C2004/5618, Transcript of Proceedings [2004] AIRCTrans 4688 (3 December 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 15232
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2004/5618

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the Outbye Engineering & Mining
Services Pty Limited for the making of a
roping-in award

SYDNEY

11.02 AM, WEDNESDAY, 24 NOVEMBER 2004

Continued from 9.9.04

PN16

THE VICE PRESIDENT: Ms Gray, I note your appearance from the CFMEU. Mr Herbert, I note your appearance for Outbye Engineering. I take it there's no objection to Mr Herbert being granted leave, Ms Gray?

PN17

MS GRAY: No objection, your Honour.

PN18

THE VICE PRESIDENT: Yes, leave is granted, Mr Herbert.

PN19

MR HERBERT: Thank you, your Honour.

PN20

THE VICE PRESIDENT: This matter, as I understand it, is by consent, is that correct?

PN21

MR HERBERT: We understood so, your Honour. It is an unusual situation that we have been served with a log. We have consented to the finding of a dispute and asked that the Commission do that but we are now striking resistance from the CFMEU who don't want the Commission to find the dispute right now. We are also proposing to consent to a form of roping-in award and are also striking resistance from the union in that regard. One would have thought it would all be by consent but for reasons that we don't fully understand, that is the union having, as it were, chased my client and secured my client's agreement to this course, now is asking that that course be postponed.

PN22

THE VICE PRESIDENT: I will see what Ms Gray has to say. Just by way of a bit of background before you start, Ms Gray, Mr Herbert, why is it that there has not been a dispute finding made before now? I confess that I haven't read all the background to it.

PN23

MR HERBERT: Your Honour, the position is that there was a wide service of the log by the CFMEU. A range of recipients of the log opposed various aspects of the matter on differing grounds. Some contested the contents of the log, some contested the fact that they were engaged in the coal-mining industry an therefore were amenable to a log and from the CFMEU. There are a range of different reasons why various matters were disputed.

PN24

As a result there were some contested hearings before Senior Deputy President Drake in relation to a range of those issues. All of those hearings have now - in relation to this group, as I understand it. Those hearings have been concluded and Senior Deputy President Drake has handed down a lengthy decision which didn't involve my client, my present clients. They weren't involved in a any of that, they didn't oppose anything on any grounds.

PN25

Senior Deputy President Drake has now handed down the decision dismissing the objections of a number of other objectors and there is now some discussions going on about the form of the dispute finding to be made in relation to those who did object. However, none of that has involved OEMS. They have been sitting, not very patiently, but sitting waiting for the dispute finding to occur.

PN26

As I understand it, they have simply been put in a basket with those who have objected and have been told to wait until everything has been resolved in relation to all of the other objectors so that the union, as I understand it, the union proposes that all of the dispute findings in relation to those who object and those who don't object can go forward together. There are two difficulties about that so far as my present client is concerned.

PN27

THE VICE PRESIDENT: You don't need to explain what the difficulties are, Mr Herbert, I understand that there's some reason why - some imperative commercial reason why your client wishes now to have the dispute finding issue in relation to it resolved.

PN28

MR HERBERT: Yes.

PN29

THE VICE PRESIDENT: Ms Gray, the union's position is?

PN30

MS GRAY: Your Honour, as outlined by Mr Herbert, this matter was essentially held up by an earlier dispute finding jurisdictional argument on the validity of the log of claims. That was resolved through a decision of Drake SDP in PR952134 and the union was before her Honour on 11 November last. We gave her Honour a draft record of findings in A.C. Whalen and Co Proprietary Limited which was the matter that Outbye Engineering was served in. That is 2004/3156.

PN31

THE VICE PRESIDENT: I have a draft record of findings in C2003/3762 AAA Services and Equipment Hire and Others.

PN32

MS GRAY: No, it was actually 3156 which is the matter number that - - -

PN33

THE VICE PRESIDENT: Well, I don't have that, but in any event.

PN34

MS GRAY: Well, your Honour, I have a spare copy for your Honour.

PN35

THE VICE PRESIDENT: Thank you.

PN36

MS GRAY: Along with a copy of the decision on the jurisdictional issue.

PN37

THE VICE PRESIDENT: I've got that, thanks, Ms Gray.

PN38

MS GRAY: Perhaps it would be handy, your Honour, if I also handed up transcript from both the last time the OECM matter was before your Honour and also the matter before her Honour on 11 November. Your Honour will note in the transcript from 9 September that in paragraph number 7 her Honour said that this particular matter was inadvertently listed as a separate matter and that she intended to correct that to bring it back in with the A.C. Whalen matter. Apparently that has not happened and it has come on again under the matter number.

PN39

Your Honour will also see further down in that transcript that Mr Foster who then appeared for Outbye Engineering said that the union wasn't opposing the dispute finding but had had difficulty with the roping-in in its current form. That is still the case, your Honour. We have had no further contact from the company to seek to reach an agreement on a proposed roping-in. So Mr Herbert is saying that he thought that he had consent on that is probably the result of changing representatives by the company but the union's position has been consistent.

PN40

THE VICE PRESIDENT: Well, first of all, do you object to a dispute finding being made?

PN41

MS GRAY: Your Honour, we don't object to a dispute finding being made and we don't object to a dispute finding being made in respect to all of the other parties in the same matter. That draft dispute finding was before her Honour on 11 November. Your Honour will see that in schedule 8 of that dispute finding the proposed parties to the dispute finding, Outbye Engineering appears. Mr Herbert appeared for the company on 11 November before SDP Drake advising her Honour that his client didn't oppose the dispute finding.

PN42

All we are saying, your Honour, is that it has really been dealt with by the Commission subject to her Honour making that finding of dispute in the form that we understand wasn't opposed by anybody who was involved in that matter. We are just waiting - - -

PN43

THE VICE PRESIDENT: Well, is there any reason why I can't deal with it today?

PN44

MS GRAY: To make the full dispute finding?

PN45

THE VICE PRESIDENT: To make a dispute finding in relation to this company.

PN46

MS GRAY: Your Honour, we would just wonder why we can't have the benefit of the dispute finding for all of the companies. You know, it seems to have been dealt with to finality, only needs to be a dispute finding made and why would it be divvyed up into different categories of consenting parties?

PN47

THE VICE PRESIDENT: Because where there has been a contest and argument and evidence and where a decision has been written and there's supposed to be a dispute finding prepared by the union that reflects the decision, it seems inappropriate for me to seek to step in, as it were, and take over that process from Senior Deputy President Drake. In relation to a consenting party who has been consenting all along, there's no reason why they should be held up by the processes that have necessarily flowed from the fact that there have been non-consenting parties. I'm just struggling to see whether there's any - - -

PN48

MS GRAY: All of those parties in schedule A are in the same position as OECM in terms of consenting, your Honour. So what I'm saying is that if your Honour feels it is inappropriate to deal with the rest of the parties, none of whom were objecting to the dispute finding just like Outbye Engineering, why would your Honour feel it was appropriate to deal with OECM when it has been a party in those other proceedings all the way through.

PN49

THE VICE PRESIDENT: Procedural fairness is the reason that immediately springs to mind. They are not here today to be heard on whether or not they consent to the form of the finding that is proposed by the union, for example. Is there any disadvantage or prejudice that flows to the union as a result of dealing with OEM in a separate fashion?

PN50

MS GRAY: I would say not, your Honour. I mean, if your Honour wants to go ahead and make a dispute finding for one of these companies we can strike them out of schedule A. I don't think your Honour has in the file before your Honour any of the statements of service or documentation proving a dispute but the parties certainly agree that that has been done.

PN51

THE VICE PRESIDENT: No, well, I haven't - I was going to move to the formal requirements next but I really wanted to ascertain what the - - -

PN52

MS GRAY: I don't have those files with me, your Honour.

PN53

THE VICE PRESIDENT: No, the Commission can act upon the submissions, the uncontested submissions of the parties and this is a case when in all the circumstances it would seem that it is appropriate to do that. Let me deal with that in a moment. I really was just wanting to confirm that you don't seek to identify any prejudice or disadvantage to the union in dealing with OEM separately, because it has particular circumstances that affect its commercial liability which justify a separate consideration.

PN54

MS GRAY: Well, your Honour, aside from your Honour's point about procedural fairness, the union has particular circumstances in terms of our wanting to have all of those consenting parties made subject to a dispute finding and a roping-in made so as all of our members employed by them can have the advantage of the award industry safety net. So we also desperately want this dispute finding but we just don't see that OEM has any particular circumstances in advance of anyone else in the industry, particularly from the union's point of view in respect to the employees working for them.

PN55

If your Honour is of a view to separate it out then we have said all along that we don't oppose the dispute finding. We do oppose the roping-in in the form suggested by OEM when they were being represented by Mr Foster but that is not a matter for day, I would suggest in any case, it is a matter for the parties to sort out.

PN56

THE VICE PRESIDENT: Let me confess, as I have done a number of times on transcript, my general ignorance of some aspects of the law that governs this jurisdiction. I would have thought that a roping-in matter is not a matter about which there could be an enormous debate. I mean, either they are going to be added to the schedule of respondents in the Production Engineering Award or they are not.

PN57

MS GRAY: As I understood it, the proposal from OEM, your Honour, was for some wording which was different to just adding them to the list of respondents. I mean, the award itself, of course, is limited in its scope to employees engaged by companies in the coalmining industry which, of course, is narrower than our constitution rule but it is confined to the coal - work in the coalmining industry. As I understand it, OEM wants to have some wording there which gives it some comfort that employees who aren't engaged in the coalmining industry or aren't engaged in the coal mining industry for a major or predominant amount of their time won't be somehow caught.

PN58

We say that they can't be caught. You know, I mean, simply making an employer a party to an award which of its terms is restricted to the coalmining industry should be sufficient, but unfortunately a number of employers say: well, we are not comfortable about that.

PN59

THE VICE PRESIDENT: Mr Herbert, is there a problem in that regard?

PN60

MR HERBERT: There is, your Honour. The OEMS is a general engineering company which is based near Singleton. Some of its work is done for coalminers, that is on-side fabrication, maintenance, etcetera, engineering. Some of its work is done for other people in other industries. To simply rope this company into the award leaves open for debate forever the question of whether particular employees on particular days or particular locations are engaged in the coalmining industry, for example if they were working on a coal bucket that was brought into their premises in Singleton, are they engaged in the coal mining industry because they are working on a coal bucket as opposed to working on an earth-moving bucket in that same shed.

PN61

It sounds like a silly debate but it happens regularly, your Honour. So my client was anxious to distinguish by the terms of the roping-in award precisely when and where the award would apply to its employees rather than leave that matter for future ongoing debate, just leave it open-ended so that it will be the subject of future debate or future claims by the union. As to the applicability of the award itself to the relevant employees, your Honour is right, there is really no room for debate about that. It is just a question of demarking when and under what circumstances the award will apply by making, as it were, a firm determination as to the work to which the coalmining award will apply and work for which it won't apply.

PN62

The most convenient and certain way of avoiding future debates in that regard is to make that provision in the roping-in order itself, so that the company - - -

PN63

THE VICE PRESIDENT: Have you proposed a form of words to Ms Gray?

PN64

MR HERBERT: Yes, your Honour. It should be on the Commission file. It was done in August under cover of letter of 30 August 2004 from my instructing solicitors, McKellar Robertson, addressed to the Registrar and copy to the union. A proposed roping-in award should be attached to that letter.

PN65

THE VICE PRESIDENT: Yes, just bear with me one moment. As a matter of first impression, clause 4 does no extra work in any relevant sense. That is the way the award would operate in any event. So far as clause 3 of the proposed roping-in award is concerned, it is only - again there is no really further work done by that, save for the last phrase:

PN66

...and only where such work is performed at or on a coal mine site.

PN67

MR HERBERT: Yes, your Honour, that is the critical expression.

PN68

THE VICE PRESIDENT: Ms Gray, do you agree that that is the critical clause?

PN69

MS GRAY: I think so, your Honour. I haven't seen it since 9 September and I'm afraid I don't have a copy.

PN70

THE VICE PRESIDENT: Mr Herbert, do you say that there has been some determination made by the Commission in the context of some unrelated dispute that the Production Engineering and Mine Award applies only to work performed at a coal mine site?

PN71

MR HERBERT: No, your Honour, the Production and Engineering Award itself applies to persons - and I'm quoting from clause 3.1 of the award:

PN72

...applies to persons engaged in work performed in the coalmining industry in the following states...

PN73

Etcetera. Now, your Honour, there has been litigation going back to the 1940s and '50s in the High Court.

PN74

MS GRAY: 1912.

PN75

MR HERBERT: At least, dealing with the question of how far away from the coal mine and in what circumstances if you leave a coal mine itself do you still become - are you performing work in the coalmining industry? Senior Deputy President Drake has just concluded a long consideration of that question in relation to a number of employers who have mixed businesses, that is that a general engineering business based in a town in a regional area where as part of - one of their major customers happens to be the biggest industrial undertaking in the district which happens to be a coal mine, but they also go into sugar mills and they go into ports and they go into other places that do similar sorts of work.

PN76

The issue in debate was whether the work performed for a coal mine client is work in the coalmining industry and the question is regularly raised and there's been litigation going on for many years about this subject where it is left undetermined, whether if one takes a piece of coalmining equipment into your workshop and you work on it, is that work in the coalmining industry or is work in the coalmining industry confined to the question of performing work on that same piece of equipment on the coal lease.

PN77

So that the concern of this client is that the applicability of this award being in the coalmining industry isn't left open-ended so that the coverage of the award runs into their workshop in another town, simply because they take coalmining equipment there from time to time, but they also have a range of other equipment - - -

PN78

THE VICE PRESIDENT: Did her Honour come to a concluded view about that? You said that her Honour was concerned with determining that very issue. Did she come to a concluded view about it?

PN79

MR HERBERT: In the matters that didn't involve OEMS she came to a view that there were - and in the proceedings it was said that the only employees which are being sought to be covered are employees whose work is performed on coal mines in broad terms. The words used were much more detailed than that but the sense of it was that the only employees being sought were those in coal mines.

PN80

In relation to, for example, one of the companies involved in those proceedings, a company called G&S Engineering, which has very similar profile to the present party, they have a large general engineering works in Mackay in Central Queensland. They send employees out to coal mines on a regular basis.

PN81

The contention was made by the CFMEU that in short form we are not chasing the workshop, the employees in the workshop, we are only chasing those employees who do their work on coal mines, and taking that literally in the same context here, this general engineering business is seeking to confine the applicability of the award to those employees who perform work on coal mines.

PN82

THE VICE PRESIDENT: I understand exactly what you are trying to do but that part of the matter is not by consent.

PN83

MR HERBERT: No.

PN84

THE VICE PRESIDENT: Assuming that the formal requirements are made out, which no doubt they will be in a moment, when you make the appropriate submissions, there's an interstate element in the dispute because your client works across the border. That is correct, Mr Herbert?

PN85

MR HERBERT: Yes, sir. Excuse me, your Honour. OEMS, your Honour, is. I'm seeking some instructions about whether they - I understand they do perform work in Queensland as well but their primary business is in New South Wales, but I'm just getting some instructions in relation to that. Your Honour, as I apprehend matters, the basis upon which OEMS is said to be involved in an interstate dispute is that it is said to be involved in a dispute involving a range of companies extending over several states, all of whom are alleged to be engaged in the same industry, and all of whom are participants in that industry in a way that a claim made against all of them at the same time, it creates the existence of an interstate industrial dispute.

PN86

There are a number of participants, or a number of recipients of the log who themselves only perform work in one state, but the dispute that exists is a dispute which involves a large number of them across a number of states in Australia and that that is the interstate dispute. OEMS is involved in that dispute and that is the dispute number that you have been given, or a number has been allocated to that dispute which is - sorry, your Honour.

PN87

MS GRAY: Are you looking for the A.C. Whalen one?

PN88

MR HERBERT: That is 2004/3156.

PN89

THE VICE PRESIDENT: Yes.

PN90

MR HERBERT: And that it is a participant in that dispute which I understand there is no disagreement amongst the recipients of the log and the union, the recipients of the log generally, including my client, that they are all engaged in an interstate industrial dispute of that character.

PN91

THE VICE PRESIDENT: And you don't dispute that the demands are made genuinely?

PN92

MR HERBERT: I don't dispute that, your Honour. I should add - - -

PN93

THE VICE PRESIDENT: Should I say you accept that the demand is made genuinely?

PN94

MR HERBERT: Yes, your Honour. Your Honour, I can confirm instructions that OEMS has employees engaged at Collinsville in Queensland as well as in the Hunter Valley in New South Wales. It performs work in two states on its own right.

PN95

THE VICE PRESIDENT: Okay. Now, what you can have today, Mr Herbert, is a dispute finding and a simple roping-in award that adds you as a respondent, but you can't have the roping-in award that you want today because Ms Gray does not consent to that course and she is entitled to have an opportunity to argue it. And I'm not persuaded at the moment on the basis of submissions that it is appropriate to make an award the sort that you seek. I understand the rationale for it but I'm not persuaded it is appropriate in the face of opposition from Ms Gray.

PN96

MR HERBERT: Your Honour, could I think accept your Honour's offer to make the dispute finding today but in relation to the roping-in award, I understand that your Honour does not wish to embark on that in the face of opposition from the CFMEU but, your Honour, my client does not consent to the making of what your Honour describes as the simple roping-in award which simply adds my client as a respondent, because it does not qualify the - - -

PN97

THE VICE PRESIDENT: No, I understand the reason why you don't want to do that.

PN98

MR HERBERT: Yes. So the short answer, your Honour, is that we are not consenting to the making of that roping-in award at this point but we do ask that the dispute be found today and we will take up the matter with the CFMEU to see if we can't resolve that other difference as quickly as possible.

PN99

THE VICE PRESIDENT: Yes. Ms Gray, if it be the case that the union isn't seeking to extend the operation to the workshops but is concerned only to ensure that people working at mines are covered by the Production and Engineering Award, then it would seem appropriate to meet Mr Herbert's concern, but that is a matter for you obviously.

PN100

MS GRAY: Your Honour, that is not a clear-cut thing either. I mean, we really need to have a look at OECMs operations. That is certainly the course that we took in respect to Silcar and G&S Engineering, the two engineering companies involved in the matter that was subject of the decision that Mr Herbert referred to by her Honour Senior Deputy President Drake. But there are other companies who run coal mines and run off-site adjacent workshops and in those we wouldn't be saying never say never in terms of in the coal mining industry.

PN101

THE VICE PRESIDENT: Of course, absolutely.

PN102

MS GRAY: You know, really, your Honour, we did ask Mr Foster to consult with our northern district over the terms of the roping-in award back in September. So as I understand it, no contact has been made. We will certainly readily take up the offer of Mr Herbert and Mr Moy to consult over that wording and hopefully reach an agreed position.

PN103

THE VICE PRESIDENT: Okay. When does this become time critical for your client from a commercial perspective, Mr Herbert?

PN104

MR HERBERT: Your Honour, I understand that the certified agreement that is the matter of concern was supposed to be certified some weeks ago but it ran into the Electrolux reef and whilst it didn't sink, it has had some major repair work, as I understand it, and it is due to come out of dock again within the next week, as I understand it. It is proposed next week. I think next week it comes back before the Commission for certification with its Electrolux repairs.

PN105

THE VICE PRESIDENT: Before Commissioner Bacon I take it?

PN106

MR HERBERT: I'm not dealing with that matter. I understand it is being done in New South Wales, so it may well not be Commissioner Bacon.

PN107

THE VICE PRESIDENT: Okay, Commissioner Roberts then. What is the name of that proposed agreement, do you know, or which party? How do I identify it?

PN108

MR HERBERT: Your Honour, Glennies Creek, G-l-e-n-n-i-e-s Creek, Coal Management.

PN109

THE VICE PRESIDENT: That is me. I think that ship is likely to reach its home port, Mr Herbert, to continue your nautical analogy.

PN110

MR HERBERT: Glennies Creek Underground Coal Mine Certified Agreement 2004.

PN111

THE VICE PRESIDENT: Yes, okay.

PN112

MR HERBERT: That contains a clause, we are instructed, that would effectively prevent the engagement of my client as a contractor in circumstances where my client was not a respondent to that P&E award.

PN113

THE VICE PRESIDENT: I share Vice President Ross's view about contractor clauses and provided they are drafted properly, a contractor clause can properly pertain to the requisite relationship and may impose obligations on an employer in respect of the conditions that it will require of its contractors so that the agreement will in fact arrive in a form that continues to impose that obligation.

PN114

MR HERBERT: Your Honour, we are told that the redrafting of the agreement was done with the assistance of a Senior Member of the Commission and that that clause has survived the process and that clause is intended to be included in the agreement to be certified next week. So that the difficulty being - - -

PN115

THE VICE PRESIDENT: Now, okay, that is fine. Yes, we haven't received any application but I will dealing with that one. Now, in relation to the dispute finding, Ms Gray, the company appears to be picking up the draft record of findings that was proposed by the union. Do you have your copy of that there? I take it no?

PN116

MS GRAY: No, your Honour.

PN117

MR HERBERT: For the record, your Honour, my client agrees that all the necessary prerequisites for the making of a finding of a genuine dispute exist and that the union has done things necessary of it in that regard and that my client has not acceded to the demands that have been made and the dispute was genuinely - I'm sorry, the claims were genuinely made.

PN118

THE VICE PRESIDENT: Yes, thank you. So you accept that you were served and you accept that you have not acceded to the demand, you accept the demand was genuinely made and you accept that there's an interstate element to the dispute.

PN119

MR HERBERT: Yes, your Honour.

PN120

THE VICE PRESIDENT: And a log of claims is the document that is relevant for present purposes.

PN121

MR HERBERT: Yes, your Honour.

PN122

THE VICE PRESIDENT: Ms Gray, do you have any objection to that form of words?

PN123

MS GRAY: No, your Honour, and the document that I handed up to your Honour has the schedule C attached. Now, that has been amended in conformity with her Honour's decision in PR952134 and in those respects differs from the log of claims served on the company. So that is the appropriate - - -

PN124

THE VICE PRESIDENT: Thank you. That is the document I'm holding up with the three orange tags.

PN125

MS GRAY: Yes, your Honour, and the one marked C is the appropriate log referred to as schedule C in the draft that your Honour's associate just showed me.

PN126

THE VICE PRESIDENT: Thank you. Well, I make a finding of a dispute in accordance with the draft record of findings submitted by the employer. I note that the document attached, schedule C, is the document which has an orange tab marked C in the draft record of findings in matter number C2004/3156 handed up by Ms Gray and a formal record of findings will issue forthwith with that annexure appropriately attached. Now, Mr Herbert - and I note that I'm satisfied on the basis of the matters put by Mr Herbert from the bar table that the requirements of the Act have been met.

PN127

The log of claims has been duly served on Outbye Engineering and Mining Services Proprietary Limited, that the claims in the log were genuinely advanced by the union, that the company has refused to accede to the claims in the log, that there is a dispute which extends - the log is advanced in the context of the dispute that extends beyond the cause of single state and that in every other respect it is appropriate to make that finding of dispute.

PN128

Now, Mr Herbert, the union is eager to engage in discussions with a representative of the company for the purpose of assessing the company's business, so as to be able to adopt a position in relation to whether or not it will consent to a form of words that will remove the scope for the sorts of disputes that you are seeking to avoid. Is there some time frame that you could offer or instructions in relation to that?

PN129

MR HERBERT: Well, your Honour, before your Honour came on to the bench I had spoken to Ms Gray about telephoning her after this hearing and we could both talk about the matter this morning and my client is very anxious to progress the matter. So we will try and do that during the day today.

PN130

THE VICE PRESIDENT: In terms of the further disposition of this particular matter, what I might do is just adjourn the matter generally with leave to either party to relist it on 24 hours notice and if it is relisted, I will deal with it at that time.

PN131

MS GRAY: Your Honour, do you think that it might be useful if the matter was listed for the purposes of the roping-in to be made or submissions to be made in respect to the roping-in prior to the certification that is also before your Honour in the Glennies Creek matter? I'm only suggesting it, your Honour, because 24 hours notice at the moment between now and Christmas, I'm sort of interstate quite a bit. If we actually had a date set then that would be more convenient for me.

PN132

THE VICE PRESIDENT: Yes, that is sensible, Ms Gray. Your diary says that you are free on what date?

PN133

MS GRAY: 6 December, your Honour, or any time after 11.30 on 9 December.

PN134

THE VICE PRESIDENT: Sorry, 6th and 9th after 11.30. How are you placed on the 9th?

PN135

MR HERBERT: I can do the 9th, your Honour. I should be in Sydney that day on the same matter that Ms Gray has before 11.30. So that might be convenient.

PN136

THE VICE PRESIDENT: Now, how are you placed on the 10th, Ms Gray?

PN137

MS GRAY: I'm before Senior Deputy President Kaufman all day on the 10th, your Honour.

PN138

MR HERBERT: I'm also in Court that day, your Honour.

PN139

THE VICE PRESIDENT: All right. Well, I will list this matter at 2 pm on Thursday, 9 December 2004 for argument in relation to the form of award to be made in part settlement of the dispute that has been found. Because you are both involved in the matter before SDP Kaufman, there is some possibility that we could arrange to utilise some time on the Friday in respect of - - -

PN140

MR HERBERT: No, your Honour, sorry, I'm in another matter. I'm not in the matter before the Commission in Sydney. I have another matter in Brisbane. I'm in a matter against Ms Gray I think on the morning of the 9th of the 10th.

PN141

MS GRAY: Yes, at 9 am and 10.30.

PN142

THE VICE PRESIDENT: Well, Mr Herbert, if you want to have any prospect of obtaining a qualified roping-in award of the sort that you seek in the face of Ms Gray's opposition, you will need to be in a position to lead evidence efficiently on that day.

PN143

MR HERBERT: Yes, your Honour.

PN144

THE VICE PRESIDENT: And also I would suggest that it would be appropriate for you to come armed with a brief outline, not a full written submission, a brief outline of submission in the event that you have been unable to reach agreement with Ms Gray in the mean time, and if Ms Gray has not seen that at least the day before, I'm going to be less inclined to take an adverse view of any adjournment application that Ms Gray makes, if I make myself clear.

PN145

MR HERBERT: Yes, your Honour.

PN146

THE VICE PRESIDENT: I don't know whether that is being a little bit convoluted.

PN147

MR HERBERT: No, I understand, your Honour.

PN148

THE VICE PRESIDENT: The Commission's Christmas party is on that afternoon. I don't mind sitting late and arriving late for the Christmas party but you both have matters on in the morning, I have matters on in the morning also and that only leaves really 3, or at a pinch 3-1/2 hours in the afternoon if we were to sit till 5.30 to deal with evidence. The commercial imperative is there for your client, so if it can't reach an agreement with Ms Gray or with the union in relation to the terms of a qualified roping-in award, you will need to be in a position to deal with it efficiently on that date.

PN149

MR HERBERT: Understood, your Honour.

PN150

THE VICE PRESIDENT: And if you want to send any statements in in advance and serve them on the union, that would be prudent as well. But hopefully the parties will be able to resolve this. The sort of situation that Ms Gray described where the workshop is next to a mine and is operated by a company that also operates a mine, I can well understand why in a practical sense the union would be wanting to argue strenuously that the award ought apply to that workshop. But where one has a general engineering business that is not particularly associated with a mine, where the employer is not operating or running a mine in any way, shape or form and mines simply form part of its clientele, then I can well understand why the company would be arguing strenuously for the clarification that it seeks. Anything further you want to say, Ms Gray?

PN151

MS GRAY: No, your Honour, thank you.

PN152

THE VICE PRESIDENT: Mr Herbert?

PN153

MR HERBERT: No, your Honour.

PN154

THE VICE PRESIDENT: Fine. The matter is adjourned to 2 pm on Thursday, 9 December 2004 as indicated. Thank you.

ADJOURNED UNTIL THURSDAY, 9 DECEMBER 2004 [11.43am]