C2003/6891, Transcript of Proceedings [2004] AIRCTrans 278 (19 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 8638

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/6891

APPLICATION FOR ORDERS TO CONSULT
UNIONS

Application under section 170GB of the Act
by the Association of Professional Engineers,
Scientists and Managers, Australia, and
Coal & Allied Operations Pty Limited re
proposed redundancies at Coal & Allied
Operations Pty Limited

SYDNEY

10.05 AM, TUESDAY, 6 JANUARY 2004

Continued from 18.12.03

PN27

THE COMMISSIONER: Good morning. The appearances are the same I take it except for the absence of Ms Bolger on this occasion.

PN28

MR KEMPTON: That's correct, Commissioner.

PN29

MR LONGLAND: Commissioner, I have with me MR N. PEARSALL, the respondent's General Manager of Human Resources and External Affairs in place of Mr Dudley.

PN30

THE COMMISSIONER: Yes, I have an affidavit from Mr Pearsall. Who is going to report to me? Do you wish to start, Mr Kempton?

PN31

MR KEMPTON: I'll start off, Commissioner. Since our last meeting we have had some progress, unfortunately not as much as APESMA would request. We met with Rio Tinto on Friday 19 December and that was quite a long meeting; the meeting started about 9.30 and went through to 5 o'clock and there was a number of issues discussed at that meeting. Following that there was a further meeting the following Tuesday; it went from about once again 10 o'clock until 1 o'clock in the afternoon.

PN32

A number of issues were canvassed at that, Commissioner, and Rio Tinto has indeed provided APESMA with a number of documents, however, and I suppose we could cut to the chase here, there's still a number of things that we believe Rio Tinto is not entering into in genuine consultation. As we brought the attention of the Commission at the previous hearing to some of the decisions regarding this issue consultation does not involve the handing out of information and providing information to the unions. The union should be given the chance to implement the decision-making process which I believe the words were in, I think it's Commissioner Ross' decision.

PN33

As I said we agree we've been given a number of pieces of information but there's still a lot of information we believe to be outstanding and we believe a number of the decisions have already been made which doesn't give us the opportunity to have any influence in the decision-making process. That being said I think from my recommendation one of the easiest ways to do this might be if we can do something in conference rather than go straight to the record and everything and we can have a discussion with you if that's the way you'd like to proceed.

PN34

THE COMMISSIONER: In terms of that procedure I'm a servant of the parties. Have you got any comment for me on the Freehills letter of 30 December which I think was copied to Ms Bolger; are you familiar with the letter I'm referring to?

PN35

MR KEMPTON: I've probably seen a copy, I don't think I've got one here. Is that in regards to the redundancies of people who have already applied on request for redundancies?

PN36

THE COMMISSIONER: Yes, that's correct.

PN37

MR KEMPTON: Yes, we have got a copy of that and I'm quite prepared to talk to that as well.

PN38

THE COMMISSIONER: All right. I suppose the purpose of the proceedings today is just to find out where the parties are. I mean the Commission is not really anywhere with this application at the moment. There was a request over the Christmas/New Year break for an urgent hearing which I declined to have on the basis that discussions were proceeding with the parties and I've put this on myself today to give the union in particular an opportunity to tell me if they wish to press their application at this time. If discussions are proceeding between the parties, well, frankly, that's good enough for me until the parties tell me there's a need.

PN39

MR KEMPTON: At this stage there's probably a few issues we'd like to hear from Rio Tinto on before we decide whether we're going to proceed at this stage with the order or not and maybe that's the way to proceed; find out a few things. We have requested a number of bits of information in writing which we've yet to receive and we just want to find out how Rio Tinto is planning to proceed from here, what they're planning on doing in consultation, in particular some of the information we've requested. As yet, as I said, we haven't got a response to that. That will become vitally important whether we decide to proceed or not at this stage.

PN40

THE COMMISSIONER: We will hear from Mr Longland who I am sure in summary will tell me that there's no need for the Commission to be involved, discussions are proceeding quite properly.

PN41

MR LONGLAND: As it happens, Commissioner, that is our view. We don't have any objection, however, to participating in any form of off the record discussion that you think is appropriate but in view of my friend's comments there are five brief matters I want to put onto the transcript. The first is just to note that I've filed an unsworn affidavit of Neville Desmond Pearsall; I've done that for no other purpose but to appraise the Commission of the facts and in the event the application proceeds we will be updating that and filing a sworn copy. The same can be said for the submissions. We simply didn't want to be keeping anyone in the dark and we're just happy for them to sit there ready to go in case the application needs to be determined.

PN42

THE COMMISSIONER: That's appreciated.

PN43

MR LONGLAND: Thank you, Commissioner. The second is that there have in fact been two lengthy meetings and various documents exchanged as Mr Pearsall's affidavit divulges. The meetings were held on 19 and 23 December. The third point is that the parties have in fact agreed on the manner in which they will proceed with their consultations and that agreement was reached on 23 December and it involves the parties having weekly update meetings. They will either be meetings or phone hook-ups. The first in fact has been scheduled to take place this Friday, 9 January 2004 so that whilst we're happy to proceed with some off the record discussions today the Commission should be aware and it's evidenced in the minutes of the 23 December meeting that that is a way that the parties have agreed that they will proceed.

PN44

Fourthly, I just wanted to note the letter of 30 December; you've already done that for us, Commissioner. It's sent for no other purpose than to just make it patently clear that nobody can misunderstand the nature of our undertaking. The fifth matter and the final matter just in relation to what my friend said is we do reject quite strongly the notice we haven't consulted genuinely. In fact the process has changed because of the influence of APESMA. The documents reveal these things but role swaps is, for the purpose of the record, one example of an issue where our initial proposal was amended in view of APESMA representation. So certainly we say that that's evidence of genuine consultation.

PN45

They're the only matters I wanted to put on the record, thanks, Commissioner.

PN46

THE COMMISSIONER: We'll adjourn into conference now with the right to either party to seek to go back on the record.

NO FURTHER PROCEEDINGS RECORDED [10.12am]