution of the roping-in award may well resolve a number of the issues that Mr Endacott seeks be regulated by separate awards going to the behaviour of the company. If we turn now to the draft directions that Mr Endacott has put forward, and I will just leave aside the dates of what he proposes, Commissioner, and just deal with the substance of it.

PN440

THE COMMISSIONER: I will mark the draft directions as exhibit A19.

EXHIBIT #A19 DRAFT DIRECTIONS

PN441

MR WHALE: The company on 14 February invited the union to provide these to the company. Unfortunately, Mr Endacott didn't do so until immediately prior to these proceedings so the amount of consideration the company has been able to give these is very limited.

PN442

THE COMMISSIONER: Well, I have offered you time.

PN443

MR WHALE: If I can just proceed to deal with the issues, Commissioner, we can deal with what other time is necessary, but 1A says that the union will provide a copy of the interim award they press. Now, is that an interim award to be roped into the Production Engineering Award, is that an interim award in relation to the behaviour of the employer, is it an interim award in relation to the employer's refusal to meet with employees' union representative on site, which is point (vi).

PN444

THE COMMISSIONER: Well, to be fair to the union, you have asked for full details of what they seek by way of an award and no doubt you would find out when you got it, wouldn't you?

PN445

MR WHALE: Precisely, and until such time we are not in a position to then look at the relevance of the documents they say they need because in our view, Commissioner, the perusal of those documents prima facie in our view is not relevant to being roped into the Production Engineering Award. They may be relevant if in fact the union seeks an award which purports to regulate the employer's refusal to meet with the union on site.

PN446

THE COMMISSIONER: We can come to that as an issue. I am not saying I am going to issue the directions or not issue them but they copy the interim award they press, that to me satisfies your request.

PN447

MR WHALE: If I can then proceed to deal with the directions themselves, the preamble in 1, 12 March 2003, seems to be fine, 1(a), the provision of the interim award, is fine, 1(b) is fine,

PN448

1(c) is fine. We oppose 2(a), we don't believe we need respond other than as we have responded in our letter of 14 February, and in particular because the union's interim award if it is going to address any of the subject matter of their letter contained in exhibit A16 of 7 February will be overtaken by whatever orders they seek. Simply the company responding to their letter of 7 and 26 February will be overtaken by whatever that interim award seeks and therefore is superfluous.

PN449

In relation to 2(b), it is our view that the company should be given adequate time after receiving the union's interim award and witness statements and its outline of arguments. To prepare its response it can only adequately do so if given time and it is our view that time should be at least one month after the union has provided that information.

PN450

THE COMMISSIONER: Give me your suggested date, Mr Whale.

PN451

MR WHALE: 14 April.

PN452

THE COMMISSIONER: Thank you.

PN453

MR WHALE: In relation to 2(b), the company would file by the close of business on 14 April 2003 points (i) and (ii). In relation to 2(c) it is our view that those documents are not relevant to the making of an award within the jurisdiction of this Commission and we certainly oppose those documents being provided. What we do suggest is that on 16 April the Commission list for report on the exchange of documents and then such further proceedings as the Commission proposes to make to hear argument by the parties on the various aspects contained in their documents, or probably just report back only, Commissioner, there probably wouldn't be any arguments on the date we were reporting back to the Commission.

PN454

Commissioner, that is what we would see as a structured approach which gives the parties an equal opportunity to prepare and present their cases, not to be ambushed and put structure round the proceedings, which is precisely what the company sought in its letter of 14 February. May it please the Commission.

PN455

THE COMMISSIONER: Thank you. Yes, Mr Endacott.

PN456

MR ENDACOTT: Commissioner, we would press for the orders for the system we propose. I note that the company started submissions indicating what it clearly required and why it was reluctant to supply that material until it was provided. Mr Whale submits that they squarely sought orders, a copy of the orders on the remedy that was required, the award. Well, that was not what they sought when this matter was last before the Commission and the Commission, we say, adequately reflected in transcript what was required.

PN457

THE COMMISSIONER: Where did I do that, Mr Endacott?

PN458

MR ENDACOTT: You did that at paragraph number 334, Commissioner, where the Commission said:

PN459

Having now discussed timetabling with the parties it is understood that Mr Endacott for the CFMEU will supply in writing details of the matters to be determined to the company no later than close of business, 7 February 2003. The company will respond to the union no later than 14 February 2003 and the matter will come on for further hearing and a possible issuing of directions on 19 February 2003, copies of both the company and union correspondence to be supplied to me.

PN460

I sought to do that, Mr Whale and myself are not legal practitioners but I sought to do that so that there would be clear understanding of what issues were required to be determined. Mr Whale has taken some objection to my form where he says, "He has made some submissions about how things operate" and I did, because we submitted that was required to be determined in that form.

PN461

Now, the company could have easily said they agreed or they didn't agree and as a result when I prepared the case, when we were going to hearing and seeking orders we could have clearly understood what issues were required to be determined. They declined to follow that process and in part said, well, you have got to give us the orders you seek.

PN462

We indicated that on an interim basis we require a roping-in award. I used the terminology "roping-in" because I submit the first year student doing an economics degree in business will know what a roping-in award means once they do a standard six months of preliminary industrial relations, but somehow Mr Whale, who it is my understanding has years of experience and he's been advising the company, had some sort of confusion about well, how does a roping in award read, which I say to me seems most unusual.

PN463

With respect to the piecemeal resolution of the dispute, all disputes are resolved piecemeal by this Commission. Ambits created and they are resolved in piecemeal in making an interim award. A roping in award is pretty well standard in resolution of the bigger disputes, so we would say there is nothing novel or controversial about the - - -

PN464

THE COMMISSIONER: I have no particular argument with the piecemeal idea.

PN465

MR ENDACOTT: The next approach is with respect to the orders we seek and response 2A is quite clearly we ask for that direction - I apologise for the word direction - because the company didn't appropriately apply to it in the first place.

PN466

THE COMMISSIONER: What I said was the company to reply. I can't require the company to reply to you in a form which you necessarily find suitable, appropriate or instructive, can I?

PN467

MR ENDACOTT: No, but you can require them to reply to each issue, we would submit. They may say, We disagree. They may say, No, we agree that the agreements are meant to be better than the - - -

PN468

THE COMMISSIONER: I suppose they could send you a letter that said, Dear sir, No, - - -

PN469

MR ENDACOTT: Consistent with A10.

PN470

THE COMMISSIONER: - - - which is more elegantly put.

PN471

MR ENDACOTT: But the problem we have here is that you can make a direction that required they respond to each issue. It's the Commission's job to determine how the case prepares. In light of that - 1B says, which the company agrees is an appropriate direction:

PN472

Witness statements in support of applications going to the issues required to be determined.

PN473

At present every issue we've identified is required to be determined because the company hasn't responded to any specific issue. And that's fine. I'll provide a statement and require each issue to be determined. We move on with respect to the timetabling we ask. We request our timetabling because at present the employees are not protected by an award. Certainly we say that's an issue that has to be determined and the company hasn't given a specific response to that. The Act requires, we submit, that at section 98 it provides some guidance to this Commission in how it should exercise its function with respect to pleading. It says this:

PN474

89A. Commission to act quickly. The Commission shall perform its functions as quickly as practicable.

PN475

The Commission, with respect to conciliation, that didn't go anywhere because the companies knew about conciliation and therefore it needed to go to arbitration directly which wasn't certainly our preferred position. It uses the words "as quickly as practicable". The company says the union has three weeks to provide it's material. We have a month to provide our material. The reason why we said three weeks is so that we had their material, their response, two weeks before. We would submit we would press a quicker timetable. Now, "its functions as quickly as practicable", under section 127 he uses the same terminology, means virtually the next day even though we say that in this case that's not appropriate, that there should be a time to prepare the case and we would say that our timetable is superior in that regard, gave the parties effectively two weeks to prepare their case.

PN476

THE COMMISSIONER: Certainly I don't find the reference to 127 helpful.

PN477

MR ENDACOTT: I'm just stressing the same terminology is used.

PN478

THE COMMISSIONER: It is. It's a wonderful statement and I don't disagree with it.

PN479

MR ENDACOTT: Yes. Then there is section 2C about the material we require. All that material goes to those issues that we said will require determination. The company at no point said they didn't require determination. They have submitted today that they don't have to or may not necessarily need to be determined, but they didn't submit that in the correspondence. In any event, Mr Whale talks about the test of it's not relevant. I'll remind my friend Mr Whale the true test is capable of being relevant. It's not whether it's relevant, it's whether the material is capable of being relevant. You can actually only determine if it's relevant when the matter is being heard necessarily.

PN480

We say all that material is capable of being relevant. It's capable of being relevant because it falls squarely within the arrangements the employees are being paid at present. The act of arbitration, as I submitted, Commissioner, is the making of new rights by comparison against existing rights, so this Commission, in part, will be required to look at what the employees are currently being paid and whether or not in accordance with that they should make new rights in accordance with the award.

PN481

I said to my friend in the 7 February correspondence, I said these are the issues to be determined. They are being paid less than the award.

PN482

MR WHALE: Objection.

PN483

MR ENDACOTT: I take that back because - - -

PN484

MR WHALE: They're being paid roughly 30 to 40 per cent above the award, Commissioner.

PN485

MR ENDACOTT: I take that back, that was an inappropriate expression. I said in the correspondence as set out, there are some provisions that are less than the terms of the award and asked for it to be determined and the company hadn't responded to that and say we agree that's happened so we actually have to prove the nature of the contract and all that's relevant.

PN486

THE COMMISSIONER: Right. I spend a lot of my time in this job being intrigued but one thing does intrigue me about the list of requested documents. As I understand it, without referring back into the file, the CFMEU comes here telling me that it acts for a number of these persons who are covered by these private arrangements with the company. Is that true?

PN487

MR ENDACOTT: Well, we do act for, yes.

PN488

THE COMMISSIONER: They requested you to act for them in this regard?

PN489

MR ENDACOTT: Well, yes.

PN490

THE COMMISSIONER: A lot of the documents you're asking for appear to be documents that would have been provided to those persons. It would be within their knowledge.

PN491

MR ENDACOTT: No. Well, if I can - - -

PN492

THE COMMISSIONER: Well, if you look at the terminology in C(i), 2C(i), the copy of the series of documents of the employees were provided by the respondent prior to signing their contracts.

PN493

MR ENDACOTT: Yes, because the company says they provided that and I took you to the section of transcript.

PN494

THE COMMISSIONER: So these people don't have these documents?

PN495

MR ENDACOTT: Well, we don't know what they're talking about. If you recall what Mr Dagg said, he said that he was provided only with the contract and told to read that, they form your terms. It was the company that actually produced - this is in other proceedings - copies of their interview notes that they may or may not have kept - Mr Dagg wasn't given a copy and said, you have to read the contract in the context of what the interview notes say.

PN496

Now, we were never given those. It's the company that said this material is relevant in the determination of the contract and therefore as a result, we've asked to have a look at it and see if it was produced. Now, with respect to three, I've asked for that material because I have asked our members to give us copies of the material they provided and for example, attachment three wasn't provided, not at the time the contract was signed and the salary packaging information book, my understanding was not provided at the time the contract was signed and those other issues - so we say they're relevant to the determination of these issues.

PN497

The company has previously come before the Commission and has produced interview notes at least and say they are relevant to the interpretation of the contract of employment. So we submit - - -

PN498

THE COMMISSIONER: I think some of these documents may have been passed back and forth in conference but I'm not sure.

PN499

MR ENDACOTT: Yes, I'm not sure of any generic document that was passed back and forth. So we would say all that material is capable of being relevant and it doesn't go to issues of economic or commercial sensitivity. It goes to issues of the terms and conditions of their employees and I indicate that the union has lodged a dispute for and on behalf of its members. We do have members there. We act in their interest.

PN500

With respect to the specific authorisations, they were authorisations with respect to discussions about their contracts of employment, not necessarily about resolution of dispute.

PN501

THE COMMISSIONER: I would have taken it that the purpose of seeking a roping-in award would be to protect the very basic terms and conditions of your members, correct?

PN502

MR ENDACOTT: Well, we would be submitting that that's one of the purposes of a roping-in award, yes.

PN503

THE COMMISSIONER: Therefore, if you were successful in roping the company in to the P and E Award which provides certain minimum conditions and you were then to be told by your members that they were working under conditions which in effect were in breach of those minimum conditions, then you'd take further action on that basis, wouldn't you?

PN504

MR ENDACOTT: Yes, we would.

PN505

THE COMMISSIONER: I am a little dubious about some of these documents that you're seeking, their relevance to a roping-in award application. I see that they may have relevance in other proceedings.

PN506

MR ENDACOTT: Well, the problem is, is that the terms and conditions of employees currently being paid is fundamentally relevant to the Commission making a roping-in award and in part the objectives of the act in exercising the Commission's function is dead on point, I believe. I'll just have a quick read of - if you look at section 88, we say that's all relevant. The object of this part to ensure that wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commission. Awards act as a safety net, a fair minimum wages and conditions of employment.

PN507

THE COMMISSIONER: Which is what I've been putting to you.

PN508

MR ENDACOTT: Yes. So we would submit that the - - -

PN509

THE COMMISSIONER: And if the company was to be roped in and was then found to be in breach then certain consequences follow, don't they?

PN510

MR ENDACOTT: Yes, certain consequences would follow.

PN511

THE COMMISSIONER: Mr Whale.

PN512

MR WHALE: Hence, Commissioner, the exchange between yourself and Mr Endacott is precisely the conundrum we have. The Commission under section 89A(3) is bound to make a minimum rates award. Mr Endacott, we think, seems to want you to make something other than a minimum rates award through this whole exercise and hence his position of the company should be roped in on an interim basis to the P&E Award and then some other awards may or may not materialise depending upon what the Commission does.

PN513

Our view is that the Commission is bound or is driven by 89A3 to make a minimum rates award and if the company in the view of the union is in breach of that award then the union has particular remedies it can pursue.

PN514

THE COMMISSIONER: But you still object to being roped in?

PN515

MR WHALE: For the very reason, Commissioner, that it would appear to be a piecemeal approach to the resolution of this dispute. There are a series of - - -

PN516

THE COMMISSIONER: The whole system is a piecemeal approach.

PN517

MR WHALE: There's a fishing expedition going on here in terms of other awards that may or may not be put forward by the union as part of this process.

PN518

THE COMMISSIONER: That latter view I have some sympathy for.

PN519

MR WHALE: And in the vernacular, Commissioner, we would just like to see the colour of their money before we commit.

PN520

THE COMMISSIONER: Well, that's what both of you are saying, really, isn't it?

PN521

MR WHALE: Finally, Commissioner, if I could, and I apologise - - -

PN522

THE COMMISSIONER: Anything that helps me in this I'll take.

PN523

MR WHALE: Well, we submit that the timetable that we've put in relation to the CFMEU's directions, the amended timetable, is an appropriate timetable. We certainly press for it. We do oppose 2C in its totality. We certainly believe that relevant documents are available from their members and indeed it is our current view that - - -

PN524

THE COMMISSIONER: But that also means that, if that's true, it equally applies that you wouldn't have any problem then producing them if they're commonly known documents, would you?

PN525

MR WHALE: Well, I think our current thought, Commissioner, is that they're probably better - they probably should be the subject of summonses rather than anything else. I mean we're not favourably disposed to producing or participating in a fishing expedition and I regret to say that this - - -

PN526

THE COMMISSIONER: No, I flagged that myself earlier. I think they're documents that would need to be produced on summons.

PN527

MR WHALE: The Commission has the capacity to make a ruling on that at some future date. It's our view that it shouldn't detract from the union's position in respect of interim awards which fall within section 89 and 89A3, may it please the Commission.

PN528

THE COMMISSIONER: Anything further, Mr Endacott?

PN529

MR ENDACOTT: Well, if the Commission is of the view that the application should be remade in the form of a summons, then that is the view of the Commission. If that is the case, we would ask the Commission to make a direction for return of summons date because the company has indicated they are not prepared to provide the material. They don't believe its relevant. So no doubt we would have to have the same argument again at the return of summons, we would submit that.

PN530

THE COMMISSIONER: And you'll be providing draft documents, will you?

PN531

MR ENDACOTT: I beg your pardon?

PN532

THE COMMISSIONER: You will be providing a draft summons to me?

PN533

MR ENDACOTT: I would be providing a draft summons to you. I mean I would be preparing a summons in accordance with the requirements of the Act that would be in identical form to that, with the date that the Commission indicates would be the return of summons date, I would put on it and as I do with all summons, go down to the Registry, get them to stamp it and if the company doesn't produce it on the day well we argue about what does and doesn't have to be produced.

PN534

THE COMMISSIONER: If you're going to proceed down that path and I would neither discourage or incite you to do so, it makes it a little difficult to wish you any directions about other matters, doesn't it, in terms of dates?

PN535

MR ENDACOTT: I'm sorry, in just saying that, our submission would be if the Commission accepts the company's submission that, well, you shouldn't consider this in issuing directions about programming, well, that's contrary to our position, and there should have been a summons prepared, then that's what we'll have to do. I don't propose to do that in addition to this process.

PN536

THE COMMISSIONER: Anything further, Mr Whale?

PN537

MR WHALE: Well, again, Commissioner, - - -

PN538

THE COMMISSIONER: Anything new I should say.

PN539

MR WHALE: No, we just state our position, Commissioner, that the relevance of those documents, the roping-in award, won't be known until we see what roping-in award they seek.

PN540

MR ENDACOTT: Well, I can tell my friend, the roping-in award we will seek will be the stock standard roping-in award that this Commission makes every day of the week.

PN541

MR WHALE: Then it raises the relevance of those documents, Commissioner, whether in fact the Commission believes that they are documents that are relevant to the determination of being roped into the award.

PN542

THE COMMISSIONER: Thank you. Well, I give notice to the parties that I am inclined to issue directions broadly in line with points 1A, B and C of the CFMEU's draft together with 2B of that draft, though in 2B I will be amending that date in the light of submissions made to me. I'm not sure what the new date will be, but you will be advised later today. At this time, the directions to be issued by me will not include the matters encompassed within 2C(i) to (vii) of the CFMEU's draft and the CFMEU can take further action in relation to summonses if it wishes.

PN543

MR ENDACOTT: I would ask for a return of summons date to be issued because on the summons I'll need to set a date on which it will be returned.

PN544

THE COMMISSIONER: Any suggested dates?

PN545

MR ENDACOTT: Well, the summons period is normally five days. So we would say a return of subpoena date 14 days from today.

PN546

THE COMMISSIONER: 5 March?

PN547

MR ENDACOTT: I'm not available on 5 March, I apologise, I've got a meeting at my office on that day. Any other day in that - - -

PN548

THE COMMISSIONER: I'm just trying to act as soon as practicable.

PN549

MR ENDACOTT: Well, any other day in that week I'm fine with.

PN550

THE COMMISSIONER: 6 March, 10.00 am.

PN551

MR ENDACOTT: Yes.

PN552

THE COMMISSIONER: Is that agreeable to the other side?

PN553

MR WHALE: Yes, Commissioner.

PN554

MR ENDACOTT: And there's the listing of hearing days, do you think we would save that for another occasion.

PN555

THE COMMISSIONER: We will.

PN556

MR ENDACOTT: We may be able to talk about it on 6 March.

PN557

THE COMMISSIONER: Well, that was my intention. On that basis we will adjourn.

ADJOURNED INDEFINITELY [12.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A16 LETTER FROM THE CFMEU TO MR FARRAR DATED 07/02/2003 PN346
EXHIBIT #A17 LETTER FROM RAVENSWORTH OPERATIONS SIGNED BY MR FARRAR TO THE CFMEU DATED 14/02/2003 PN347
EXHIBIT #A18 LETTER IN RESPONSE TO MR FARRAR FROM THE CFMEU DATED 18/02/2003 PN350
EXHIBIT #A19 DRAFT DIRECTIONS PN441