AG2004/1132, Transcript of Proceedings [2004] AIRCTrans 456 (5 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N F157

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2004/1132

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH by
Alinta Gas Networks Proprietary
Limited to terminate the Alinta Gas -
ASU Certified Agreement 2001

PERTH

2.05 PM, THURSDAY, 22 JANUARY 2004

PN1

MR D. SASH: I seek leave to appear on behalf of the applicant.

PN2

MR S. BIBBY: I appear on behalf of the Australian Municipal Administrative, Clerical and Services Union.

PN3

THE SENIOR DEPUTY PRESIDENT: What do you say about Mr Sash's application for leave to appear?

PN4

MR BIBBY: Sir, my understanding is that this is simply a directions hearing.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MR BIBBY: It wasn't my intention to make any objection because I understand the representative from the company, Mr Noonan, is not capable of attending the hearing this afternoon. So, I will reserve my rights on that.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Very well, at this stage, then, I will allow you leave to appear for the limited purpose of the directions hearing.

PN8

MR SASH: Thank you, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: And there may be a renewed application made at a later stage.

PN10

MR SASH: Yes, sir. I didn't anticipate any - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Sash, this is your or Alinta Gas's application. I have listed the matter today simply for the purpose of giving directions as to the progress or programming of the matter for hearing. Unless you had any other views in mind?

PN12

MR SASH: Not at all, sir. My friend has indicated to me that his side will be heavily occupied in the next 3 weeks and we are happy to accommodate him in that respect. So, if the directions were minded to make him do something in the next 3 weeks, we wouldn't push that. We would allow him the time that he thinks he requires. We would like to get it on some time in early to mid March and that seems to be in accordance with his views as well.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bibby, you have some difficulties over the next few weeks?

PN14

MR BIBBY: Yes, sir. We have a considerable amount of litigation with another large law firm which should be finalised by the middle of February. And so, as I indicated to my friend, I was suggesting that perhaps if we could, depending on what the Commission desires for the parties to do, proceed with the matter. I was suggesting that we could commence from, say, 16 February. As I hear from my friend, the aim is to have the matter heard obviously on the basis of the availability of the Commission some time in mid March and that would be acceptable to the Australian Services Union.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Is there much evidence in relation to the matter as far as you are concerned?

PN16

MR BIBBY: Sir, I am conscious that there will be considerable ground that I think we can reach a set of agreed facts over. I guess the issue, as I see it, is more the requirements of 170MH(3). Sorry, sir. MH(2). Which is, as I would see it, the Commission has the responsibility to take such steps as it considers appropriate to obtain the views of persons bound by the agreement. Obviously, sir, we are in your hands as to exactly what you want to proceed. But we would be approaching each of the members who are affected by the application and I think I would need to get a witness statement from the officer who was involved in the negotiations. And so on that basis, I wouldn't think that would take too much time to organise.

PN17

THE SENIOR DEPUTY PRESIDENT: How many employees are affected?

PN18

MR BIBBY: Sir, my understanding from the application as it is put by the applicant is that there are 14. I can't confirm this at this point in time. But I should imagine that there are around that number.

PN19

THE SENIOR DEPUTY PRESIDENT: Where is the site? Well, perhaps I should be asking Mr Sash. He is the - - -

PN20

MR SASH: Sir, they are all in Perth.

PN21

THE SENIOR DEPUTY PRESIDENT: In Perth?

PN22

MR SASH: As I understand, Perth and the metropolitan area.

PN23

MR BIBBY: Yes, sir, that is my - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. Well, how far would they be from here? Half an hour or an hour?

PN25

MR SASH: I suspect most of them are at Vic. Park - - -

PN26

MR BIBBY: Yes.

PN27

MR SASH: - - - which is probably 10 minutes if traffic conditions prevail. And the others - - -

PN28

THE SENIOR DEPUTY PRESIDENT: That is in peak hour.

PN29

MR SASH: - - - are in a 3 minute walk down - they are in the street, William Street.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the only thing I was thinking is perhaps I could go down and talk to the people on the site and ascertain their views about the matter.

PN31

MR SASH: Well, sir, that would certainly be most convenient and I guess we could provide you with a list of their names within a few days. I would need to - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. Accompanied by the parties of course.

PN33

MR BIBBY: Yes, sir, that would be fine as far as we are concerned.

PN34

THE SENIOR DEPUTY PRESIDENT: All right. Well, what I had in mind was I have a day available on 23 February. And then I am here for the rest of that week, in fact, on another matter. And what I had in mind was perhaps using that day. And then if we don't finish it, I would come back on perhaps Wednesday 3 March.

PN35

MR SASH: That is appropriate for me, sir.

PN36

MR BIBBY: Yes, sir, I have no problems with those dates.

PN37

THE SENIOR DEPUTY PRESIDENT: Very well. Now, you very helpfully suggested, Mr Bibby, that the parties could perhaps come to an agreed statement of facts in relation to most of the issues. So, perhaps what I might do is direct that the parties confer to the extent possible, formulate a statement of agreed facts for the purpose of the hearing, and provide that to my Associate by electronic mail on or before 13 February. That is Friday, 13 February.

PN38

MR BIBBY: Sir, if it be possible, could we put it back another week to 20 February?

PN39

THE SENIOR DEPUTY PRESIDENT: That causes me no difficulty. The only thing I am wondering is to the extent that there are any disputed issues of fact, then there would need to be witness statements filed or other material filed in relation to those disputed issues of fact. I suppose there would be no problem with both parties filing that on the same day. All right. Well, that is what I will do then. I will direct that the parties confer and formulate an agreed statement of facts to the extent that that is possible and file it with my Associate electronically on or before 20 February. Furthermore, on or before 20 February each party file in the Commission and serve upon each other any evidentiary materials upon which they seek to rely in relation to any disputed issues of fact. Is there a problem there?

PN40

MR BIBBY: Sorry, sir, I am just wondering. If we could reach agreement on an agreed statement of facts and have it to your Associate by 20 February - sir, it is your intention, as I understood it, to have, is it, an inspection on site on 23 February?

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Merely for the purposes of speaking to the individual employees concerned and ascertaining their views about the matter.

PN42

MR BIBBY: And then, if necessary, to have a further hearing. I am sure it would be necessary. Is it on 3 March or are you intending, then, to - - -

PN43

THE SENIOR DEPUTY PRESIDENT: I would be continuing the proceeding on 23 March for any arguments that are - - -

PN44

MR BIBBY: On 3 March, sir?

PN45

THE SENIOR DEPUTY PRESIDENT: On 23, sorry, February.

PN46

MR BIBBY: Right.

PN47

THE SENIOR DEPUTY PRESIDENT: And then if it is not finished on that day, I would be proceeding again on 3 March. I, sort of, anticipated that if I was going to see the employees, that would take up most of the morning. And then we would have, in effect, Monday afternoon for the purpose of dealing with any other evidentiary matters and submissions.

PN48

MR BIBBY: Sorry, sir, my - in terms of evidentiary material, are you suggesting that we run this through - sorry, through witness statements? Is that your - - -

PN49

THE SENIOR DEPUTY PRESIDENT: That was my intention. If there was going to be any witnesses that there be witness statements exchanged.

PN50

MR BIBBY: I am just conscious of if we get that in by 20 February, I guess my intention was to - and this, obviously, is subject to me understanding what the parameters of what I need to explore before the Commission. I was anticipating there would be one or two witnesses.

PN51

THE SENIOR DEPUTY PRESIDENT: Well, would there be any difficulty for you or for Alinta, for that matter, in perhaps each party exchanging contentions of fact and law which would stand basically as a statement of claimant defence on the issue?

PN52

MR SASH: Sir, only in that I guess we would see that the onus on the public interest would rest with the union. And we would like to know what they say first before responding, otherwise it means we are in the dark to some extent and we might have a great deal of extraneous material that should not otherwise trouble this Commission. Perhaps, sir, the way to do it would be to bring us back, say, the beginning of March or a week after the 28th to see where things sit and see whether any further directions need to be made to see whether in fact it can proceed on 3 March.

PN53

THE SENIOR DEPUTY PRESIDENT: Well, we were initially talking about 23 February. Well, perhaps what we could do, then, is have the - perhaps we will go off the record and just discuss the programming of the matter. Yes.

OFF THE RECORD [2.16pm]

RESUMED [2.24pm]

PN54

THE SENIOR DEPUTY PRESIDENT: During the brief adjournment I discussed with the parties the further programming of this matter for hearing. The direction previously given in relation to an agreed statement of facts will remain in place and further directions will be given on 23 March when the matter resumes. I will adjourn the matter until 9 am on 23 March. I am sorry, is there something else?

PN55

MR BIBBY: Sorry, sir, I think it is 23 February.

PN56

THE SENIOR DEPUTY PRESIDENT: 23 February. Yes. I am sorry. Thank you.

PN57

MR SASH: Thank you, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is adjourned.

ADJOURNED UNTIL MONDAY, 23 FEBRUARY 2004 [2.25pm]