C2004/6016, Transcript of Proceedings [2004] AIRCTrans 4033 (19 October 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 14147
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/6016

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

ARTC SERVICES PTY LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims -
wages and working conditions

SYDNEY

9.40 AM, FRIDAY, 8 OCTOBER 2004

PN1

MR A. THOMAS: I appear on behalf of the Rail Tram and Bus Union.

PN2

MS J. McAULIFFE: I appear for Australian Rail Track Corporation Services Pty Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Thomas.

PN4

MR THOMAS: Thank you, your Honour. Your Honour, may I at the outset, tender an affidavit of service deposing to the fact that the RTBU served the parties with the dispute notification and the notice of hearing. The affidavit has attached to it the documents served on the parties and relevant registered postal receipts.

EXHIBIT #RTBU1 AFFIDAVIT OF SERVICE DATED 7 OCTOBER

PN5

MR THOMAS: Thank you, your Honour. I won't take you in any detail to the affidavit save that it puts before the Commission evidence to the effect that the relevant material and service has gone to the parties. Your Honour, this matter concerns the filing and serving of an industrial dispute pursuant to section 99 of the Work Place Relations Act 1996. The matters in dispute are contained in a letter of demand and a log of claims served by the RTBU on the three companies mentioned therein and their subsequent failure to accede to the claims and letter of demand.

PN6

The RTBU has also filed the documentation required by the Commission in accordance with rule 14 of the Commission's rules. With respect to today's hearing, your Honour, the RTBU will seek that the Commission determine, pursuant to section 101 of the Act, that an industrial dispute exists between the RTBU and two of the companies. That the matters in dispute are those contained in the letter of demand and log of claims and that the Commission record those findings.

PN7

With respect to the third company we will seek that they be placed on a reserve list for future dealings. Finally, consistent with Commissioner practice, we would seek that the Commission refer the parties into discussion in an endeavour to settle or partly settle the dispute with recourse to the Commission as and when required.

PN8

It will be our submission, your Honour, that in seeking the dispute finding the RTBU fulfils the necessary jurisdictional requirements of the Act. The dispute notification refers to three companies. With respect to Toll North Pty Limited, the RTBU wrote to the Commission on 4 October to inform the Commission that we would not be seeking a finding of dispute today but rather would seek that the Commission would place Toll North on a reserve list for future dealing.

PN9

Your Honour, the RTBU is currently engaged in discussions with Toll North through one of its trading arms in Queensland known as QRX which is, as I understand - it stands for Queensland Rail Express. Those discussions are well advanced and have been positive to date. It is, however, the view of the parties that in order not to complicate the matter, we should place the dispute finding on hold and bring it up again once the discussions in Queensland have been finalised.

PN10

Those discussions are well advanced and have been positive to date. It is, however, the view of the parties that in order not to complicate the matter we should place the dispute finding on hold and bring it up again once the discussions in Queensland have been finalised. For that reason, the RTBU formally seeks the issue of dispute finding with Toll North be put on a reserve list and that the RTBU shall contact the Commission at the appropriate time to have the matter relisted.

PN11

With respect to ARTC Services Company, it is in effect a subsidiary of the Australian Rail Track Corporation. Your Honour, I tender, for your information, an extract from the ASIC files on ARTC Services Pty Limited.

PN12

THE SENIOR DEPUTY PRESIDENT: Do you wish me to mark this?

PN13

MR THOMAS: It is not all that necessary, your Honour. It is more for the information of the Commission and, I guess, the file rather than - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR THOMAS: - - - anything that is going to be contested.

PN16

THE SENIOR DEPUTY PRESIDENT: I might then just place it on the file because Mc McAuliffe would be entitled to peruse the document to ensure that if there is any additional ASIC information she could require it, but as it is unlikely, at least today, to be contentious. I will just place it on the file and the document is as you have mentioned, an extract from ASIC records comprising some 4 pages.

PN17

MR THOMAS: Yes, your Honour. We don't rely on, you know, any of the specific details in it only to note that it is a company registered in accordance with the provisions of the Corporations legislation and has an ACN number and ABN number.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR THOMAS: The only point I was going to note is, in relation to my earlier statement, the table on page 4 does show that the ultimate holding company is the Australian Rail Track Corporation. Not that anything arises or falls on that point. Your Honour, the ARTC Services Company Pty Limited employs in the order of some 30 to 35 employees who are engaged in the maintenance of the signals and communication equipment on the Leigh Creek railway line in South Australia.

PN20

May of those employees are member of the Rail Tram and Bus Union. The work now performed by ARTC Services Company was, until recently, undertaken by the Rail Infrastructure Corporation and was subsequently taken over by ARTC Services Company and is now currently performed by them.

PN21

The employees work pursuant to an enterprise agreement to which the RTBU is a party. It was an enterprise agreement, your Honour, reached with the then Rail Infrastructure Corporation but continues to apply through section 170NB of the Act. I think it is nominal - expiry period is around about the end of this year. Your Honour, the ARTC Services Company has formally responded to the serving of the letter of demand and log of claims and in doing so failed to accede to those demands.

PN22

I can tender a copy of a letter - correspondence from the ARTC Services Company to that effect.

EXHIBIT #RTBU2 LETTER FROM ARTC SERVICES COMPANY PTY LIMITED DATED 18 JUNE

PN23

MR THOMAS: Yes, thank you, your Honour. The final company is Ozback Explorer Pty Limited. Ozback Explorer Pty Limited, your Honour, is the operator of a long distance passenger train that travels between Sydney and Darwin although I might correct that somewhat - it appears from information provided to us by Ozback that under the current regulations they are only permitted to go as far as Alice Springs. There appear to be some difficulties going any further north at this point.

PN24

The company employs employees on board the train to provide a variety of services to passengers. Those employees work out of Lithgow in New South Wales. For the information of the Commission, I tender a document that contains the ASIC Company extract, an article describing the nature of the operation and a company brochure describing the itinerary of the train.

PN25

THE SENIOR DEPUTY PRESIDENT: I might mark that bundle of documents, Mr Thomas, it is as you describe - it comprises documents as you have

EXHIBIT #RTBU3 ASIC ARTICLE DESCRIBING NATURE OF OPERATION OF OZBACK EXPLORER PTY LIMITED AND BROCHURE DESCRIBING ITINERARY OF THE TRAIN

PN26

MR THOMAS: Thank you, your Honour. Your Honour, I'm assuming you have got the documentation.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR THOMAS: The tags there just distinguish or differentiate between the three.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN30

MR THOMAS: I don't intend to go to them at any length, your Honour, save for just a couple of references to I suppose enforce our position that this is a company involved in or in connection with the rail industry.

PN31

THE SENIOR DEPUTY PRESIDENT: It does not look as if anyone is going to be putting the contrary today, Mr Thomas.

PN32

MR THOMAS: No, they are not and I had a discussion with one of the directors of the company yesterday which I will come to in a second. The second tag, your Honour, which is an extract from a trade journal, so to speak, called: Railway Digest, its March 2004 edition, you will note at the beginning of the second paragraph it contains statements such as and I quote:

PN33

On tours of such a long duration the Ozback Explorer train is a rail cruising train with a difference.

PN34

Put to one side the obvious promotional aspect of that, the emphasis is on the fact that it is a rail operation. The brochure at the end, your Honour, simply reinforces the rail aspect of it. Maybe it will come in handy if you are looking for your next holiday. Simultaneously, your Honour, it is noted that in that regard there are a number of long distance passenger trains with a tourist focus, such as The Ghan and the Indian Pacific and with respect to those operations the RTBU does have industrial disputes found with the employer, in that case being Serco.

PN35

The RTBU has recently had two discussions with some of the principals of Ozback. As late as yesterday afternoon I had a conversation with a Mr George Milaras, whose name is mentioned in the material, concerning today's proceedings. The upshot of that conversation was that I said to Mr Milaras that I would put it to the Commission this morning that Ozback does not accede to the log of claims and letter of demand, that they do not have any objection to a dispute being found and, of course, Ozback reserves its rights in terms of future developments.

PN36

Mr Milaras acceded to that and he informed me that they would not be represented here today. So I'm sure if they really had any problems, your Honour, it would have been incumbent upon them, having had the notice, to be here this morning. Your Honour, the material before the Commission and my submission today shows that a number of the essential elements for the finding of a dispute have been met, namely the serving of a letter of demand and log of claims and the subsequent failure of the two employers under consideration today to accede to those claims.

PN37

It is the RTBUs submission that the other characteristics of a dispute finding have been satisfied. Firstly, the matter has been dealt with in accordance with the rules of the union. Attached to the dispute notification and in accordance with rule 14E is a statement from the National Secretary that identifies the specific rules of the RTBU for the conduct of these matters. The rules show that other than reporting a dispute finding to the next meeting of the national executive the National Secretary is authorised to submit matters to the Commission. The dispute notification was signed and authorised by the National Secretary.

PN38

The serving of the letter of demand and log of claims on the companies was authorised by the National Secretary in accordance with rule 10 which authorises the National Secretary to attend to all correspondence and to initiate legal, industrial or other proceedings. Secondly, the RTBU has constitutional coverage of the employees of the companies under consideration. The RTBU rules provide for coverage of employees engaged in or in connection with the tramway industry, amongst other things such as buses.

PN39

The companies, as described earlier, are involved in either the operation of trains or in the maintenance of railway equipment. As such they are both involved in activities in the rail industry. Accordingly, it is our submission that they fall within the RTBU coverage of employees being employed in or in connection with the rail industry. Thirdly, the interstate requirement is met. As described earlier, ARTC services currently operates in South Australia and are tagged with the potential to operate elsewhere and Ozback Explorer, whilst based in New South Wales, operates a train across a number of states or territories including the ACT, Victoria, South Australia and the Northern Territory.

PN40

Nevertheless, your Honour, even on the narrow basis of where the companies are located, the interstate requirement is fulfilled. Fourthly, the log of claims is confined to industrial matters, a somewhat topical subject, I might say, at the moment.

PN41

THE SENIOR DEPUTY PRESIDENT: The least said about that this morning the better and we will wait to see if Ms McAuliffe puts anything in issue but I don't need to hear you at this stage on that component of a jurisdictional prerequisite to a finding.

PN42

MR THOMAS: Yes. I was just going to raise the log has been dealt with in other matters. I will just put that to one side.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes.

PN44

MR THOMAS: Other than to submit that the log is confined to industrial matters. Finally, your Honour, the RTBU submits that the dispute is a genuine one and will be pursued by the RTBU. We are dealing with relatively new employers in the industry. The RTBU is seeking to ensure that the employees receive the full and proper protection and advancement of their wages and conditions through the current system of industrial regulation and that includes appropriate safety net awards and enterprise agreements.

PN45

The finding of an industrial dispute is an integral component in ensuring the establishment of such wages and conditions of employment. Your Honour, based on the material before the Commission and our submission, the RTBU seeks the Commission finds the existence of an industrial dispute between the RTBU, ARTC Company Services Proprietary Limited and Ozback Explorer Proprietary Limited, that the subject matter of the dispute are as contained in the letter of demand and log of claims served by the RTBU on the companies and that the industrial dispute extends beyond the limits of any one state.

PN46

With respect to Toll North Proprietary Limited the RTBU seeks that it be placed on a reserved list. Finally, as noted earlier, in accordance with Commission practice we seek that the Commission refer the parties into discussion to further the matters with recourse to the Commission as necessary. If the Commission pleases.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Thomas. Ms McAuliffe?

PN48

MS McAULIFFE: Your Honour, we reject the log of claims from ARTC Services Company. I would like to bring to your attention that there is a current enterprise agreement that has a life until 19 December 1004 under which the some 35 employees are currently covered. That enterprise agreement is underpinned by an award, that is the Rail Infrastructure Maintenance Transfield Award 1997. That is all I wish to raise with the Commission.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Ms McAuliffe, I should indicate that the fact of the enterprise bargaining agreement and the award which underpins it will not persuade me to decline to make the findings sought. Do you want to say anything further about that?

PN50

MS McAULIFFE: No, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: No. Those industrial instruments are noted in the transcript. Based on the submissions that have been made and the content of exhibits RTBU1, 2 and 3 I am satisfied that there exists in terms of section 101 of the Act an industrial dispute. The parties to the dispute are the Australian Rail, Tram and Bus Industry Union on the one hand and ARTC Services Proprietary Limited and Ozback Explorer Proprietary Limited on the other hand.

PN52

The matters in dispute arise out of a letter of demand dated 4 June 2004 and a log of claims attached thereto. The dispute stands beyond the limits of any one state of Australia. The dispute finding will be reduced to writing and a copy provided to the parties. The parties are directed to confer in relation to the matters raised in the letter of demand and log of claims. I note that a letter of demand dated 19 August and a log of claims was also served on Toll North Proprietary Limited. The union does not press today for any finding to be made in relation to that company. However, I note that the RTBU has liberty to apply to have the matter called back on again. Anything further we need to do, Mr Thomas, this morning?

PN53

MR THOMAS: No, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Ms McAuliffe?

PN55

MS McAULIFFE: No, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

ADJOURNED INDEFINITELY [10.03am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RTBU1 AFFIDAVIT OF SERVICE DATED 7 OCTOBER PN5
EXHIBIT #RTBU2 LETTER FROM ARTC SERVICES COMPANY PTY LIMITED DATED 18 JUNE PN23
EXHIBIT #RTBU3 ASIC ARTICLE DESCRIBING NATURE OF OPERATION OF OZBACK EXPLORER PTY LIMITED AND BROCHURE DESCRIBING ITINERARY OF THE TRAIN PN26