C2004/4411, Transcript of Proceedings [2004] AIRCTrans 4741 (6 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 3, 105 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1095

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2004/4411

APPLICATION UNDER SECTION 111AAA
BY AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION THAT THE COMMISSION
CEASE DEALING WITH C2004/4403

PERTH

2.38 PM, FRIDAY, 5 NOVEMBER 2004

PN1

MR R. CHRISTISON: I appear on behalf of the Rail, Tram and Bus Union.

PN2

MS J. BISHOP: I appear on behalf of the Public Transport Authority.

PN3

MR S.D. BIBBY: I appear on behalf of the Australian Municipal Administrative Services and Clerical Services Union. I seek to intervene by leave of the Commission. Do you want to hear submissions, your Honour, in regard to the reason for that or?

PN4

THE DEPUTY PRESIDENT: I think just a brief statement might assist, if you would?

PN5

MR BIBBY: Your Honour, in effect, what we are arguing is, that there is another application which is, as I understand it, has been assigned to the Commission as presently constituted. And that is matter C2004/4403, which seeks, in effect, to amend the award in question. And in effect, what we are saying is, it would be our submission that there are substantial jurisdictional issues to be considered by the Commission before the matter can proceed. Principally, we would argue that as it stands, this Commission is seized with jurisdiction to hear a matter pursuant to section 113 of the award.

PN6

Given the constitutional framework of this Commission, it would have precedence over any State proceedings, pursuant to section 109 of the Constitution. And on that basis, we would be suggesting that this matter, or the matter that I have mentioned, that is, C2004/4403, should proceed without any interference from any other provision, such as section 111AAA. That would be in essence my submission in this matter. So on that basis, sir, pursuant to section 43, I think we have a sufficient interest in this matter and on that basis, I would seek leave to intervene.

PN7

THE DEPUTY PRESIDENT: Thank you, Mr Bibby. I will seek the views of Mr Christison first and then Ms Bishop.

PN8

MR CHRISTISON: In the first instance, I have to apologise to the Commission in some sense, is that I am not the normal industrial officer for these type of proceedings. Mr Ferguson, who would be the normal person who would represent us in regard to this matter and have much more ability at these type of hearings than I have, is unavoidably absent. He is in bed with a virus and he sent his apologies on. But aside from that, We strenuously object to the intervention of the Australian Services Union in this matter, currently within the State arena, State Commission, and that is why we have applied under 111AAA. That we have an ongoing action in regard to this particular task.

PN9

The matter is already listed for hearing for dates in December, etcetera. And if the court wishes, I can produce those dates, etcetera. They are three days in December where this matter will be heard because it is a matter under dispute where a group of workers are simply, in our view, been transposed from one to another. Look, I won't go on to bore you in regard to it, just to reiterate that in our view, this is probably one of the most dastardly deeds that we have ever seen in our life in regard to transferring workers by this method. So I do object.

PN10

THE DEPUTY PRESIDENT: Thank you. Ms Bishop?

PN11

MR BIBBY: Yes, Deputy President. We support the application for intervention by the ASU, by Mr Bibby. We would like to point out that there are 10 new positions, which are level one positions, currently being filled or have been filled on a temporary basis due to the restructure in this particular area and they are currently being paid - there are five employees currently being paid as level one officers, acting higher duties, or acting temporarily while this is being resolved. And therefore, we consider that the ASU has sufficient interest in that matter as are covered by the Federal PTA Salaried Officers Certified Agreement, as level one's. And we would seek through the section 113 applications to safeguard their conditions of employment, which I won't go into the argument on the matter, which I guess would be more suitable to be dealt with at a hearing date. And we seek a hearing date as quickly as possibly to help resolve those issues. May it please the Commission.

PN12

THE DEPUTY PRESIDENT: Thank you. Did you wish to exercise a right of reply Mr Christison, to that?

PN13

MR CHRISTISON: I do. In regard to the reference to these people being paid currently as salaried officers, that is by arrangement and agreement between the parties after conference in the Commission so that at a later stage, what ever the determination that arises or is arrived at in the State Commission, then those people would not be disadvantaged at a later date. I am not sure at this stage as to whether I should go in to greater detail or whether we are going to set aside the hearing currently to go into conference, or what ever.

PN14

THE DEPUTY PRESIDENT: Yes, I think at this point, that is sufficient.

PN15

MR CHRISTISON: All right.

PN16

THE DEPUTY PRESIDENT: I certainly intend to deal with this matter in a preliminary way today. What I propose to do since this matter has been listed for mention, is to proceed to raise some introductory and preliminary matters and as appropriate, other matters can then be raised and dealt with as they occur. Before dealing with the matter of leave, I would like to inform the parties first of the allocation of the matter which occurred pursuant to section 36 of the Act, the President, Guidice J, has considered the application under section 111AAA and decided pursuant to section 36(3) of the Act, that the application should be dealt with by myself.

PN17

The purpose of the meeting today is to clarify further, what the application is seeking to achieve and to review the material at hand and for the Commission then to be informed further on the parties' views as to the appropriate course of action, given that this is, as I have said, a preliminary hearing. The hearing is for the purpose of matter C2004/4411. That is the matter that has been listed but there are related files which have been referred to and I thought it might be helpful to briefly refer to the other files and to make some observations on them.

PN18

Firstly, in relation to application C2004/4403, which was filed by the Public Transport Authority, the PTA, two variations to the Federal Award are sought, as I understand the application. In application C2004/4409, filed by the PTA, there are, as I understand it, four variations to the Federal Award that are sought. Turning now to the application which is before me today, which is C2004/4411, filed by the Australian Rail, Tram and Bus Industry Union, I will refer to it as the Union, it seeks the Commission to cease dealing with application C2004, and the application is marked, 440 and then there is a space. I note that no such file exists. It appears to be a typographical error in that the final digit is missing. But I understand that the Union has since confirmed that the application is, indeed, C2004/4403. I just wanted to clarify that to make sure that there is no technical glitch occurring at the outset of these proceedings and that that is common ground.

PN19

As I understand the papers, the Union, the ARTBIU, perhaps I should refer more specifically, given the presence of the intervener, has no objection to C2004/4409 and that this application today applies only to C2004/4403 as I understand the position of the ARTBIU. And I will ask shortly for Mr Christison to respond but proceeding from that point, if there is no objection then to C2004/4409, then my understanding was that the matter would be dealt with on the basis that it is a consent variation. Regarding C2004/4403, schedule one in that application seeks to insert two new positions under the existing heading, Operations Branch Excludes Information Technology. And these two new positions, as I read it, are under level one classified add the position, Surveillance Operator, Perth. Under level four, add the position, Shift Commander, Perth.

PN20

It seems from the material that has been filed by the ARTBIU, that its objection in relation to file or application 4403, relates specifically to the inclusion of the classification Surveillance Operator, Perth. Now that is my understanding of what has been submitted to the Commission and I would ask the parties to indicate, particularly the ARTBIU, if you are in a position to, Mr Christison, to respond as to whether that is correct or not. And it is my intention that if the parties would so wish at a later point, this matter could be adjourned into conference, if that might assist. But I will seek your response first, Mr Christison?

PN21

MR CHRISTISON: I am not sure in regard to the exact numbers of the application, whether is be the 03 or whether it be the 09. I think they were the numbers that you quoted before - no, sorry, 4403?

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR CHRISTISON: And 4408, was it, or 9. Which one?

PN24

THE DEPUTY PRESIDENT: Nine.

PN25

MR CHRISTISON: Nine. Righto. I am not sure of those because they are not on the file currently before me, noting the correction that you made in regard to our information placed before you. The only single objection that we have is in regard to the reference to that surveillance position. We have no other objections. It is referred to a Surveillance Operator, Perth.

PN26

THE DEPUTY PRESIDENT: Yes. Thank you. And is it correct then that as I was interpreting, that on the basis of 4409, would be your view that that should be dealt with as a consent variation?

PN27

MR CHRISTISON: Well because I haven't got all the details in regard to 4409, if there was reference in 4409 to Surveillance Operator, Perth, then there would be an objection.

PN28

THE DEPUTY PRESIDENT: And in relation to 4403, I take it from what you said that there is no objection to the position of Shift Commander, Perth?

PN29

MR CHRISTISON: The only position that we object to is the Operator Perth position.

PN30

THE DEPUTY PRESIDENT: Thank you, that does clarify that and I note your reservation on that one matter. Ms Bishop?

PN31

MS BISHOP: Yes, Deputy President, I understand the union's objection is to C4403 and with respect to the Surveillance Operator position and not the Shift Commander position. Thank you.

PN32

THE DEPUTY PRESIDENT: And you have no further comments on any of the matters that I raised at this point?

PN33

MS BISHOP: Not at this point, thank you.

PN34

THE DEPUTY PRESIDENT: Before considering the question of adjourning into conference, I note that there was a reference in the schedule two grounds for application, paragraph 3, by the PTA, referring to the new classification of Operator Surveillance, superseding six existing Help Telephone Operator Wages positions in the State registered WA Railway Employees Enterprise Agreement 2004, resulting in six staff in those jobs becoming eligible for redundancy, retraining and redeployment with initial preference given to these employees for the new salaried positions at first instance.

PN35

I also understand from reading the application under section 111AAA by the ARTBIU, that it has an application C171 of 2004 in the State Commission, which is currently before Commissioner Smith. That application, as I understand it, challenges the right of the PTA to attempt to shift certain employment classifications outside of the State agreement and place them in a Federal award. I wonder if there are any comments that parties would like to make at this point on those?

PN36

MR BIBBY: Excuse me, sir?

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR BIBBY: I think I do want to insist, and that we give consideration to leave to intervene on the basis that you have mentioned 4403. We are party principal to that award and obviously they are intertwined, all these matters that we are considering or that are currently before the Commission. And so with the Commission's leave, sir, I think it is important that I can at least address some important issues of procedure. If I can be very brief, what I am saying is, you have jurisdiction now to deal with 4403, you have that jurisdiction. If one examines the authorities in 111AAA, they are markedly different in their character and construction on the basis that the arrangements in place are where unions are trying to escape, as it were, certain jurisdiction and seek better terms in another jurisdiction.

PN39

What we are saying here is, in effect, you have a consent agreement to amend an award and we are saying you have jurisdiction to do that. And we are saying, pursuant to section 110, we should proceed and deal with that matter. Once again, I am jumping ahead of myself, you Honour, but I am just obviously insistent that we at least have, given that there has been mention of 4403, at least preserve our rights in regard to that application. If it pleases the Commission.

PN40

THE DEPUTY PRESIDENT: Yes. The application today, as I have indicated, is on the matter of C2004/4411, which relates to the Commission to cease dealing with an industrial dispute. The preliminary hearing today has indeed shown the inter-relatedness of the various applications. And this, in fact, was one of the reasons that the hearing was convened for the Commission to receive some guidance on how it could proceed to deal with the various applications. The Act does empower me to grant leave to intervene if I am of the opinion, and this is section 143(1), that an organisation or a person, including the Minister or a body, should be hard in a matter before the Commission, I may grant leave to the organisation.

PN41

Having heard what has been put and taking into account that Mr Bibby's organisation, as I understand it, is the party to the Federal award concerned, I would seek clarification of Mr Bibby that that, in fact, it is the organisation which is referred to in the Federal award at clause 3.2, that you represent that particular organisation nominated there. Is that correct?

PN42

MR BIBBY: That is correct, your Honour. I am assuming you are referring to the Australian Municipal Administrative Clerical and Services Union, is that correct?

PN43

THE DEPUTY PRESIDENT: Yes. And there is reference to the West Australian Branch in the award.

PN44

MR BIBBY: WA, yes, your Honour, I am an employee of that organisation and therefore, authorised, as I understand it, to represent the organisation in these proceedings, if it pleases the Commission.

PN45

THE DEPUTY PRESIDENT: For those reasons that I have given and having had that confirmed by Mr Bibby that he is an authorised representative of the union party to the Railways Salaried Officers Interim Award 1995, which is the short title but the fuller title, as I understand it is, the Public Transport Railways Salaried Officers Award of Western Australia 2003. Is that your view?

PN46

MR BIBBY: Yes, your Honour, that is the correct title of the award.

PN47

THE DEPUTY PRESIDENT: That being the case and for those reasons, leave is granted to Mr Bibby to intervene on behalf of that organisation. Before proceeding further with the matters that I had raised, and having now dealt with the issue of leave, it occurs to me that it might be more productive to move into conference to discuss informally the issues that need to be addressed by the Commission to program these matters and to deal with them as is required. But I seek your views first as to whether that would be of assistance. Mr Christison?

PN48

MR CHRISTISON: I don't believe that I have got any choice at this point in time, once you granted intervention, I have no other choice.

PN49

THE DEPUTY PRESIDENT: Ms Bishop?

PN50

MR BIBBY: Yes, thank you, Deputy President, that would be acceptable to the PTA.

PN51

THE DEPUTY PRESIDENT: And Mr Bibby?

PN52

MR BIBBY: Yes, your Honour, I see no reason why we can't do that.

PN53

THE DEPUTY PRESIDENT: Thank you. The purpose of the conference is to explore further and clarify further the positions of the parties to assist the Commission in dealing with them, pursuant to the Act. We will now adjourn.

ADJOURNED INTO CONFERENCE [3.05]]

NO FURTHER PROCEEDINGS RECORDED