C2005/2955, Transcript of Proceedings [2005] AIRCTrans 1255 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11669-1

COMMISSIONER LARKIN

C2005/2955

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TOMAGO ALUMINIUM CO PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/2955)

SYDNEY

10.09AM, TUESDAY, 24 MAY 2005

PN1

MS L BOOTH: I represent the Australian Manufacturing Workers' Union.

PN2

MR S BOATSWAIN: I seek leave to appear on behalf of Tomago.

PN3

MR G BOYCE: I appear for the Australian Mines and Metals Association on behalf of Alcan Gove Pty Ltd.

PN4

THE COMMISSIONER: Mr Boyce, are you an employee of Alcan? You are an employee of Alcan?

PN5

MR BOYCE: No, Commissioner. We are an employer association representing Alcan Gove.

PN6

THE COMMISSIONER: What employer association, I am sorry?

PN7

MR BOYCE: Australian Mines and Metals Association.

PN8

THE COMMISSIONER: Thank you, I missed that. Do I have any view on Mr Boatswain's application of leave?

PN9

MS BOOTH: Commissioner, we have no objection.

PN10

THE COMMISSIONER: Thank you. No objection raised, Mr Boatswain. Leave is granted.

PN11

MR BOATSWAIN: May it please the Commission.

PN12

THE COMMISSIONER: Ms Booth, I will hear your submissions when you are ready.

PN13

MS BOOTH: Certainly. Thank you, Commissioner. Commissioner, the matter before you today is an application by the AMWU for a dispute finding under section 99 of the Act. On 26 April 2005 after authorisation by the AMWU National Council, the AMWU served a letter of demand and log of claims on the respondents by registered mail. The previous serve it should be on the Commission's file.

PN14

THE COMMISSIONER: You are relying upon the material you have filed?

PN15

MS BOOTH: Yes, Commissioner.

PN16

THE COMMISSIONER: All right. Do you wish to tender that material into evidence before me, Ms Booth?

PN17

MS BOOTH: Yes, Commissioner.

PN18

THE COMMISSIONER: All right. What are you first tendering?

PN19

MS BOOTH: Commissioner, it is the proof of service of the letter of demand and log of claims which was made on the respondents on 26 April 2005. It has previously been provided to the Commission. I can provide another copy of that.

PN20

THE COMMISSIONER: Yes. That is with the registered post receipts.

PN21

MS BOOTH: Yes, Commissioner.

PN22

THE COMMISSIONER: And a statement of the facts as to service of the hearing and that also contains a schedule B which are the entities being served.

PN23

MS BOOTH: Commissioner, if that is the document that has the ambit claim and the letter of demand attached then it is. We would say that - - -

PN24

THE COMMISSIONER: No, it hasn't got - no. You are talking about service of the hearing, are you not? Or service of - - -

PN25

MS BOOTH: No, Commissioner, I am talking about service of the log of claims and the letter of demand.

PN26

THE COMMISSIONER: That is Ms Sally Taylor's statement of the facts?

PN27

MS BOOTH: Yes, Commissioner.

EXHIBIT #A1 STATEMENT OF FACTS OF MS SALLY TAYLOR, PROOF OF SERVICE OF LOG OF CLAIMS AND LETTER OF DEMAND ON RESPONDENTS & SCHEDULE B

PN28

MS BOOTH: Thank you, Commissioner.

PN29

MR BOATSWAIN: Can we just note, I know it is only a formality, I have not seen any of the documents that have been tendered by the union in this matter or filed in this Commission.

PN30

THE COMMISSIONER: You don't have a copy of the statements?

PN31

MR BOATSWAIN: I don't have copies of any of - - -

PN32

THE COMMISSIONER: Ms Booth, do you have copies for the other parties?

PN33

MS BOOTH: I have provided - yes, Commissioner, I can provide copies.

PN34

THE COMMISSIONER: Yes, please. If you would.

PN35

MR BOYCE: We would also seek copies.

PN36

THE COMMISSIONER: Yes, of course, Mr Boyce.

PN37

MR BOATSWAIN: If it is convenient also, Commissioner, it might be useful to inform you that the applications by ..... Tomago and on behalf, I understand, Alcan Gove, the matter should be programmed for some hearings in relation to some jurisdictional challenges.

PN38

THE COMMISSIONER: Mr Boatswain, I will hear the union first, it is their application.

PN39

MR BOATSWAIN: Certainly. I just though that I would mention that.

PN40

THE COMMISSIONER: I am aware of it.

PN41

MR BOATSWAIN: Thank you.

PN42

THE COMMISSIONER: Thank you. All right, Ms Booth, so that is statement as to facts and that also has - sorry, just the statement as to facts that you are tendering at the moment?

PN43

MS BOOTH: Yes, Commissioner. In the first I am tendering the proof of statement service of the log of claim and the letter of demand on the respondents on 26 April 2005.

PN44

THE COMMISSIONER: Yes. Thank you.

PN45

MS BOOTH: On 3 May 2005 following the failure of the respondents to meet the demands made upon them, the AMWU notified the Sydney Registrar of the Commission of an industrial dispute and on 10 May 2005 the AMWU served on the respondents the notice of listing and the information sheet by registered mail. And that proof of serve should also be on the Commission's file.

PN46

THE COMMISSIONER: That is the notification dated 3 May signed by Sally Taylor?

PN47

MS BOOTH: Yes, Commissioner.

PN48

THE COMMISSIONER: I might just have it in two - - -

PN49

MS BOOTH: I will clarify that. No, I apologise, Commissioner, it is the notification dated 11 May signed by Sally Taylor indicating that we have provided the notice of listing for this matter to the respondents on 10 May 2005.

PN50

THE COMMISSIONER: Yes. And you had that for the other parties.

PN51

MS BOOTH: I do have a copy of that, Commissioner.

EXHIBIT #A2 STATEMENT AS TO SERVICE MADE BY MS SALLY TAYLOR DATED 11/5/2005

PN52

MS BOOTH: Thank you, Commissioner. Commissioner, as Mr Boatswain has indicated at least one of the respondents do not consent to this application but I will take the opportunity, if it pleases the Commission, at this stage to make a short statement in regards to the application.

PN53

THE COMMISSIONER: Could I just take you back? A1 is the statement as to facts, the registered post.

PN54

MS BOOTH: Yes.

PN55

THE COMMISSIONER: Does it also include the letters of demand and the log?

PN56

MS BOOTH: Yes, Commissioner.

PN57

THE COMMISSIONER: And schedule B, the entities served.

PN58

MS BOOTH: Yes, Commissioner, and that is the document signed by Sally Taylor on 3 May 2005.

PN59

THE COMMISSIONER: Yes. All right. And you have given all that material
to - - -

PN60

MS BOOTH: I have provided a copy of that to the other parties Commissioner.

PN61

THE COMMISSIONER: All right. Yes, thank you, Ms Booth. I will hear you now.

PN62

MS BOOTH: Thank you, Commissioner. The log of claims served on the parties in this case, Commissioner, is evidence of the real intention of the AMWU to seek to negotiate with the respondents regarding the wages and conditions of their employees. The union is genuinely trying to achieve over time the claims contained in the log. The log contains a comprehensive list of 70 specific demands that deal with the employer employee relationship. The demands expressed are not simple or crude, they correspond with the arrangements, entitlements and provisions of other standard logs served by the AMWU. These logs that have enabled the making of many other awards in past settlement of a dispute that has been found. The content of this log is consistent with an ambit log for a union representing the class of employees covered by the AMWU.

PN63

Commissioner, in addition, the respondents in this case are all part of the aluminium industry with the refining and smeltering operations in a variety of locations around Australia, including Tomago in New South Wales, Gove in the Northern Territory and ..... in Western Australia. In this case, Commissioner, we do assert coverage of those staff engaged in technical supervisory administrative functions including planning, production, maintenance, purchasing, engineering and technical work including laboratory practice and supervision and training, Commissioner. That is the basis of my introductory submission at this stage, Commissioner. Certainly the AMWU on the basis that the respondents have failed to consent to demands made upon them, we do seek that the Commission find and record an industrial dispute pursuant to section 101 of the Act. But we understand that we don't have the consent of the other parties. Thank you, Commissioner.

PN64

THE COMMISSIONER: Thank you, Ms Booth, for those submissions. Mr Boatswain?

PN65

MR BOATSWAIN: On behalf of Tomago, Commissioner, it is our submission that the log of claims that has been served in this matter does not give rise to an industrial dispute within the meaning of the Act and therefore no dispute finding can be made. We have in correspondence briefly outlined this position to the union but they have indicated that this is an exchange only of very recent times. Essentially, the basis of submission is founded on principles and approach adopted by the Commission in the decision of Commissioner Bacon, September 2004, in circumstances where almost an identical log, interestingly, had been served by APESMA in relation to the coal industry. In that situation, the Commission applied the test in relation to determining whether an industrial dispute arose as set out by the High Court in the circumstances that it had to seek an order to settle an industrial dispute as opposed to seeking an award by the Commission of following the functions of a general regulatory body.

PN66

The test in that situation established by the High Court required the Commission to be satisfied that the demands of the log were reasonably obtainable by negotiation, conciliation or arbitration in the foreseeable future. The issue that was before the Commission in that matter before Commissioner Bacon, involved an assessment not only individually of the matters claimed but taking the log as a whole. And came to the conclusion that if the log of claims considered as a whole was sufficiently fatally flawed as a result of demands that were fanciful, also related to matters that were not pertaining to the relationship between an employer employee, and also required some things to be done that was contrary to the law, that the entire log of claims was held to be fatally flawed. It is our submission no longer a view of the almost identical log which is before this Commission, these technical deficiencies again arise and do not ..... the Commission's jurisdiction in relation to their dispute finding.

PN67

It is a matter that, it would be our view, that would only take a relatively short time to address to the Commission the passages to which jurisdictional point would need to be programmed and dealt with on a date committed to the Commission.

PN68

THE COMMISSIONER: Mr Boatswain, the complaint going to lack of jurisdiction is centred upon the log itself.

PN69

MR BOATSWAIN: Yes, Commissioner.

PN70

THE COMMISSIONER: The first point being that claims within that log, a certain amount of them are fanciful.

PN71

MR BOATSWAIN: Yes.

PN72

THE COMMISSIONER: The next point is that the log contains claims going to matters that do not pertain to the relationship of an employer and employee.

PN73

MR BOATSWAIN: Correct. There are also matters contained in the claim that are not allowable matters under section 89(a).

PN74

THE COMMISSIONER: So that's a third point.

PN75

MR BOATSWAIN: That is a third point. And there are also aspects of the claim that, I suppose, that ties in to matters contrary to law in relation to the fact that there is one particular provision, it is submitted, would involve a contravention of Trade Practices Act if it was granted.

PN76

THE COMMISSIONER: So you have a fourth arm of argument.

PN77

MR BOATSWAIN: Well, that fourth arm, I have captured the third and fourth under the one heading that we say that being not allowable there are things that the Commission cannot do pursuant to the Act. Secondly, there is one provision that we submit will involved a contravention of the Trade Practices Act. And it is our submission that you take all of those matters together as well as individually. Our submission is similar to the decision of Commissioner Bacon.

PN78

THE COMMISSIONER: Do I have a print number on that?

PN79

MR BOATSWAIN: Yes. The print number is PR951955. I have a copy I can hand up to you, Commissioner, if that is of assistance.

PN80

THE COMMISSIONER: Do you have a copy for - - -

PN81

MR BOATSWAIN: I do have a copy for that print.

PN82

THE COMMISSIONER: Are they your submissions, Mr Boatswain?

PN83

MR BOATSWAIN: In relation to this morning, yes, Commissioner. Obviously, being a jurisdictional issue, obviously the issues in relation to section 111(1)(r) are not being addressed. I am only addressing the matter of dispute finding itself today.

PN84

THE COMMISSIONER: You are not arguing authorisation or union rules?

PN85

MR BOATSWAIN: One aspect of the authorisation probably is captured by the genuineness of the claim and it's only a small point. I certainly accept on the material that has been highly submitted by the applicant that it appears the National Council authorised the log of claims being issued. It seems that the log of claims that has been issued is the sort of standard log that is issued by this union in all matters and it doesn't really tailor itself to the individual circumstances of the alleged industrial dispute. But that is just a small matter that I would address in relation to the issue of genuineness.

PN86

THE COMMISSIONER: It is just that, the reason I asked you, Mr Boatswain, is I would rather have everything on the table today.

PN87

MR BOATSWAIN: Yes.

PN88

THE COMMISSIONER: We will look for another date and I will hear
Mr Boyce's view as well but I prefer the argument on the table. The union then will know what case it has to answer in relation to jurisdiction. So if there is anything there I would like it out now. You dispute the jurisdiction of the Commission to make a finding and I have asked you on what basis and you have outlined four matters to me. We haven't necessarily gone to the particular claims that you say are subject to your argument but if there is any other argument in regards to union rules or the authorisation, then I think we need to have that out on the table.

PN89

MR BOATSWAIN: Well, Commissioner, I can assure you I wasn't trying to keep anything up my sleeve.

PN90

THE COMMISSIONER: No, I am not saying that, but I am just saying I would prefer to have it out on the table now so we know what the case is.

PN91

MR BOATSWAIN: Well, all I can indicate is that I accept that there was a fax ballot on the National Conference authorising the service of the claim. The only comment I would make and it would be addressed in an outline of the submissions I will be proposing to serve on the union, is that an aspect of that, I think is a - - -

PN92

THE COMMISSIONER: I haven't asked for any documents to be served, filed or served. If you are suggesting that the parties do that then I will hear you on that but I have not sought any written submissions or any written outline of argument. We haven't even got to that point so whatever the parties choose to do, I think someone had best put it before me.

PN93

MR BOATSWAIN: Well, I have provided ..... Commissioner, so there is an element of that in coming to the issue of the general regulatory body argument. So it is not a challenge to the authorisation, just aspects of the way it was authorised is consistent, we would submit, with the union attempting to enliven the Commission's functions as a general regulatory body rather than the creation of an industrial dispute.

PN94

THE COMMISSIONER: Are they your submissions, Mr Boatswain?

PN95

MR BOATSWAIN: They are.

PN96

THE COMMISSIONER: Mr Boyce, I will hear you.

PN97

MR BOYCE: Commissioner, on behalf of Alcan Gove we would support - firstly, we don't consent to the question of dispute finding being made and secondly, we would support the position of Tomago that the most appropriate way forward is for the matter to be set down for hearing to determine any issues we have. If the Commission could just appreciate that I have only received instructions to proceed in this matter at very short notice. We seek to reserve our position in respect of any arguments we may wish to make. We would be submitting that the most appropriate way forward would be by considerations as to submissions or outlines of submissions and in that event the most appropriate use of the Commission's time would then be made in respect of any hearing that occurs.

PN98

THE COMMISSIONER: So what you are putting to me, Mr Boyce, is that at this point you have not been in a position to formulate your specific arguments but you would support what Mr Boatswain has put to me this morning. But you would like an opportunity to look further and reserve your right of raising any other jurisdictional issues if you feel that they are available.

PN99

MR BOYCE: Yes, Commissioner, that is correct.

PN100

THE COMMISSIONER: Thank you, Mr Boyce. All right. It might be appropriate that we quickly go into conference and talk about dates for hearing. Ms Booth, is there anything further you wish to put on the record at this point in time? It is not a requirement.

PN101

MS BOOTH: Only, Commissioner, that we would seek directions either that submissions be written that the objections that Mr Boatswain has drawn to our attention today be the full parameters of the objections so that when we do have an opportunity to have this matter heard again, we can actually seek to thrash through all the issues rather than have issues that come up at another date.

PN102

THE COMMISSIONER: Yes, thank you, Ms Booth.

PN103

MS BOOTH: Thank you, Commissioner.

PN104

THE COMMISSIONER: I would presume then that each advocate at the bar table it putting to me that they would prefer some form of written submission, be it outline or full submission. Is that what I have correctly ascertained from what I have heard?

PN105

MS BOOTH: Commissioner, in my regards only to the extent that it will ensure that all of the issues are brought to the attention of the AMWU so that we have an opportunity to respond to all of them. If the parties have no further objections to the ones they have raised with the Commission today then we don't see the need for written submissions. If the parties feel they may have something further to add or they feel that they haven't properly articulated their objections today then we would appreciate an opportunity to see those objections in full.

PN106

THE COMMISSIONER: Yes, thank you.

PN107

MS BOOTH: Thank you, Commissioner.

PN108

MR BOATSWAIN: From my perspective, Commissioner, I would propose an outline submission to be prepared. I just think that makes it more convenient to address the matter to you but also provide a full opportunity for the union to comprehend the nature of the objections.

PN109

THE COMMISSIONER: Yes. Thank you, Mr Boatswain.

PN110

MR BOYCE: Yes, Commissioner, we would seek as ..... outline of written submissions take place.

PN111

THE COMMISSIONER: Yes. All right, we will go off the record and look at dates and programming for hearing of the matter. Thank you.

<SHORT ADJOURNMENT [10.29AM]
<RESUMED [10.37AM]

PN112

THE COMMISSIONER: All right. We have discussed the requirements for the hearing of the matter. Directions will issue to the parties. The respondents in the matter before me are to file and serve an outline of their submissions going to the issues of jurisdiction that they raised by close of business 7 June 2005. The AMWU are to file and serve their outline of submissions by close of business 21 June. Any list of authorities that the parties seek to rely upon must be filed and served by close of business of 28 June correctly cited, and the matter is listed for hearing in Sydney at 10 am 13 June 2005. If there is nothing further, thank you for your attendance. Commission stands.

<ADJOURNED UNTIL THURSDAY, 30 JUNE 2005 [10.38AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF FACTS OF MS SALLY TAYLOR, PROOF OF SERVICE OF LOG OF CLAIMS AND LETTER OF DEMAND ON RESPONDENTS & SCHEDULE B PN27
EXHIBIT #A2 STATEMENT AS TO SERVICE MADE BY MS SALLY TAYLOR DATED 11/5/2005 PN51