C2004/2618, Transcript of Proceedings [2004] AIRCTrans 1494 (19 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 10497

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/2618

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

COMALCO ALUMINIUM LIMITED and OTHERS

Notification pursuant to Section 99 of the Act
of an industrial dispute re log of claims - wages
and working conditions

SYDNEY

9.35 AM, WEDNESDAY, 7 APRIL 2004

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MR C. FLATT: If it pleases the Commission, I appear on behalf of the Communications, Electrical, and Plumbing Union - Electrical Division.

PN3

MR G. WATSON: If your Honour pleases, I seek leave to appear for Comalco Aluminium Limited, Alcoa World Alumina Australia in respect of both its Victorian operations and its corporate office.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Watson. No difficulty with leave being granted to Mr Watson to appear?

PN5

MR FLATT: No objection, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Watson. Mr Flatt?

PN7

MR FLATT: Thank you, your Honour. Your Honour, the CEPU seeks that you make a dispute finding today between on the one part the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and on the other part the companies listed in annexure A of the affidavit of service. Your Honour, I can provide you with a copy of that affidavit of service.

PN8

THE SENIOR DEPUTY PRESIDENT: I will mark the affidavit of service - it is one of your affidavits, Mr Flatt, it is dated 5 April. I note in it that it contains the annexure identifying the person served, copies of registered mail posting receipts. I will mark that CEPU1.

EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE DATED 05/04/2004

PN9

THE SENIOR DEPUTY PRESIDENT: I might also mark your notification, Mr Flatt - that contains a statement relating to the alleged industrial dispute and, again, a copy of the notice fixing the time and date, identification of the parties upon whom that was served - CEPU2.

EXHIBIT #CEPU2 NOTIFICATION OF DISPUTE

PN10

MR FLATT: Was the last CEPU2 exhibit, was that the notice of listing, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: It is the notification of the dispute. It contains a statement of Mr Tighe's and a copy of the notice fixing. I have multiple copies on my file, I can provide you with one.

PN12

MR FLATT: Your Honour, the companies that the CEPU seeks dispute finding with are Comalco Aluminium Limited, Alcoa World Alumina Australia (Victoria Operations) and Alcoa World Alumina Australia (Western Australia Operations). Your Honour, the dispute arises by virtue of the fact that on 5 March 2004 the national secretary of the CEPU, in accordance with the rules of the union, served by registered mail a letter of demand and a log of claims along those employers listed in annexure A of the affidavit of service.

PN13

As stated, the letter of demand and log of claims in relation to the wages and conditions of employment were served by registered mail. A copy of that registered mail receipt can be found at annexure B of the affidavit. The letter of demand required that the employers agree to those demands within seven days. None of the employers agreed to those demands, hence the dispute came into existence.

PN14

Consequently, on 17 March 2004 the CEPU lodged a notification of an alleged industrial dispute with the Commission; that was again by registered mail. A copy of that registered mail receipt can be found at annexure C of the affidavit. As a consequence of that on 24 March 2004 the Sydney Registry of the Commission advised the CEPU of the date, time and place of hearing of this matter. On 31 March 2004 in accordance with rule 16 of the Australian Industrial Relations Commission rules the CEPU served by registered mail a copy of the notice of listing and a notice in accordance with form R5 of the rules, on the employers listed in annexure A of the affidavit. A copy of that registered mail receipt can be found at annexure D of the affidavit.

PN15

Your Honour, as you can see the dispute is interstate. Each of the respondents are engaged in the aluminium industry as broadly defined and, in particular, in the smelting and/or refining part of the aluminium industry. The respondents employ electrical and/or electronic trades persons and the like, and section 2.1 of the registered rules of the CEPU quite clearly cover these employees/employers. Employers engage members of the union or persons eligible to be members of the union and the union will be pursuing the claims over time.

PN16

Your Honour, there is one minor technical matter: clause 3 of the log of claims is related to preference. I understand from various Commissioners since 1996 that this may not be a matter that we can have a dispute found in relation to. So you might want to excise that clause from the log of claims.

PN17

THE SENIOR DEPUTY PRESIDENT: I can't remember where we have got to on those interesting issues. I am fairly clear about what can find its way subsequently into an Award but I can't recall what the latest word is on whether a finding of dispute can be made which arises out of a log that contains, amongst other things, such a claim. I am sure I can check that or Mr Watson can tell me what the position is. We will get to the bottom of that.

PN18

MR FLATT: Thank you, your Honour. Unless there are any further questions that completes our submissions in relation to this log of claims.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Watson?

PN20

MR WATSON: Your Honour, my clients acknowledge receipt of the log of claims served by the CEPU. They do not accede to those claims. Apart from seeking to reserve our rights in the normal way we do not wish to make any further submissions in this matter.

PN21

The issue that arose as to clause 3 of the log: I think the position in summary, we would submit, is that a claim in a log which travels beyond matters which pertain to the relations of employers and employees cannot be the subject of a dispute finding. Even if it was included in a log it would not have the legal effect to provide the relevant jurisdiction. The safest course in the circumstances may be to excise from the dispute finding that claim in that log. If your Honour pleases.

PN22

THE SENIOR DEPUTY PRESIDENT: You have no difficulty if I do that, Mr Flatt? If you wanted to re-visit it and extend the matters in demand you wouldn't be deprived of the opportunity. It might be the easiest for today that the matters in dispute do not extend to those the subject of clause 3 of that demand.

PN23

MR FLATT: Yes, I think it would be the safest course to have it removed.

PN24

THE SENIOR DEPUTY PRESIDENT: Good, thank you. Based on the submissions made this morning and the documents on the file and others I have marked as exhibits CEPU1 and CEPU2, I find that an industrial dispute exists in this matter. The parties to the dispute are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia on the one hand; and Comalco Aluminium Limited, Alcoa World Alumina Australia (Victorian Operations) and Alcoa world Alumina Australia (Corporate Office) on the other hand.

PN25

The matters in dispute arise out of a letter of demand dated 5 March and a log of claims attached thereto, with the exception of the demand contained in clause 3 of that log. The dispute extends beyond the limits of any one State of Australia.

PN26

A dispute finding will be reduced to writing and a copy will be provided to the parties. The parties are directed to confer in relation to the matters that I have found to be in dispute.

PN27

Do we need to do anything else in this matter, Mr Flatt?

PN28

MR FLATT: I am not aware that anything else needs to be done.

PN29

THE SENIOR DEPUTY PRESIDENT: All right. Mr Watson - no. We will go off transcript.

OFF THE RECORD [9.45am]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE DATED 05/04/2004 PN9
EXHIBIT #CEPU2 NOTIFICATION OF DISPUTE PN10