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Australian Industrial Relations Commission Transcripts |
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:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N 11047
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER CARGILL
C2003/760
C2003/4898
C2003/4906
C2003/4908
C2003/227
THE AUSTRALIAN WORKERS' UNION
and
HAMERSLEY IRON PTY LIMITED AND OTHERS
Notification pursuant to section 99 of the Act
of a dispute re log of claims - part heard
APPLICATIONS UNDER SECTION 111AAA OF THE ACT BY THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, THE AUSTRALIAN WORKERS UNION, THE AUSTRALIAN MANUFACTURING WORKERS UNION, THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND OTHERS THAT THE COMMISSION CEASE DEALING WITH DISPUTE C2003/760
APPLICATION TO DISMISS OR REFRAIN FROM HEARING
Application under section 111(1)(g) of the Act
by the Australian Manufacturing Workers Union and
The Australian Workers Union and Others re application
by the Australian Workers Union in C2003/760
SYDNEY
10.22 AM, THURSDAY, 6 MAY 2004
Continued from 9.3.04
PN4210
MUNRO J: Yes, there are some housekeeping matters to which I will come. I don't think there is any change of appearances, is there? Those that have been entered before her Honour continue over. If there is any change, could we have that. If not, I will proceed. There are received by the Commission a number of matters, as I understand it, the submissions of the AMWU, CEPU and the CFMEU Federal and State, the intervening unions perhaps for want of a better word, were received on 19 April and that exhibit has not been yet marked and we will do so.
PN4211
PN4212
PN4213
MUNRO J: The Hamersley Iron and Robe submissions which have been marked were in the first instance exhibit RIO7, those pertaining to the content of the award and direction 1.3. There were the main submissions filed on 1 April and those are RIO25. There is a set of submissions in reply which we will mark as RIO26.
PN4214
MUNRO J: There is received also by the Commission a set of documentation which I think has been labelled as authorities and which on inquiring is a set of Layton's contractors, or Yandi Project Certified Agreements. I understand they relate to a contention about the coverage of contractors, a Federal Agreement regulation of contractors at some of the Hamersley sites. If they need to be marked as an exhibit, perhaps that can be noted in due course.
PN4215
For the time being, I will note that we are in receipt of them and treat them as evidential material. There is also supplied to us, at the request of the Commission a document which I think is as yet in effectively in draft form, but it has been served, or provided to the other side, the intervening unions, that is a draft chronology.
PN4216
Perhaps I would indicate we would be prepared to mark that in due course. It might be useful if the Commission could be supplied with whatever is a final form in electronic form because of the sort of document the Commission might itself find useful in whole or in part for purposes of putting together a decision, but for the time being I note that we have received it and we will leave it to the later stage of presentation.
PN4217
I refer also to matter C2003/298, that is the section 128 application for restraint of the State Authorities. That is before the Full Bench, it is not formally listed for today, but I note that both parties have in fact referred to some of the exhibit material that was put on, I take it, those matters are marked under exhibit numbers HAM series, and it is a compendious collection, effectively, of data I think from State Industrial coverage. We will treat that as before the Commission, unless there is some objection to that, although it might not be formally before it. If necessary the matter can be formally joined, but I would have thought it simply a means of convenient reference to those exhibits.
PN4218
I can think of one or two other matters that - that is right, exhibit RIO24 was a document prepared, I think, in relation to Mr Danks' evidence. That was received after the close of the proceedings before her Honour. She has marked that as exhibit RIO24. That simply is a note where that exhibit came from, I won't further identify it I don't think it - perhaps for the purpose of the record I had best do so. It is a supplementary affidavit of Peter Michael Danks, sworn on 1 April 2004, and we have marked that for the purposes of the record as exhibit RIO24.
PN4219
We note that there is before her Honour a notification, I think it may be a dispute concerning the change of entities, as they arise in relation to the Robe Iron Associates. Perhaps at some stage if the matter has any bearing at all on the proceedings before us, that might be dealt with in the submissions that are put, otherwise her Honour has it and it would in the ordinary course be dealt with by her Honour. If it has some bearing on the outcome in this proceedings then perhaps that might be explained as how it should be, or if there needs to be a substitution of the names of employer parties of any contest. Perhaps her Honour might just indicate what it is.
PN4220
SENIOR DEPUTY PRESIDENT HARRISON: I have with me a file, it is matter C2004/2858. It is a section 99 notification of a dispute by the AWU and it follows the service by that union of a log of claims on a number of companies. Three bear Victorian addresses; Bendigo Mining, Perseverance Corporation and Stawell Gold Mine. The other three are Pilbara Iron - each of Western Australia - Pilbara Iron Pty Limited, Pilbara Iron Company Services Pty Limited and Robe River Mining Company Pty Limited. That matter has not yet been listed.
PN4221
MUNRO J: I have referred already to chronology which was supplied by Mr Dixon from Freehills, essentially at the request of the Commission. What we are seeking is some relatively comprehensive and compendious chronological order listing of dates or events, aspects of proceeding that are relied upon by one of the parties so that, insofar as the parties are now aware of it, they will have an opportunity if they wish to do so, to correct any oversights or imbalance as might be thought to be the case. I think that completes the house-keeping unless there's something further that we have overlooked. I think the ball is in your court, Mr Dixon.
PN4222
MR DIXON: On behalf of the two employer organisations who are respondent to the AWU dispute, may we commence in trying to put what we respectfully submit in simplified terms, are the proceedings now before the Commission and what they essentially involve. First, in summary form we have the AWU and the two respondents to the dispute, as found by the Commission on 30 January 2003, having reached an agreement as to settlement or part settlement of that dispute and the parties jointly asked the Commission to exercise the powers available under the Work Place Relations Act to make a consent award reflecting the terms of their agreed position and, in our respectful submission, there are sound bases, consistent with the objects of the Act and public interest for the making of that award.
PN4223
Although the Commission may well have a summary of this kind before it - but may I hand up a very brief outline of the matters by number and the date upon which the application was made and the respective parties to the application. It may just assist the Commission in following these brief introductory remarks that we make.
PN4224
PN4225
MR DIXON: In opposition to the position put to the parties of the dispute, one will see from RIO27 that three federally registered organisations, namely the CFMEU, CEPU and AMWU in reliance in section 111AAA of the Act argue that the Commission should cease dealing with the dispute, the whole of the dispute. They do so on the basis that the State award governs the wages and conditions of employment of approximately 135 employees of Hamersley Iron. The actual number is slightly less than that now, but it is approximately less than 10 per cent of the Hamersley Iron work force. The relevant employees of Robe River Iron Associates are presently all award free. The AWU and the companies argue that ceasing to deal with the dispute of those 145 employees approximately, would not be in the public interest and the Commission should not exceed to refrain from dealing with the dispute or any part of it.
PN4226
The next element is that in the event that the Commission so concludes, there is, in the application by three States' registered organisations, namely using shorthand, the CFMEU, the AMWU and CEPU State branches, that the Commission refrain from further hearing or determining the dispute on two grounds. Firstly, that section 111(1)(g)(2) apply that the industrial dispute or part is being dealt with or is proper to be dealt with by the Western Australian Industrial Relations Commission. The reliance on that provision is made in circumstances where firstly, in respect of Robe River Iron and Associates, it is award-free and secondly, in respect of Hamersley Iron, the relevant State award is acknowledged by the unions to be out-dated.
PN4227
Thirdly, applications were made to the Western Australian Industrial Commission to vary the State award and to make Robe River Iron Associates a respondent to it after the AWU and the companies had reached agreement which, if a consent award is made, would be in part settlement of the dispute before the Commission. The companies argue and, of course, we will develop this argument in detail, that the Western Australian Commission is not dealing with the relevant dispute. It is also not proper to be dealt with by the State industrial authority which in real terms had played a very minor role in determining wages and conditions of the employees affected by the dispute finding for well over a decade.
PN4228
In respect of section 111(1)(g)(3), the public interest grounds relied upon, we submit that properly analysed the State unions are essentially arguing as non parties to the industrial dispute that they were not fully informed of how negotiations between the AWU and the companies were progressing. That argument it seems is raised in circumstances where the companies from the very beginning, at the dispute finding, indicated on the transcript that they had a preference for settling the industrial dispute as found by the making of a Federal award and that negotiations would commence to achieve that result.
PN4229
There are other elements in the public interest argument but a large portion of the union's arguments are devoted to this issue and we have dealt with them in some detail in our written submissions. May I then turn to our written submissions, RIO25, and indicate to the Commission that, as our introductory paragraphs show it is our respectful submission that the relevant objects and provisions of the Act concerning the settlement of industrial disputes overwhelmingly point to the exercise of power by the Commission in its role of exercising conciliation powers towards the making of the consent award.
PN4230
The Commission is obviously very familiar with the provisions that we have outlined in summary form in paragraphs 3 through to 9, and in paragraph 11 we make reference to the specific power in the Act for the Commission to make an award by consent. In our respectful submission the making of a consent award will not involve the exercise of arbitral power but such an award is made in the exercise of, and is incidental to the Commission's power of conciliation. We have a bundle of cases which we have extracted from the various submissions to make available to the Commission, photocopied form which may assist, which we may hand up.
PN4231
I am sure the Commission is familiar with the passages to which we wish to refer, firstly in respect of the decision of R v Bain. The relevant passages are at pages 175 to 176, behind tab 1, where in the judgment of Brennan and Dean JJ, the distinction between arbitral powers and conciliation powers were discussed and I don't read the passage, but it is in our respectful submission most pertinent to the present matter and the Commission has adopted that distinction in a number of cases that it has dealt with. The issue comes up, of course, mostly in respect of section 170LW.
PN4232
The rationale for this distinction is in our respectful submission to be found, for example, in the decision of the High Court in re Finance Sector Union of Australia Ex Parte Illiton, which is the next case in our bundle reported at 67 ALJR of 619. May we ask the Commission to turn to that decision where in the judgment of Brennan J, commencing at page 619, after his Honour referred to the decision of R v Ludeke, Ex Parte Queensland Electricity Commission, and the SBFSF decision, his Honour went on to describe the same distinction that was referred to in Bain, as appears from footnote 3 on page 620, his Honour actually sites Bain, and halfway through the top paragraph on the left-hand side makes reference to the creation of a paper dispute. Then his Honour went on to say this:
PN4233
Arbitral power exists only so long as the dispute which calls it forth continues to exist. That is not to say that parties who reach agreement ...reads... not the power to arbitrate.
PN4234
The Commission will, in our respectful submission, no doubt appreciate the importance of this aspect in the context of the debate put forward by the State unions that there is a dispute which is that the dispute should be dealt with by the State Commission and we deal with that separately in our submissions. May I also just mention that the distinction was re-confirmed by the High Court in the decision of the CFMEU v AIRC, not on our list. It is at volume [2001] HCA 16; 203, CLR 645 at paragraph 24, the Gordonston Coal decision. At that paragraph the Court says that:
PN4235
The making of a consent award is the exercise of a conciliation.
PN4236
It does not cite Bain, but one will see from the decisions and the reports that Bain was referred to by counsel in the various arguments. In our respectful submission the making of a consent award which records the agreement between the parties to the industrial dispute is thus entirely consistent with the objects of the Act and the manner in which the Commission is to exercise its functions and powers. Nothing of substance is put against this proposition as we perceive matters by the opposing unions.
PN4237
We also submit that the amendments to the Act which were brought about by the WROLA Act do not favour a contrary view or position. We have made reference to this in our submissions in reply, RIO26, and may I just briefly invite the Commission's attention to our submissions there in paragraphs 2, 3 and then 4 through to 9. The Commission will have noted that the intervening unions argue that the WROLA Act, effectively, manifested a legislative intention to allow State industrial systems to deal with the industrial disputes in precedents to, what is described as "the intervention" of this Commission. We respectfully submit that that is not an accurate reflection of those amendments.
PN4238
The importance and the emphasis of the role of conciliation in the context of a consideration of the WROLA Act is to be found, for example, in the Pacific Coal decision, Ex Parte CFMEU, Volume 203 of the CLR 346, and we have extracted from the judgment of the Chief Justice at paragraph 7, his observations about the main purpose of the alterations and they, in our respectful submission, the main purpose was to expand the role of conciliation, not contract it, which appears to be the thrust of the argument put against us.
PN4239
We accept that the WROLA Act as interpreted by the High Court in Attorney General Queensland v AIRC, the decision reported at 67 ALJR 1502, does reduce some of the role of the arbitral powers of the Commission, but not in a relevant sense to preclude the Commission from exercising its conciliation powers here, or applying a narrower test to the Commission exercising its conciliation powers. May I ask the Commission to turn to that decision, which is at tab 4 of our bundle. The relevant passages relied upon by the opposing unions are, effectively, from paragraph 57 on, at page 1513.
PN4240
The judgment of the majority must, of course, be viewed in the context of the issue before the Court, an issue which the Commission is most familiar with and that wast he effect of section 111AAA and its operation whether it had any retrospective effect, or not. At 57, their Honours noted that schedule 5 - this is about paragraph (c) of the WROLA Act which contains the item that inserts section 111AAA is headed: Awards:
PN4241
It reduces, in various ways, the circumstances within which the Commission may exercise ...(reads)... powers including agreements between the employers and employees, the workplace, or enterprise level.
PN4242
Nothing in that passage, in our respectful submission, gives any indication of a restriction of the Commission's exercise of power by way of conciliation. At 59, their Honours went on to say:
PN4243
There are other important respects in which Part 1 of schedule 5 requires, or indicates that the Commission is to have a reduced role in the settlement of disputes, or that the exercise of its power to arbitrate is to be the subject of new impediments and qualifications.
PN4244
Their Honours a little further down, say:
PN4245
Section 89 had relevantly provided that the Commission's function included the prevention and settlement of industrial disputes as far as is possible by conciliation and where necessary by arbitration. The amendment omits the qualification where necessary.
PN4246
Then one will see from the balance of that paragraph that the restriction that their Honours were referring to was not relating to conciliation. The restriction - their Honours went on to say:
PN4247
It does so by replacing the reference in the 1988 Act to a dispute, or part thereof being dealt with by a State arbiter and the broader concept of being dealt with a State industrial authority.
PN4248
In our respectful submission, that amendment relevantly has no role to play here because the only issue is whether the Commission should refrain from exercising its conciliation powers in preference to the WA Industrial Relations Commission. One also finds at paragraph 62 a further explanation of the effect and at the top of page 1514, their Honours have referred to the objects of the Act and say:
PN4249
Section 3(b) of the Workplace Relations Act further provides that the principal object of the Act includes insurance that the primary responsibility for ...(reads)... affecting the relationship between employers and employees rest with the employer and employees at the workplace and enterprise level.
PN4250
Further down:
PN4251
The carrying out and to effect of this object is evidenced in the provisions of the WROLA Act introducing the regime for certified agreements, etcetera.
PN4252
Again, in our respectful submission, there is nothing in those provisions which lead to a view that the Commission ought hear to adopt a narrower approach, or a more cautious approach, as is argued against us for the exercise of its conciliation powers. May I return to our earlier written submissions, RIO25, where we set out the background to the disputes and the agreement.
PN4253
SENIOR DEPUTY PRESIDENT HARRISON: Before you do, Mr Dixon, is the result that you seek as an outcome, an all or nothing result, namely RIO3 in those terms and nothing else?
PN4254
MR DIXON: Your Honour, RIO3 being the proposed award?
PN4255
SENIOR DEPUTY PRESIDENT HARRISON: That is the draft award.
PN4256
MR DIXON: Yes. Your Honour, in my respectful submission, that issue does not squarely arise, of course, because the union has asked the Commission to refrain from exercising its jurisdiction. The Commission may, of course, take the view in exercising its conciliation powers that there are provisions of that proposed award that are non-allowable, or whatever, but the desired result between the parties to the dispute is that their agreement be reflected by way of a consent award and that they argue that it is entirely within allowable matters and that all the other wage-fixing principle requirements are met.
PN4257
SENIOR DEPUTY PRESIDENT HARRISON: Is there any reason why an award, for example, in those terms or different terms, may not be made in the exercise about arbitral powers?
PN4258
MR DIXON: Did your Honour say in the exercise of arbitral powers?
PN4259
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN4260
MR DIXON: Yes. Your Honour, if that situation were to arise one would, of course, have to consider firstly that there is a valid industrial dispute and I assume that that would be found - and one would need to consider the impact of exercise of arbitral powers against the consent award made. If your Honour is asking the question of us in respect of this particular dispute we would respectfully submit that the exercise of arbitral powers would not be available in respect of the making of an award in these terms for the reasons - vis-a-vis the AWU and the two companies, for the reason explained in Bain v Illiton because in respect of the particular subject matters there is no longer a dispute in respect of which arbitral powers can, or should be exercised.
PN4261
Whether other disputes omit the exercise of arbitral powers one cannot preclude the Commission from exercising its arbitral powers. Matters will, of course, arise in respect of the impact of those disputes on this award and one would need to address what those impacts are and how they were to inter-relate. We deal further with this matter later in our submissions, your Honour, in the context of the arguments that are put against us about union coverage and I do expand the argument then. I'm not sure whether I fully answered, or satisfactorily answered, your Honour's query of me now and it might be my difficulty in following the precise context in which your Honour is asking where and how those arbitral powers might be exercised.
PN4262
SENIOR DEPUTY PRESIDENT HARRISON: Well, I will probably come back to it in a different context including how does this Full Bench if it was inclined to make an award go about that task if it is not attracted to the whole of RIO3 as being an appropriate remedy which, of course, goes hand in hand with denying the unions the relief they seek.
PN4263
MR DIXON: I'm sorry, your Honour, the - - -
PN4264
SENIOR DEPUTY PRESIDENT HARRISON: Which would, of course, go hand in hand. There are two aspects, both the defeat of what is put against you by the intervening unions and the Federal unions and the granting of relief you seek, RIO3 the granting of relief. The two aspects go together. Now, if the Full Bench was inclined to dismiss 111(1)(g), not refrain in accordance with 111AAA, but was not persuaded to grant the relief in the form of RIO3 because there were provisions in RIO3 that it had concerns about.
PN4265
What do we do? Nothing, because all you ask us to do is exercise conciliation powers and those conciliations of necessity are reflecting the consent position you have. How do we fiddle with the consent position you have if we don't think it is an appropriate resolution of the dispute?
PN4266
MR DIXON: I'm sorry, your Honour - and I have a better appreciation of your Honour's concern. Your Honour, the issue would, of course, very much depend on the nature of the concern and how it can be accommodated. One may well find a situation that the parties to the industrial dispute having had a matter of concern drawn to their attention can deal with it without the need for arbitration and whilst, at the same time, maintaining the integrity of their agreement.
PN4267
If, however, the perceived obstacles by the Commission fundamentally change the nature of their agreement, that would create much further difficulty and, we would respectfully submit, that the Commission would have to be satisfied that the exercise of its conciliation powers should not be utilised, one presumes, because they would be contrary to the public interest and we would respectfully submit that that would be a difficult argument for the unions to put against us because having reached a settled agreement that would be, in our respectful submission, entirely consistent with the objects and the public interest.
PN4268
It would very much depend in my respectful submission, your Honour, of the precise concern or the precise matter which needs to be addressed, probably by the parties to the industrial dispute.
PN4269
MUNRO J: Does not her Honour's question take you into some more fundamental concerns about the proposition that you put? As I understand it, you are advancing the fact that you have - between the parties to the dispute in 760 of 2003 - reached an agreement for a consent award to be made.
PN4270
You then point to authority to say, the exercise of Commission function to make a consent award is an exercise in conciliation function, not arbitral function. That division I think is one that the High Court has expressed for purposes of constitutional differentiation and to expound the width of the power available to make an award by reference to this adjacent dispute for ambit purposes and both Bain and the Gordonston case affirm that principle, that the parties can reach an agreement that may go beyond the narrow compass of the ambit of their dispute and then the Commission is discharging that function where it has the power to make an award by consent of the parties, then it is conceived to be acting under the conciliation functions of the Constitution.
PN4271
Whether those decisions hold that strictly the Commission is acting under the arbitral powers, or conciliation powers if there is a narrow definition of them in a statutory sense is perhaps another proposition, but it is the way in which you put it. As I understand it is: well, this is conciliation, you are being asked by the intervening unions not to exercise conciliation powers, and you then suggest that is an abuse or a mis-application of 111AAA.
PN4272
As I understand it you also then advance a subsidiary proposition, or at least Mr Herburt does: well, we have reached agreement, there is effectively no dispute at the Federal level which overlaps, or identifies with whatever is the dispute at State level. That seems to be a fairly dangerous proposition, in the sense that if you have reached agreement to a point that it evaporates the dispute - we haven't yet made the award - then what are we doing?
PN4273
Both sets of propositions - and her Honour goes to the subsidiary aspect of one of them - what is it that we are doing when we make a consent award? Seem to beg the question, which is almost begged in 111(1)(g), whenever there is a dispute that is cognisable by the Commission being an interstate industrial dispute, identical or co-extensive with the dispute that is dealt with at State level, it is almost by definition.
PN4274
There is some compound of a local dispute and the authorities seem to be pretty consistent to the effect that that is not an area that the Commission has been much troubled with when exercising the powers under 41(1)(d), or 111(1)(g). It looks at the substance of the matter and it then either refrains from dealing with the matter, not from exercising arbitration powers from dealing with the matter, or it must cease dealing with whatever it is before it under 111AAA. I have spelt it out because I can see that we are into sensitive constitutional areas, but they need to be fleshed out I think with some clarity.
PN4275
The subsidiary point to which her Honour goes is: well, is it all or nothing? You have proffered a consent award, you say: this is our deal, shut this other lot of interveners out who don't want it to be made at all. Some of the arguments is - well, the one you have touched upon - go to the scope and coverage clause. Some of them rely upon the MOU as a subsidiary to it - to the consent agreement - and there are some minor ones I think that haven't been touched upon much for today's hearing about what is in the consent award so far as permissibility under 89A is concerned, but that question of: what is in the consent award and how far, if at all, are we to have any role as to its content? It also leads I think to the one at the start: what is the Commission doing when it exercises the power under 111(1)(b), is it, to make a consent award?
PN4276
It is effectively exercising, I would suggest to you, an incidental power. It is the power that was in section 28 of the original Act. The Commission still controls what it does, it exercises conciliation to get the parties up, perhaps to a consent award. Just because they have an offer of a consent award, it does not mean that the Commission abdicates its function. For many, many years the Commission told the parties to take their consent awards away unless it conformed with notions of comparative wage justice or whatever else, it exercised a control.
PN4277
I think her Honour's question goes to: well, at the end of the day are you happy to be judged on what you have put, give us this, or give us nothing? Or, if the Commission does take cognisance, as it might, or a surrounding dispute as distinct from the one that you have got, can it do something in exercise of its incidental power? Maybe at the end of the day it would still be conciliating. You might say: well, if you made these changes, for instance, the ones that it thinks that are beyond jurisdiction, then we will make the award there might be others that it says: if you make these changes, the ones that we think are most unpalatable, we would be prepared to do it. I've spelt it out a little bit more fully because, I think, there was a mix of constitutional questions, statutory ones, and pretty practical ones about what is really before us. I think there is some authority somewhere that I've come across that says when exercising powers under 111(1)(g) we are not too sure what we are doing.
PN4278
MR DIXON: I appreciate, your Honour - - -
PN4279
MUNRO J: In terms of the function of the division, exercising of power to exercise or not exercise jurisdiction. I think only Citicorp has classified it. They say exercise it and the Act has since been changed to say: well, don't exercise it until you have found the dispute. I'm trying to point, Mr Dixon, I think particularly to the areas, there is some area of discretion, and lest it be go entirely unsaid, and I'm not really wanting to do or to embark into the area. I suppose, it is conceivable that the Commission out of the intervention of the character of the issues that have been floated, could almost of its own motion expand the dispute, identify who the parties are.
PN4280
If the dispute is about the conditions of employment so far as they apply to the 145 employees at least, or perhaps more generally to Robe and to the other areas. The CFMEU has a separate dispute. You have a dispute, both of them log of claims. The others haven't logged, for the reasons that you explained. I think too - well, as Senior Deputy President Polites explained to whoever was appearing, there may be a reason why Robe and Hamersley didn't log the AMWU and the CEPU.
PN4281
It wouldn't necessary have created the Commission then saying: well, let me put it without pre-determination, it looks as though you have got some of the elements of a dispute involving all the unions, all these employers for some overtones of demarcation. If one goes to the definition of a demarcation dispute, I think, as I suggested, is a matter that is not entirely unrelated to this, the Comalco Weipa matter, it is not all that hard to tease out a demarcation dispute where unions are saying: we want to retain coverage.
PN4282
I suppose it would be open to the Commission if it thought that the problem was too hard being at the Full Bench level to say: well, isn't this dispute really between the whole lot of you who were once represented on sites. It covers an element of coverage if the MOU fell out in August last year because it, at least on the evidence, seemed to be pretty close to being settled at that stage, or perhaps, that was too ambitious. Mr Combo's letter seemed to suggest that if the MOU had been general then there might have been willingness to talk.
PN4283
Your alternative scope clause has certainly got a demarcation element in it, and you have got the remaining conditions aspects where the unions at State and Federal level are relying upon differences of approach. I know it is a very long statement passage, but I think your Honour's question was designed to put the business end of the cart. They have now got the horses as well.
PN4284
MR DIXON: We appreciate your Honour's elaboration on that. May I, at this stage, just make some brief response?
PN4285
MUNRO J: Certainly.
PN4286
MR DIXON: The application by the Federal union is, of course, that the Commission refrain from dealing with the dispute in respect of the 145 employees by reason of section 111AAA. Section 111AAA envisages that the Commission will cease dealing with the industrial dispute by reason of that section, only in respect of the particular employees, not the other employees the subject of the industrial dispute. The Federal unions who rely on section 111AAA appear to suggest that there would be, pursuant to section 111AAA some scope for the Commission to cease dealing with the entire dispute.
PN4287
SENIOR DEPUTY PRESIDENT HARRISON: I did not read it that way, Mr Dixon. That took me by surprise when you mentioned that earlier.
PN4288
MR DIXON: That they ask that the whole dispute be - - -
PN4289
SENIOR DEPUTY PRESIDENT HARRISON: Yes, that the outcome of successful 111AAA application is that we can, consistent with the provisions, refrain from dealing with that beyond the 145 who could validly make that application. Can I interrupt you and ask, Mr Dixon?
PN4290
MR DIXON: Certainly.
PN4291
SENIOR DEPUTY PRESIDENT HARRISON: That is what his submissions are on 111AAA?
PN4292
MR DIXON: I would be assisted too, thank you, your Honour.
PN4293
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN4294
MR SLEVIN: No, it would give my friend that impression. I apologise, but our submissions are that 111AAA only applies to the 145, that part of the dispute.
PN4295
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN4296
MR DIXON: I'm indebted to your Honour for getting that clarified. So that irrespective of the Federal unions, they are asking the Commission to cease dealing with the industrial dispute in respect of the 145 employees. The question for the Commission under section 111AAA, in our respectful submission, does not involve the Commission deciding precisely the manner in which it will settle the industrial dispute. There is no attack made, as we understand it, to the contents of the agreement reached between the parties to the industrial dispute by - or no serious criticism made by the Federal unions about the terms of settlement that have been reached subject to a consent award being made.
PN4297
The application by the State unions rely on section 111, the two subsections. That again, in our respectful submission, is asking the Commission for the various reasons to refrain from exercising its power to determine the industrial dispute, or further hearing the industrial dispute in whatever way the Commission ultimately decides is the most appropriate way of dealing with that. The opposition, as we understand it, from the State unions is not to the commotion exercising conciliation powers or any other powers. It is simply that the Commission should refrain from further dealing with the industrial dispute.
PN4298
The question of where the parties are at, and whether the Commission will exercise its powers by way of conciliation, and how in conciliation, or if the Commission either is of the view that it would not exercise those powers or should exercise in addition some other powers, is not a matter that is, in our respectful submission, criticised in the State union's argument. They simply ask the Commission to vacate the field on two bases in favour of the States namely, that the State has been dealing with these terms and conditions of the relevant employees for a considerable period of time, and that there are other public interest considerations which require the Commission to refrain from doing so.
PN4299
In the context of the point that your Honour Munro J raised with us about what the Commission is doing. At the moment, in our respectful submission, the Commission has before it an industrial dispute that has not been settled. There is a clear indication from the parties to that industrial dispute that there is a means of settling that dispute without arbitration. We recognise that the debate that your Honour referred to in section 111(1)(g) or 41(1)(d) about the distinction about a Federal industrial dispute and a State dispute, but there is significantly, in our respectful submission, some distinction. The 128 cases took a slightly stricter view perhaps on one reading of that debate than the section 41(1)(d) cases. Alley J in the King Island v Scheelite case rejected the distinction to which your Honour alluded.
PN4300
The point that we seek to make is that if it is possible to resolve the industrial dispute by the exercise of conciliation powers that would be in furtherance of the objects of the Act. Overall, and if when looking at it in the context of the case as a whole, we are fairly certain on the evidence that the option would be a lengthy arbitration at a State level about matters which go contrary to a potential settlement, which is available of the industrial dispute presently pending before the Commission.
PN4301
It is for that reason that we highlight the fact that conciliation powers may be available to resolve the dispute, and the Commission has not yet reached the stage where it is confronting refraining from exercising its powers by way of arbitration. That there is a distinction in our respectful submission in the Act itself and in the cases as to the basis upon which the Commission would refrain from exercising its powers by way of conciliation in pursuance of the objects of the Act, as opposed to arbitration.
PN4302
MUNRO J: Yes, thank you.
PN4303
MR DIXON: In respect of the wider dispute it would be our respectful submission, if the Commission pleases, that where there is a dispute that has been found with the CFMEU, which it has chosen not to pursue in any shape or form, that that matter should be left to be pursued separately to see whether the CFMEU at any stage has an intention of pursuing the dispute finding which it - on at least one reading of the evidence - did not pursue it on the instruction of the ACTU. In our respectful submission, those matters should not preclude the Commission from considering that the present industrial dispute on the basis that there is - its pending, it is capable of resolution by the exercise of powers by this Commission.
PN4304
We respectfully submit that it is capable of resolution in a speedy and efficient way consistent with the objects of the Act and that the State Industrial Tribunals, in relation to the relevant employees, have not played any effective role at all to activate section 111(1)(g) subsection (2), for the various reasons that we have expounded in our written submissions. It is apparent from the remarks that the Commission has made that it has obviously had an opportunity of having regard for the history and the various positions taken by the parties from time to time and I had intended though to highlight some of the steps that were taken.
PN4305
MUNRO J: Don't let me discourage you. Her Honour will be familiar with it but that is a handicap she will have to bear, I think.
PN4306
MR DIXON: If I am going over ground - - -
PN4307
MUNRO J: Speaking for myself it won't do any harm, Mr Dixon.
PN4308
MR DIXON: We start in looking at the background of the matter by a recognition in our respectful submission that when her Honour Senior Deputy President Harrison, found the dispute on 30 January, the companies made their position very clear and we set out the passage, or part of the passage in paragraph 20 of our submissions, RIO25, and the summary of the effect of what was said. In paragraph 21 of our submissions there is, regrettably, a typographical error. I think the second line it should be:
PN4309
There should be discussions on a Federal award as undertaken.
PN4310
That would be as undertaken to the Commission. The correspondence followed what the Commission was told and as we will seek to show in a moment the employees were advised of the position from the very earliest opportunity. May we in this regard draw the Commission's attention to some of the relevant transcript passages. The Commission would have the transcript. From the transcript of 30 January, one finds at paragraphs 28 and 29 the transcript recording of the dispute finding. The position of the two present respondents to the dispute finding, Hamersley Iron and Robe River Iron Associates, set out at paragraphs 32 to 37. One finds for example at the end of paragraph 37, the Commission being told that:
PN4311
The parties would like to progress the making of a Federal award as soon as possible and will enter into discussions for that purpose in the near future.
PN4312
The position was very shortly thereafter publicly stated to the employees of those corporations in a staff - in a Hamersley Iron, at least, staff briefing which one finds as tab 25 of Unions for. I will just read the relevant paragraph if I may, it is from Mr Woods' statement, issue number 72. In the second paragraph it said:
PN4313
Having referred to the CFMEU and AWU dispute finding Hamersley and Robe will now begin award discussions within the intention of obtaining a single Rio Tinto Iron Ore Award. This award will be a safety net award underpinning the terms and conditions of Robe's section 170LK and Hamersley's AWA and WPAs.
PN4314
Returning to the transcript there is a report back, as the Commission will recall, to Senior Deputy President Harrison presiding in matter 760 on 27 June. In paragraph 52 of the transcript Mr Allen appearing for the two respondents advised her Honour that there had been, shortly before that, a report back in matter 5383, which was the CFMEU dispute finding, a matter to which I will return in a moment.
PN4315
Mr Allen, then, in paragraph 53 and following, traced the history of the steps that had been taken. In paragraph 54, he quoted from the earlier proceedings. He then advises the Commission that there had been correspondence to the AMWU and the CEPU. The contents of those letters is to be found at paragraph 60 and it indicates, for example, that the company anticipated commencing negotiations concerning an award shortly. Those letters were copied to the secretaries of each of those two State awards so that from a very early stage, the State unions were put on notice that there was a dispute finding, or that there were two dispute findings, and that discussions were going to commence shortly.
PN4316
There is then a reference to the fact that thereafter the State unions, sought to exercise rights under the State Act, under section 42, which is to initiate bargaining for an agreement, that that had occurred. In the face of the Federal AWU dispute and CFMEU dispute, the corporations regarded it as necessary to clarify the position. There was then read onto transcript the letter of 7 May 2003 from Hamersley Iron to the unions. That is set out in paragraph 65. In paragraph 67, it is indicated that in light of the overwhelming coverage at a Federal level, Hamersley believed that it was appropriate to make the award in a Federal jurisdiction. It said that Hamersley was currently investigating whether those plans are going to be pursued.
PN4317
Part of the proceedings on 10 June, in the CFMEU dispute, were expressly designed to try and obtain clarity on that issue. The Commission was then, at paragraph 69 and following, advised that each of the three other unions have only been interested in pursuing matters at a State level and the Commission is advised that the discussions were significantly advanced. At paragraph 74, there is reference to the view:
PN4318
If any of the Federal unions wish to become respondents to the award that has been agreed with the AWU then the company is prepared to enter into discussions. They would need to create an industrial dispute.
PN4319
That position was put to the Commission. Mr Herburt then, in paragraphs 78 through to 88, explained to the Commission the position as was seen by the AWU emphasising the fact that there were negotiations of some length, but there was a substantial amount of success as far as the AWU is concerned. The - - -
PN4320
MUNRO J: If it helps, could I take you to the proceedings before Senior Deputy President Polites on 10 June.
PN4321
MR DIXON: Sir, I think it is to be found in HAM2, your Honour.
PN4322
MUNRO J: Well, it is fairly hard - the version I have is in my AWU4, I think. Page 83 of that exhibit, which is, Mr Phillips' statement. In paragraphs 90 to 91 his Honour summarised the position, as he understood it, and he disabused the suggestion that it was the genuineness of the CFMEU claim that was the position that Ms Gray might thought to have been trying to guard against being challenged, and then he asked:
PN4323
Am I to understand that the real position taken is this? Because of the negotiations at the State level the CFMEU, and maybe the AWU, have resolved to not at this stage press their Federal claims pending the outcome of those negotiations?
PN4324
Ms Gray said that that is a very succinct way of what she had put. As I understand it, that notion that his Honour had - he wasn't disabused of that notion by Mr Allen, who was appearing for Robe and Hamersley, at least so far as progress with the AWU. The inference may be drawn that at least, as at 10 June - I think there was other evidence, the CFMEU, at both Federal and State level, was unaware of the pressing of an outcome and Federal negotiations of the AWU.
PN4325
MR DIXON: Yes, your Honour. I was coming to deal with the transcript. May I try and put the context in which this exchange took place properly before the Commission?
PN4326
MUNRO J: Yes.
PN4327
MR DIXON: If I go back to paragraph 37.
PN4328
MUNRO J: In that transcript?
PN4329
MR DIXON: In the same transcript. His Honour, listed the matter because he wanted to get some idea of what was happening in relation to the CFMEU dispute. He records that he had received the application to vary the Comalco award. Mr Allen indicates that he didn't appear and at paragraph 39 his Honour, says, "We should put that aside before we get to the major issue." Now, at this point in time there was, as the correspondence showed from the proceedings to which we have just gone in the AWU dispute and also referred to by Mr Allen, here there was confusion, where the Federal CFMEU along with the - had, apparently, an answer to give in respect of the fact that the State AWU, CFMEU and other unions were pursuing the claim at a State level.
PN4330
So at paragraph 54, his Honour said, we should leave the Comalco matter aside and then Mr Allen, at 55, says:
PN4331
The matter has not progressed.
PN4332
Mr Allen is, of course, referring to the CFMEU dispute:
PN4333
It is really in relation to what has been happening at a State level and our desire to try and clarify the position with respect to this log, that we have asked this matter to be brought on today. Perhaps, if I could hand to your Associate a bunch of the documents.
PN4334
Then, there is the correspondence which is referred to, the letter to Hamersley from the CFMEU of 13 February. That was the State notification. At paragraph 60, the Commission is advised that similar bargaining notices were also served by the other three traditional unions. There is then reference to the response to the States. Paragraph, exhibit A2, that was tendered. A letter of 6 March, where it was read onto transcript that:
PN4335
We are prepared to discuss, etcetera. Whether any agreement can be reached will obviously depend on the nature of your claims. We will also wish to discuss with you the issue of jurisdictional coverage as our company has also received demands regarding our workforce from the Federal AWU and the Federal CFMEU.
PN4336
Then there is the letter of 7 May 2003. Your Honour and Commissioner will recall that that was read onto transcript in the AWU dispute report back, and there is reference to the position as stated in A3, and then at 69 it is said: it is of the view that the appropriate course is now to proceed to make a Federal Award although it has had some difficulty clarifying the position of the unions. The State AMWU and CEPU have not served Federal plans and their representatives have indeed said that they would not be pursuing claims in the Federal area. We have been unable to get clarification from the Federal office of the CFMEU and I can indicate that we have also approached the AWU in relation to their position and having discussions with the AWU to clarify their position.
PN4337
In terms of just to finalise the issue on 13 May we sent a letter to Mr Meagher of the CFMEU. If I tender the letter. Then they set out the letter asking for confirmation of the position and then at PN 77, if the Commission pleases, we have not received any response from Mr Meagher to that letter. The State union, through Mr Wood, has indicated that there would be a response and that the Federal claims were not being pursued. Your Honours and Commissioner, will immediately appreciate that where Mr Wood was saying one thing, the Federal union was not responding to the other position and attempts are being made to find out from the Federal CFMEU in the Commission, what the position was and it is in that context where it was said, but we would like to clarify the matter in order that we can make a final decision as to the future of those State positions.
PN4338
Then Ms Gray responds. One will note at paragraph 80 that Ms Gray was clearly aware of the fact that, on 13 January, in the AWU dispute, the company has had indicated to this Commission that they would be pursuing Federal regulation, that they intended to write to the other unions, and then there's the exchange that takes place concerning an employer log and the difficulties and Ms Gray says that it is a commonsense approach, in paragraph 85, that the parties negotiate wherever the outcome lies, whether the results of those negotiation lie in the Federal or State jurisdiction, and then tells the Commission that the CFMEU at a Federal level is genuine in its service of the log and is pursuing it and paragraph 87, in my respectful submission, is also relevant to the debate where Ms Gray was addressing - she said:
PN4339
We are unaware of whether or not Hamersley and Robe have sought to - in respect of its Federal dispute finding with the AWU - what it is seeking in this matter today in terms of seeking clarification with the assistance of the Commission of the AWUs intention but we would assume the AWU is much in the same position as the CFMEU federally.
PN4340
That is precisely what the company was trying to get clarification on and it had told the Commission that it was seeking clarification from the AWU. So it is in that context, in my respectful submission, your Honour that we - - -
PN4341
MUNRO J: Perhaps I was at cross-purposes. As at that date wasn't it the case that Robe and Hamersley would have had a pretty clear idea of the AWU at Federal level's willingness to resolve along the lines that were eventually settled. There had been other quite protracted negotiations.
PN4342
MR DIXON: Your Honour, in our respectful submission, on the evidence, as at that date there were discussions taking place at both the State and a Federal level but the issue as to which jurisdiction would ultimately provide the resolution had not yet been determined between the parties - any parties. It is correct, with respect, your Honour, that the parties at a Federal level have made quite a lot of progress in their discussions but whether there would be agreement at a Federal level was dependent upon some fundamental issues that had not been resolved between the parties. As I understand the evidence it was the position of the AWU and the companies that unless all those matters could be resolved, the ultimate resolution still might end up in a State jurisdiction and it is, in my respectful submission, in that context where Mr Allen, at 95 of the transcript says:
PN4343
We have probably received as much clarity as we are going to get, given the purpose for which the matter was being listed and the clarification that was being sought.
PN4344
In paragraph 97 it was said:
PN4345
That it seems that if the State unions are proceeding on the basis that they are seeing whether there is an agreement, we are proceeding on the basis of trying to clarify jurisdiction with a preference for a Federal award.
PN4346
But it had not, on my understanding of the evidence, been resolved by any of the parties what the ultimate outcome would be, and as we have said in our submissions in reply, it is quite clear from an inquiry that Mr Wood made shortly after this that he was quite cognisant of the fact that there were discussions taking place between the AWU at a Federal level and the companies because he inquires as to what progress had been reached with those discussions.
PN4347
MUNRO J: That is in Mr Wood's evidence is it?
PN4348
MR DIXON: Your Honour, I will just find the reference to that, by 27 June where there's a report back to your Honour, Senior President Harrison, the parties said: not yet.
PN4349
MUNRO J: I think at that stage, the bird is well and truly out of the coup. It had been announced on 25 June, I thought, had it not? Mr Meagher was at the proceedings on 27 June. Or am I mistaken?
PN4350
MR DIXON: I'm sorry, your Honour. I just could not hear part of that?
PN4351
MUNRO J: I thought Robe and - well, Hamersley had issued a circular to its staff on 25 June and that indicated that there was something close to an agreement with the AWU, federally. According to the transcript, unless my memory is mistaken as to the dates, Mr Meagher turned up at the hearing before her Honour saying that he had read about the development and work force express or something. He probably possibly would have got it if the CFMEU had any members in the Pilbara from the day before but the parties were close to settlement.
PN4352
MR DIXON: But the agreement - - -
PN4353
MUNRO J: That was what was put to her Honour on 27 June, I thought.
PN4354
MR DIXON: I think - as I read Mr Meagher's evidence, your Honour.
PN4355
MUNRO J: It wasn't his evidence, it was his submission before her Honour.
PN4356
MR DIXON: I beg your pardon, his submission.
PN4357
MUNRO J: He didn't say anything much other than that he had heard something that was going on and he intervened. I may be wrong. I may have the wrong date.
PN4358
MR DIXON: No, no, your Honour is correct but it wasn't - the workforce provocation I don't think is an employer. It wasn't the company's publication.
PN4359
MUNRO J: No, well, he wasn't notified the of the hearing I don't think either.
PN4360
MR DIXON: Yes.
PN4361
MUNRO J: But there had been the circulation, I think. I don't think this was in dispute, Mr Dixon. There had been a leaflet distributed, according to - I think it Mr Danks' evidence at the site and I think Mr Edwards or someone was to much the same effect on 23 June at least, or it is dated 23 June. That says that there's to be a hearing on the Friday which presumably is 25 June. At the hearing on 25 June Mr Meagher, who I take to be the president of whatever it is - of the CFMEU, the players to intervene - and I think he is granted leave to intervene and then says he is going to stay silent just to hear what is going on, but alleges that he is indebted to workforce having found out what was going on.
PN4362
MR DIXON: Your Honour, perhaps I could just take you to - - -
PN4363
MUNRO J: I think I was really interjecting on your point that what happened on 27 June, I am saying by that stage it is common ground. I would have thought that the imminence of an agreement with the AWU federally was widespread knowledge because Hamersley had reported it to its own employees.
PN4364
MR DIXON: Yes, I understand. Might I just draw your Honour's attention to some evidence. Your Honour is correct that the company in issue number 117 on 25 June, 2003 of what they call business brief which is an attachment to Mr Witt's statement, at attachment 25, had said that that - this is the Hamersley workforce:
PN4365
Discussions with the Federal AWU on a consent award reflecting our current work arrangements and which would underpin those section 170LK and HI are currently significantly advanced.
PN4366
MUNRO J: Yes.
PN4367
MR DIXON: And I think that that was reflected in what her Honour Senior Deputy President Harrison was told and on the 27th that the parties had not yet reached agreement. It was for that reason that the matter came back later in July after the parties had reached agreement and there is evidence that Mr Phillips to which our learned friend, Mr Herburt will no doubt refer - about certain pre-conditions before resolving the matter. The evidence to which we refer to in our reply is in paragraph number 43(d) concerning an allegation - - -
PN4368
MUNRO J: Of your exhibit or of - - -
PN4369
MR DIXON: Of RIO26, your Honour.
PN4370
MUNRO J: Yes.
PN4371
MR DIXON: Towards the end of (d)(i) in answer to the allegation that Hamersley had not been full and frank in reporting back to the Commission. We note Mr Witt's evidence that on 18 June he was actually asking the question of the companies as to where they were with the AWU negotiations. In the light of the fact that from the very early stage, the Company had told the Commission that it was seeking a federal award and would be negotiating. It told its workforce that it would be negotiating. It told the other unions, who were not parties to any dispute, that there would be negotiations.
PN4372
It is in our respectful submission, not open to the unions to be critical of the fact that the company then explored with the union, that took up the option of discussions with it, to see whether it could reach a resolution of a dispute and in circumstances where the CFMEU, despite having been directed by the Commission to confer with the respondents, took no such step whatsoever. In our respectful submission, that criticism that is levied against the company is without substance. Mr Davey gave evidence in paragraph 13 of his statement AWU3, that it was:
PN4373
the AWUs State Union's position that it went along with the other State unions, continue to negotiate at a State level as no agreement federally had been achieved, and that continued until 20 July, 2003 when he was informed that there was a real possibility of an agreement in principle would result between the AWU and the Federal AWU and the companies.
PN4374
So that is consistent, in our respective submission, with the parties having discussions in a way which Mr Gray acknowledged was a commonsense approach at both the Federal and the State level to see what the ultimate outcome would be. There was agreement reached at a Federal level, which effectively meant that the State discussions came to an end. The evidence, in our respectful submission, is that unless there was agreement between the parties on all elements of the various matters that were raised, namely the award, the MOU and the parity, there would have been no agreement at all. That was the evidence of Mr Phillips at 1840-1842 and Mr Danks gave evidence at 1767 and 1781.
PN4375
MUNRO J: I'm sorry, I just don't understand that precis. Unless there was agreement at all levels, so far as the company was concerned, about the award content, the MOU and the parity with AWA on the site, there would be no agreement at all or is that a summary of the total positions of both parties? I just don't understand how you are putting it.
PN4376
MR DIXON: That was the AWUs position.
PN4377
MUNRO J: I see.
PN4378
MR DIXON: And that is the evidence of Mr Phillips.
PN4379
MUNRO J: And Mr Danks evidence is to similar effect, is it, at the paragraph's you are referring to?
PN4380
MR DIXON: May I just double check that please, your Honour? At 1767 through to 1769, Mr Danks said that:
PN4381
The Federal negotiations. The award document was finally agreed probably at the second last or the last meeting that was in July -
PN4382
and he has asked whether there would have been an agreement on the award document without agreement on the memorandum of understanding -
PN4383
but it wouldn't have led to anything if there was an agreement on the award document. Without the memorandum of understanding there wouldn't be no consent to take it forward.
PN4384
And further down on 1770 through to 1775 and he deals with a parity issue on 1780 and following. Could your Honour just excuse me for a moment? That leads me back to our submission in RIO25 where we point out that the agreement, as reached between the parties, had significant benefits for the parties and the employees - and we have set those out in paragraph 34. I don't seek to read those, but may I invite the Commission to paragraph 34(3) where we make the submission that there are significant improvements in rates of pay and allowances?
PN4385
May I ask the Commission to turn to exhibit RIO17? This was material that was produced during the course of the negotiations between the AWU and representatives of Hamersley to indicate to the AWU, according to the evidence of Mr Danks and Mr Phillips also gave evidence in this regard, the actual monetary impact there would be for, at least, the nine, or seven or eight, whatever the number might be of award employees that were still employed by Hamersley Iron under the State award.
PN4386
There were calculations done on certain assumptions about the shifts, hours of work, how many leisure days and the like would be worked and the comparison lead to a difference based on the Federal award, plus 20 per cent - and I will try and explain that in a moment by reference to the State award. At the top part of exhibit RIO17 there were calculations made at the level at which it would be anticipated that the existing longer term employees would enter into the wage structure - and that is the reference to the 20 per cent. Exhibit RIO16, simply contain the base rate that would apply effectively to starters under the award if that were ever to occur.
PN4387
The Commission will note that for the award employees, the Federal award would give rise to significant differences on the various classifications and working arrangements that are set out. Starting with the figure of 22,485 in that column, that is the relevant column as to the degree of wage benefits for those award employees bearing in mind of course, that the State award had not been updated in any material way for a considerable period of time and was accepted by all the unions to have been out moded and out of date.
PN4388
The evidence was in the proceedings, in our respectful submission, such that even the opposing unions accepted that the overall agreement was beneficial and in paragraph 35 we have set out the evidence, references to the evidence of Mr Wood and Mr Edward, who was the Pilbara Mining Union representative on the site. There was no serious attack made at any stage to the fact that there were significant benefits available to the relevant employees and, of course, to the AWU in achieving the outcomes that it did which we have outlined in paragraph 34.
PN4389
In respect of whether the Commission would refrain from dealing with the dispute, or cease dealing with the dispute in respect to the 145 employees, we make submissions in respect of a range of relevant matters. One of them being the fact that there is significant integration occurring, and yet to occur, between the operations of Hamersley and Robe River Iron Associates, it, in our respectful submission, is unarguable that there is a strong trend towards integration.
PN4390
In respect of section 111AAA considerations it is, in our respectful submission, a matter of importance. Section 111AAA does not, of course, affect Robe, thus one will have the situation where Robe employees and over 90 per cent of Hamersley Iron employees covered by an award of this Commission, if it were made, and approximately 10 per cent of Hamersley Iron employees who work across the operations on different terms covered by the State in the context, where integration is taking place and where more and more the employees of the two operations were be working side by side.
PN4391
This is a matter which does not only have consideration for the present but, in our respectful submission, the Commission would be looking at the future in this regard where it is clear that the integration will continue. The two Pilbara Iron companies referred to by her Honour Senior Deputy President Harrison, this morning in the separate dispute finding are referred to in the evidence that we have set out in paragraph 38 as potential employers on an integrated basis into the future and for that reason it appears that they have been logged.
PN4392
May we also draw attention to the fact that as we have set out in paragraph 30 that respect of Hamersley and Robe, the opposing unions have accepted that employees employed by Robe are currently award free and they have approached the position in the State level that it is appropriate that the two organisations each being part of the Rio Tinto Group are appropriately covered by the same award.
PN4393
In our respectful submission, to refrain from dealing with the dispute in respect of approximately 145 employees and allowing a State regulation in relation to those employees would promote industrial harmony - it would not promote industrial harmony and it would be a most unfortunate outcome whereby the potential for leap-frogging argument and counter arguments about which jurisdiction can deliver the best results are permitted to remain available to those promoting such arguments as we have already found on the evidence in this case. May I then deal with the history of the State Industrial regulation since 1987? I set this out in paragraphs 43 and following:
PN4394
The Commission will appreciate that in respect of Robe River Iron Associates, the last occasion upon which the State Industrial Relations ...(reads)... was quashed in 1993.
PN4395
There were some interim orders in place that were designed to maintain the status quo to keep in place an industrial agreement that had been reached between the parties that applied previously, but following the quashing of the award, that was made in 1993, the unions who were the applicants in that award application never pressed for the matter to be determined and eventually the - so that there was no further arbitral role played by State Industrial Commission in respect of Robe post-1993.
PN4396
The interim orders that were put in place back in 1987 were eventually cancelled on the basis that they applied to nobody. In cross-examination Mr Wood, when asked if he had any explanation for this inactivity, he said he had none. This was at paragraph 231(h). The orders were cancelled in 2002 on the basis that they no longer applied to any employees, and that is to be found at attachment 3 to Mr Danks' statement, RIO14.
PN4397
MUNRO J: That is the application, I think. Is there no other reference to that? There are two orders referred to. I think, you have identified them more particularly in some part of your submissions.
PN4398
MR DIXON: Yes.
PN4399
MUNRO J: They effectively kept alive what the industrial agreement number 10 of some particular year of - - -
PN4400
MR DIXON: 10 of '79, your Honour.
PN4401
MUNRO J: Yes.
PN4402
MR DIXON: In paragraph 48 we say the last step taken by the State Commission in respect of those interim orders was 1989 when the original order was varied to give effect to the relevant second tier increase of 4 per cent. So the interim orders were made reflecting the terms of industrial agreement 10 of '79, but the Commission varied the interim order to give effect to a general wage increase back in 1989, but thereafter those interim orders were the only industrial instruments that effectively applied.
PN4403
MUNRO J: Is the State CFMEU the only party to those orders?
PN4404
MR DIXON: No, all the State unions, your Honour.
PN4405
MUNRO J: Well, so the CFMEU applied in the attachment to which you are referring on behalf of the other unions, or only one party needed to apply, I suppose.
PN4406
MR DIXON: I'm sorry, your Honour. Mr Wood's evidence was that he was probably speaking only on behalf of the CFMEU.
PN4407
MUNRO J: Yes.
PN4408
MR DIXON: All the relevant unions, there may have been an amalgamated one, but the CFMEU metal trades, CEPU, AWU at a State level, were all parties to that industrial agreement 10 of '79 that was converted to interim orders in 1987.
PN4409
MUNRO J: Was that industrial instrument and those interim orders the reference award, for want of a better word, to which the 170(k) agreement was made? I think, Mr Wood's evidence was they removed those instruments in order to preclude there again the use of those orders as the no disadvantage test basis.
PN4410
MR DIXON: The orders were the reference point for the certified agreement, your Honour, but the application made to the State Commission to cancel the order, was on the basis that they no longer applied to any employees.
PN4411
MUNRO J: Yes.
PN4412
MR DIXON: Which occurred after the certification by the Commission, using the industrial agreement for the purpose of the - I'm sorry. Using the interim orders for the purpose of the no disadvantage test.
PN4413
MUNRO J: Yes.
PN4414
MR DIXON: The history in respect of - sorry, may I just return to Robe for the moment. It could not escape the Commission's intention, in our respectful submission, but it was after the AWU dispute finding and after the agreement between the AWU and the companies, that the State unions then made application to the State Commission to join Robe River to the State Awards, and following that application, or at about the same time the section 111(1)(g) applications were made by the State unions.
PN4415
In respect of Hamersley, the position is set out in paragraph 52 and following and, in our respectful submission there too, the State Commission played a diminishing role.'
PN4416
Effectively in respect of the Hamersley State Award, which is referred to in paragraph 52, the last substantive amendment made to that award was in 1994. Thereafter there was some general wage increase decisions that were implemented into those awards, but because there was a diminishing number of persons bound by the State Award it effectively seems to have gone into the States that it was accepted by Mr Wood, for example, and not argued otherwise that it was significantly outmoded, and/or out of date.
PN4417
We highlight in paragraph 53 that during the period 1993 to 2004 the number of persons employed under the award diminished, so that one arrives at the position in respect of Hamersley Iron as effectively recorded in paragraphs 53.1 to 53.3. We then dealt with the position of the other principal iron ore employer or mining company, BHP Billiton, and make reference in paragraph 56.4 to the fact that there a range of contractors operating in the Pilbara parties to the certified agreements which are in the bundle that has been handed up to the Commission. May I just add this: the Commission will note that - - -
PN4418
MUNRO J: I'm sorry, 56.4 is that paragraph, is it?
PN4419
MR DIXON: Yes.
PN4420
MUNRO J: I'm sorry, thank you.
PN4421
MR DIXON: The Commission will note that in respect of a number of those certified agreements, Federal unions, the AWU, the AMWU and the CEPU are, in fact, respondents. The AWU is not a respondent to all of them. In some cases, it is the other unions. So we have a situation where two of the Federal unions, namely, the CFMEU and the AMWU are bound by the certified agreement applicable to Robe by order of the Commission of 6 May 2002. The majority of employees of BHP Billiton are now employed under instruments under the Federal Act, and in respect of contractors, there's a Federal Award and a number of the opposing unions are parties to certified agreements underpinned by that award. So we then highlight the - - -
PN4422
MUNRO J: I'm sorry, which two unions did you say again? I know it is there - are bound by the Robe Award, they applied - - -
PN4423
MR DIXON: The CFMEU and AMWU.
PN4424
MUNRO J: I see. Isn't there a dispute?
PN4425
MR DIXON: I'm sorry?
PN4426
MUNRO J: I know - - -
PN4427
MR DIXON: We invite the Commission to then compare the current position as we have summarised it in paragraph 57 with that which existed when Federal coverage was last considered. Before doing that may I just highlight that as we have set out in paragraph 57.4, the opposing unions, have in respect of BHP Billiton, sought to make a certified agreement with that organisation by issuing bargaining notices and taking industrial action in support of those bargaining notices during the period 1999 to 2001.
PN4428
The bargaining notices remain on foot, no notice was ever given according to the evidence of Mr Wood as far as he was aware, either by his union or any other union. We called for any documents from the other unions to indicate that they had abandoned that idea. No such documents were produced, although Mr Wood did say his union apparently did not have the intention of pursuing that position any further, so there has been an overwhelming move towards the regulation and attempts at regulation at a Federal level for employees operating in the iron ore industry as it is reflected in the north-west of WA.
PN4429
The radically different nature of the position now as compared to what it was in 1987, when Alley J examined the position in the King Island v Scheelite case, is to be found in our summary in our submissions in reply, RIO26, at paragraph 22. I wonder if I may ask the Commission to also have to hand the decision in the King Island v Scheelite case, 24 IR 265, which is at tab 5.
PN4430
MUNRO J: Was that you in that case, Mr Dixon?
PN4431
MR DIXON: Yes, your Honour. It was a very different experience, your Honour, having all of the other iron ore companies and unions trying to take a very different position from what now prevails and the circumstances are so different that that is explicable.
PN4432
MUNRO J: There are not a lot of survivors, are there?
PN4433
MR DIXON: No. The person who appeared for Mount Newman Mining and BHP Minerals, was one of our most strenuous opponents. The history of the award was set out by Alley J at 268/269. At 268 his Honour dealt with how the earlier awards were made after 1972, and Cliffs Robe River Iron Associates is described as "Cliffs" as one finds for example at 268.7:
PN4434
When Cliffs commenced production it became bound by the 1969 award.
PN4435
The reason I want to take the Commission to what appears at the top of page 269, is to simply try and put in context - and Mr Wood gave evidence about this - as to what the status of those particular awards or agreements now is. The CRIRA Iron Ore and Processing Agreement 1979, that is the agreement from which Robe Rover Iron Associates retired shortly thereafter, giving rise to the interim orders. The next award, the Iron Ore Production and Processing Hamersley Iron Award, that was replaced by the current Hamersley State Award of 1987, and that is the award that was last substantially updated in 1994.
PN4436
The two remaining awards, those dealing with Mount Newman Mining and Goldsworthy Mining Limited remained in operation for a considerable period of time but, effectively, agreements replaced the award making role of the Commission until 2002, when the Commission made a new BHP Billiton Award, which effectively replaced those two awards and all other industrial agreements that applied. Mr Wood gave evidence about this history, I took him through it in cross-examination.
PN4437
May we then turn to paragraph 22 of our submissions in RIO26. It is our respectful submission that each of the factors that were identified by Alley J now point the other way. His Honour identified the choice by the Commission was between the retention of regulation by the State Commission in circumstances when all regulation was by State - of course that is not now the case. There was evidence then about the deep involvement of the WA Commission receiving close attention. That certainly can no longer be said to be the case in respect of Robe River Iron Associates. I have drawn the Commission's attention to the true position and also in respect of Hamersley. His Honour relied on what was described as:
PN4438
An important aspect of industry integration.
PN4439
By reference particularly to two organisations, the Iron Ore Industry Consultative Council, which was a council bringing together the various employers, or corporations and the Mining Unions Association, bringing together a collective integrated approach on the part of the unions. Neither body now exists.
PN4440
MUNRO J: Both bodies are referred to in the Hamersley 1987 award, the State award. There is no corresponding counterpart, is that the common ground - what is it, the Pilbara Miners' Union?
PN4441
MR DIXON: Your Honour, the Pilbara Miners' Union was a very different experiment by the look of it.
PN4442
MUNRO J: Does the evidence, just to follow that point, cover whether the PMU, is that the reference to it? Is that still extant, or did that expire more or less?
PN4443
MR DIXON: It seems - - -
PN4444
MUNRO J: Mr Edwards came back to Sydney I thought and I'm not sure if Mr Tracy was another one.
PN4445
MR DIXON: Yes. Mr Tracy had limited involvement with the PMU. Mr Edwards said that he left shortly after the announcement that was made that agreement had been reached at a Federal level with the AWU, but the evidence appeared to be from one the employers that it still exists.
PN4446
MUNRO J: I see.
PN4447
MR DIXON: But it is of a different nature of the Mining Unions Association, your Honour, that was a body that operated across the various employers' sites back in 1987, whereas the PMU seems to be an attempt to get a State union going, particularly related to Hamersley Iron on the evidence. Mr Danks' evidence to the effect was that: the Iron Ore Industry Consultative Council no longer exists, and Mr Wood said: the Mining Unions Association no longer exists. Alley J, spoke about further fragmentation, but he was doing that at a time when all regulation was by State Tribunal and State instruments and, of course, it is obvious that the position is now very different.
PN4448
His Honour seems to have placed particular reliance on the fact that he perceived this Commission having limitations on its power to deal with what was described as:
PN4449
A local or intra State dispute.
PN4450
In our respectful submission, that concern, if it was one that was fully supported by the scope of the then Act, is no longer a relevant consideration, given the various High Court decisions, one of them being the Gordonston case to which I referred. Isn't that a problem insofar as the award-making power, or any dispute that is subsumed under the heading: A Dispute Arising out of the Application of the Award, is concerned? True it is that a interstate industrial dispute may unequivocally be dealt with piecemeal.
PN4451
MUNRO J: I don't think that position would have much changed since Alley J dealt with King Island Share Light, although it might be now clearer, but he was addressing the situation that emerged - if not around the same time, had emerged, and was always fairly clear that a local dispute was not technically within Federal jurisdiction and for purpose of an award-making power and on the authority of Hegarty's case, at least, that position hasn't changed, has it, to take the dispute resolution procedure in the proposed consent award under the fair treatment procedure, is it?
PN4452
There is a reference to concerns, or problems, or grievances, or disputes. How, on the current state of Federal authority - there being no agreement - could this Commission exercise jurisdiction in relation to them? Perhaps it might be able to conciliate, but it certainly couldn't - in relation to the notification of industrial dispute about a grievance say over - well, even shifts, or their operation of the fair treatment process. Why would that be not a local dispute? Even if it were to be conceived as a dispute arising over the application of the award.
PN4453
Why could the Commission do anything more under a dispute settlement provision of an award and conciliation? The finding of the Commission in Cooperative Bulk Holdings - which is a majority decision in relation to an agreed dispute resolution procedure in Western Australia, overruling a finding of Commissioner Lange that he could arbitrate a matter under a much more swinging dispute resolution procedure than the ones proposed in this agreement. I suppose the question, in a nutshell, is why is what his Honour Alley J, said in 1987 no longer true as to the local dispute and a purported exercise of power under award dispute settlement procedure?
PN4454
MR DIXON: May I just approach that issue from a slightly wider starting point, your Honour?
PN4455
MUNRO J: Yes.
PN4456
MR DIXON: Of course, since 1987 one has the Act dealing with unfair dismissals and the scope form local disputes from that point of view would be different from what might have been perceived in 1987. The Wool Dumpers Rangers arguments had not yet fully been developed. That leads one to an argument that if there is the potential for a local dispute having wider ramifications - has been better recognised than was the case then.
PN4457
So that given a wide log of claims there is greater availability for the Commission, in our respectful submission, to settle a local dispute as part settlement of the overall dispute. In respect of the dispute settlement procedure the dispute resolution clause which is separate from the fair treatment provision in the proposed award that does allow the parties to refer to the Commission a matter in accordance with the Workplace Relations Act and principally that would involve the exercise of conciliation powers - it appears to us, your Honour.
PN4458
So that there is still some limitation, but the position is, is wider than that that his Honour, Alley J, considered at the time. There is no - as far as we are aware - any particular local issue which the union's point to, which this Commission could not deal with by the exercise of its conciliation powers.
PN4459
SENIOR DEPUTY PRESIDENT HARRISON: I think a number of attempts were made to ask witnesses called from the intervening unions just what it was either by reference to 89A that there was a constraint on that they had a concern about and couldn't be put in an award, or wasn't in this award, or what it was that was said that because of limitation on our arbitral powers we could not deal with. I don't think a lot of conditions were identified, but certainly shifts seemed to be identified on more than one occasion and I think Mr Wood - he was one of the persons who identified shifts, others did. Mr Wood identified rosters, hours, remuneration.
PN4460
Now, I can't remember any other matters that were said to be hot industrial issues that were identified. May I therefore deal with those and maybe, in particular, shifts because more than one witness said shifts have been a problem and they were concerned that this place could not assist with the dispute over shifts. Shifts are referred to in a couple of clauses in RIO3. Does it make any difference as to whether the Commission - in the event the Commission was prepared to make RIO3 in the exercise of its conciliation powers and a dispute about shifts was to come into this place, does it make any difference as to what powers we can use to resolve that dispute, as opposed to, if we were to grant a remedy, the remedy being granted in the exercise of our arbitral powers?
PN4461
Might I also say, the other reason I raised this now was when you were answering a question from Munro J - I think you have confined yourself when referring to the role the Commission may have under the Workplace Relations Act to conciliation?
PN4462
MR DIXON: Yes. The dispute settlement clause, your Honour, does not envisage - it envisages that if the matter is not resolved through a particular procedure then the company, or the employee, may refer the matter to an agreed arbitrator for conciliation.
PN4463
SENIOR DEPUTY PRESIDENT HARRISON: Yes, the next step.
PN4464
MR DIXON: Failing such agreement, the matter can be referred to the Commission in accordance with the Workplace Relations Act.
PN4465
SENIOR DEPUTY PRESIDENT HARRISON: Who would I read that as being confined to the exercise of conciliation powers in the event, I - for example, had a dispute notified to me about shifts?
PN4466
MR DIXON: I wonder if I may get instructions in relation to that matter?
PN4467
SENIOR DEPUTY PRESIDENT HARRISON: I'm confining it to shifts because that was one of the hot issues, but you may assume that that type of question might relate to a couple of other clauses, but shifts is perhaps a good one.
PN4468
MR DIXON: Your Honour, the evidence concerning the limitation on the arbitral powers seem to be principally, as we understood it at one stage, at least, about a section 89A-type concern. The Commission, of course, even if it were to make an award would be able to vary the award to take account of a particular issue on shifts. It would be within the Commission's jurisdiction to deal with problems that arise as part of its outlook hours in respect of shifts.
PN4469
SENIOR DEPUTY PRESIDENT HARRISON: The award once being made doesn't confine, for example, the variations that might be made by the AWU, you say?
PN4470
MR DIXON: It would be our understanding, your Honour, that once the award is made of course the Commission can exercise its powers of variation, if there's merit to do so, and it could remedy any perceived shortcomings in the award if that were to arise, if there is a dispute and there appears to be jurisdiction on the ambit of the log to encompass the exercise of outlook hours at a later stage in that regard. But perhaps I could get some instructions and clarify my understanding of the position in relation to subparagraph (f). If I might do so over the break I would appreciate that opportunity.
PN4471
May I just in conclusion refer to subparagraph 22(f) of our submissions in RIO26 where we say that Alley J in the end determined that claims as to the industrial matters in respect of employees of Robe should continue to be dealt with by the State Commission as we there submit the absence of any role for the State Commission in respect of wages and conditions for Robe employees for such a long period of time would now have the opposite effect. It would not continue to be dealt with but that Commission would again be assuming a role of doing so at the expense of a dispute finding in the Commission here.
PN4472
May we now turn to the union's strategy at Hamersley Iron in recent years concerning the Pilbara Mineworkers Union and we deal with those submissions in paragraph 58 and following. We have indicated and submitted to the Commission that the approach taken by the PMU which appears to be a strategy implemented by the ACTU was that all workers are welcome to join the PMU, to regard it as their own union - this is in paragraph 58.5 - and then their own choice, they would be members, and it was plain that the plan was that any employee within Hamersley could join regardless of which union they had been a member of, if any, in the past.
PN4473
The employees were certainly encouraged to believe that this body would become a registered union and, as we understand it, on the basis that there would be no reference to traditional demarcation lines or eligibility as contained in the existing eligibility rules of the relevant unions. There is criticism levelled against the companies that the PMU and the local employees who were described in the union's evidence as activists, not ours, were rather disappointed by the fact that an agreement was eventually reached between the AWU and the companies.
PN4474
Those submissions must be seen in their proper context. Mr Edward gave evidence that when he became aware of the fact - he was appointed with the support of the Federal unions and the ACTU. When he became aware of the fact that there were dispute findings at the initiation of the CFMEU and the AWU he was surprised, that he took the view that the employees at Hamersley Iron, whom he was dealing with should not be told of that fact and that there was a prospect that the matter would be settled at a Federal level.
PN4475
He says, as we quoted in paragraph 58, that it seemed fairly kind of ludicrous to give workers the information up until that time regarding the new State legislation and then to turn around and say: well, we're off to go to the Federal system. As a result, the employees that he was seeking to represent in whatever guise he was conducting his affairs, were deliberately kept in the dark by the PMU and its representatives, and then at the end of the day when the employees find out what had happened the evidence is that they were in shock. That is despite the fact that the company had been telling the relevant employees of its intentions to seek a making of a Federal award. In paragraph 58.11 we - - -
PN4476
MUNRO J: This is in your reply?
PN4477
MR DIXON: No, sorry, of RIO25, your Honour.
PN4478
MUNRO J: Yes.
PN4479
MR DIXON: At paragraph 58.10 we set out the attitude taken by Mr Edward, and at 58.11 we submit that Mr Edward was assured by Mr Wright of the ACTU that the Federal unions had been instructed by the ACTU not to proceed with the demands in the Federal logs of claim. The references to the evidence are set out in the passages there, also at 3097, to the effect that Mr Edward continued to proceed on the basis that the ACTU had instructed the unions not to proceed in effect with dispute findings that had been made in this Commission apparently and accepted as genuine dispute findings.
PN4480
We then summarise the position in paragraph 59 in relation to the PMU and it is apparent that when it appeared that the settlement of the Federal AWU industrial dispute might interfere with the strategy behind the PMU the opposing unions were instructed not to take further steps in respect of the dispute findings so that the State industrial relations system may deliver more beneficial results as promised. We set out in paragraphs 60 to 65 in summary form the initial steps taken by the State unions in the State system, and as we pointed out earlier these steps raise some concerns about whether the Federal unions were pursuing their demands and disputes at a Federal level and clarification in respect of those matters was sought.
PN4481
MUNRO J: Can I just put this, Mr Dixon. It is mainly because I haven't seen the totality of the evidence that I put the question. Am I incorrect in understanding or assuming that the PMU had sponsorship from the ACTU and the four State registered and federally registered unions and it was intended to operate as an amalgam in effect of unions to which Pilbara people had once belonged, particularly around Billiton, with the aim of avoiding demarcations that had been associated with them in the past? It had a function also as the local agency dealing with the Pilbara companies as a form of single bargaining unit or community pressure group. It was at least an instrument if not the primary instrument of consultation between whoever was doing the negotiation on behalf of the four State unions at the State level with the employer companies.
PN4482
Those unions profess to be operating as the single bargaining unit in cahoots with PMU, and a similar claim was made in relation to their negotiations with State counter - or in relation to the BHP Billiton Award that emerged. Now, that I think is a broad summary of a fairly hasty reading of Mr Woods' and perhaps more particularly, Mr Edward's evidence. Mr Edward then says, in effect, on those assumptions - and I don't know how far they were challenged or destroyed in cross-examination, that the PMU had worked to hold people away from picking up the Hamersley AWAs that had been on offer from September 2002.
PN4483
I suppose he also says that after the ACTU meeting in April, if that was the date or thereabouts, the strategy of pursuing a State outcome, either through an enterprise order or through an award variation was in place and they were working toward that. In early June, a PMU level in the Pilbara they decided - I'm not sure whether he says they signalled - that they were about to invoke the powers under section 42 and the hieroglyphics after 42, to pursue an enterprise order. Then followed the disclosure on 25 June that the deal was about to be finalised with the AWU. Coinciding with that quite a few of the PMU stand-outs abandoned ship and picked up the AWA.
PN4484
I have summarised an impression I had from those points which I don't know are very fully detailed, they might be covered in the similar way in the union's submissions, but I'm putting them to you as to the impression I formed. Am I mistaken in that broad perception of what the PMU at least saw itself about and where it fitted into what was happening in the State system?
PN4485
MR DIXON: If your Honour could bear with me.
PN4486
MUNRO J: Yes. It might be convenient to come with that after lunch.
SHORT ADJOURNMENT [12.55pm]
RESUMED [2.25pm]
PN4487
MUNRO J: Mr Dixon?
PN4488
MR DIXON: May it please the Commission. May I seek to respond to the brief outline that your Honour Munro J put to us in relation to the PMU and try and respond very briefly and, really, point form. First, your Honour, the PMU does not seem to have been an instrument of the State unions, it was supported by the Federal unions and the ACTU and Mr Edward was funded, or supported from the Federal unions.
PN4489
Secondly, in that regard it seems to have been a vehicle described in the evidence, as investigating to see whether a union, or unions, should return to Hamersley. It was not an amalgam of any of the State organisations or any other organisation, it held itself out as independent of the industrial unions and, that is, the publication put out under the heading: Pilbara Mining Union, which is part of UNIONS9 exhibit, and at the second dot point it says:
PN4490
The PMU is independent of, but works closely with industrial unions.
PN4491
Thirdly, it did not represent a single bargaining unit in any bargaining that did occur and did not seek to do so and it did not negotiate as an instrument of the State unions. What it did seek to do is that it, by some self-appointed representatives, have discussions with Hamersley workers and eventually put together a log which was to go forward as the bargaining instrument for Hamersley employees, that is apparent from paragraph number 3135. When the negotiations commenced at State level the request for negotiations was made by the State unions. The State unions sought to meet with the company representatives and they did ask that Mr Edward be in attendance at that meeting.
PN4492
The bundle of documents at RIO15, is an exchange of correspondence between the companies and the State unions concerning the bargaining and that correspondence reveals that in the end Mr Edward attends as a bargaining agent for the other unions, but not in any separate capacity. One should note that the log which the PMU seems to have created, or gathered, was eventually sent on Mr Edward's evidence, to the State union solicitors. We might comment that at the end of the day that log does not reflect the award application which is made. At the State level, the log of claims for example claimed increases between 35 and 60 per cent. The State union claim in some cases reflects a claim for an increase in wages of over 200 per cent.
PN4493
In respect of BHP, the PMU as we understood the evidence, looked to the results achieved by the State unions in making an application to the State Commission to vary the BHP award and in respect of which there was some quite significant increases granted by the State Commission and the PMU was holding out to those that it dealt with the prospect that they would try and emulate, or achieve similar results in the State jurisdiction. The PMU did not operate at Robe River Iron Associates. It describes itself as:
PN4494
A grassroots organisation of Hamersley Iron workers that want to have a voice in the way in which their workplace or their community operated.
PN4495
It is our submission that on the evidence it was held out to be an organisation which was to be registered separately from the other unions and without any regard to the eligibility, or traditional coverage of any of the other unions, either State or Federal. I may have misunderstood a remark your Honour made in respect of the AWAs, but may I just respond to the way we understood it? In about June or July when it became apparent that an agreement had been struck between the companies and the AWU, the State unions, after that filed a claim in the State Commission for the variation of the State award and thereafter for Robe River Iron Associates to be joined as a respondent to the Hamersley State award. But there was nothing, as far as we can recall, in the evidence which in any way linked that event to any signing up or position in relation to AWAs because AWAs had been offered at Hamersley Iron some considerable period before that date.
PN4496
I don't think there is any link, if we understood your Honour's inquiry about that correctly. May I then move onto RIO25, again, and I was about to draw attention to what we have set out in paragraph 66. I don't seek to read that but simply ask the Commission to correct an error that appears in paragraph 66.4, where, I think, it reads, in the third line, as, "a common cause approach" it should read "a common sense approach." That is apparent from the transcript. Paragraph 66.4, "...Commission on 10 June, as a common sense approach." We have set out in paragraph 69, various events which occurred on or about 8 August, or shortly thereafter, and that links into the submissions we made a moment ago in response to the queries in relation to the PMU.
PN4497
May we qualify the submission in paragraphs 71? There is evidence both ways as to why the unions at that point in time, the State unions, made the application to the State Commission. It appears that might have been in contemplation beforehand, but the evidence of Mr Wood, at the paragraph, suggests it certainly supports the proposition that the timing was strongly motivated by the fact that agreement had been reached at a Federal level. In our respectful submission, the inference is available that the opposing unions have approached this matter on the basis that there are, or may be, better prospects of achieving more favourable terms and conditions in any application which is ultimately made to the State Commission and determined by the Commission and the employees have been encouraged in that belief.
PN4498
It is our submission that approach should not be encouraged, with respect, and the objectives of the PMU and the State union should not be given priority over the Commission settling this dispute in furtherance of the objects of the Act. We have then summarised our position overall, in respect of - - -
PN4499
SENIOR DEPUTY PRESIDENT HARRISON: In paragraph 73, I see that we should settle it in a manner open or otherwise. Does that answer - - -
PN4500
MR DIXON: No, I understand what your Honour - - -
PN4501
SENIOR DEPUTY PRESIDENT HARRISON: No, it is - - -
PN4502
MR DIXON: It is a wider exercise of jurisdiction that has been referred to and obviously, it is in concentration of the fact that the application here is that the Commission cease dealing with the dispute, your Honour, but there is nothing sinister meant by that, if I may qualify it, in that way? We have summarised, in paragraph 74, and following some our submissions as to the desirability of making a contented world in settling the industrial dispute, may I simply add to paragraph 76.3, the submission that we have submitted, that the arrangements to provide parity are also consistent with the objects of the Act, which in subsection 3(c), use the terminology that we have used encouraging forms of agreement between an employer and employee, tailored to the particular circumstances, whether or not that is provided for by the Act. We now come to deal with section 111AAA itself. As the Commission knows, we submit that in the circumstances of this case, there are sound bases for the satisfaction by the Commission that ceasing to deal with the industrial dispute in relation to the 145-odd employees would not be in the public interests. We respectfully submit that balancing the considerations of fact and degree to inform the public interest, involves a consideration of a wide range of interests.
PN4503
Although the Commission is obliged to give primacy or primary consideration to the views of the employees and the views of the employer, it must also give consideration to other relevant matters, including the principle objects of the Act. In that regard, may we also refer to our submissions in reply, in RIO26, at paragraphs 27 to 29? In those submissions we deal with the suggestion put against us that the public interest test, under section 111AAA, is fettered by the requirement to give primary consideration to views as set out in section 111AAA, subsection (2). In our respectful submission, that is not a reading that is open and it would be a wrong conclusion.
PN4504
The very wording of the section itself, obviously speaks to particular matters which must be given primacy in determining the public interests. So it is a broad approach but particular views have to be given a degree of weight. But the public interest, in its fullest operation, needs to be considered. Now, we have in this case, as the Commission is aware, views apparently expressed by employees in the survey that has been carried out and against that, we have got the views of the employer, that it desires to have the dispute dealt with by the Commission and that it not be dealt with at a State level. We have a Federal union, which is the party to that dispute, supporting that position.
PN4505
In paragraph 82, we have summarised a range of matters which, in our respectful submission, overwhelmingly support the conclusion that ceasing to deal with the industrial dispute in relation to the relevant employees, would not be in the public interest. I don't seek to elaborate on them. May I, again, just ask the Commission to correct an error which escaped our attention in paragraph 82.3, where we have said in the second line, "for a consideration period" it should read "a considerable period of time." We apologise for the error. The submissions that we have put in paragraph 82, in our respectful submission, very strongly point to the Commission not ceasing to deal with the industrial dispute.
PN4506
In paragraph 82.12, there are some matters, however, which we wish to highlight and which we have submitted in that paragraph. An important factor, in our respectful submission, is that the Commission, by making the consent award, will be able to put in place a safety net award which can take effect immediately and which has a number of other benefits which are expressly identified in that paragraph; the significant increase in terms and conditions; the ability to give affect to the whole agreement between the parties; avoiding the undesirability of what is described in the cases that we have referred to in subparagraph (d) as the unseemly contest for the determination of a matter by one industrial Commission ahead of another; the need, avoiding the need for arbitration by this Commission, and/or the State Commission, a lengthy and expensive arbitration exercise on the evidence is inevitable. That must, in our respectful submission, be an important factor, and it avoids the undesirability of potential or actual conflicting outcomes between regulation determined by this Commission and by the WA Industrial Relations Commission in respect of a small minority of employees.
PN4507
The evidence is that those employees do work throughout the operations and across the sites. They are not a discrete operational unit. It avoids the significant practical issues which may arise in excluding from the operation of the proposed consent award the small minority of employees who do work across the sites, and it enables employees who did not wish to make AKA as to have the additional benefits available to employees who did. Then also submission in sub-paragraph (i). We also submit that:
PN4508
To refrain from dealing with industrial dispute in respect to the relevant employees would enable a strategy utilising the PMEU which conduct is incompatible with the objects of the act to persist.
PN4509
Now, may we then add some brief submissions in respect of the views of employees and the survey material which came back to the Commission following the letter sent by the Commission which was principally put forward with the agreement of the parties presently represented. I'm not sure whether that letter is formally in evidence, and it might be necessary to mark it is an exhibit. There are copies available.
PN4510
MUNRO J: Yes, it is desirable to make it as an exhibit. I think, it is not in evidence.
PN4511
MR DIXON: Yes, as the Commission pleases. We will mark it as a rare exhibit.
PN4512
MUNRO J: Yes, I think so.
PN4513
MR DIXON: I don't have a problem with that, your Honour.
PN4514
PN4515
MR DIXON: May I very briefly just draw the Commission's attention to certain aspects of that letter RIO28. In the third paragraph one will see that it was said that the CFMEU and other unions have opposed the application on the basis that the employees are already covered by a State Award, and the State Award is identified. Further down it is said:
PN4516
Under either the Federal Award or a State Award you will be free to enter into an agreement...
PN4517
Etcetera. Then in the next paragraph:
PN4518
Copies of each award are available.
PN4519
Further down there's reference to the State Award. It is clear, in our respectful submission, that the letter invited views about the matters raised in section 111AAA by reference to the existing State Award. Now, Mr Wood in his evidence in cross-examination was asked about materials which the unions might provide to employees separate of this, and at paragraph 2382 to 2401 he was asked certain questions. May I invite the Commission to have a brief look at those paragraphs. It was in the transcript of evidence, I think, of 4 March.
PN4520
Mr Wood was shown the document of 23 January 2004 at paragraph 2382. Mr Wood was shown a document dated 23 January 2004 that is now an attachment to the affidavit of Peter Michael Danks marked RIO24, to which I will return in a moment. It said that the unions would be providing materials to employees which will clarify the differences which may also be of assistance to employees. This was a letter written to tell employees that the Commission would be writing to them to ask them to express a view if they wished. He has asked whether that occurred, and he said: no.
PN4521
Then at 2386 and following he effectively describes that any the inquiries that were made of the unions thereafter were by way of discussion. The Commission granted leave to the companies to deal with any aspect of that material and in Mr Danks statement RIO24 he attaches a copy of the letter of 23 January 2004, to which reference was made as PMD2. Mr Danks then says in paragraph 10 that he has since been provided with a document produced on behalf of the CFMEU, AMWU, and the CEPU which he attaches as exhibit PMD3. May I ask the Commission to turn to that attachment.
PN4522
It was written some 5 days later, it seems, on 28 January 2004. It is under the letter, or emblem, of each of those three unions, the CFMEU, AMWU, and the CEPU, and it makes reference to the Commission proceedings the previous Friday, namely the 23rd to ask the 137 Hamersley workers who haven't signed an AKA what sort of award they want. Then there is said: basically, workers have two choices. There's reference to the letter, and then at about point 5 it said fairly simple and fairly straight forward:
PN4523
Our view is that you must answer both questions, and that is one, yes, tick the box, you do have a view: and ...(reads)... must answer.
PN4524
Now, this material is found across the site in at least two places, in a union locked noticeboard in one place, and separately on site where a number of employees who are likely to be within the group of 137 are to be found. In our respectful submission, the Commission is regrettably as a result in the position because there's no suggestion that this material was not utilised. The Commission is in the unfortunate position of viewing the answers to the surveys in the express light of a direction from the three unions as to the way in which responses should be made and as a result the Commission, together with the other factors that we submit, would treat that survey, or the results of the survey with significant caution.
PN4525
When one couples with it the fact that there is significant misunderstanding in the answers to the survey about the role of this Commission, the contents of the Federal Award, the fact that none of the employees relevantly addressed the existing State award, the Commission could not act in a way which - it touches particular weight and favours the views of employees against the views of the employer, or in such a way as to justify refraining from dealing with the matter.
PN4526
It is interesting that despite the fact that the Commission's letter, RIO28, drew attention to the existence of the State Award, the responses from the survey which the CFMEU has identified, or the opposing unions have identified in their submissions, primarily concentrate on the wish that the State system might produce something better at the end of the day, a wish which has been very much promoted by the PMU and the unions in the material that they have put forward and we deal with these issues in paragraphs 86 and 87 of the submissions. In paragraph 86.1 we do draw attention to a decision in the Commission in Australian Workers' Union and the State of Queensland, 75IR, report starts at 227 and a passage 236, 237, where the Full Bench on Appeal says that there may be circumstances where it is appropriate for the view to be about the existing State Award and the actual proposed award because it would be known what its contents might be.
PN4527
In paragraph 87, we summarise some of the difficulties one has in putting too much weight or credence on the views expressed in the survey and we do so, of course, with the express cautions that we respectfully earlier drew attention to given the conduct of the unions in circulating the material that we have identified. We conclude, respectfully submitting that whilst the views of the employees are to be given primary consideration, as are the views of the employers, the weight to be given to those views should be qualified in light of the submissions that we have made. They then form part of the general mix of public interest considerations most relevantly for that mix is that many of the views are not based on the existing State award which governs their employment but rather by views as to how that award might look in the future.
PN4528
Few, if any, want the existing State award to continue to govern their employment and, in our respectful submission, section 111AAA requires that there be a State award governing the employment. It is the views with regard to that employment that are of primary relevance. We add to those submissions, as appear in paragraph 89, in our submissions in reply, paragraphs which are RIO26, at paragraphs 10 and 12, and I don't need to take the Commission specifically to those provisions.
PN4529
May I then return to a few of the matters that arose this morning in respect of the powers of the Commission in respect of AWU industrial dispute and the CFMEU industrial dispute or any other dispute. Firstly, in respect of the AWU dispute, in our respectful submission, in respect of the proposed consent award, by making that consent award the Commission would be furthering the objects of the Act which we have identified in the introductory paragraphs of our submissions. In previous proceedings the parties have identified potential difficulties that might arise under section 89A of the Act and the position of the parties is, as we understand them, that if there were to be restrictions on the contents of the Award, by reason of section 89A, those matters if identified by the Commission would be considered but the parties would nonetheless wish the Commission to make the consent award.
PN4530
If the Commission concern in respect of the proposed consent award go beyond that, then in our submission as between the parties to the dispute if the Commission rejects the present application, then those concerns can be addressed with the parties as and when the Commission comes to exercise the powers available under the Act. May we then turn to deal with the position in respect of the CFMEU dispute or any other dispute concerning the other federal unions.
PN4531
SENIOR DEPUTY PRESIDENT HARRISON: Before you do, would you repeat that submission you made immediately before, Mr Dixon?
PN4532
MR DIXON: Your Honour, if the Commission's - - -
PN4533
SENIOR DEPUTY PRESIDENT HARRISON: "As between the parties to the dispute" - - -
PN4534
MR DIXON: - - - yes, if the Commission's concerns extend beyond matters such as section 89A, then the position as between the parties to the AWU dispute - the dispute that is presently before the Commission. Assuming the Commission rejects the intervening unions' applications and decides to exercise jurisdiction, it is our respectful submission that any matters identified beyond section 89A could be raised with the parties to the dispute and addressed by them at the stage the Commission comes to settle the dispute in the way that the parties ask of the Commission to do that.
PN4535
SENIOR DEPUTY PRESIDENT HARRISON: At a later stage than today?
PN4536
MR DIXON: Well, we are not aware of any concerns that the Commission might have so it would probably just involve the parties because the Commission would have rejected the intervening unions' section 111AAA point and 111(1)(g). In respect of the - - -
PN4537
SENIOR DEPUTY PRESIDENT HARRISON: This is my problem, Mr Dixon, and I haven't put it well so far and I hopefully will put it a little better now. This matter, I don't think is anyone is suggesting should be dealt with in two parts. One often does have an application under section 111(1)(g) and sometimes also 111 which is the subject of a ruling and thereafter the relief that is sought in any event - let us say the employer in AWU was successful. Thereafter the relief is then worked upon and granted in that form or another form. That is not at all an uncommon factual situation. Here though, much of your case that is put to persuade us to reject the 111AAA, and to not be persuaded by 111(1)(g), is the existence of a consent award in terms of RIO3.
PN4538
MR DIXON: Yes.
PN4539
SENIOR DEPUTY PRESIDENT HARRISON: In light of that I have difficulty with what you are saying.
PN4540
MR DIXON: I understand that, your Honour, and perhaps I can have a - I can try and elaborate on our submission. In the typical case, it is our respectful submission that it is most unusual for parties to the industrial dispute to be standing before the Commission and say: we have an agreed position, we are asking the Commission to actually settle part of the industrial dispute by making our agreed position a consent award and the Commission would therefore only deal with the award-making power, whatever it might be, at a later stage. We have, of course, concentrated on the fact that we have agreement before the Commission and that we say that that is a significant public interest factor in the Commission exercises its jurisdiction. But having said that the opposing and intervening unions are asking, at a late stage in the proceedings, for the Commission to refrain from exercising its jurisdiction.
PN4541
We are not aware of any concerns that the Commission might have in respect of giving effect to the parties position and although I am not encouraging a split hearing, given the position that the parties are at, we are effectively submitting to the Commission that if there are matters that pertain to the parties to the dispute that the Commission wishes to raise for their concern, that is not a matter that is the subject of the applications by the intervening unions. They are matters which the parties to the industrial dispute will, with respect, of course seek to deal with if and when raised by the Commission. They may be important matters, they may be matters that strike at the heart of what they have agreed, but those would be matters that would have to be addressed if and when the Commission were to raise with them what its concerns were.
PN4542
None of that in our respectful submission detracts from the strong consensual position that the parties are presenting to the Commission and asking the Commission to make a consent award. May I then turn to deal with the position in relation to the CFMEU dispute, and/or the position of any other of the other relevant Federal unions. In respect of all of those unions, assuming there is before the Commission a relevant industrial dispute the Commission will, in our respectful submission, be able to exercise its arbitral powers in proper settlement of that dispute and it could make those unions respondent to the consent award.
PN4543
It may be that that would have to be by way of a separate - or it is preferable to be by way of a separate instrument. There may be difficulties in respect of whether simply a demarcation dispute itself is wide enough to permit the making of such an award, but if there is a wider industrial dispute giving the Commission jurisdiction, there ought not to be any fundamental obstacles to the Commission taking such a course.
PN4544
The Commission would no doubt consider any demarcation issues which might arise which would have to be dealt with, depending on the claims that those unions are making in respect of the award provisions but, overall, the parties to the AWU dispute, nonetheless, still seek that the Commission make the consent award and deal with the other matters if and when they arise at a later stage. On the question of whether there is existing traditional union coverage as is described in the submissions by the other unions, we wish to highlight a few matters in respect of the existing dispute.
PN4545
In our respectful submission, the starting point in determining whether the Commission should exercise its powers from refraining to deal with the industrial dispute, is the dispute itself. There is no question that the AWU has eligibility and capacity to have the award made in respect of all the relevant employees. We submit that the next step is to consider the terms of the award. It provides new terms and conditions for all employees the subject of the dispute within the classifications name. May we briefly just touch on the options which seem to arise from the submissions put by the opposing unions?
PN4546
The position of course was that having invited the other Federal unions to be part of the process they rejected that option, that invitation extended over a period of time and one will see from the chronology in our submissions that it was right up until August that the ACTU had a role in that issue. If the award, in the light of that rejection, were then to be drafted in a way that applied only to a more restricted group of employees, the question would be: which employees? Given, (a), the broad skills of employees for which the AWU does have coverage and, secondly, the fact that the excluded employees - if there are some - would still not have the benefit of an award, or a modernised award, given the fact that the unions accept that the State award is out of date.
PN4547
If we then consider the situation where the award was so confined in some manner or other, bearing in mind that the employees eligible for membership are spread across the operations, it would leave a section of the workforce, either award-free in respect of Robe River for the moment at least, or subject to regulation by the Commission, so that we would then have a situation of a Federal award covering a large number of the relevant employees of both operations because the AWU, unquestionably, has a wide "traditional coverage" of the employees.
PN4548
The immediate problem of disharmony the Commission at a State level set in terms and conditions of people working side by side with those set by the Federal Commission. In our respectful submission the concerns raised by the intervening unions are not valid. We also submit that on the evidence it is clear that it is not the case that the AWU deliberately tried to alter its eligibility and we emphasise that the traditional areas of coverage, as the unions have sought to describe, are not in fact as they have said.
PN4549
Firstly, we say the CFMEU, for example, has demonstrated that it will in the iron ore industry, enrol persons outside of its eligibility rule if it suits it. There is reference to the section 72A case in the State Tribunal which found that the CFMEU was acting outside of its role and was not entitled to represent people that it had enrolled or purported to have enrolled as members. Secondly, we say the State - Mr Slevin has asked me to correct that - it was the State CFMEU, but that is a somewhat hollow description given the particular facts which Mr Herburt has addressed in his submissions. At that time the State CFMEU had no independent role, it was all happening through the Federal office.
PN4550
Secondly, we say the State award application proceeds with claims that employees can be represented by a union of his or her choice, not limited to eligibility, so that the State unions at least are proceeding on the basis that the so-called traditional lines do not exist. Thirdly, we say the so-called traditional areas are by no means clearly delineated. It is certainly not what Mr Wood says they are on the evidence as a whole. Fourthly, we say the CFMEU, Federal, in its log of claims which gave rise to the CFMEU dispute, ignore the traditional areas of coverage, they make demands that all work be covered by members of the CFMEU.
PN4551
May I then turn to answer one other aspect that arose prior to the luncheon adjournment and that is the potential role of the Commission under the dispute settlement clause as it appears in the proposed consent award. In our respectful submission, the scope of those provisions permit the Commission to exercise such powers as are available to it under the Workplace Relations Act. Those powers may either be conciliation, or arbitration, depending on whether the particular power is available. The agreed position between the parties, as I understand it and I'm instructed, is that it is not intended by that provision to either extend or limit the powers under the Act available to settle disputes of the kind referred to in that clause. May I then, lastly before turning to - - -
PN4552
MUNRO J: Does it follow from that, that you accept the powers available to the State Commission would be substantially wider in relation to arbitrating a local dispute about the normal range of industrial matters, than would be the case for the Federal body?
PN4553
MR DIXON: Not necessarily, your Honour.
PN4554
MUNRO J: If not, why not?
PN4555
MR DIXON: Partly, because - - -
PN4556
MUNRO J: Because you say you don't want to extend or limit, you therefore must accept the limitations. I think I put to you that the limitations are as per Cooperative Bulk Holdings v Hegarty.
PN4557
MR DIXON: Yes. For a strictly intra-state issue, that maybe the case depending on all the circumstances although the Commission has - as your Honour, no doubt, with respect, appreciates this Commission ahs on a number of occasions seen the potential for such a dispute to extend beyond the limits of any one State. One must also, in our respectful submission, judge that issue in the light of the full scope of the dispute before the Commission. In other words, the ambit of the Federal log gives this Commission, in our respectful submission, wide jurisdiction to deal with matters if they are within the ambit of that dispute.
PN4558
So the degree to which the State Commission's powers might be wider or not is somewhat hypothetical because it would very much depend on the particular issue. Just before coming to deal with the brief submissions we make at this point in relation to section 111(1)(g), might we draw the Commission's attention to what appears to be the relationship, or inter-relationship, now between section 111AAA and section 111(1)(g) particularly subsection (2).
PN4559
In our bundle of the cases we have referred this morning to the Attorney General for the State of Queensland v The Australian Industrial Relations Commission, the case at tab 4[2002] HCA 42; , 76 ALJR, 1502. The High Court did make some comment on this issue in the majority judgment to which we referred this morning. At paragraphs 37 and 38 their Honours indicated:
PN4560
Section 111AAA circumscribed the powers of the Commission as set out, at least, in cases where the dispute would otherwise proceed to arbitration, the effect of section 111AAA is to qualify the direction in section 104 of the 1988 Act.
PN4561
May I pause there? These remarks, of course, are being made in the context of the Court considering whether the amendments brought about through section 111AAA would attract the presumptions either at common law, or statutory presumptions against retrospectivity absent some expressed contrary intention. Their Honours continued:
PN4562
Section 111AAA narrows the circumstances in which the Commission must proceed to arbitration under section 104(1).
PN4563
There is reference to section 8A of the Interpretation Act. Then at paragraph 38 their Honours said:
PN4564
Further, section 111AAA cuts across the operation of 111(1)(g)(2) of the 1998 Act. ...(reads)... with a dispute that it is satisfied that the State award or employment agreement governs, etcetera.
PN4565
Then their Honours said:
PN4566
This partially supplants the operation of subparagraph (g)(2) which confers a power.
PN4567
I don't read it all, but the Commission will see that in the balance of that paragraph going up to the top - the next side of the page, their Honours said that: if section 111 operates in circumstances that otherwise would have enlivened the exercise of the power under subsection (g)(2) that assumes, in our respectful submission, that the section is operating to, in fact, cause the Commission to cease dealing with the industrial dispute and this might, of course, require the Commission to cease to make a determination under 111AAA first. Their Honours went on to say:
PN4568
In some cases, at least, the former provision will require an outcome that would differ from that supported by subparagraph (g)(2) operating alone.
PN4569
I thought we should draw those provisions to the Commission's attention. May I then come to deal, very briefly, with the section 111(1)(g) case put against us? In our submissions in reply, RIO26, we set out in paragraph 13 through to 17, our submissions about the appropriate tests. We have made reference to what has become described as the New South Wales Elcom case in section 61 - I beg your pardon, in volume 61 of the Industrial Reports.
PN4570
The Commission is, I know, familiar with these provisions. In paragraph 15, we make the submission that the priority reflected in the Act's requirement for parties at an enterprise level to take responsibility for their own industrial affairs has a significant bearing on the exercise of the discretion. In that regard, may I just draw your Honours and Commissioner - your attention to the relevant passages at page 333 of volume 61 of the Industrial Reports which appear at tab 9 of our bundle?
PN4571
This passage by the Full Bench, of course, was dealing with the fact that the legislation had by 1995, at least, already contained certain changes to the objects of the Act and the like. We draw attention to the paragraph starting: we accept that the changed priority - through to the end of the next paragraph, at about point five, the Full Bench said:
PN4572
It remains a function of the Federal jurisdiction to arbitrate, or conciliate underpinning award of safety net for enterprise level negotiations, etcetera.
PN4573
Those passages, in our respectful submission, support a rejection in overall terms of the claims by the unions in respect of a section 111(1)(g). Now, we submit that in respect of section 111(1)(g)(2) there are no valid grounds for the Commission refraining from proceeding to deal with the dispute. In summary, our position is as follows. The State Tribunal has had minimal involvement in setting wages and conditions for a considerable period of time. Robe River Iron and Associates is award-free. The circumstances which now prevail are fundamentally different from those which existed in 1987 when the decision of Alley J was considered on the employer logs that had some inherent restrictions in them back in that case.
PN4574
We also respectfully submit that the issues that the State Commission would have to arbitrate on would be matters that are, in fact, the subject of the parties consent in these proceedings if the Commission is prepared to make the consent award and, in a sense, that means that the State unions will be pursuing the creation of a dispute about matters which are capable of settlement by the exercise of the Commission's powers in these proceedings.
PN4575
Having made some submissions in that regard in our reply of submissions, in respect of the matters that are dealt with, the balance of the matters dealt with and the public interest considerations under section 111(1)(g)(3) we have dealt with respect with a number of those matters in our primary submissions to the extent that the union suggests that there is conduct on the part of the parties which precludes the Commission from exercising its jurisdiction. It would be seen from our submissions in reply that we reject that allegation but we may need to deal with that further in reply when we have heard from Mr Slevin. Commission just bear with me for a moment? It may please the Commission those are our submissions.
PN4576
SENIOR DEPUTY PRESIDENT HARRISON: Mr Dixon, why it is that the proposed consent award is to remain in force for a period of 3 years, it seems a long time for a first award?
PN4577
MR DIXON: Well, your Honour, I have not been a party to the negotiations but if one, I will get some additional instructions on that, responds from the context of a negotiated position where there have been substantial increases over an above the existing award conditions that are granted and the parties are wanting some level of security and settled industrial regulation going forward, in my respectful submission, that could not be an unusual outcome given the substantial compromise on both sides in reaching their position. Whether I'm at this point able to go beyond that I probably should check.
PN4578
SENIOR DEPUTY PRESIDENT HARRISON: Yes, I don't expect you to but you might want to come back - - -
PN4579
MR DIXON: Yes.
PN4580
SENIOR DEPUTY PRESIDENT HARRISON: It just does seem like a long time and there would of course always be a concern that there might be therein erected the beginnings of an argument the award can't be varied as an outcome, for example, of a dispute properly before the Commission that proceeded to arbitration under the dispute settlement procedure or indeed a variation that the AWU may wish to see during its life.
PN4581
MR DIXON: I understand your mis-observation.
PN4582
SENIOR DEPUTY PRESIDENT HARRISON: They are one of the concerns about 3 years. I have a concern about 3 years regardless of that, it just seems a long time and I understand the question is one not necessarily the answer when used in - - -
PN4583
MR DIXON: I will take your Honour's observations I think on notice and seek to respond. May I just ask of your Honour one other matter which I omitted? Would your Honour be assisted by us giving all the references to the concerns about the arbitration powers issue concerning allowable matters, the evidence of Mr Wood and others?
PN4584
SENIOR DEPUTY PRESIDENT HARRISON: Yes, I would. Wherever that was.
PN4585
MR DIXON: Where they are - - -
PN4586
SENIOR DEPUTY PRESIDENT HARRISON: When there was the subject of - - -
PN4587
MR DIXON: Cross-examination, yes.
PN4588
SENIOR DEPUTY PRESIDENT HARRISON: - - - cross-examination I would be assisted by reference to wherever it is volunteered what the problems were under 89A, what we couldn't do, and what were the real live issues that had not been addressed in this document, or it was said we would not be able to address.
PN4589
MR DIXON: We will seek to address that issue.
PN4590
SENIOR DEPUTY PRESIDENT HARRISON: And I continued to have not a concern but I would like to know if you say there is any restriction on the power of the Commission in resolution of this matter, namely in the event the section 111AAA application was not successful, when we declined to refrain under 111(1)(g) and we were persuaded to grant relief but it was not the relief that is in REO3 whether that could be granted as an arbitrated outcome.
PN4591
MR DIXON: I'm sorry, your Honour, would your Honour just mind repeating the very last part, as an arbitrated - - -
PN4592
SENIOR DEPUTY PRESIDENT HARRISON: Yes, in the exercise of our arbitral powers, it really goes back to the matter I raised this morning.
PN4593
MR DIXON: Yes, as to whether - - -
PN4594
SENIOR DEPUTY PRESIDENT HARRISON: Are we confined to this in the exercise of our conciliation powers and I know what you say, you would rather like to know what is behind my question, what is it in here that I don't like. Yes.
PN4595
MR DIXON: And the question is whether we would submit that there are restrictions on the Commission imposing on the parties by way of arbitral power a different award in the face of their consent position.
PN4596
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN4597
MR DIXON: Now, if I have your Honour's leave to come back to that I shall do so.
PN4598
MUNRO J: Yes, thank you, Mr Dixon. Mr Herburt?
PN4599
MR HERBURT: If it pleases the Commission, if I may leap into the deep end in relation to the last matter the Commission has just raised with my learned friend, Mr Dixon, because it goes to very much of the heart of what is being now proposed in these proceedings. The submission of the AWU is simply this, that the instrument which is sought to be made as an ultimate consequence of the notification of dispute is and remains an award of the Commission and the Commission in that sense. Whether the Commission is persuaded to made that award as a result of its own arbitral determinations as to what is fair and just between the parties, where there's controversy about that or whether the Commission is persuaded to make an award in those terms because the parties are in agreement or the Commission forms a view that it ought to facilitate an award which gives effect to the agreement of the parties and the exercise of its conciliation powers, the end result is the same.
PN4600
There may well be in the fullness of these proceedings that there is - the Commission may act in combination of those considerations. The Commission may be moved to accept almost all of what the parties have agreed and subject to 89A constraints and other similar legal constraints the Commission may be moved to make the award based largely upon the consent of the parties but may at the same time, because the Commission at the end of the day retains the residual power to decide the question whether it will make an award or it will not, the Commission may decline to make an award in the terms to which parties have consented and the consent of the parties does not take away or better it in any way in the legal sense.
PN4601
The power of the Commission to decide whether or not to make the thing, and as your Honour, Munro J, indicated before in an earlier era, parties were directed to simply take their consent awards. Whilst that happens less often these days because of the emphasis on conciliation and parties perhaps might be a little more educated about putting content into awards, by the same token the Act does not detract at all from the ability of the Commission to refuse to make an award through which the parties have consented. The Commission is not given a jurisdiction it would not otherwise have to make an award and its discretion is not taken away in relation to the making of an award merely by virtue of the fact the parties have consented.
PN4602
Having said that, the fact that the parties have consented to an award in a particular form ought to be a powerful consideration having regard to the current emphasis in the Act on conciliation and the facilitation of conciliation or the facilitation of the results of any conciliation and the bringing into effect as far as possible arrangements which have been agreed between the parties and arbitration being of itself an end resort. Having regard to those features of the legislation in 2004 the Commission ought to be even more persuaded to give effect to agreement of the parties but this is not, if I can emphasise from the position, and the submission has been put by the AWU in relation to the submissions that were put in reply in respect of the representation issues, this is not a winner-takes-all exercise from the AWUs point of view, but it is either REO3 or nothing.
PN4603
That is certainly the position the AWU puts that REO3 is what the AWU perceived in the exercise of its negotiations, the best that could be achieved in the environment in which the union are required to operate in that part of the world and is certainly a very desirable result and a result which the Commission would accept as being a proper result for the making of an award now. But if the Commission has reservations, and again we are at the bar table fishing to find out what they may be, if the Commission has some reservations about any aspects of REO3, if the Commission is nonetheless moved to accept the general principle that it is an appropriate moment for the making of a federal award either in the terms of REO3 or something very close to it, and on that basis dismisses the 111(1)(g) application and does not accede to the requests under 111AAA on behalf of and including unions.
PN4604
Then in those circumstances, the Commission retains the power to say: nonetheless, despite our conclusions that a Federal award is appropriate, we don't happen to like certain aspects of that award, and in my submission the appropriate course in such a matter would be for the Commission to say: in principle, we accept that this is an appropriate case and an appropriate vehicle for Federal award coverage, however, we have the following reservations and we make the following proposals and invite the parties to the dispute to consider those and invite the intervening Federal unions, if they so desire, to maintain intervention in relation to that process, with a purpose, perhaps - and the concession was made in the submissions, to revisit the question of the respondency to any proposed award that may be made.
PN4605
Now, the mechanism by which that could be done by hearing different disputes together and making a single award and resolution of a number of disputes or by the determination of the Commission's own motion that there is at least the bones of a demarcation dispute in existence that may found the justification or jurisdiction for the Commission to step in that way. The mechanism of that can be looked at at a subsequent stage but it is, of course, I don't resile at all from the contention of the union that AWU3 is an appropriate vehicle to go forward, having regard to the fact that the AWU is the only union that has concluded negotiations for an award with the employer.
PN4606
It is the only union that has put together a draft Federal award and it is the only union that has proposed an award before this Commission and it is the only award before the Commission. Therefore it is, until the contrary is demonstrated by some other party, an appropriate vehicle to go forward. But, as I say, having said all of that, it is not the submission of the AWU that the Commission couldn't, if it saw fit, of its own motion or otherwise, indicates that the Commission is not prepared to make the award in precisely the terms proposed and commence to exercise the powers of the Commission in relation to further conciliation of the issue, under the auspice of the Commission, if necessary, to see if there is a resolution to that aspect of the matter.
PN4607
If, as it transpires, other unions maintain their existing stance of a refusal to become a party to a Federal award in relation to Hamersley and Robe River, it may well be that RIO3, in its current form, or something very much like it, turns out to be an award that the Commission would be prepared to make with the AWU as the sole union respondent. If, on the other hand, other unions, having heard the Commission's determination as to the 111(1)(g) matter, on the assumption that such a determination was adverse to those organisations, and they change their view in relation to the matter, that presents a slightly different complexion as to what the Commission may or may not be prepared to do by way of an award.
PN4608
Now, that is a matter that can be addressed by way of conciliation and, in my respectful submission, not beyond the wisdom of those at the bar table or gathered in this room to formulate a means by which the jurisdiction of the Commission could be invoked to do something in relation to the question of respondency, if that be an issue that troubles the Commission in relation to this matter. So it is not simply a matter, as I say, of winner takes all. That if the 111(1)(g) application is dismissed, then the obverse of the same coin is that RIO3 must be made. The Commission retains, as it were, the current jargon: ownership of the award, because the award, at the end of the day, is an award of the Commission and not the agreement of the parties.
PN4609
If it were the agreement of the parties and the matter was being put forward for certification, of course, then the considerations would be different and the Commission would not be entitled to interfere or to modify or seek to modify or refuse to make or give its imprimatur to the agreement for the parties to place before the Commission. But, of course, we are not in that position. This is really a matter of the making of a Federal award. Further to that, in my submission, the case which has been put by the unions in relation to the matter is simply one of raising the public interest aspects described under 111AAA and 111(1)(g) as being a blanket prohibition from the matter progressing at all or the dispute being further progressed at all.
PN4610
Not: don't make an award with respondency of that kind because it may raise some representation issues, but rather: don't make an award. This Commission should not exercise its jurisdiction at all. It should not take advantage of what the AWU submits is a golden opportunity to regularise and homogenise industrial arrangements for Hamersley and Robe River for the first time in decades. The case that is put is that that opportunity should be allowed to pass and that the parties should go back to a State bargaining table and more likely, a State bar table, in order to see what might emerge out of a process in another jurisdiction.
PN4611
That, at the end of the day, is the issue. As to whether the opportunity that has been created by the outcome that has been achieved by the AWU and the employer, whether it be the final award that is made or not, but the opportunity to have a Federal award which provides some uniformity and a large degree of certainty and a reliable safety net in relation to these workers, and as I say, for the first time in decades, whether that opportunity should be allowed to slip. That is fundamentally, in a nutshell, the case that is to be put. In relation to the matter of the 3 years, your Honour, I don't have any specific instructions as to the 3 year issue. However, I don't apprehend that even were the Commission to make an award which had the term of 3 years, once the award is made, even if, as I say, it were made as a consent award, that the Commission would thereby be deprived of any capacity to change any term of that award, including the term relating to 3 years, if that be perceived to be an appropriate change on application properly made, under section - - -
PN4612
MUNRO J: Coldham J used to be very fond of citing very resolute authority to the effect that an award could not be re-opened within its term, least of all a consent award. My impression was that underlying that precept, which was almost never honoured in the breach, was some understanding as to the character of an award, that it speaks as to the settlement between the parties or part settlement for the term that is dictated. At least, it is not open to the parties other than to the Commission on a motion or to correct or remedy a defect to open it in its life.
PN4613
I would have to concede to Mr Herburt that it is probably a rule that is never much honoured in the breach because there aren't too many people who remember what the purpose of the term of an award is, but nonetheless, the rule is there, if you have got a consent award, and with a precise and rather long term, I would have expected that those with the ingenuity at certainly from the middle to the end of the bar table would be fairly quick to come up and say: you can't open this at all.
PN4614
MR HERBURT: Well, your Honour, could I - - -
PN4615
MUNRO J: But I would certainly have a very honourable and long body of precedent to support the proposition.
PN4616
MR HERBURT: Yes. All of which probably pre-dated the era of certified agreements, where that notion was enshrined, if parties wanted to, as it were, set their agreement in concrete in the era of Coldham J, a consent award would have been the vehicle by which they would have done it and I am old enough to remember Coldham J - - -
PN4617
MUNRO J: Well, Mr Dixon, certainly is.
PN4618
MR HERBURT: Yes, and he is a lot older than me.
PN4619
MUNRO J: He was at King Island - nearly as old as Mr McIntyre, he was.
PN4620
MR HERBURT: Coldham J was Mr Dixon's junior in a case, I think. But, your Honour, the other answer to that may well be that the current legislation certainly does not admit the possibility that an application to vary an award under section 111 or section 113 could or should be refused merely on the basis the award had originally been made on the consent of the parties. That would be no more, in my submission, now, than a discretionary factor that the Commission may take into account if a party who freely consented to a set of conditions being put in place in an award, then subsequently sought to recant from that consent in a very short period of time and to change something.
PN4621
If an employer, for example, who was seeking to do that thing, if the union could demonstrate that they had been adduced to agree to some other provision on the basis that there was consent given to an earlier provision, then it may well be a discretionary factor that the Commission may simply refuse to alter it. But a rule to that effect, in my submission, would be very difficult to carry through today. My submission is that in the circumstances, the consent and the current circumstances of the Act and the scheme of the Act now, that if the Commission is, as I submitted earlier, moved to make the award primarily and fundamentally by virtue of the fact that the parties are consenting, and the Commission has a duty under the Act to do what it can to give effect to agreed industrial arrangements by parties.
PN4622
If they consent in the context or if they utilise the vehicle of an award to enshrine their consent, then the vehicle they use remains a vehicle which is open to amendment by the Commission of its own motion or by the Commission on the application of one or more of the parties to the award and wish to encapsulate their agreement in a more secure form, then the current scheme of the Act requires, in effect, that they must do that by certified agreement if they want to make that, as it were, immune from subsequent amendment or subsequent attack for its term. In that sense then the notion of a term of an award - an award is required to have a term under the Act - but the term having passed then be - under section 148 it continues in operation until supplanted by another award.
PN4623
It may well be were a rule of that kind to still have any currency that nobody would ever consent to an award or, if they did, they would consent to the award being made for a period of 7 days, after which its term expired and it is amenable to variation. In my submission, however, there is no difficulty with parties having agreed to a provision that the award have a nominal life, as it were, of 3 years, which is a nominal life under the Act. If for any reason that turned out not to be appropriate, the Commission could vary that clause, notwithstanding the consent that initially generated that position.
PN4624
In my submission, if those submissions are correct, that is that the Commission retains the ability to vary the award - I'm sorry, to decline to make an award in precise terms to which the parties have consented - if the Commission were minded to do that, that does not in any sense vitiate or vacate the strength of the case that has been put by the employers and by the AWU. There still remains an award which, so far as we have been informed in these proceedings, is an award which in its entirety is an award which is capable of being made by this Commission and is supported by the union which has by far the largest constitution eligibility to represent the relevant employees and each of the employers involved. Those are powerful considerations.
PN4625
MUNRO J: Are we correct in assuming, Mr Herburt, that the membership of any of the competing unions at Federal or State level was the subject from which I was so discretely alerted? Was there any debate at all or material put?
PN4626
MR HERBURT: No. There was - - -
PN4627
MUNRO J: Actual membership I mean, as distinct from coverage?
PN4628
MR HERBURT: Numbers of members, I think your Honour, was a matter that wasn't the subject of evidence.
PN4629
MUNRO J: Yes. I perhaps put it too facetiously.
PN4630
MR HERBURT: I am reminded, Mr Daly did say that the AWU had between 10 and 12 members, but other than that there was no issue. The subject of membership did come up in the evidence of Mr Edward in cross-examination at some length and the reference to that, your Honour, is at those relevant parts. It commences at paragraph number 3207 and following, and the essence of it all is that in cross-examination he was asked, as his brief was to look after the organising of Hamersley on behalf of four unions, and he agreed with that. And they were, as my learned friend Mr Dixon said, I think named elsewhere in the evidence as being four Federal unions through the auspices of the ACTU, so Mr Edward was there on behalf of those four Federal unions. Now, he was then asked in relation to the AWU:
PN4631
Did you during your time there sign up any members into the AWU?
PN4632
And his answer was:
PN4633
I signed no members into either of the unions.
PN4634
He was asked:
PN4635
When you say "either" you mean any four of the unions?---Any four of the unions.
PN4636
Question:
PN4637
You didn't sign one single member into any registered union?---I didn't actively sign any members into any union.
PN4638
Now, this was the four-union organiser who was sent to the Pilbara. He actually, as he says, didn't sign any members. The answer he gave at question 3214:
PN4639
I didn't actively join people into one union or another union, or any of the four existing unions and the reason I didn't do that, I didn't ask them to join a particular union, was I guess first and foremost people said they wanted one union ...reads... that would have created problems.
PN4640
He went on to say - - -
PN4641
MUNRO J: Does that mean over the period he got no one at all to join the PMU?
PN4642
MR HERBURT: No.
PN4643
MUNRO J: Or no one to join any of the unions?
PN4644
MR HERBURT: In fact, then in cross-examination he was asked:
PN4645
So you didn't ask anyone to join any union, even if it was clear that person was for example ...reads... join the ETU?---Again, I didn't - I didn't canvass that people joined it, even though I was supposed to clear -
PN4646
I think that may be wrong -
PN4647
but again as I said, in the Pilbara it wasn't clear because in certain areas where people should have been covered by one union they were covered by another union.
PN4648
Question:
PN4649
So to avoid that confusion you suggested they join no union?---I suggested that if people didn't want to belong to a union -
PN4650
I think that should be "did" -
PN4651
if people did want to belong to a union or one of the existing four unions and they wanted ...(reads)... everybody in those unions.
PN4652
He went on to say in his subsequent evidence over to the following page of the transcript that, in fact, when people asked him to join - whether he could join one union or another union, he talked them out of joining any union and, in fact, he actively dissuaded people from joining any one of the four unions who were paying his wages, was his own evidence, and I invite the Commission to read those passages.
PN4653
Other than Mr Daly saying: there are 10 or 12 members of the AWU on the site, and Mr Phillips indicated that he had some consultation with the members that the AWU did have on the site in the course of the latter stages of these proceedings - of talking with negotiations towards an award - there was that evidence of Mr Edward was the only evidence as to questions of union membership or recruitment on the site.
PN4654
It appears that that evidence only suggested that there was effectively a union organiser put on site, financed by four Federal unions. As was indicated by my learned friend Mr Dixon, Mr Daly's evidence was that when the PMU came on the horizon the notion, as Mr Daly understood it, from the perspective of the AWU was that the PMU was intended to enrol persons and that the membership was to be distributed between the four unions, was the general theory.
PN4655
In fact, none of that happened. It appears nobody was enrolled in the PMU, nobody was enrolled in any of the other unions. I say nobody was enrolled in the PMU because the PMU on the evidence never obtained anything in the nature of an existence that one might describe it as being an industrial organisation. The PMU on the evidence had an initial committee - and again the evidence is from Mr Edward and from Mr Quill. Mr Edward's evidence can be found at paragraphs 3227 and following and Mr Quill's evidence can be found at paragraph 4059 and following.
PN4656
I can summarise it in this way. The evidence on both of them is this, that the PMU committee, if one could call it that, was set up by Mr Edward. Mr Edward approached persons whom he considered might be suitable to perform an activist role, as he described it. There were approximately 12 of them, he thought. Each of the persons he approached to perform that role agreed to do so, or at least 12 of them did. They then became, as it were, the original organiser, or the original committee of that organisation which was intended to be a transitional committee pending an annual general meeting of the organisation at which point a ballot would be held, and there would be voting to fill various positions in that organisation.
PN4657
As at the date of giving evidence there had been no annual general meeting. Mr Quill's evidence was there was no plan to have one, and that there had been no ballot, and that nobody who still purported to be a member of the original transitional committee of the PMU had ever been elected by anybody to any position, had any mandate from anybody to do anything by reason of any form of a ballot, and that the so called committee of the PMU was an unelected and apparently unrepresented group of self-appointed activists, as they called themselves, who were selected by Mr Edward, sponsored by the four unions.
PN4658
Mr Edward's wages were paid by the four unions through the ACTU processes, on the evidence, and the net result of all of that was that the PMU never attained anything in the nature of a representative status, and that Mr Edward, who was apparently the sustaining force of that organisation, has since left the Pilbara and returned to Sydney, and his evidence was that at the time he left he thought the committee was still in place, but it still had not had any elections and that there were no plans to have any. So the PMU - - -
PN4659
MUNRO J: There's been no replacement of Mr Edward by the same source of funding, at least?
PN4660
MR HERBURT: Not from the same source.
PN4661
MUNRO J: Yes.
PN4662
MR HERBURT: I think when the count of membership collections was done it was thought that perhaps, Mr Edward was, of course, sustaining in relation to that activity, so that there has been no replacement of Mr Edward, or likely to be. The net result of that, regrettably, from the perspective of the union, your Honours and Commissioner, is that there has effectively been for a very long time no formal union activity on the site, which on either of the sites, on Robe or Hamersley, other than the ACTU sponsored efforts of Mr Edward and those persons who came forward to assist him in relation to the creation of an organisation, which as has been put in the submissions, ultimately appeared to be acting as a competitor to the four unions, as opposed to a vehicle of, or a consolidation of, or an amalgam of.
PN4663
On the evidence it appeared that Mr Edward harboured aspirations to have that organisation registered as a State union ultimately and certainly that the union, that that organisation, assuming it subsequently acquired some democratic structures, would ultimately become, as it were, an organisation in its own right, which would then be competing with the four unions for membership, rather than facilitating persons joining those four unions.
PN4664
MR DIXON: What evidence shows that?
PN4665
MR HERBURT: Certainly if the organisation itself became registered, as Mr Edward said, it would of necessity be a competitor for the other unions for membership, rather than a conduit to those organisations. In any event, Mr Edward certainly had done nothing on his own evidence to contribute to the fortunes of those other four unions in terms of membership or anything else on that site. I wouldn't say anything else in terms of membership or the acquisition of membership moneys to those four unions. He did, on the evidence, appear to have collected some funds, but those funds were held under the signature of Mr Quill in a bank account in the Pilbara in order to pay the expenses of PMU.
PN4666
There's no evidence that any of that money went to any of the unions who were sponsoring Mr Edward and by that mechanism supporting the existence of the PMU. So that the attempt at establishing a union presence on that site through that vehicle, a union presence of any kind, appears to have failed and in a reasonably short period of time, and now one would have to say that in terms of organisational presence, the unions are largely back where they started from some years before because of the failure of that effort.
PN4667
Again, that is a regrettable occurrence, but that is simply one further factor to be taken into account by the Commission in considering where to from here in relation to the Hamersley and Robe enterprises in relation to industrial regulation. The Commission can be very comfortably satisfied that whatever is done in relation to this matter, the Commission will not be interfering with established patterns of union representation and regulation on the site, because again, regrettably from a union point of view, there are none. The Hamersley and Robe employment has become largely a black hole of union organisation over the years.
PN4668
There are historical reasons for much of that. Some of it linked to the litigation about which evidence was given in relation to the Hamersley workforce in particular, there are a range of historical reasons which the causes aren't as important as the fact that it is the case that for about a decade now there has been very little by way of formal union structures in either of the workplaces. There is essentially nothing by way of a formal set of representation structures. One can comfortably say that there is no State union presence on any of the sites, and there has not been for decades.
PN4669
The only presence that has been on the site, and this submission is put in the written submissions in reply, that the Commission has by the AWU, that the only presence on the site effectively over the last decade has been the presence of the four Federal unions who have been sponsoring people such as Mr Edward, and in relation to BHP, Mr Tracey, who performed a similar function with some success. More success, certainly, than occurred at Hamersley and Robe River, and that the ACTU and those four Federal unions have been the only industrial organisations which have actively presented any form of formal union representation structures on either of the Hamersley or Robe, or within either of the Hamersley or Robe enterprises.
PN4670
So far from displacing existing State representational structures in relation to State unions, or from setting aside the activities of active State unions in this area, the Commission, if it acts as it is urged to do by the employers and by the AWU in these proceedings, will simply be giving effect to a continuation of the activities of the Federal unions which have for some years now been the only industrial organisations with any presence on these sites. Whether that be formal or informal, the simple fact of life is that they are. The submission is put again in the submissions in reply that there appears to be a deliberate ignoring of those fundamental facts in the submissions put on behalf of the opposing and intervening unions.
PN4671
There appears to be an attempt to paint a picture that there is a vigorous or successful, or even existing State union activity in association with these sites, an existing State industrial regulation which the AWU has come along with a view to disrupting and displacing, and that is simply not true. The only existing structures as I've indicated, that are of any magnitude on this site, so far as union structures are concerned, are being sponsored and arranged by the ACTU and the four Federal unions and the only industrial structures on this site that are in force that are State structures are expired statutory contracts in relation to which the State Commission effectively had no jurisdiction and the State unions had no role and seven employees who remain covered by an award which has been out of date for about a decade now and that is the only contact.
PN4672
Seven employees out of two thousand are currently working under systems that have been consciously put in place by orders of the State Commission. Otherwise the State Commission has had nothing to do with the site and effectively, neither had the State unions. Again regrettably, but that is the facts of life and the position of the AWU throughout this matter has been unlike those, in my submission, opposing the AWUs position. The position of the AWU has been to accept the realities of the position rather than to stand outside the fence and rail against those realities or to pretend the position is other than it really is. The other fact of life which the AWU has face fairly and squarely are that despite its long-standing traditional adherence to the State jurisdiction in the West, the only existing fact of life is that the entire work force of Robe River is covered by an instrument which is registered in this Commission.
PN4673
One hundred per cent of the employees are regulated in their employment by the Workplace Relations Act. Ninety per cent of the workforce of Hamersley are in a similar position. Their employment is regulated by the terms of the Federal Act. In my submission, it is an inescapable conclusion that to continue to adhere to the notion that this is a State regulated site and that there are good reasons why the State Commission should come back into the fray from which it has been absent for decades, in my submission, it is as plain as a pikestaff that those arguments must fail.
PN4674
It is employers in this industry have demonstrated, not only Robe and Hamersley, but BHP in recent years, have demonstrated a clear capacity to invoke the jurisdiction of this Commission by the mechanism of AWAs, despite the best intentions of a supervising State Commission on the evidence in these proceedings. BHP has only ever had State awards, yet 60 per cent - and has had an active State union presence and an active intervention by the State Commission over the entire life of the BHP operations in the West and yet, as we speak, 60 per cent of the work force have their appointment regulated by AWAs, and by the Work Place Relations Act.
PN4675
So the reality of life, whether the AWU or the other unions like it or not, is that there is a clear capacity under the Federal Act for employers to formulate offers by way of AWAs or section 170LK agreements which, as it were, gazump any State jurisdiction that might be carefully worked out by conscientious State Commission and place all of those employees, or the vast majority of them, under the regulation of the Workplace Relations Act. Now, it would be naive in the extreme for the AWU to say: we are going to ignore all that.
PN4676
We are going to go the Western Australian State Commission and ask them to make a conscientious award which is going to apply to practically nobody and if the employer raises the ante in relation to that carefully worked out award by not very much, all of those employees who might be regulated by that State award can easily be encouraged, successfully encouraged to enter into AWAs or certified agreements protected by the provisions of the Federal Act in relation to coercion or unfair conduct in relation to those instruments.
PN4677
But if they, of their free will, enter into instruments of that kind, then all of the best intentions of the State unions and the State Commission of Western Australia come to nought in relation to those employees. Against that, the AWU has accepted the reality of what is a - has looked at the industry and the evidence is that in addition to the fact that 60 per cent of BHP, which has always been a State covered entity, 100 per cent of Robe and 90 per cent of Hamersley, their employees are subject to the Workplace Relations Act. A substantial number of the large contractors in the industry are covered by a Federal award and Federal certified agreements.
PN4678
Lakens and Henry Walker Elton and the other contractors that are named in the material that you have seen, and has accepted the fact that the best means of ongoing support and protection for the employees whom the AWU has the legal and constitutional capacity to represent, requires that they have a substantial and reliable safety net award erected underpinning the negotiation of the next agreement, whether they be on AWAs or 170LK agreements, or whatever they happen to be on now. Those agreements will of course all expire in due course. When bargaining comes around again, they will have the support of a substantial safety net award, made by this Commission, on terms very close to the current AWU arrangements.
PN4679
As close as an award can be to those arrangements, so that we don't again have the spectacle of AWAs or certified agreements being negotiated on the base of a completely out of date, obsolete award or set of orders that have long since outlived their usefulness, so that in effect the employer is at liberty to offer conditions which may be less than are appropriate and that the safety net award which is proposed is intended to not only substantially improve the terms and conditions of those adherents to the existing State award, and there are very substantial improvements and conditions for those persons, but to ensure that the employees whose employment will not be immediately affected by the award because they are currently on certified agreements within term or are currently on AWAs in term, that those employees have the security and the safety of being able to negotiate from a fair base when those agreements expire and that that safety net award, in my submission, is the best, or the making of a safety net award of that kind, is the best arrangement that the AWU or any union could provide to those employees at the moment, having regard to where they are.
PN4680
The alternative seems to be proposed that instead of adopting the fruits of what the AWA may have been able to achieve for the first time in essentially more than a decade, with Robe River and Hamersley that is a modern, current up-to-date safety net award, instead of adopting that, that the results of all of those negotiations should be placed casually in the bin, that the State unions who have had effectively nothing to do with those sites for a very long time in any real or effective way should, as I submitted earlier, go back to the bargaining table or the bar table and start it all again and see what they can come up with next time. And in a year's time perhaps there may be a further result by which time one would imagine, again with the utmost respect to those to my left at the bar table, that another may be on the table which is made C - whatever it is - the State Commission may have determined by just enough to induce persons to enter into AWAs or certified agreements again, and the position goes on. That the Workplace Relations Act continues to regulate their employment.
PN4681
All of that effort in the State jurisdiction, to a large extent, will come to nought, those employees being subject to the Workplace Relations Act by reason of their industrial arrangements will be entitled to access this Commission for their own fair dismissal arrangements and other dispute resolution processes and one will find then that there will be the vast majority of the employees in all probability will still look to this Commission for their industrial jurisdiction and there will be a small number who may cling to the State jurisdiction, scattered throughout the operation without any particular logical or geographical basis for their difference in jurisdiction and creating a double effort for all of the unions concerned in the sense of having to split their resources as between the Federal jurisdiction and the Western Australia State jurisdiction to deal in both jurisdictions at the same time in relation to the same workforce.
PN4682
The somewhat straight and financial resources of unions in the modern era are such that it is simply not practical or sensible to cause unions to split their resources as between two different jurisdictions in relation to a similar workforce, particularly where most of the effort in the State jurisdiction in all reality will at the present time be to almost no effect and in the future will probably continue to be of no effect so long as employers have the capacity to make instruments in this Commission which have the effect of supplanting the operation of instruments made in the Western Australian State jurisdiction.
PN4683
So that is the reality check which the AWU took for itself. It, in my submission, in the course that it took, took the only course that was ostensibly available and any suggestion that it should not have done that in my submission is really effectively denying the AWU its legal entitlement to explore at its - in fact probably its constitutional obligation to explore and obtain the best possible result that could be obtained for the employees and can I say, in the course of these proceedings, that the attack that was mounted on the result was resounding in how small it was.
PN4684
There was almost nothing put as to why it was. Not even in an incidental throw-away way, there was nothing put as to why it was that the results that have been achieved by the AWU in their negotiations were so inadequate that they should not be countenanced by the Commission and that the Western Australian Commission was bound to do so much better that these results, the results of this negotiation should be ignored.
PN4685
I understand my friend Mr Dixon is to provide the Commission with some references to Mr Wood's cross-examination. There was some cross-examination of Mr Quill also on that same issue when Mr Quill was cross-examined at some length about the position as to what were his problems or what were the big ticket items. I think our friend Mr Parry may have cross-examined him and I also asked him some questions about what were big problems.
PN4686
The references to that cross-examination so far as my cross-examination is concerned is at paragraph 4086 and following and - or maybe the earlier paragraph 4085 as well. And he says at paragraph 4086 - and he was the only Hamersley worker who was called to the proceedings and I think he is the treasurer or, sorry, the person with the rights to sign on the funds of the PMU - - -
PN4687
MUNRO J: Is this Mr Quill?
PN4688
MR HERBURT: Mr Quill, yes. At 4086 he says:
PN4689
Basically our biggest problem is lack of rules. Lack of rules for - what is the word for it? We have got no set rules that say: well, this is what we will do, this is a rule for the next six year. All we have got is a set of policies and procedures that at the moment they can be changed from time to time by the company and they do and we just have to go along with it and that is more the big issue of the people up there, is to be able to get a set of rules in place that we can abide by rather than changing, chop and change, any time they feel like it.
PN4690
Well, with respect to Mr Quill, the answer to that problem seems to be an award that can't be chopped and changed without the ruling of the Commission but that was when pressed, and I pressed him as hard as I dared in relation to that issue, very little else came out by way of a criticism of the award. He did say he had read it but he didn't come to the Commission armed with a shopping list of things that were wrong with the award and he concluded on that subject in paragraph 4096. And when I asked Mr Quill:
PN4691
Did you sit down and thoroughly analyse the award and its impact on your employment in any detail at all?---I sat down and read it and I browsed through an old State award and I feel as though I could be better served under a State award if I got it updated.
PN4692
And he was asked:
PN4693
Do you feel you would be better served not by the existing State award but by a State award which is updated from the way it is now?---Yes.
PN4694
And he is asked:
PN4695
You would be better served by an award that presently doesn't exist?---The WA State award does exist to my knowledge.
PN4696
Question:
PN4697
No, not in the form you want it, does it?---Well, I think it is in a reasonable form. It just needs to be upgraded to the present situation.
PN4698
So in effect, Mr Quill who was the only worker who was likely to be - only witness who is likely to be covered by this award who was called in the proceedings, his evidence was that the State award in its present form wasn't something that would suit him, that in fact he thought he would be better served by a State award that had not yet been made and that effectively, as was apparently the common position throughout the proceedings, Mr Quill rejected the current State award as being an appropriate ongoing instrument for his employment and no other case was put.
PN4699
And the issue in my submission, and I am endeavouring not to repeat anything of any substance that are put in the written submissions if it please the Commission, I have taken that they have been or will be read and I am just simply endeavouring to deal with - - -
PN4700
MUNRO J: Those are, thank you, Mr Herburt.
PN4701
MR HERBURT: Again and again no doubt. But I am endeavouring to deal with some of the issues, some of the more significant issues and some matters that may have been raised in some of the earlier discussion when my learned friend, Mr Dixon, was making his submissions. But can I deal then against that, in that context, can I deal with the point that has been made in the submissions about the effect of section 111AAA and the operation of section 111AAA in relation to the circumstances such as the present? And this is a most unusual matter in my submission in relation to 111AAA. The clear legislative - or the terms of section 111AAA - - -
PN4702
MUNRO J: Perhaps can I just interrupt you, Mr Herburt, I think I should indicate we intend to sit through till quarter past 4. We are at your disposal in one sense but I assume we are going to finish comfortably tomorrow. We can sit a bit later or we can start a bit early if you want. But tomorrow is available so for indications if we say quarter past 4 with a bit of licence if you want it and start at 10.15 tomorrow. Is there any difficulty about that?
PN4703
MR HERBURT: Yes. We should comfortably finish in that time.
PN4704
MUNRO J: Yes.
PN4705
MR HERBURT: Commissioner, could I recap if I may or draw the Commission's attention to the submission that is made in relation to the appropriate considerations in relation to the operation of section 111AAA in the present circumstances. In the written submissions it has been put that section 111AAA is a statutory injunction which obviously requires the Commission to cease dealing with a dispute:
PN4706
...if it is satisfied that a State award or State employment agreement governs the wages and conditions of employment of any employees.
PN4707
Now, as has already been put and accepted by the Commission in an earlier part of these proceedings, that injunction only applies to those employees whose employment is so governed. Now, the question of governance of wages and conditions has been ruled upon by the Commission as having a reasonably wide scope and effect and I don't traverse that decision but what I do say about that is this, that the question of governance of wages and conditions of employment by State award or State employment agreement triggers the operation of section 111AAA.
PN4708
However, the clear intent of 111AAA in my submission is that it is intended to prevent the Commission from making an award, Federal award, which would supplant State award conditions or State employment agreements in circumstances where such conditions or agreement are operating in a manner to the satisfaction of the persons concerned. When one looks at the scheme of the set-up by the section, the Commission is to consult those persons who are affected. The ambit of the restraint only applies to affected persons and they are to be consulted about those things.
PN4709
And it deals with the question of the supplanting of State conditions and a State agreement and the Commission and it is not to do that unless it is satisfied that the public interest, in effect, warrants the making of a Federal award. While section 111AAA is triggered in the case of what are now 137 employees, where there were 145, having been triggered in my submission the public interest considerations are very much easier able to be demonstrated by those contending for the Commission that the Commission should make a Federal award in a case where the triggering State award and State agreement is of itself not wanted by the people who are covered by it or them.
PN4710
The evidence that you have in these proceedings - the only evidence you have from a worker is he thinks the State award is effectively not suited to his employment and needs some substantial work. The evidence you have in relation to the applications made to the State Commission is effectively: tear up the old award and make a new one, a new State award. You have no evidence from any employee covered by any award, by the State award or any of the expired State employment agreements, saying: I want to keep what I have. None.
PN4711
In the ordinary run of things in 111AAA situations, one would ordinarily expect at least one person whose agreement or award is intended to be supplanted, to come before the Commission, or somebody on their behalf and say: we are happy with what we got, we don't want your Federal award to come and take it away. Instead, everybody says: we want to take it away ourselves. We don't want you to take it away by supplanting with a Federal award. Nobody says: we want to keep it.
PN4712
If the notion of supplanting is one which is tied up with satisfaction with the existing State award or State employment agreement, in those circumstances then it is a notion, or it is a concept which is very much easier to establish that there is no particular public interest in the Commission maintaining the statutory injunction in circumstances where the supplanting is supplanting a State award or a State employment agreement by a Federal award, when the persons concerned are busily supplanting those instruments themselves. They are seeking to supplant them with another instrument from another jurisdiction.
PN4713
As I submitted on the evidence nobody wants to retain them and therefore the injunction against supplanting is something that ought not in these circumstances be treated as having much weight at all. The clear evidence in relation to the answers that were received to the surveys as simply taking the analysis of the surveys that was performed in a very summary way by my learned friend, Mr Slevin, in his submission - it is a quicker way than reading them all - but on my reading of that analysis and reading of each of the answers to the surveys there is one person, number 73, who indicated they were happy with the 1987 State award.
PN4714
One assumes, though one does not know, that they were actually working under that award, they may not even be working under it. They might be very happy with it because they have got a State employment agreement that does not apply to them, but that of all the responses received was the only person who indicated any form of satisfaction with the State award which is proposed to be supplanted by this Federal award. If there were any doubt about that, in my submission, that doubt is resolved by the terms in my submission of the supplementary explanatory memorandum. I handed a copy of that to your Honour's associate earlier. The Commission may have some past familiarity with this document.
PN4715
MR HERBURT: At page 12 of that document - this is the supplementary memorandum explaining the amendments which were made to the legislation with the concurrence of the Australian Democrats. On page 12 of that document in the middle of the page, the amendment number 22, there then follows three or four paragraphs. Those same passages are repeated in the decision which is in the decision of the Full Bench in the River Connections matter, which is Australian Workers' Union of Employees, Queensland v AMOU, which is under tab 8 of the authorities. That same passage was recited by Vice President Ross at first instance and again by the Full Bench at page 238 of that report but for another purpose. The relevant parts of that are the first large paragraph:
PN4716
The new section applies to industrial disputes in relation to employees whose wages and conditions are governed ...(reads)... required to cease dealing with such a dispute unless it considers -
PN4717
I think there should be a "with" in there -
PN4718
cease dealing with the dispute would not be in the public interest ...(reads)... by Federal award coverage.
PN4719
The emphasis there is on displacement and in my submission if the thing to be displaced is not desired by anybody, then the public interest test in my submission as I submitted earlier is much more easily - the test is much more easily passed because, in effect, the evidence in this case is that the State award and the State employment agreements are considered unsatisfactory by those who have them. They wish them to be displaced. It is only a question of whether they are to be displaced by an existing proposed Federal award, or they are to be displaced by a hypothetical future State instrument.
PN4720
There is one further matter of interest in relation to this issue and that is that there was formerly a subsection (2)(c), which specified one of the matters in which the Commission was to give primary consideration in determining a public interest was the history of the regulation of the employment relationship in question. That provision was rejected by the Senate and was removed from the Bill. So that the question of giving primary consideration to the history of the regulation of the employment relationship was taken out.
PN4721
Essentially, the whole of the case of the intervening unions in this matter goes to the history of regulation which, with respect, has been greatly exaggerated and mis-represented in the evidence but, in any event, the question of history having a determining matter was actually rejected by the Parliament and is not a matter, in my submission, which would carry significant weight.
PN4722
On that footing in my submission, this is a very unusual 111AAA case. It is not one such as the River Connections matter where there was in existence an active State award, active State agreements and active State union who had been for some years regulating the employees in question, who were the members of the crews of the catamaran ferries on the Brisbane River, and there was an attempt made to bring a Federal award in which would wipe out the whole regulation that was then in place and being actively serviced, in that case by the AWU.
PN4723
In those circumstances the question of displacement loomed as a large issue. In these circumstances the question of displacement does not loom at all. That submission is made of course in addition to the general submission that it would be illogical and inefficient and contrary to most modern nations of efficient regulation of enterprises to carve out of a very large workforce, a small number of employees and to leave them not only under a different form of regulation, but a different form of regulation in a different jurisdiction without there being any operation or geographical reason for differentiating between those employees and the balance of the workforce.
PN4724
The only reason why one would leave them, as it were, where they are would be matters of accidental history, rather than any proper planning or any proper logical reason for doing so. If it please the Commission I was going to move on to the next subject. Would it be an appropriate time?
PN4725
MUNRO J: Yes, very well, we will resume at 10.15 am tomorrow morning. The Commission will adjourn.
ADJOURNED UNTIL FRIDAY, 7 MAY 2004 [4.25pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #UNIONS SUBMISSIONS OF INTERVENING UNIONS PN4211
EXHIBIT #AWU6 SUBMISSIONS OF AWU PN4212
EXHIBIT #AWU7 SUBMISSIONS IN REPLY PN4213
EXHIBIT #RIO26 SET OF SUBMISSIONS IN REPLY PN4214
EXHIBIT #RIO27 SUMMARY OF MATTERS LISTED PN4225
EXHIBIT #RIO28 LETTER UNDER COMMISSION LETTERHEAD DATED 29/01/2004 PN4515
EXHIBIT #AWU8 SUPPLEMENTARY EXPLANATORY MEMORANDUM PN4715
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