C2004/3156, Transcript of Proceedings [2005] AIRCTrans 1182 (23 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11546-1

SENIOR DEPUTY PRESIDENT DRAKE

C2004/3156

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
A C WHALAN & CO PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2004/3156)

SYDNEY

12.26PM, THURSDAY, 12 MAY 2005

Continued from 6/5/2005

PN1089

MS J GRAY: I appear on behalf of the CFMEU.

PN1090

MS A FITZPATRICK: I am a solicitor, McKellar Robertson. I appear on behalf of the company, Harnschfeger of Australia Pty Ltd.

PN1091

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1092

MS GRAY: Your Honour, I did send through a draft record of findings with an email requesting that this matter be re-listed on 20 April.

PN1093

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1094

MS GRAY: Your Honour, essentially, all the parties to the dispute finding at the appeal had the opportunity to appear when this was last generally before your Honour on 11 November 2004. And I have reviewed the transcript of those proceedings and there were no objections to the dispute finding in the form sought. As applies, in terms of all the parties aside from Harnschfeger, your Honour, the dispute finding is still in the form as it was before your Honour on 11 November.

PN1095

With Harnschfeger, we have in paragraph 1 of the dispute finding, restricted the scope of that finding to accord with your Honour's decision in this matter and the only other change to the way that it was before your Honour on 11 November is that, subsequent to those proceedings ..... Engineering, who was, on 11 November, represented by Mr Herbert, sought to have a dispute finding made as, with an affidavit of urgency. That matter came on before Vice President Lawler and was given a separate matter number of C2004/5618.

PN1096

His Honour made a dispute finding on 24 November 2004 and his Honour did so, your Honour, on the basis that ..... Engineering was operating in both New South Wales and Queensland, so his Honour didn't rely on this matter for interstateness. Subsequently a roping-in award was made on 11 March.
So ..... Engineering was one of the parties generally in this matter before your Honour. It was assized as such, your Honour, and dealt with as I have just outlined.

PN1097

Aside from that, the only other outstanding issue in this matter is Komatsu and if ..... application which was subject to arbitration before your Honour and a reserved decision goes our way then we would simply make a separate application to enlarge this dispute finding to move it from schedule B to schedule A but currently we have them sitting in schedule B, Leave Reserved, awaiting that decision from your Honour. So we would seek that the dispute finding be made in terms of the draft which has been sent to your Honour and circulated. I understand that Harnschfeger has no objection but of course Ms Fitzpatrick will be able to confirm that.

PN1098

THE SENIOR DEPUTY PRESIDENT: Is that the case, Ms Fitzpatrick?

PN1099

MS FITZPATRICK: Yes, thank you, your Honour. We agree that the dispute finding accords with your decision, however we reserve all our rights.

PN1100

THE SENIOR DEPUTY PRESIDENT: Well, whatever they may be, I am content for you to reserve them.

PN1101

MS FITZPATRICK: Thank you.

PN1102

THE SENIOR DEPUTY PRESIDENT: There has been no appeal lodged in relation to that Harnschfeger decision, has there?

PN1103

MS GRAY: No, your Honour, but normally the process would be to wait for the dispute finding and then - - -

PN1104

THE SENIOR DEPUTY PRESIDENT: The dispute finding, of course, that is right.

PN1105

MS GRAY: So we are expecting those books within three weeks I would say.

PN1106

THE SENIOR DEPUTY PRESIDENT: Perhaps. Right. I will issue the record of finding as agreed between the parties. I don't think there is anything else, Ms Gray. Thank you, Ms Fitzpatrick. The Commission is adjourned.

<ADJOURNED INDEFINITELY [12.31PM]