AG2004/8464, Transcript of Proceedings [2004] AIRCTrans 4855 (13 December 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9314
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2004/8464

APPLICATION FOR VARIATION
OF CERTIFIED AGREEMENT

Application under section 170MD(6) of
the Act by Simon Engineering Pty Ltd
to vary the Simon Engineering Certified
Agreement 2003-2006

MELBOURNE

9.33 AM, MONDAY, 29 NOVEMBER 2004

PN1

MR R. MARASCO: I am from the Australian Industry Group and with me is MR B. HOOPER from Simon Engineering.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, along with MS G. WARREN.

PN3

MS E. WALTERS: I appear for the Australian Workers Union and with me is MR T. LEE.

PN4

THE COMMISSIONER: Right. This is an application brought under section 170MD(6) which was mentioned at the same time last week with a section 127 application. It was generally agreed that the Commission would deal with 170MD(6) application, and it - as a means of determining whether or not the existing agreement is sufficient, without ambiguity, to deal with the work that is required to be done at the - whose site is it? Bluescope. Bluescope site. And that was - it was agreed on the undertakings given by the unions that there would be no action, industrial action that would be taken that was not in accordance with the Workplace Relations Act in terms of protected industrial action.

PN5

So the purpose of today is to hear argument, and Ms Walters as well as Ms Chu from the union indicated that they would be relying on the expertise, as I understand it, of Mr Warren, and also Mr Lee, who apparently has some long standing history with this place. Now, who wants to lead off?

PN6

MR MARASCO: Well, can we lead off, Commissioner, since it is our application?

PN7

THE COMMISSIONER: Well, you can do whatever you like, Mr Marasco.

PN8

MR MARASCO: Thank you. Perhaps can I start by tendering some documents to you.

PN9

MR ADDISON: Commissioner, if I just could, before my friend continues. Commissioner, the AMWU has got some serious concern with the way proceedings are being brought forward. Commissioner, the authorities with regard to section 170MD(6) are pretty clear, and the authorities say that MD(6) can only be used to remove an ambiguity or an uncertainty. MD(6) cannot be used as a vehicle to re-write an agreement and to put into an agreement something that wasn't inherently there in the first instance.

PN10

There has been a number of Full Benches that have made that decision. We, for our part, don't think there is any ambiguity or uncertainty with regard to the operation of the various agreements that apply on this site, that being the Westernport Maintenance Agreement and the Construction Agreement, the Metal Engineering and Associated Industries Award and the MECA Award. We say their operations are quite clear. We point to clause 39 in the Westernport Maintenance Agreement which clearly excludes any work that may be covered by MECA. There is a clear position from our understanding that this work that is contemplated is capital work, ie, new work. It is not ongoing maintenance work.

PN11

There is a whole range of issues that need to be fleshed out. Commissioner, it would be our view today that this matter should be set down for - or this matter should be programmed for hearing, and nothing more. At this point in time the applicant in the matter, Simon Engineering, have not even identified the ambiguity that they say exists. We would be seeking that Simon Engineering clearly outline their position and that may be what Mr Marasco is doing this morning. But we would want to see witness material. We would want to see where they say there is an ambiguity that exists, and then we would respond appropriately.

PN12

We say, Commissioner, given our undertaking that there will be no industrial action outside the terms of the Workplace Relations Act that there can be no prejudice to the applicant in an adjournment for such purposes. In fact, it can only assist the process to go ahead properly. So, Commissioner, our position this morning is to come along and listen. We would be seeking the matter be adjourned after my friend gives whatever information he wants to give, and if that is not satisfactory, we would seek directions that further information be given, and we would say that this matter should proceed at some point next week, if the Commission pleases.

PN13

THE COMMISSIONER: Mr Addison, your submission, with all due respect, is somewhat contradictory. I am not quite sure, if you say about the authorities in terms of section 170MD(6) - - -

PN14

MR ADDISON: Yes.

PN15

THE COMMISSIONER: - - - then what would I be programming next week?

PN16

MR ADDISON: Commissioner, the Full Bench - the particular Full Bench in the CFMEU v Capricornia Coal Management - now, I have got to say, Commissioner, that this is not a new argument with this company. I am quoting out of the decision, which is AMWU v Simon Engineering, a decision of his Honour, SDP Hamilton, of March 2002. Very similar argument arose between AMWU and Simon Engineering on a job at a quarry in Lilydale, where Simon Engineering said that the work they were doing was covered by their workshop agreement, not by a construction agreement.

PN17

After due consideration his Honour, SDP Hamilton followed the course that I suggest this morning. Deputy President Hamilton. My apologies, Commissioner. He followed the course I am suggesting this morning. He directed Simon Engineering to identify the ambiguity or uncertainty. He directed Simon Engineering to file witness material. He then directed the AMWU to file similar witness material. The AMWU and Simon complied with those directions. Evidence was led from a couple of managers at Simon, from Mr Warren, who is with me this morning, and Ms Barnes, who was then an organiser with the AMWU, and his Honour found that the work at Lilydale was covered by the construction agreement, and by MECA.

PN18

That matter was then appealed to a Full Bench and the Full Bench - which I can hand you a copy of that decision. The Full Bench, made up of the President, Giudice J, Vice President Ross, Commissioner Grainger, found there was no appealable error in his Honour's decision. Now, Commissioner, I do apologise. Because there have been a number of decisions that have flowed from this particular dispute I printed off the wrong decision yesterday. The correct - in terms of first instance decision for his Honour, DP Hamilton. If I can just inform the Commission that the correct decision number for his Honour's decision at first instance is PR915076.

PN19

That was then followed up, your Honour, because - Commissioner, because there was some discussion about orders with a further supplementary decision, which I will hand up just for completeness, which is PR917321, and that simply deals with orders, Commissioner. The actual decision itself is, as I said, PR915076. I haven't had an opportunity to make copies of this. I am happy for the matter to be stood down for some period of time if that satisfies you, Commissioner, and have a copy of this decision made. I just haven't had the opportunity to do that myself this morning. But we say that the decision of DP Hamilton with regard to Simon Engineering lays out clearly the proper process to be followed. He - - -

PN20

THE COMMISSIONER: How long do you expect the process to go from, if one were to provide directions and then hear argument, give time for the Commission to contemplate its navel, and to come down to the decision, how long do you think all that would take, Mr Addison?

PN21

MR ADDISON: Well, I think it could be done reasonably expeditiously, Commissioner. I would have thought that directions could be issued to Simon Engineering to file all of the material it would rely on by the end of this week. The unions could then file materials in response by the middle of next week, and the matter could be heard back end of next week, or early the week following. It would seem to me that that is a proper course of action to take, Commissioner. It is - - -

PN22

THE COMMISSIONER: Next week is not good for the Commission.

PN23

MR ADDISON: Well, obviously the timetable I propose is subject to your diary as well, Commissioner, and I understand, we are running up to Christmas, and it is not really good for anybody at that point in time.

PN24

THE COMMISSIONER: No. The big fat fellow comes around with the bear and - - -

PN25

MR ADDISON: Indeed.

PN26

THE COMMISSIONER: - - - throws everybody into confusion.

PN27

MR ADDISON: And is generous and kind to everybody.

PN28

THE COMMISSIONER: Yes.

PN29

MR ADDISON: As long as you have been a good boy or girl.

PN30

THE COMMISSIONER: Well, I only hope Santa Claus' reindeers don't leave presents on your lawn.

PN31

MR ADDISON: Absolutely. So, Commissioner, that would be my suggestion. That is the proper course of action. You will note that the Full Bench, in terms of the appeal process from DP Hamilton's decision was somewhat critical of the lack of information that had been supplied to DP Hamilton; was somewhat critical that site inspections, for instance, had not been completed, and the Full Bench seems to indicate that it would have been more comfortable had those sorts of processes been - - -

PN32

THE COMMISSIONER: Right. When is the work scheduled to begin? I understand very shortly.

PN33

MR ADDISON: I would have to get an instruction on that.

PN34

THE COMMISSIONER: Tomorrow.

PN35

MR ADDISON: Tomorrow, I am informed. But that doesn't mean that a decision could not be made retrospectively.

PN36

THE COMMISSIONER: I just wonder what the implications of that are though.

PN37

MR ADDISON: Well, if you look - - -

PN38

THE COMMISSIONER: I may - look, even if the work is scheduled to commence tomorrow there is no guarantee that - if, for instance, Simon Engineering were to proceed with their submissions and both unions were to proceed with their submissions that you would get anything before the end of the week, because if what you say is right in terms of the Full Bench being critical that site inspections did not occur, then obviously far be it from me to upset a Full Bench.

PN39

MR ADDISON: Well, that is - - -

PN40

THE COMMISSIONER: Though a few have upset me. But anyway, I would rather do site inspections.

PN41

MR ADDISON: Well, the Full Bench says - I can't find it, off the top of my head, Commissioner.

PN42

THE COMMISSIONER: That is all right.

PN43

MR ADDISON: But we see the proper course, in any event, is that the applicant fully outline their position, give us all the material they intend to rely on, give the unions a proper opportunity to respond, and we take it from there. We say that is the proper course, if the Commission pleases.

PN44

THE COMMISSIONER: Thank you. Mr Marasco?

PN45

MR MARASCO: Commissioner, there is nothing improper about the course that you have proposed. We are certainly ready to run our case this morning. We do have a witness that we will be presenting to you. We have a witness statement. I have given you a copy of an outline of submissions. We also have photos of the site and a site plan, and we are certainly in the Commission's hands as whether you feel it necessary in those circumstances, in light of the plan and the photos and the information from the witness, whether it will be necessary to have site inspections.

PN46

We would be arguing that we would like an interim order in our favour today if the matter can't conclude today. I understand on Friday the unions gave undertakings about no industrial action, pursuant to the Workplace Relations Act. We have just been a bit concerned about the unions initiating new bargaining periods for what they say is a separate piece of work, and we would be pressing for an interim order in relation to the MD(6) today, and will - - -

PN47

THE COMMISSIONER: How do I do that?

PN48

MR MARASCO: Under the general powers, under section 111. We say it is adequate power for the Commission to do that.

PN49

THE COMMISSIONER: Well, I am not quite sure. I mean, how do you give an interim order that removes temporarily an ambiguity that the employer says isn't there, but if there is - - -

PN50

MR MARASCO: Yes.

PN51

THE COMMISSIONER: - - - give an interim order to remove it so we can do our work, and firstly, I don't think I have got the power to do that in that circumstance.

PN52

MR MARASCO: Yes.

PN53

THE COMMISSIONER: But secondly, even if I did, and I heard all the evidence and then ultimately said, look, I now revoke the interim order because, in my view, there is no ambiguity, as an example.

PN54

MR MARASCO: Yes.

PN55

THE COMMISSIONER: Where does that leave the employer? And where does that leave the union?

PN56

MR MARASCO: All depending on what the decision would be. Like, whether the - one outcome might be the Commission would say, look, there is no ambiguity because the agreement clearly applies to the work - - -

PN57

THE COMMISSIONER: Yes.

PN58

MR MARASCO: - - - that is proposed to be done.

PN59

THE COMMISSIONER: The employer says thank you very much.

PN60

MR MARASCO: Yes.

PN61

THE COMMISSIONER: The union says, well, not happy about that. They might want to appeal, and I don't get nasty about that. I just remember. That is all. But if I say, well then, yes, there was ambiguity, and therefore I am prepared to remove that by a proper order - - -

PN62

MR MARASCO: Yes.

PN63

THE COMMISSIONER: - - - not an interim one, again, where does that leave the parties? I mean, I don't think I have got the ability - - -

PN64

MR MARASCO: Sure.

PN65

THE COMMISSIONER: - - - in the ambiguity sector to issue an interim order.

PN66

MR MARASCO: Yes. Well, in that event then we would be pressing for the final orders then today on the MD(6), this matter. The unions have been fully aware of what the ambiguities that we say does exist, because of the two competing views about what clause 3, the scope of the agreement, says. We filed our MD(6) application last week. That clearly spells out what the change is that we are seeking, and I will take you through the relevant principles about finding an ambiguity, even though it is certainly Simon's position that there is no ambiguity.

PN67

THE COMMISSIONER: No, I understand that.

PN68

MR MARASCO: That the agreement clearly applies.

PN69

THE COMMISSIONER: Yes.

PN70

MR MARASCO: But we are saying the ambiguity or uncertainty arises because of the disagreement between the parties about the application. So the unions have been fully aware of what our case is since we filed our material last week, and that was further enunciated when we appeared before you on Friday. So we say that there is no reason why the matter shouldn't proceed today.

PN71

THE COMMISSIONER: Right. The overall concern I have is this. If the Commission is dealing with the argument as to whether or not there is ambiguity or not, and whatever time frame that argument is dealt with, the employers, as I understand it as put last week, the employer's concern is that at some point the unions would serve a notice of a bargaining period.

PN72

MR MARASCO: Yes.

PN73

THE COMMISSIONER: Well, I mean, that is having a bit at the cherry both ways. You either deal with the 170MD(6) process and accept its consequences, or you don't. I have got to say that the Commission is not inclined to hear argument about the ambiguities or alleged ambiguities of a particular clause in an existing agreement, only to have, as an example, the union serve a bargaining period. What would be the purpose of the Commission hearing the 170MD(6) application?

PN74

MR ADDISON: Commissioner, if I can just respond to that. We say there is no ambiguity here.

PN75

THE COMMISSIONER: I know that. That is why I am sitting here.

PN76

MR ADDISON: And we say - we say if you - if the Commission has regard to DP Hamilton's decision at Lilydale, and I haven't given - - -

PN77

THE COMMISSIONER: No, but the bit that I have - - -

PN78

MR ADDISON: Commissioner, if I can give you a copy - - -

PN79

THE COMMISSIONER: The bit that I have read, very briefly, he prefaces his decision and his order by saying that this site stands completely alone - - -

PN80

MR ADDISON: I agree. I agree.

PN81

THE COMMISSIONER: Right.

PN82

MR ADDISON: But if I can give you a copy of the decision at first instance, and I only have the one, so I am sorry I can't give my friend a copy of that.

PN83

THE COMMISSIONER: But - - -

PN84

MR ADDISON: It is almost - - -

PN85

THE COMMISSIONER: But, let us get to the point.

PN86

MR ADDISON: Yes.

PN87

THE COMMISSIONER: Why would the Commission go through - and the parties, go through a 170MD(6) process if at some point during that process the union served a notice of a bargaining period?

PN88

MR ADDISON: Well, you wouldn't, Commissioner.

PN89

THE COMMISSIONER: Why would the Commission waste its time?

PN90

MR ADDISON: You wouldn't, Commissioner. You wouldn't. I am sure if a bargaining period is filed, and it would be our intention to do that, then the Commission would have no power under MD(6) in any event.

PN91

THE COMMISSIONER: So why would I waste my time?

PN92

MR ADDISON: Exactly. Commissioner, we say there is no ambiguity here, but if my friend wants to demonstrate an ambiguity then it is up to my friend to demonstrate that ambiguity. Now, we say that the agreement that my friend relies on, the Westernport Maintenance Agreement, whilst it has clause 3 - and clause 3 talks about regulating the rates of pay, conditions of employment, blah, blah, blah:

PN93

...within 10 kilometres of the Hastings Post Office, engaged in maintenance, modification, shift and work in the metal and engineering industry.

PN94

If you then turn to clause 39 of that agreement, 39 sub 2, point 2 says that:

PN95

...the parties agree that the scope and application of work covered by the enterprise agreement does not cover the work covered by the National Metal and Engineering (On Site) Construction Award.

PN96

Now, Commissioner, in exactly the same way, at first instance at the Lilydale - on the Lilydale decision, this company relied upon its workshop agreement. It said that the work it was carrying out at Lilydale was in fact maintenance work, and it was covered by the scope of the agreement.

PN97

The problem it had was that, at clause 38.2 of the maintenance agreement, was exactly the same words - exactly the same words - as the words that appear in clause 39 subparagraph 2 of the current Westernport agreement. Now, it will come down to a matter of fact, Commissioner. It will come down to a determination of what the work is. To determine that you will need to do, in my submission, a site inspection. You will also need to hear evidence. You will need to hear evidence from the company; you will need to hear evidence from the union officials, who have had a long association with this site; and you will probably need to hear evidence from the workers who are on this job.

PN98

Most of the workers who are on this job will be long term contracting employees with some experience of work in both construction and maintenance, and it would seem to me to do fairness and justice to the position you would need to hear all of that, and you would then need to make a determination. That is if you are first of all convinced that there is in fact a jurisdictional basis for you to operate. Now, in my submission there is no jurisdictional basis for you to operate, on the basis of DP Hamilton's decision at first instance, and the Full Bench affirmation of that decision, and the words in the current instruments that are before you, in comparison with the words that were in the instruments before his Honour, DP Hamilton.

PN99

Whilst DP Hamilton's decision was specific to the Lilydale site, when exactly the same circumstances present themselves again to the Commission, well, in my submission, why would the Commission re-invent the wheel? It is there.

PN100

THE COMMISSIONER: Why not? Why not? I don't know what was at the Lilydale site, and neither does his Honour, DP Hamilton, because he - - -

PN101

MR ADDISON: Well, it is - - -

PN102

THE COMMISSIONER: - - - never paid inspections.

PN103

MR ADDISON: It is laid out in terms of the evidence that was led, and there was evidence led from - - -

PN104

THE COMMISSIONER: Which you say the Full Bench is somewhat critical of.

PN105

MR ADDISON: The Full Bench said - - -

PN106

THE COMMISSIONER: So it is not - - -

PN107

MR ADDISON: - - - it would have been better to have more expansive information.

PN108

THE COMMISSIONER: It is not - let us re-invent the wheel.

PN109

MR ADDISON: So I am coming back - - -

PN110

THE COMMISSIONER: So I don't have a Full Bench come back at me.

PN111

MR ADDISON: That is right.

PN112

THE COMMISSIONER: Because now you have raised another argument, which is whether in fact the Commission has the jurisdiction.

PN113

MR ADDISON: I think that was inherent in my first submission, Commissioner.

PN114

THE COMMISSIONER: Well, no.

PN115

MR ADDISON: We say there is no ambiguity or uncertainty.

PN116

THE COMMISSIONER: Well, I know. But that is why I am here, because - - -

PN117

MR ADDISON: And if there is no - - -

PN118

THE COMMISSIONER: - - - you say there is none. They say there is.

PN119

MR ADDISON: If there is no uncertainty and ambiguity, and that is a matter of fact. It is a matter of fact, and there is plenty of authority - - -

PN120

THE COMMISSIONER: But to determine the fact - - -

PN121

MR ADDISON: Plenty of authority with that.

PN122

THE COMMISSIONER: But to determine the facts one must hear the argument and do the inspections, to determine the fact. Simply by you saying, "In our view there is no ambiguity," does not make it fact.

PN123

MR ADDISON: Well - - -

PN124

THE COMMISSIONER: I know you are legally trained and that - I suppose that is one step above me. But it doesn't mean - - -

PN125

MR ADDISON: No. I don't say - - -

PN126

THE COMMISSIONER: - - - to say that that is fact because you happen to have a law degree with you.

PN127

MR ADDISON: No, Commissioner. What I am saying is this. First of all, the jurisdictional hurdle that needs to be got over by my friend. He needs to point to the agreement and say there are words here that are subject, or could be subject to two meanings.

PN128

MR MARASCO: Can I interrupt for a minute? This is all in my submissions. I think, since I was on my feet a minute ago, opening our arguments, I was going to take you through all of those issues. I don't know if it is appropriate for Mr Addison to do that now.

PN129

THE COMMISSIONER: No, it is not, because I want to hear the answer to the first question that I raised.

PN130

MR MARASCO: Yes. Okay.

PN131

THE COMMISSIONER: And the first question that I raised is this. Why would the Commission and Simon Engineering, and for that matter the AMWU and the AWU, waste their time going through a 170MD(6) argument, (a) to determine whether there is fact or not in terms of ambiguity, when at any time the unions may decide to lodge a bargaining period?

PN132

MR ADDISON: Commissioner, I think I already said that it - that was our intention.

PN133

THE COMMISSIONER: So why am I wasting my time now?

PN134

MR ADDISON: Well, that is right, Commissioner. The AWU, I am - well, informed by my friend from the AWU, Ms Walters, that they served a bargaining period yesterday. It is the AMWUs intention to serve a bargaining period today, with regard to these matters. We - - -

PN135

THE COMMISSIONER: Okay. So the exercise that we went through the other day means nothing?

PN136

MR ADDISON: Well - - -

PN137

THE COMMISSIONER: The undertaking of the unions means nothing?

PN138

MR ADDISON: No, no.,

PN139

THE COMMISSIONER: Is that what you are saying to me?

PN140

MR ADDISON: No, no. No. The undertaking of the union, as I understand it, and I didn't give that undertaking. Ms Chu did. As I understand the undertaking of the union it was not to take industrial action outside of the rights that we have under the Workplace Relations Act. Now, if we set a bargaining period - - -

PN141

THE COMMISSIONER: On the basis that we would proceed with a 170MD(6) argument.

PN142

MR ADDISON: That wasn't my understanding of the - - -

PN143

THE COMMISSIONER: That is mine.

PN144

MR MARASCO: Yes, and it is ours, Commissioner.

PN145

THE COMMISSIONER: We were to proceed on the basis of a 176 - 170MD(6) argument.

PN146

MR ADDISON: I will resume my seat, Commissioner, because I wasn't here. But Ms Walters was.

PN147

MR MARASCO: Remember that Mr Nolan asked to clarify that when Ms Walters gave the undertaking. Mr Nolan asked for that very point to be clarified.

PN148

THE COMMISSIONER: The undertaking was that they would not take industrial action that was not empowered under the Act by way of protected industrial action.

PN149

MR ADDISON: Yes.

PN150

THE COMMISSIONER: But the very clear understanding I had was that the parties would proceed down the track of a 170MD(6) argument.

[10.00am]

PN151

Now, if you are saying to me, let us go through all that argument, let us go through that argument, let us have inspections, it is about line of argument, witness statements, and all the rest of it - by the way, we have served the bargaining period yesterday and we are going to serve one today to cover the both unions. I am not wasting my time. I am not wasting my time and I don't inspect Simon Engineering to waste their time either or, in fact, you to waste yours. So I am just going to stand adjourned. That is it.

ADJOURNED INDEFINITELY [10.01am]