C2004/4547, Transcript of Proceedings [2004] AIRCTrans 3117 (11 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N 12755

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/4547
C2004/5251

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

and

AUSTRALIAN MAGNESIUM CORPORATION LIMITED
AND OTHERS

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

and

COPPER MINES OF TASMANIA

Notifications pursuant to section 99 of the Act
of industrial disputes re log of claims - wages
and working conditions

SYDNEY

10.20 AM, THURSDAY, 29 JULY 2004

PN1

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

PN2

MR C. FLATT: Your Honour, I appear on behalf of the Communications, Electrical and Plumbing Union, Electrical Division.

PN3

MR R. ALLAN: If the Commission pleases, I seek leave to appear for Pilbara Iron Pty Ltd, Pilbara Iron Services Pty Ltd and Robe River Mining Company.

PN4

MS C. HOLMES: If the Commission pleases, from the Australian Mines and Metals Association, appearing today on behalf of Perseverance Corporation Ltd, Store Gold Mine Pty Ltd and Bendigo Mining Liability.

PN5

MR G. BEARD: If it please your Honour, I seek leave to intervene on behalf of the Australian Workers Union.

PN6

MS J. GRAY: May it please your Honour, I seek leave to intervene in this matter.

PN7

MS J. TAVERNOR: May it please your Honour, for the Australian Manufacturing Workers Union and we seek leave to intervene this morning.

PN8

THE SENIOR DEPUTY PRESIDENT: Any difficulty, Mr Flatt, with leave being granted to Mr Allan to appear for those three companies?

PN9

MR FLATT: No, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Any difficulty with leave being granted to the intervener unions?

PN11

MR FLATT: No, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Leave is granted in each case. Mr Flatt?

PN13

MR FLATT: Thank you, your Honour. In light of the earlier matters, the discussions that were raised in relation to the AMMA that Ms Holmes is appearing today. We had some brief conversations yesterday about the CEPU providing an undertaking today on the record in relation to those three companies and possible action in relation to them. I have been not able to find - to give further undertakings and instructions in relation to those matters and in the light of what was said earlier about the opposition to the CFMEU dispute finding I would be interested in the position of the AMMA organisation at this point it may impact on the dispute going forward today.

PN14

THE SENIOR DEPUTY PRESIDENT: I had overlooked at there are companies on the list of persons for whom an appearance has not been made. I might look at you when I make this comment, Mr Allan, only because I know in the past others from your firm have announced an appearance for them.

PN15

MR ALLAN: This would be only Australian Magnesium Limited. Is Comalco served with that log as well?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Comalco Aluminium Limited. The two entities that I don't think any appearance - - -

PN17

MR ALLAN: I am sorry, I hadn't realised Comalco. I am here today for Comalco. Yes, I can announce an appearance for Comalco.

PN18

THE SENIOR DEPUTY PRESIDENT: What about Australian Magnesium Operations?

PN19

MR ALLAN: No, I can't. That company actually is in administration. Remember the company had difficulties with its finance raising and it is currently in mothballs as I understand it. So that is probably why that organisation isn't listed, or isn't here today.

PN20

THE SENIOR DEPUTY PRESIDENT: That is all right. I do notice, though, Mr Flatt, you have named Robe River Iron Associates three times. Is that just an enthusiasm?

PN21

MR FLATT: Yes, I have just noticed that. I think that was an administrative issue in relation to different addresses.

PN22

MR ALLAN: They have been very well served.

PN23

THE SENIOR DEPUTY PRESIDENT: You appear for all of them if you need to?

PN24

MR ALLAN: Yes, I appear for every associate.

PN25

THE SENIOR DEPUTY PRESIDENT: All right, back to your, Mr Flatt. Where did we get to? You want to hear what Ms Holmes wants to say? Very good. Ms Holmes?

PN26

MS HOLMES: Thank you, your Honour. The companies confirm that they have received a log of claims. You will recall on the last occasion I had no instructions as to whether a log had been received. Our position is that we don't oppose a finding of dispute between these companies and the CEPU. All three companies do employ or intend to employ in the future, it is foreseeable, CEPU members. However, we do wish to reserve our rights under the Workplace Relations Act to seek a revocation of dispute finding including any rights that we have under section 111(1)(g) of the Act.

PN27

As Mr Flatt indicated we also asked for an undertaking that should these three companies that have been involved in this matter due to the need to get an inter-State dispute found that should these companies be further pursued that they be notified ahead of time for discussions, and AMMA be notified. Similar to the undertakings that were made in relation to the AWU log.

PN28

THE SENIOR DEPUTY PRESIDENT: Other than just letting me know that is what you are seeking, is there something you want from me in that regard, or are you just flagging it on transcript?

PN29

MS HOLMES: We had suggested that and I gather Mr Flatt has indicated he is unable to give those undertakings today, on transcript. Certainly we do reserve our rights and if these three companies are involved in the matter only to get an inter-State dispute found to be involved in the Rio Tinto operations in WA then we would like those undertakings made but understand that those instructions aren't forthcoming this morning.

PN30

THE SENIOR DEPUTY PRESIDENT: You will, no doubt, pursue Mr Flatt about that, but I won't make any further comment. Mr Beard, what is your position in this matter.

PN31

MR BEARD: We have no objection to a dispute being found, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Ms Gray?

PN33

MS GRAY: No objection to a dispute being found, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Ms Tavernor?

PN35

MS TAVERNOR: No objection, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: All right. Mr Flatt, I assume now you want to proceed knowing what Ms Holmes has to say. Have you foreshadowed what you are going to say, Mr Allan? No you haven't.

PN37

MR ALLAN: No I haven't, your Honour, but I can.

PN38

THE SENIOR DEPUTY PRESIDENT: What are you going to say?

PN39

MR ALLAN: On behalf of the Pilbara companies and Robe River and Comalco and the ..... but I can indicate that while we don't consent we do not oppose to the dispute finding. Again, we reserve all our rights under the Workplace Relations Act in relation to this matter. If this Commission pleases.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Flatt?

PN41

MR FLATT: Thank you, your Honour. In light of what has been said already in this matter then I will continue with the dispute finding as currently served on the Commission. The dispute arises, your Honour, by virtue of the fact that on 21 June 2004 the National Secretary of the CEPU in accordance with the rules of the union, authorised and served by registered mail a letter of demand, a log of claims upon those employees listed in annexure A of an affidavit of service that I would like to hand up to the Commission if possible.

PN42

THE SENIOR DEPUTY PRESIDENT: The affidavit of service of - it is your affidavit of service, Mr Flatt - dated the twenty-eighth day of July 2004 which contains among other documents an annexure marked A listing the persons served; registered mail posting receipts, they comprise annexures B, C, D, E and F; a copy of the notes of listing of - I see.

PN43

MR FLATT: We served those on, as I will discuss.

PN44

THE SENIOR DEPUTY PRESIDENT: I see of a later matter.

PN45

MR FLATT: Your Honour, for the purpose of clarity and simplification I have contained in that affidavit issues in relation to the latter matter for the Commission today, 2004/5251. It is easier for the Commission I can write another copy in relation to that matter if necessary.

PN46

THE SENIOR DEPUTY PRESIDENT: But for today's purposes I am relying on a letter - where is the letter of demand? Is that in here? I know there is a copy on my file, is it in this?

PN47

MR FLATT: A copy was on - yes - we haven't included that, your Honour. I can supply a copy if necessary.

PN48

THE SENIOR DEPUTY PRESIDENT: No, that is all right. I identify on the file there is a letter of demand dated the twenty-first day of June 2004. Now returning to the document, the affidavit of service that I was describing earlier. That will become exhibit CEPU1.

EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE OF MR FLATT DATED 28/07/2004

PN49

MR FLATT: Your Honour, the letter of demand and the log of claims in relation to the wages and conditions of employment was served by registered mail and as discussed a copy of that registered mail receipt can be found at annexure B of the affidavit. The letter of demand required that the employers agreed to those demands within seven days. None of the employers contained in annexure A agreed to the demands made and a hence a dispute came into existence.

PN50

Consequently on 28 June 2004 the CEPU lodged a notification of intention again by registered mail and a copy of that receipt can be found at annexure C of the affidavit. As a consequence, on 1 July 2004 the Sydney registry advised the date, time and place of hearing of this matter. On 6 July 2004, in accordance with rule 16 of the Australian Industrial Relations Commission Rules, the CEPU served by registered mail a copy of the latest listing and notice in accordance with form R5 of the rules on, again, the organisations listed on annexure A of the affidavit. A copy of that registered mail receipt can be found at annexure B of the affidavit of service.

PN51

Your Honour, as you can see this dispute is an inter-State dispute and each of the respondents are engaged in the mining industries will be defined, the respondents employ or are likely to employ members of the union or persons who are eligible to be members of the union. Accordingly the union will be pursuing these claims over time.

PN52

Your Honour, this is a typical matter in relation to their log of claims clause 3 of the log refers to a preference clause. I think the understanding of that clause may not be a matter that we can have a dispute found in relation to it and accordingly we would require that to be excised from the claims if your Honour sees fit. Your Honour, unless there are any further questions that completes the submissions in relation to matter 4547.

PN53

THE SENIOR DEPUTY PRESIDENT: So, I understand what you are likely to be asking me to do in another matter listed later this morning, 5251/2004, you may be asking me to re-visit any finding of dispute I make in this matter?

PN54

MR FLATT: That is correct, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: I think that is adequate for the transcript. Mr Allan?

PN56

MR ALLAN: Your Honour, there is just one clarification I should make. I think when I announced my appearance I did not do that for Hamersley Iron Pty Ltd and Robe River Iron Associates. I think I should just correct that for the sake of the record. But we don't have instructions for Australian Magnesium Operations for reasons previously outlined.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. Now you are on your feet do you want to say anything?

PN58

MR ALLAN: No. After the dispute finding if it is to be made, is made, we still have a couple of comments we wish to make on it.

PN59

THE SENIOR DEPUTY PRESIDENT: All right. Ms Holmes?

PN60

MS HOLMES: I have no further comments, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Based on the content of exhibit CEPU1 and the submissions made this morning I am satisfied there exists in this matter an industrial dispute. The parties to the dispute are the Communications, Electrical, Plumbing Union on the one hand and each of the companies listed in annexure A to exhibit CEPU1. The dispute arises out of a letter of demand dated the twenty-first day of June 2004 and a log of claims attached thereto. The dispute exists beyond the limits of any one State of Australia. The dispute finding will be reduced to writing and the parties are directed to confer in relation to the matters the subject of the dispute finding.

PN62

If need be, and if I am required by the Act, I excise demand 3 from the log of claims. Is that an easy way round the issue? To allow everybody to argue the interesting point on another day.

PN63

MR ALLAN: I think that is a very appropriate way, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Good. Now you wanted to say something if I made that finding, Mr Allan.

PN65

MR ALLAN: Yes, your Honour. I wanted to make this point and I will make it in the other matters as well. The position of the Rio Tinto Iron Ore companies if I could just put them that way, has been to encourage the CEPU and the other unions to seek to create jurisdiction in order that they can become respondents to the recently made Mining Industry Rio Tinto Iron Ore Award 2004.

PN66

What we wish to draw to the Commission's attention is the fact that notwithstanding that position and the making of the AWU award the unions have not discontinued the State proceedings which have previously been before a Full Bench of this Commission of which your Honour was one of the members. The Commission will recall both in the earlier 111AAA proceedings and 111(1)(g) proceedings and section 128 restraint proceedings that there was considerable mention of the various applications by the State counterpart unions, including the counterpart of the CEPU in the State Industrial Commission.

PN67

Commissioner McKenna of the State Commission recently brought that matter on for mention and the position of the companies was those matters should now be withdrawn or discontinued. The State unions other than the AWU have now indicated that they don't wish to do that. They want to hold those matters in abeyance. More particularly the CEPU are pursuing an application before the Western Australian Industrial Relations Commission in relation to a cite allowance claim. That matter again relates to Hamersley Iron. We have written to Mr Flatt on 21 July drawing his attention to that matter and indicating that the companies felt that was totally inconsistent with the approach they are now taking to have this matter dealt with Federally.

PN68

As the Commission would be aware our submission would be that that matter could not proceed in any event to have any effect because of the inconsistency between any outcome in that matter and the terms of the Federal award. That is because of both the terms of the award and the provision that it replaces any State coverage.

PN69

We draw those matters to the Commission's attention because if the CEPU in it State counterpart union format does proceed with those matters in the State area we will have no alternative but to again either re-apply or ask for our current 128 application to be re-listed by the Commission. Now we draw that to the Commission's attention because with respect to the CEPU they can't have it both ways in terms of pursuing applications in the State area as well as seeking respondents in the Federal award in this area. We would hope to avoid the time and expense of having to seek a further restraint application in those circumstances. We make those comments on the record for fairly obvious reasons at the moment.

PN70

THE SENIOR DEPUTY PRESIDENT: Do you want to say anything about that, Mr Flatt.

PN71

MR FLATT: Only, your Honour, we confirm that we received a copy of the Freehills letter dated 21 July drawing the CEPU national office's attention to this section 44 application of the WA IRC. As of yet I have received no instructions from our Western Australian branch, but communications are occurring in relation to this matter.

PN72

THE SENIOR DEPUTY PRESIDENT: Do we need to do anything more with this matter, Mr Flatt?

PN73

MR FLATT: No, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Does anyone else wish to say something in this matter? All right.

C2004/5251
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and COPPER MINES OF TASMANIA

PN75

MR C. FLATT: I appear for the Communications Electrical Plumbing Union, Electrical Division.

PN76

MS C. HOLMES: I appear for the Australian Mines and Metals Association, on behalf of the Copper Mines of Tasmania.

PN77

MR G.R. BEARD: I seek leave to intervene on behalf of the Australian Workers Union.

PN78

MS J. TAVERNER: I appear for the Australian Manufacturing Workers Union. We seek leave to intervene in this matter.

PN79

THE SENIOR DEPUTY PRESIDENT: Mr Flatt.

PN80

MR FLATT: Thank you, your Honour. Yes, your Honour, as foreshadowed earlier the CEPU now seeks that any dispute finding as determined in matter C2004/4547 be enlarged and/or altered so as to include the Copper Mines of Tasmania Pty Limited. Your Honour, as foreshadowed in the CEPU letter of - in our letter of 26 July 2004, we informed the Commission and also all of the parties - sorry, the party, Copper Mines of Tasmania and all the parties to the dispute in 4547 that we were to make this application. We believe that those representatives of Copper Mine of Tasmania would be here today in relation to other matters. It would be pertinent to bring this matter on as such.

PN81

Some of the timing of dispute log of claims was a little less than is normally provided but your Honour, making this application the CEPU relies on the well established principles that an industrial dispute may be diminished or indeed enlarged or altered during the course of the proceedings in the Commission or for that matter at any stage during the course of the dispute itself and in reliance on the number of High Court decisions including Reg v Bain; Ex parte Cadbury Schweppes Australia Limited [1984] HCA 9; (1984) 159 CLR 163 which I can provide a copy of if necessary today.

PN82

THE SENIOR DEPUTY PRESIDENT: No. It's all right.

PN83

MR FLATT: And also the Re Printing and Kindred Industries Union; Ex parte Vista Paper Pty Limited [1993] HCA 81; (1993) 67 ALJR 604. Your Honour, in relation to this matter I draw attention to the affidavit of service provided in the earlier matter 4547 and can provide another copy if necessary for the Commissioner's files.

PN84

THE SENIOR DEPUTY PRESIDENT: I think we should have one marked on this file, too, Mr Flatt. It tells the whole story then.

PN85

MR FLATT: It is a copy, it's not an original unfortunately but - - -

PN86

THE SENIOR DEPUTY PRESIDENT: No. That's all right. The affidavit of service prepared and signed by yourself will become CEPU1 in this matter.

EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE OF MR C. FLATT IN C2004/5251

PN87

MR FLATT: Thank you, your Honour. Your Honour, the dispute arises by virtue of the fact that on 23 July 2004 the National Secretary of the CEPU in accordance with the rules of the Union authorised and served by registered mail, a letter of demand and log of claims upon Copper Mines of Tasmania Pty Limited. Those letter of demand and log of claims were served by registered mail on both the office in Tasmania of the company as well as we believe, the registered office in Sydney due to the urgent nature of this matter as discussed earlier. The letter of demand applied that the employer agree to those demands within 48 hours. The employer did not agree to the demands made hence the dispute came into existence.

PN88

Consequently, on 26 July 2004, the CEPU lodged another application with the Commission. Again, by registered mail and a copy of that mail receipt can be found at annexure F of the affidavit and in relation to this matter, 27 July 2004 the Sydney Registry advised of the day, time and place of hearing of this matter. By way of courtesy on the same day, the CEPU sent by fax a copy of that notice of listing and a notice in accordance with form R5 of the Rules of the Commission, on to the employer. A copy of that facsimile communication report can be found in annexure G.

PN89

That was just by way of courtesy because on the same day, we did also in accordance with rule 16 of the Australian Industrial Relations Commission Rules serve, as required by registered mail, a copy of that notice of listing and a notice in accordance with form R5 of the Rules on to the employer, both addresses as shown on the file. A copy of that facsimile communication results reports as eight procedures at annexure H of the affidavit, and your Honour, the industrial dispute that the CEPU is seeking to be enlarged is interstate and the employer is also engaged in the mining industries. It's all been defined.

PN90

Your Honour, the CEPU has been informed that copper mines already employs five members of the Union and employs another four persons who are eligible to be members of the Union. Accordingly, the Union will be pursuing these claims over time and again, there's the technical matter in relation to clause 3 of the log of claims which relates to a preference clause and as already discussed this may need to be exercised today. Unless there are any further questions.

PN91

THE SENIOR DEPUTY PRESIDENT: I could have then shown my ignorance of some crystal clear section in the Act other than section 94 or some Full Bench or High Court, but why do you think that at least a dispute finding can't be made arising out of such a log as opposed to what we might ever be able to put in an award?

PN92

MR FLATT: The dispute finding in relation to this kind of work.

PN93

THE SENIOR DEPUTY PRESIDENT: I'm just wondering - I'm really taking the opportunity for you to bring me up to date as to what I've missed.

PN94

MR FLATT: I was just aware that as it's the only point ..... that we'd seek in this log of claims - - -

PN95

THE SENIOR DEPUTY PRESIDENT: No, I'm talking about the preference. I know we are not allowed to put it in awards and we are not allowed to include it in any resolution, it being seen as being - - -

PN96

MR FLATT: The application is more out of a bundle to the Commission, than anything else. I'm not too sure on the exact nature of whether - - -

PN97

THE SENIOR DEPUTY PRESIDENT: No. I was just concerned that - - -

PN98

MR FLATT: But I've been directed that that is something that has been raised in previous matters by several Commissioners.

PN99

THE SENIOR DEPUTY PRESIDENT: I know. If someone thinks I should be looking at some section - although I doubt that any of the Unions will volunteer when I'm overlooking. Mr Allan?

PN100

MR ALLAN: No, look I, I think I'm with your Honour. I think that there is a - that this, there's certainly nothing that would be inconsistent with the Act although preference and the form of association provisions don't sit very neatly together.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes. I just wasn't aware that I was confined though, at least in the matters that could be found to be in dispute but let's err on the side of caution again. Now, Ms Holmes I will let you know what I had in mind doing, subject to hearing from you. Well, firstly I should find out, are you opposing a finding of dispute?

PN102

MS HOLMES: We are not opposing a finding of dispute, however, we are again reserving rights - - -

PN103

THE SENIOR DEPUTY PRESIDENT: Rights. Yes.

PN104

MS HOLMES: - - - to seek a revocation.

PN105

THE SENIOR DEPUTY PRESIDENT: What I thought I'd probably do is join this matter with a matter earlier before me, C2004/4547 and the dispute finding that I've already announced on transcript would be made there, will now be varied to include additionally, a letter of demand dated 23 July 2004 and the log of claims attached thereto, served on Copper Mines of Australia Pty Limited and add that company also now to the list of companies who are found in dispute. The finding of dispute will reflect both of these C numbers. Any difficulty with that?

PN106

MS HOLMES: No.

PN107

THE SENIOR DEPUTY PRESIDENT: Mr Flatt, does that achieve your ends?

PN108

MR FLATT: No, but the .....

PN109

THE SENIOR DEPUTY PRESIDENT: That finding of the dispute will issue in that manner. Anything further we need to do on this matter?

PN110

MR FLATT: No, I think that's - - -

PN111

THE SENIOR DEPUTY PRESIDENT: I think what I have got to do is grant leave to intervene.

PN112

MR ALLAN: I was just going to say, seeing the matters are being joined, I would understand that permission to the Unions to be given leave to intervene would be permitted.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. I think so. Yes I think earlier Ms Taverner, you and Mr Beard - - -

PN114

MR ALLAN: But you hadn't referred to any at the start of Mr Flatt's submission though.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes. I overlooked actually announcing that leave being granted. All right. That's all we needed to do on that matter?

PN116

MS HOLMES: I would give your Honour - I wish to also say that we didn't, the company didn't wish to take any issue with the lateness of the documents certainly and once again, while we don't consent we don't oppose a finding of dispute. We do wish to reserve rights under the Workplace Relations Act to seek a revocation of dispute finding including rights under section 189G of the Act and do, for the record, suggest that any second stage process including the company being roped in to any Federal award will be opposed by the Copper Mines of Tasmania.

PN117

THE SENIOR DEPUTY PRESIDENT: All right. Thanks.

ADJOURNED INDEFINITELY [10.46am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE OF MR FLATT DATED 28/07/2004 PN49
EXHIBIT #CEPU1 AFFIDAVIT OF SERVICE OF MR C. FLATT IN C2004/5251 PN87