C2004/1177, Transcript of Proceedings [2004] AIRCTrans 1501 (19 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 397

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/1177
C2004/1178
C2004/1179

Application under section 127(2) of the Act
by Pacifid Industrial Company (WA) Pty Ltd and
Another for an order to stop or prevent
industrial action re the Hismelt Kwinana
Plant Project Site

Application under section 127(2) of the Act
by Thiess Pty Ltd and Another for an order
to stop or prevent industrial action re the
Hismelt Kwinana Plant Project site.

Application under section 127(2) of the Act
by United KG Pty Ltd and Another for an order
to stop or prevent industrial action re the
Hismelt Kwinana Plant Project site.
PERTH

10.10 AM, WEDNESDAY, 7 APRIL 2004

Continued from 19.3.04

PN98

THE DEPUTY PRESIDENT: Mr Cooke, there is no appearance for the AMWU so it is up to you.

PN99

MR P. COOKE: Thank you, sir. I feel as if I should use the moment to press for an order ex parte, however that might be seen as improper in some circles so I will save that for another day. If it please the Commission, these matters were last before the Commission as currently constituted on 19 March, at which time an adjournment was sought following the issuance of an order earlier in these proceedings. There was litigation taken in the Federal Court by the employers that we represent, arising from the perception that the metal workers and their members had not fully complied with the order of the Commission.

PN100

Arising from the resolution of that matter there was a document that is, in overall terms, an agreement between the three employers and the Metal Workers Union, dealing with these proceedings and the Federal Court proceedings and we would seek to hand a copy of that up to the Commission, if it please the Commission. In fact, sir, I think I seek that it be exhibited for the purpose of the Commission's records.

PN101

THE DEPUTY PRESIDENT: Yes. Just looking to see whether I had any other exhibits so I get the numbers right.

EXHIBIT #FM1 - COPY OF AGREEMENT

PN102

MR COOKE: Excuse me.

PN103

THE DEPUTY PRESIDENT: What does this say, Mr Cooke?

PN104

MR COOKE: In effect, sir, the union commits to abide by the orders of the Commission that it were issued in both these matters and some earlier proceedings to do with the working in heat, although the term of that order has since expired. The union also undertook to comply with an order the Federal Court made in, I think it should be described as, matter WA55 of 2004 to comply with the dispute settlement procedures in the appropriate certified agreements. They did undertake to write to this Commission to comply with the terms of paragraph 1 and 3 of the agreement. I don't know that they've done that.

PN105

Then, upon those undertakings being fully complied with and there being no industrial action taken on or before tomorrow, the applicant employers were to discontinue the Federal Court proceedings and that, at paragraph 7, given there has been no further industrial action, we would seek leave of the Commission, sir, to withdraw application C2004/1177, 1178 and 1179 and that the union were to - they have not, as far as I'm aware - they were to make no further claims regarding the employment of Mr King against any of the nominated employers on the Hismelt site and to the best of my knowledge they have dropped all claims in relation to that particular gentleman and claims that he be engaged on the site.

PN106

That being the case, sir, save and except, as I said, I have no knowledge, personal knowledge, that the union have complied with paragraph 4 of the terms of agreement. The document, as the Commission will note, has been entered into by Mr Ferguson and in the presence of Mr Saunders of the union and has been entered into by authorised representatives of each of the applicant employers. We would nonetheless, sir, as I said, seek leave of the Commission to withdraw those applications, if it please the Commission.

PN107

THE DEPUTY PRESIDENT: Where does that leave the orders I issued?

PN108

MR COOKE: Well, the order, in relation to 37.5, sir, I believe operated only for the month of March.

PN109

THE DEPUTY PRESIDENT: Yes.

PN110

MR COOKE: The order that was made in the style of an interim order earlier in these proceedings, I think applied until tomorrow, by my recollection.

PN111

THE DEPUTY PRESIDENT: I see. So those orders will - - -

PN112

MR COOKE: Will cease to operate by a flection of time, yes, sir.

PN113

THE DEPUTY PRESIDENT: Yes, thank you. So what you're seeking then, by withdrawing these applications, is for the matter to be dismissed. I suppose the neatest way of doing that is those dismissal orders to issue to take effect in conjunction with the expiration of the orders that exist, is that - - -

PN114

MR COOKE: Yes. I guess it is only a matter of procedure, sir, but in effect the order that was issued earlier in these proceedings I think would have ceased to have impact from after 8 April, in any event.

PN115

THE DEPUTY PRESIDENT: Yes.

PN116

MR COOKE: I don't think that the parties would have, in any sense, made an agreement that in any sense varied an order of this Commission.

PN117

THE DEPUTY PRESIDENT: No.

PN118

MR COOKE: The only way they could have done that would have been to come back to this Commission and seek - make an application to the Commission for the Commission to vary their own order.

PN119

THE DEPUTY PRESIDENT: No, I was just thinking of the effect of a dismissal. Where does that leave the orders that I've made? I suppose what I'm getting at is the neatest way would be the dismissal order to take effect at the same time that the orders themselves would cease to have effect?

PN120

MR COOKE: Yes, I think that is correct, sir.

PN121

THE DEPUTY PRESIDENT: Okay. Well, that will be done. Thank you, Mr Cooke.

PN122

MR COOKE: Thank you, sir.

PN123

THE DEPUTY PRESIDENT: Matter is adjourned.

ADJOURNED INDEFINITELY [10.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FM1 - COPY OF AGREEMENT PN102