AG2003/1349, Transcript of Proceedings [2003] AIRCTrans 994 (21 March 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10251

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/1349

APPLICATION TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Application under section 170MH of the Act
by Yallourn Energy Pty Limited for termination
of the enterprise agreement

MELBOURNE

11.35 AM, THURSDAY, 6 MARCH 2003

PN1

MS A. WATT: I seek leave to appear for Yallourn Energy.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union and also APESMA this morning with MS K. WILD.

PN3

MS Z. ANGUS: I appear on behalf of the Australian Workers Union.

PN4

MR RIZZO: I appear on behalf of the ASU.

PN5

THE COMMISSIONER: Thank you for all those appearances. Yes, Ms Watt.

PN6

MS WATT: Commissioner, Yallourn Energy has filed an application dated 18 February for the termination of the Yallourn Energy Enterprise Agreement 1997, whose nominal expiry date was 11 September 1999. We see it as a matter of housekeeping for the company. The current position is that so far as the mine maintenance department of Yallourn Energy is concerned, that has been wholly outsourced and the remaining employees at Yallourn are entirely covered by the MX award which was arbitrated by the Commission in September 2001. Its nominal expiry date is September 2004.

PN7

Contained within that MX award in clause 4 is a commitment that the parties, six months out from its nominal expiry date, negotiate a replacement agreement. We would also say that under the Workplace Relations Act, so far as mine maintenance was relevant, those employees voted to wholly replace EB3 because they entered before it was outsourced into two separate certified agreements. They were the Yallourn Energy Mine Maintenance Agreement 2001 and the Yallourn Energy Mine Maintenance Redundancy Agreement 2001. Those two certified agreements bound the AMWU, the CEPU and the AWU and then separate certified agreements binding the CFMEU and the ASU but replicating the terms of those two agreements were also entered.

PN8

We would say that the effect of the Workplace Relations Act is that the MX award, while it is in operation, means that the 1997 agreement, which we call EB3, cannot operate at all and, in fact, as a matter of practicality, it is unlikely that it will ever operate again because under the Workplace Relations Act an MX award continues until it is terminated, in effect. So we see it as a matter of housekeeping, as I said, and I am really looking to the unions, I suppose, to identify whether they want to have a hearing to contest the application. If the Commission pleases.

PN9

THE COMMISSIONER: I think that is the purpose of the mention, really, is to determine whether or not the issue is contested and, secondly, how the proceedings should go forward. I should advise I have received a letter from Mr Tony Meagher, the general president of the CFMEU Mining and Energy Union by facsimile today indicating that that union, or that division, does not object to the termination of the Yallourn Energy Proprietary Limited Enterprise Agreement 1997. I just place that on the record for the information of the parties that the Commission has received that communication. I will hear from - well, perhaps in the order that the appearances were entered, I will hear from the unions.

PN10

MR ADDISON: Commissioner, my comrades at the bar table are seeking a short adjournment for one minute just so we can have a very quick discussion and then we will put our position to you.

PN11

THE COMMISSIONER: All right.

SHORT ADJOURNMENT [11.40am]

RESUMED [11.43am]

PN12

MR ADDISON: Thank you for that, Commissioner. Commissioner, I think the unions are of one view. That is, we would seek that the company give us a written explanation of their position with regard to this particular application and that the Commission should set a date in about six weeks time. In the meantime, the Commission should direct the parties to consult with regard to the application. If the parties reach agreement, then we will simply vacate any day - should we reach agreement to terminate the agreement, I should say, we would simply vacate the date that is set. If we don't reach agreement, then the matter can be set down for some hearing.

PN13

THE COMMISSIONER: Is there any need to direct that the parties confer or can that be conveniently done without a direction, Ms Watt?

PN14

MS WATT: I am sure that can be conveniently done, Commissioner.

PN15

THE COMMISSIONER: Without a direction.

PN16

MS WATT: Yes.

PN17

THE COMMISSIONER: I imagine you want a date, don't you, in case you don't reach agreement?

PN18

MS WATT: I would like a date, Commissioner, yes.

PN19

THE COMMISSIONER: In the course of events I would direct that an outline of argument and precis of evidence, if any, that was going to be tendered in support of the application should be filed with the Commission and served on the other parties by a particular date. That date can be a date that is convenient to the potential for agreement to be reached and the date of hearing, which would be fixed in the absence of agreement. Under those circumstances, what I suggest is that I list this matter some time in April.

PN20

MS WATT: Yes, Commissioner, that would be great. Thank you.

PN21

THE COMMISSIONER: And that the outline of the company's position that was requested by the union could be provided verbally at the conference which the parties agree should take place and only in the event that that leads to no agreement being reached then would there be a necessity for the formal outline of argument and precis of evidence to actually be drawn and filed on behalf of the applicant. So I will assume that the parties will meet some time between now and the end of March and I will fix Wednesday, 9 April at 10 am as the day for the hearing.

PN22

And in the event that the parties do not reach agreement and it is necessary for the matter to proceed, I would indicate that the outline of argument and precis of evidence, if any, should be filed no later than 31 March and responded to via the filing of a written response by those opposed to the application, if that is the case at that time, and any precis of evidence by the close of business on 7 April. I assume that it is not necessary to produce those directions and publish them.

PN23

MS WATT: No, Commissioner, that is convenient, thank you.

PN24

THE COMMISSIONER: All right. I will just have a file note made to that effect. Thank you. These proceedings are adjourned, if necessary, until 9 April.

ADJOURNED UNTIL WEDNESDAY, 9 APRIL 2003 [11.47am]