C2004/2216, Transcript of Proceedings [2004] AIRCTrans 1495 (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 10499

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/2216

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by Comalco Aluminium Limited
for an award

SYDNEY

10.02 AM, WEDNESDAY, 7 APRIL 2004

THIS HEARING WAS BY WAY OF VIDEO CONFERENCE LINK

PN1

THE SENIOR DEPUTY PRESIDENT: I think the appearances remain the same. In this report back we have you Ms D'ath appearing by way of video conference link in Brisbane.

PN2

MS D'ATH: That's correct your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes thanks. Who will I start with, Mr Watson? I'm happy for you to remain seated in this hearing.

PN4

MR WATSON: Thank you your Honour. This matter was last before you on 9 March and at that time in proceedings off the record the company tabled and gave to the three unions a copy of a draft award and spoke briefly to that. That sought a program of further discussions regarding the contents of the award and a process towards the making of the award. A meeting was arranged between the parties in Brisbane for 25 March. At that meeting the AWU sought clarification on two matters unrelated to the contents of the award and they sought that clarification in writing before entering into any discussions regarding the contents of the award. So on that day there were no discussions.

PN5

The company provided clarification on the two matters and indicated that it wished to have discussions about the content of the proposed award and sought to have feedback on the draft that had been provided on 9 March prior to this report back on the 7th. The company has not received any response to the letter sent to the AWU and has not received any feedback on the contents of the draft tabled on the last occasion, on 9 March.

PN6

Your Honour, the situation from our perspective is less than satisfactory. We would have thought that discussions about the contents of an award was something which could occur and we've certainly taken constructive steps to allow that to occur. This is a major new project. Employment has commenced and it is soon to enter the commissioning stage of the project. We are in a position now that we are open to continue discussions at any time. In fact on the adjournment of this matter today we will be available for discussions regarding the content. But as far the formal proceedings are concerned we do seek that the matter be listed for hearing as to the making of the award and to hear from the parties as to their respective submissions as to the content of the award and to hear arguments on matters that are not otherwise agreed and for the agreed matters presumably to form part of the award.

PN7

We seek today a listing for that purpose. At the earliest opportunity we rather thought that perhaps a day should be set down given that it is difficult for us to anticipate the precise scope but also another day be set in reserve thereafter in case the proceedings are not completed on that day.

PN8

THE SENIOR DEPUTY PRESIDENT: What's the position with the other unions?

PN9

MR WATSON: The other unions attended the meeting on the 25th and did not participate in the feedback or communication of any feedback of the contents of the draft, given the position of the AWU. I think that is a fair summary.

PN10

THE SENIOR DEPUTY PRESIDENT: Well, I might stay here in Sydney first then and go to Brisbane afterwards. Mr Flatt?

PN11

MR FLATT: Yes your Honour. I think the CEPU was involved in discussions on 25 March, the meeting on 25 March in relation to what my colleague has reported in relation to that meeting. It was all three unions sought clarification on a number of matters. It wasn't just the AWU, it was clarification in relation to certain issues that the unions felt were related to the award process itself and to the future direction that the unions would take in relation to seeking, or consenting, or supporting a Federal award. There was a separate meeting between the CEPU and the company in the afternoon after the other two unions needed to depart, in relation to a possible draft classification structure and so there was some progress on that matter.

PN12

In relation to the response, we received that letter, the communication, from Comalco providing their response to the two matters we were seeking and we are undertaking discussions at the moment with our Queensland state. Unfortunately our state secretary has been on leave, will not be returning till 19 April and that has caused some delay on our part in receiving some further direction in this matter. I think that my colleague from the AWU will be able to provide further information in relation to the discussions.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Mr McCauley?

PN14

MR McCAULEY: Thank you your Honour. My understanding of the meeting in Brisbane is the same as Mr Flatt has explained. It is also the position of the AMWU that this is the direction of the content of the award and the proceeding towards any award is one that will come from Queensland and also that we are seeking to have a consistent position from the union parties if possible and to that end we see that until we have made progress towards having a meeting between Queensland officials and until that time we think that is the most efficient and effective way to resolve these matters and until that is possible, which is later in this month, then setting any firm date would be inappropriate at this stage until that direction is set.

PN15

THE SENIOR DEPUTY PRESIDENT: Ms D'Ath?

PN16

MS D'ATH: Thank you your Honour. Firstly, in relation to the meeting that was held between the parties as the CEPU representative and the AMWU representative have stated I mean there were some issues discussed. We believe it is misleading to say simply that the AWU put two issues to the company at that meeting and wanted a response in writing before we discussed the matter any further. That meeting went for some three hours and just to inform your Honour exactly what was put in addition to two issues that we did want clarified in writing there was a number of other matters that the three unions believed were needed to be discussed before we could adequately consider what the contents of any award for this site should be.

PN17

Those issues went to, I mean we had had a draft award put to us, and we were being asked to comment on each individual clause as to whether we believed they were acceptable or not in a vacuum in effect. We were not being given any information about how the site was to operate, the number of employees, what their duties were to be, how the company believes the operation was to work, was it a 24/7 operation? Was it to be rotating shifts? Were they 12 hours shifts? All of that information is relevant in us considering whether we are satisfied with the hours of work clauses, the classification structure and everything else that should go in an award.

PN18

So we did talk to the company about issues such as please explain you know how the site is to operate. The overall number of employees. How many employees the company believes should be covered by the Federal award. I must say that is a significantly small number of the total workforce that the company at this stage of approximately 260 direct employees. I believe the views of the company is that only 60 of those employees would be covered by the award. So obviously we want to discuss that issue at a bit more length to see exactly what is it all of these other 200 employees are actually going to be doing on site and why are they not going to be award employees.

PN19

So all of these are very relevant issues to discuss prior to actually getting into the content of the award. So we believe that we are processing. We are processing at a reasonable timeframe. We did get an explanation on those issues. We did also get an explanation on other issues such as where the company believes the staff will sit as far as their industrial arrangements beyond making this Federal award and that at the end of the day it is only fair that everyone be aware that the company has made it very clear that they are going to have common law contracts for every one of these employees. The Federal award will basically sit there as an underpinning safety net but it won't be read in conjunction with, it will be completely overwritten by these common law contracts, and that the company made it very clear although they are saying that they are inviting us to the table and we are dragging our feet at the moment, but it was put to all of the unions at that meeting that beyond making a federal award the company sees us having no other role on this site.

PN20

So we are being asked to sit down and develop an award which all the parties are aware forever and a day it will then be the union's obligation to maintain that award for which the company sees that we have no other relevant role on this site including going to fair treatment process, not even recognising that an employee has a right to representation by union. So all of those things were discussed. We don't want your Honour walking away today thinking that we simply put two issues on the table and said we want a response in writing and walked away from that meeting.

PN21

Having said all of that and despite the position of the company the feeling is absolutely willing to sit down and develop an award with the company. What was put at that meeting was that the parties are currently considering, the unions are currently considering, instead of going clause by clause through the company's award, we believe that the award is fairly light on, that we would rather see a more comprehensive federal award that still complies with the allowable award provisions; that we may very well seek to prepare our own draft award and put that back to the company to discuss.

PN22

We have highlighted that, that is something we are considering. Unfortunately, we have not been able to progress that very far, simply because the three State unions need to discuss this matter in detail. Mr Williams, the State Secretary of the CPU has been on leave and I have been informed by Mr Flatt that he is returning on the 19th. It is our intention to the AMWU and ourselves to meet as soon as possible after the 19th with the CPU so that we can come back to the company with a single position from the unions. We have already advised the company that there is no benefit in three different positions being put by the unions, it will just delay the proceedings.

PN23

So we are moving forward, it might not be at the pace that the company wants, but we do not think that throw together a federal award in five seconds, it does need to make sure that it is a relevant award, despite where the company where the company wants to take its work force, and we want to make sure that everything that should be in the award is there.

PN24

As far as the proposal to list a hearing, this is in effect our first report back. At the last matter not all the unions had, had a dispute finding, some of the unions had not seen the draft award. We have had one meeting with the company as a combined group and this is our first report back. To now ask for the matter to be listed for arbitration we think is certainly premature. We do not believe that it is giving the unions adequate time to really consider what should be in the award and the response that we got from the company, as far as its structure and so forth, so we would be putting back to your Honour today that, at the most, what should be set down is a first report back as the Commission pleases.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Watson?

PN26

MR WATSON: Your Honour, the company remains available to have further discussions and hopes that the process can lead to substantial or total agreement on the contents of the award, but the company is very concerned at the delay. It was put in terms of 'dragging feet', that is Ms D'Ath's term, we do not believe that there has been sufficient attention or discussion or input from the unions to date to allow that process to proceed at a reasonable rate. We are not talking about abandoning that process by any way, shape or form and we are, as I have indicated, committed to continuing that discussion and we are available today to continue those further discussions, and other dates that might be available.

PN27

We do think that, given the circumstances and the employment having commenced, that setting a date to be used if necessary, and we would make every effort to ensure that it is not necessary other than to hopefully report on an agreed position, but to use if necessary knowing that the Commissions availability is often tight in these sort of things. At a reasonable time in the future and we were hoping for a date either the last week of April or the first of May for that purpose is more than sufficient time to allow comprehensive discussions.

PN28

We are available to provide clarification on any other operational aspects, the discussions that are referred to on the 25th provided that avenue for information. We assume, given that there are no further questions, no further information is needed. It really is a case of the unions putting their position on the contents of the awards to us and the parties discussing those matters so that they can agree as far as possible on that content.

PN29

We are very apprehensive and we think it would be a totally unsatisfactory situation for a further report back hearing to be listed. It then appears that no further substantial progress has been made and then it is a matter, at that stage, to program the matter at that point. We think the more appropriate approach is to actually set a date. If it needs to convert to a report back, that can be done but in the absence of agreement, the company wishes to have the avenue to argue that the terms of an award be made and to have all parties put their arguments at that time.

PN30

THE SENIOR DEPUTY PRESIDENT: I am not persuaded to give you a date for hearing Mr Watson. I will give all parties a date for a report back. I do not need to make any comment about what I would hope can be achieved prior to the report back, but I suppose subject to any further submissions made on that day, the report back could also serve the purpose of setting or programming a date. I have taken into account the availability of persons who have been referred to, when they are coming back and a reasonable period of time that they will be able to consider the position of the unions, the joint unions and then confer with the company. I had in mind having the matter listed for report back on the 29th or 30 April, or Monday, 3 May. Is there any one of those three times anyone cannot do?

PN31

MS D'ATH: Your Honour, just 30 April I would be unavailable.

PN32

THE SENIOR DEPUTY PRESIDENT: All right. So the 29th or 3 May?

PN33

MS D'ATH: Both of those dates are so far available.

PN34

THE SENIOR DEPUTY PRESIDENT: All right.

PN35

MR WATSON: I think that 3 May might be a Labour Day in Queensland, is that correct?

PN36

THE SENIOR DEPUTY PRESIDENT: Is that right?

PN37

MR WATSON: According to this diary so that might have some implication.

PN38

THE SENIOR DEPUTY PRESIDENT: Ms D'Ath?

PN39

MS D'ATH: I will just check that your Honour, I have a terrible habit of not putting any public holidays into my diary. That is correct.

PN40

THE SENIOR DEPUTY PRESIDENT: All right, so we are on 29 April are we? Mr Watson, can you do that?

PN41

MR WATSON: Yes, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, Ms D'Ath, I am going to set it in Sydney, if you wish to be accommodated by way of a video link, I think you need to make the application but I am going to take into account any reports that I have from the parties as to how things are developing in the interim as to whether I am going to accommodate a request for a video conference link or whether I think we will get further by us all being in the same courtroom. So that is a bit of a long winded way of saying any application to be accommodated by video conference link you might leave until a time fairly close to the date.

PN43

MS D'ATH: Yes, I take on board what you are saying your Honour and we will keep that in mind.

PN44

THE SENIOR DEPUTY PRESIDENT: I have no particular view about a time, do you want to start the nomination of the time to get the ball rolling Mr Watson?

PN45

MR WATSON: We are flexible your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: 10.00 o'clock?

PN47

MR WATSON: Yes, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Has anyone got a problem with 10.00 o'clock. All right, we will go back onto transcript, was I on transcript all the time, very good. This matter is now listed for a report back and programming if required in Sydney, on Thursday, 29 April at 10.00am. Yes, Mr Watson?

PN49

MR WATSON: Your Honour, before you do adjourn, is it possible to inquire as to the likely availability of dates in May should it be necessary to list the matter further at that time.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, I would have dates in May. I propose to take some leave in June but I would have dates in May.

PN51

MR WATSON: Yes, we mention that because the timing of this matter is important to the company's options it will need to consider in relation to this entire situation.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. The Commission now adjourns.

ADJOURNED UNTIL THURSDAY, 29 APRIL 2004 [10.25am]