C2004/6292, Transcript of Proceedings [2004] AIRCTrans 4867 (13 December 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9305

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/6292

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by
Quality Maintenance Services Proprietary
Limited for orders in respect to alleged
threatened industrial action at the Esso
Oil and Gas Platforms, Bass Strait site

MELBOURNE

3.55 PM, THURSDAY, 2 DECEMBER 2004

Continued from 8.11.04

PN361

MR PARRY: My instructions are to ask for it to be extended and I have two sets of instructions one, are to the date of your decision in this matter. Ultimately I don't press that because I will be making a submission about that in due course. But the second is that it be extended until 13 December 2004. Now, the reason we have chosen that date is that there was an interim 127, your Honour. It was, there was an agreement to extent it. I think your Honour has been copied in on correspondence about a moratorium on industrial action. That is a moratorium which went for 6 weeks from the end of October and that moratorium goes up until 13 December 2004. Now, your Honour, that will be our application in respect of that 127 order.

PN362

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Addison?

PN363

MR ADDISON: Your Honour, I had a discussion with Mr Amendola earlier. We don't say there is any basis for the continuation of the 127., your Honour. There is no industrial action happening, threatening, intending or probable. Mr Parry is correct. We reached an agreement with regard to a moratorium on any industrial action until 30 December. I reiterate that on transcript. I make no bones about that. That is our agreed position. If it makes my friend more comfortable to have the order extended to 13 December and it then is self expiring, I don't have a difficulty with that. Otherwise, we would say there is just no basis for it. It will be discharged. It can either be discharged now, or it can be discharged effective 13 December.

PN364

MR PARRY: Well, I'm not sure what to make of that. Clearly, if necessary, we will say that that moratorium was in the face of industrial action. It was actually occurring. Clearly your Honour has seen more recent correspondence about the stability of the situation. However, we recognise that if the matter was extended to the 13th, that we would need to come back here and show a basis for any further continuance of that time, and Mr Addison talks about self expiring. As I understand, if your Honour extended the order, it would without more, terminate on that day.

PN365

THE SENIOR DEPUTY PRESIDENT: I saw the interim order as a step on the way to consideration of the 127 proper and when the interim order was first extended, my recollection is it was on the day that the 127 order proper was to be dealt with, but by agreement - parties agreed to the extension of the interim order. There was then a consent agreement to a further extension of the interim order, but I don't see it as a matter of self expiry. It is a step on the way, so if I come to the 13th, if I extend it to the 13th, then I would be sitting on the 13th to hear whether or not QMS wished to proceed with their application for the section 127.

PN366

MR PARRY: I agree. We would need to hear it on that date.

PN367

THE SENIOR DEPUTY PRESIDENT: Yes. The alternative is, of course, that they would say: we no longer wish to proceed with the 127, so. But the order proper is still there to be dealt with.

PN368

MR PARRY: Yes. Does your Honour have time on 13 December?

PN369

THE SENIOR DEPUTY PRESIDENT: I don't think so. No. Is there any particular reason why 13 December was the moratorium date? And I must say, I can't recall this correspondence. That is not to say I haven't received it, but - - -

PN370

MR ADDISON: The only reason was, your Honour, was that the day we had the mediation in the Federal Court was a Monday and we agreed to 6 weeks moratorium.

PN371

THE SENIOR DEPUTY PRESIDENT: I see.

PN372

MR ADDISON: Which expires on the 13th. That is the only logic behind the 13th. I'm in a similar position to you, your Honour, I probably - I don't have my diary with me, but I don't think I'm available on the 13th. So if we are going to deal with it, I would rather deal with it now. We say there is no jurisdictional basis for the order to be in place and the order should lapse. There is no threat of industrial action from AMWU. In fact, I put on the record - and I have put on the record - that we have agreed that there has been no threat of industrial action, so there is no jurisdictional basis for it. As a matter of discretion, it would seem to me that the Commission, keeping orders in force just for the sake of it, is not something the Commission ought to do and the order should lapse. The order should be terminated effective today. If the Commission pleases.

PN373

MR PARRY: Your Honour, we don't see any magic in the 13th. If it is to be the 10th or the 13th we don't - or the 14th - that is not a matter of import.

PN374

THE SENIOR DEPUTY PRESIDENT: Mr Addison, in the event that I was to relist the matter for the 14th, do I have an undertaking from the union that there will be no industrial action between now and the hearing on the 14th?

PN375

MR ADDISON: Your Honour, we have got a scheduled communications meeting on the 14th.

PN376

THE SENIOR DEPUTY PRESIDENT: I see.

PN377

MR ADDISON: I wouldn't have anybody available to instruct me. As I understand it, rumour has it - rumour has it, that there is an agreed Comms meeting on the 14th. We did ask Mr Mogridge earlier and he couldn't confirm or deny that. But we understand from Esso that there is an agreed Comm meeting on the 14th.

PN378

MR PARRY: 15th?

PN379

MR ADDISON: No. I would rather deal with it now, your Honour, if it is going to be an issue. I'm on leave on the 17th, your Honour. I know, I'm pretty much flat to the board between now and then.

PN380

THE SENIOR DEPUTY PRESIDENT: What about the 10th?

PN381

MR ADDISON: Is that next Friday, is it? What time are you looking at, your Honour?

PN382

THE SENIOR DEPUTY PRESIDENT: Early in the morning or lunch time.

PN383

MR ADDISON: Can I make a phone call? I don't have my diary with me. My secretary does, and I can give her a ring and find out.

PN384

THE SENIOR DEPUTY PRESIDENT: I'm thinking about half past 8 on the 10th?

PN385

MR ADDISON: That sounds okay, but I would need to confirm it, your Honour.

PN386

MR PARRY: That is fine by us.

PN387

MR ADDISON: Can I take 5 minutes and make a call?

PN388

THE SENIOR DEPUTY PRESIDENT: Yes.

PN389

MR ADDISON: 8.30 on the 10th?

PN390

THE SENIOR DEPUTY PRESIDENT: Yes.

PN391

MR ADDISON: I will have to go out the front.

PN392

THE SENIOR DEPUTY PRESIDENT: We will adjourn briefly.

SHORT ADJOURNMENT [4.05pm]

RESUMED [4.15pm]

PN393

MR ADDISON: Thanks, your Honour, I've spoken to my secretary. She is trying to reorganise a meeting that I had at 9 o'clock on the 10th but we will abandon that one. It is with Bosch, so they can wait and we would be right for 8.30 on the 10th with regard to the 127. I've just raised, your Honour, while I'm on my feet, I've just raised with Mr Parry, the that we clearly won't finish this today and we would need another date. My friends thought that we were listed for tomorrow, but I didn't. I certainly haven't got it in my diary for tomorrow. So I've suggested may be the 15th, depending - - -

PN394

THE SENIOR DEPUTY PRESIDENT: Of February?

PN395

MR ADDISON: Of December, or 16th - - -

PN396

THE SENIOR DEPUTY PRESIDENT: The next you are going to get me is February.

PN397

MR ADDISON: That is going to have to be then. There is nothing we can do about that.

PN398

THE SENIOR DEPUTY PRESIDENT: Just on the 127, do I have your undertaking, Mr Addison, there will be no industrial action between now and the 10th?

PN399

MR ADDISON: I will reiterate what I said earlier, your Honour, we have an agreement between us that there will be a complete moratorium until the 13th, so certainly, there will be no industrial action between now and the 10th.

PN400

THE SENIOR DEPUTY PRESIDENT: Anything else you want to add in respect of the 127, Mr Parry?

PN401

MR PARRY: No, your Honour.

PN402

THE SENIOR DEPUTY PRESIDENT: On the basis of the undertaking given by Mr Addison, I will leave the interim order as it is. I won't extend the date but the matter will be listed for 8.30 on 10 December 2004 in Melbourne.

ADJOURNED UNTIL FRIDAY, 10 DECEMBER 2004 [4.17pm]