C2003/1282, Transcript of Proceedings [2003] AIRCTrans 860 (18 March 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1831

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2003/1282
C2003/1234

KEMPE MANUFACTURING AND ENGINEERING
SERVICES

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
AND ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re alleged industrial action due
to the company's refusal to appoint a casual
employee as a full time employee

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Alcoa Kaal Australia for an order to stop
or prevent industrial action re demands that
a casual employee by engaged as a full time
employee at the Point Henry Site

MELBOURNE

1.24 PM, THURSDAY, 27 FEBRUARY 2003

PN1

MR J. HOY: I appear for Australian Industry Group on behalf of Kempe Installation Services. With me I have MR K. BEATTY.

PN2

MR A. WOOD: I seek leave to appear as counsel for Alcoa Australia in respect of both matters, firstly in respect of the section 127 application. I appear with MR P. HESTER from the company. And I seek leave to intervene in respect of the section 99 matter and foreshadow an application that both matters be joined. If the Commission pleases.

PN3

MR M. ADDISON: I appear for the Australian Manufacturing Workers Union together with MR C. NICHOLSON, our shop steward of Kempe. Your Honour, I oppose leave for Mr Woods. I also seek that the 127 application be adjourned at this point in time. Your Honour, I was served with the 127 application about 15 minutes ago. I haven't seen it before then. I have no instructions with regard to what is contained within the 127 at all and would seek that matter simply be adjourned. With regard to the application for intervention, we would say that the dispute that has been filed is between ourselves and Kempe.

PN4

It is - there is no relationship with Alcoa Australia. That intervention should not be allowed on the basis that Alcoa just happens to be a client of Kempe's. So we oppose intervention, we would oppose leave to appear, and we would seek that the section 99 matter proceeds as listed, and the 127 be adjourned off. If the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Is there anyone from the AWU?

PN6

MR ADDISON: Your Honour, I have the AWU's shop steward with me, but there is no official from the AWU.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Well, unless he is good authority to appear for the AWU, you - - -

PN8

MR ADDISON: I can't make an appearance for the AWU, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: No, no, no. I am not - - -

PN10

MR ADDISON: I have no instructions with regard to that.

PN11

THE SENIOR DEPUTY PRESIDENT: I am not suggesting you do. Well, I take it that Mr Coghill has no authority to appear in these matters for the AWU.

PN12

MR ADDISON: I believe not. Mr Coghill is here as an observer more than anything else.

PN13

THE SENIOR DEPUTY PRESIDENT: Well, Mr Wood, why should I grant you leave to appear, intervene and join the matters?

PN14

MR WOOD: Sway your matters, your Honour. Perhaps first if I can make a brief submission in respect of the intervention in the section 99 matter. And in doing so, if I can refer to briefly the section 127 application because the Commission has obviously received a copy of that. That does outline the grounds in support of the section 127 application, but in doing so, it indicates the facts and circumstances that are arising in the site. In short, Alcoa Kaal is a manufacturer of rolled aluminium sheet ostensively for the can production of other clients such as Amcor, Visy, etcetera.

PN15

It has engages its own workforce, and in addition to that, engages contractors to perform certain other tasks. One of those contractors is a mechanical contractor which is the notifier of the section 99 proceeding. That contractor, Kempe, is subject to industrial action, that the industrial action at that site is currently occurring, the impact of that industrial action is real and material in respect of the impact on my client, Alcoa Kaal. In other words, there is a real and genuine affect of that industrial action. It is occurring on the site of my client, it is affecting my client's ability to deliver its product pursuant to its contracts with its clients.

PN16

Indeed it is hard to see how there could be a more directly material affect of industrial action on my client, as if its own employees themselves were engaging in the industrial action. We say in those circumstances that, because that impact is so direct and immediate, our client has an immediate interest in ensuring that the industrial action is stopped and that is the purpose presumably of the section 99 application which has been filed by the ..... Alcoa Kaal has an interest in those proceedings and accordingly should be granted intervention rights on that basis.

PN17

If I can then deal secondly with the application for joinder. We say that the facts with respect to both matters are materially the same. The industrial action arising on our client's site, it concerns both the interests of its contractor, Kempe, as directly as it does the interests of Alcoa Kaal. It is in the interests of expedition, at the very least, that all the matters be joined to enable the Commission to consider the interests of all of the parties, and indeed to avoid duplication and unnecessary time wasting to have both matters joined and dealt with at the same time.

PN18

But in respect to the application for leave, the Commission would be aware that section 42 of the Act provides those grounds. That the two grounds upon which the application is made in this case is firstly that there are special circumstances. The special circumstances on this occasion are the immediacy of the threat to the business of Alcoa Kaal and more pertinently, to the clients and the supply of product to their clients, such as Visy and Amcor, who themselves provide or manufacture on a just in time basis. My client has been - had a shut down of certain of its operations for a period of three weeks, which is one week longer than was originally anticipated.

PN19

Because of that shut down, there is no excess stock that can be relied upon to deliver its demands if there is a continuation of industrial action beyond the end of today. We say the circumstances therefore brings an urgency or immediacy to the need to have this matter dealt with. In those circumstances, we say there are special circumstances that the implications are such that the Commission should grant leave for counsel. And we say particularly the affect on my client, and the affect on its clients, and the affect on employees of Alcoa Kaal who are threatened potentially of being stood down because there is no other work for them to perform because of the industrial of the Kempe employees.

PN20

So we say first of all that in itself amounts to special circumstances. Secondly, and pursuant to paragraph 42(3)(c) of the Act, we say that leave should be granted because the Commission should be satisfied that Alcoa Kaal itself can only be adequately represented by counsel. Alcoa Kaal is not a member of a registered organisation of employees, such as the Australian Industry Group. Indeed, the notifier in the section 99 matter is, but my client is not. It does not have specialist advocates or a human resources person who is experienced in these proceedings and that in itself should be borne into account in considering this application. We say that in those circumstances leave should be granted for counsel.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Hoy?

PN22

MR HOY: Thank you, your Honour. Well, I don't oppose the application for intervention in the section 99 proceedings by Alcoa Kaal. And, subject to the application to join the matters, your Honour, whilst I don't initially oppose it, it would be on the basis that if Mr Addison's application for an adjournment of the 127 matter is not granted and thereby delays the matter proceeding under the 99 notification.

PN23

THE SENIOR DEPUTY PRESIDENT: Sorry? What was - I - - -

PN24

MR HOY: If the matter is joined, if the 99 and the 127 is joined, I don't oppose it provided that, if Mr Addison's application for the 127 adjournment is granted, it doesn't delay the 99 proceedings.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. Yes, thank you. Mr Addison.

PN26

MR ADDISON: Yes, thanks, your Honour. Your Honour, Mr Wood may well have grounds to - in relation to the 127, Mr Wood's client is not a direct party to the industrial dispute. That currently is between Kempe and the AMWU with regard to the matters. On the basis of procedural fairness, your Honour should adjourn the 127. As I said, it was handed to me 15 minutes or so ago. I haven't even read it, never mind got instructions on it. And we would say that the practice in this Commission is to allow people to present a case.

PN27

We are entitled to know the case put against us, we are entitled to put together a case in our own terms to counter the case put against us. It wold be highly prejudicial to my organisation to bring a 127 on at this point in time, we say. So the 127 should be adjourned on the basis of that procedural fairness ground. This brings me next to what is in front of the Commission legitimately. We say the 99 is legitimately in front of the Commission. It was notified, we were made aware of it, and we are here to deal with the industrial issues that surround the section 99.

PN28

With regard to section 43, the question of intervention is a matter of discretion absolutely of the Commission and the Commission may, if it believes a person or an organisation ought be heard, grant that intervention. Your Honour, we say the issues in dispute between Kempe and ourselves are issues in dispute between Kempe and ourselves. Kaal cannot usefully contribute to the resolution of those issues necessarily and no argument has been put to you that Kaal can in fact usefully contribute to a resolution of those issues. No submission is put by Mr Woods with regard to that.

PN29

One must ask oneself why then should Kaal be granted intervention in a section 99 matter. So we say you should not allow the intervention under section 43. With regard to the then general question of leave, Mr Woods has put that there are special circumstances surrounding this dispute because there is an immediacy of a threat and because Kaal's clients, ie Visy and Amcor, operate on a just in time system. Your Honour, if you were to accept that, every single auto components company that is ever in dispute could well run the same argument saying they are special circumstances.

PN30

Your Honour, we say there are no special circumstances. Section 42(b) requires the Commission to have regard to the subject matter of the proceedings. The subject matter of these proceedings, should you adjourn the 127, and in my submission you should, the subject matter is the section 99 notification between the parties, the parties should be allowed to try and resolve those matters or argue them in front of you. There are no special circumstances in that, and with regard to the subject matter of those proceedings, that would allow Mr Wood's rights to intervene.

PN31

With regard to sub-section (c), your Honour, if you call the 99 on, it doesn't apply. It doesn't apply unless you allow intervention and there has been no reasons given why you should allow intervention. So in my submission, in short, your Honour, we say Mr Wood should not be given intervention. Mr Wood should not be given leave to appear. Section 127 should be adjourned to allow the union to prepare a case to meet what is put against it and the section 99 proceedings should proceed forthwith to see if we can resolve the matters, the subject of the dispute between the parties. If the Commission pleases.

PN32

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Wood?

PN33

MR WOOD: I didn't deal well, your Honour, with the request for the adjournment of the section 127 matter. The Commission is aware obviously that there is a regime in the Act that requires the Commission to hear and determine these matters as quickly as practicable. Obviously the speed within which the Commission deals with that matter will be determine a whole range of factors, including the nature of the threat and the immediacy of any threat, and potential consequences of any industrial action that might be taking place on the site.

PN34

I can only make the assertion at this stage from the bar table, and support it by evidence, that there is a threat, the threat is immediate, and is a potential impact on my client's business, on its employees in respect of their ongoing employment, and on its clients' ability to meet their demands at a time which coincides in this industry with a range of events, such as football season, the commencement of the Easter period coming up, and also the Grand Prix. Those are extremely significant areas for the can production manufacturers, and Coca Cola and CUB for instance, who are major clients ultimately of a product supplied by my client.

PN35

So we say the Commission needs to consider and hear that application as quickly as possible. We certainly understand that Mr Addison hasn't had the opportunity to review the application. We propose that he does - he is given the opportunity to consider it, that it shouldn't result in the wholesale adjournment of the application to some time in the future. We would certainly not oppose going into conference, enabling the parties to discuss both matters in a constructive manner to see if there is some possibility to resolve the issues.

PN36

But should that not be successful, then we would certainly be asking the Commission to call on the 127 application immediately thereafter. So the application under 127 we say shouldn't be withdrawn or adjourned indefinitely. We certainly are happy to go into conference and see if there is a way through these issues. But the matters are too important simply to allow this matter to drift off into the never. Can I just say with respect to the service of the 127 application, it was served this morning and filed this morning.

PN37

Obviously, Mr Addison hasn't had an opportunity to see that, but in due course we can establish that the relevant procedures required under the Act have been complied with.

PN38

THE SENIOR DEPUTY PRESIDENT: It was served on the AWU as well, was it?

PN39

MR WOOD: Yes, it was.

PN40

THE SENIOR DEPUTY PRESIDENT: Any objection to adjourning into conference? I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED