C2005/2893, Transcript of Proceedings [2005] AIRCTrans 1407 (29 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11910-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2005/2893

APPLICATION BY THE AUSTRALIAN WORKERS' UNION
s.133 RAO Sched. - Orders re representation rights of employees
(C2005/2893)

ADELAIDE

10.02AM, THURSDAY, 16 JUNE 2005

Reserved for Decision

PN1

MR N LLEWELLYN-JONES: I appear with J BRAITHWAITE for the Australian Workers Union.

PN2

MR J GRESTY: I appear on behalf of the Australian Manufacturing Workers Union and with me this morning is MR N O'BRIEN.

PN3

MR J WILDER: I am from the CEPU Electrical Division.

PN4

MR A SHORT: I appear with MR A MARKIEWICZ for the Australian Submarine Corporation. My recollection is leave could have been granted but I could have made a mistake.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Short, I don't actually recall that because as I understand it, this is the first occasion when the matter has actually been formally before the Commission.

PN6

MR SHORT: In that event I seek leave.

PN7

THE SENIOR DEPUTY PRESIDENT: Is there any objection to Mr Short's application for leave.

PN8

MR LLEWELLYN-JONES: There's no objection from the AWU, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Gresty and Mr Wilder?

PN10

UNIDENTIFIED SPEAKER: No.

PN11

THE SENIOR DEPUTY PRESIDENT: I grant that application Mr Short. Today's hearing is for the purpose of considering the extent to which the Commission has the jurisdiction to entertain an argument put by the AWU that in accordance with section 133, Schedule 1B of the Act, an order should be made in the terms proposed by the AWU. The CEPU have identified a series of issues which you say, Mr Wilder represent jurisdictional impediments to the determination of this matter pursuant to section 133 of that schedule.

PN12

MR WILDER: Yes. Your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: I've considered the material provided by the CEPU and I would see that this morning represents an opportunity for you, Mr Wilder to expand upon any of those issues, should you wish to do so. In addition to that, I wrote to the parties on 7 June outlining some four additional issues upon which I invited the parties to comment. Perhaps before we commence the hearing from you, Mr Wilder, I should also note that I've received comprehensive information including authorities from the AWU in relation to this particular matter. I should note that I've got copies of those authorities and that I've had a brief look at those authorities.

PN14

MR LLEWELLYN-JONES: This might be a prudent time in fact to raise a small point which is - I was going to raise it at the beginning of my submissions but considering it's directly on this topic, I'll raise it now. Two of the authorities are correct but there were in fact almost identically cited cases - I just want to make sure that the Commission has the correct one before him. The first one where this problem arises is the - I believe the decision of the High Court in Re Media Entertainment Arts Alliance ex parte Hoyts Corporation Pty Limited. There's in fact two cases of that citation, one from September, I think, and one from November of '93 - just let me get those cases out.

PN15

In any event the earlier one of the two- - -

PN16

THE SENIOR DEPUTY PRESIDENT: The one I have related to proceedings on 17 and 18 March 1993.

PN17

MR LLEWELLYN-JONES: That would be the correct one, then sir, but it's the one which is earlier in the year. There was one later on in the year as well. They were on completely different issues, although related to the same dispute I think.

PN18

THE SENIOR DEPUTY PRESIDENT: This one relates to a discretion to dismiss or refrain from hearing or determining a dispute in accordance with the then section 111(1)(g)(iii) - - -

PN19

MR LLEWELLYN-JONES: Which would be the correct case of that. The second case is the decision of Munroe J. He made two decisions, regarding the Australian Education Union. One on 26 November '96 - this is the decision of the first instance and one on 30 November '96. It should be said that it's the
30 November '96 decision which is the correct one, or the most relevant of those decisions.

PN20

THE SENIOR DEPUTY PRESIDENT: You've cited that as the State of South Australia v AEU. Is that correct?

PN21

MR LLEWELLYN-JONES: Yes. That's correct.

PN22

THE SENIOR DEPUTY PRESIDENT: This relates to - the matter that I have is an appeal decision dated 4 March 1997. Are we talking about the same creature?

PN23

MR LLEWELLYN-JONES: I don't believe we are. There is an appeal - - -

PN24

THE SENIOR DEPUTY PRESIDENT: It's an appeal against Munroe's J decision of 30 November.

PN25

MR LLEWELLYN-JONES: I'm glad the Commission has that appeal decision. I just thought I'd clarify the decision in first instance is a decision made on
30 November '96. I, for my own research when I printed these cases out to bring to court accidentally printed out 26 November decision because it has roughly the same citation, so I just thought I'd advise the Commission that if you wanted to refer back to the decision at first instance it is 30 of November that you will be looking for.

PN26

THE SENIOR DEPUTY PRESIDENT: I must say I haven't poured over Munroe's J decision, given the appeal decision relative to that original finding.

PN27

MR LLEWELLYN-JONES: If it please the Commission to the extent that I'll rely on that case, I'll rely on ..... decision on any of them.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wilder, it might be best at this stage if I mark the documents provided to me relative to this matter by yourself.

EXHIBIT # CEPU1 DOCUMENT FROM MR WILDER DATED 17 MAY

PN29

MR WILDER: Referring to CEPU1, I believe everyone has a copy. I have some copies here, if so desired. I refer to my submission of 17th May and referring to section 111 of the Workplace Relations Act in regard to particular powers of the Commission, clause 111(1)(g)(i):

PN30

The Commission may dismiss a matter, or part of a matter or refrain from further hearing or from determining industrial dispute or part of the industrial dispute if it appears that (1) the industrial dispute or part is trivial.

PN31

Clearly this application is affecting only one person who is already a member of the CEPU and the CEPU has coverage of that person. So the task is actually being performed so clearly the matter is a trivial one. The further section (iii):

PN32

That further proceedings are not necessary or desirable in the public interest

PN33

The public's interest is not served by the Commission arbitrating on the membership or an individual and no industrial action is currently taking place.
The public interest is not going to be served by any orders from the Commission at this stage. (iv):

PN34

For the parties in industrial disputes engaging in conduct that in the Commission's opinion is hindering the settlement of the industrial dispute or another industrial dispute.

PN35

This is probably one of the most important ones, because the enterprise agreement does not allow for arbitration by the Commission regarding demarcation. The dispute can only be settled by the ACTU as referred to in the EBA, the enterprise agreement, the ASC enterprise agreement. By not availing themselves to this procedure the AWU is clearly hindering the settlement of this dispute. We also refer to section 3:

PN36

Principle object of this Act

PN37

The Workplace Relations Act, that is,

PN38

Is to provide a framework for cooperative workplace relations which promote the economic prosperity and welfare of the people of Australia by:

PN39

(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice -

PN40

Which clearly we don't have a problem with the AWU going to the person holding that position at the moment and asking whether they want to be a member of the AWU. That's clearly allowed under the Act whereby the freedom of association also allows the persons performing those duties to be a member of the CEPU. I'd also like to reply to the Commission's - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Before you go to any other issues can I just take you back to your submissions relative to section 111(1)(g). Is it the case that what you're saying to me there is that while the Commission may have the jurisdiction to utilise section 133 of the organisation schedule then it would be appropriate but it would be appropriate for the application to be dismissed by virtue of it being trivial in accordance with section 111(1)(g). You see, there's a distinction. On the one hand you've submitted the Commission doesn't have the jurisdiction to deal with this application, but if I look at the various matters you've raised in CEPU1, it seems to me that what you're saying there is that irrespective of whether the jurisdiction exists, the application ought to be dismissed on the basis that it is trivial or otherwise covered in section 111(1)(g).

PN42

MR WILDER: I apologise. I may have done my submission in the wrong order. Predominantly, the CEPU is saying that the Commission doesn't have jurisdiction, yes.

PN43

THE SENIOR DEPUTY PRESIDENT: I see. So if the Commission doesn't have jurisdiction then I don't need to consider section 111(1)(g) because it becomes irrelevant.

PN44

MR WILDER: That's correct.

PN45

THE SENIOR DEPUTY PRESIDENT: What I'm struggling with is the basis upon which you say the Commission doesn't have the jurisdiction. I'll need you to expand upon that for me.

PN46

MR WILDER: Fair enough. First of all if we go back to section 134, Schedule 1B:

PN47

Preconditions for making an order

PN48

Part (2)(a) and (b), you'll find that:

PN49

The Commission must not make an order unless the Commission is satisfied that:

PN50

(a)The conduct or threatened conduct of an organisation to which the order would relate, or of an officer, member or employee of an organisation:

PN51

(i) is preventing, obstructing or restricting the performance of work; or
(ii) is harming the business of an employer.

PN52

This clearly is not happening, and (b) there's consequences referred to in paragraph (a)(i) or (ii):

PN53

(i) have ceased or unlikely to occur.

(ii) are imminent.

PN54

What we are saying is the work is proceeding as normal. There is no dispute here. All we are seeing here is a clear demarcation issue, which the enterprise agreement clearly refers to in part (10)(g)(viii) of the enterprise agreement. The enterprise agreement does not allow for the Commission to make any orders on demarcation. It's clearly a section of the enterprise agreement that all parties agreed to that any demarcation issue would be referred to the ACTU.

PN55

THE SENIOR DEPUTY PRESIDENT: Can I just take you back to that certified agreement. I think you're referring to clause 10(g) of that agreement. Is that the case?

PN56

MR WILDER: That's correct.

PN57

THE SENIOR DEPUTY PRESIDENT: (10)(g)(viii) says:

PN58

That in the event that a demarcation dispute arises between parties hereto the parties may agree to refer the matter to the ACTU under its established demarcation procedures. In that event the parties in dispute will accept the decision of the panel or tribunal determining the matter.

PN59

MR WILDER: That's correct. That's the clause.

PN60

THE SENIOR DEPUTY PRESIDENT: If I contrasted those words which contain the words "may agree", with the somewhat mandatory terms contained in most of the other provisions of that dispute settlement process which refer to first of all, the opening sentence in that particular clause 10(g) which says:

PN61

The following procedure shall apply to the handling of any disputes and the first step that an employee who has a grievance should report it to his or her immediate foreman.

PN62

It recognises that it may resolve the matter at that point.

PN63

After reporting the matter to the foreman advice may then be sought from a union delegate.

PN64

10(g)(ii) says that:

PN65

If a matter remains in dispute shall then be examined by the officer appointed by the company in conjunction with shop stewards

PN66

10(g)(iii) says that:

PN67

If the dispute thereafter remains unresolved the matter shall be discussed between the officer appointed.

PN68

10(g)(iv) once again inserts the less than mandatory provision which says that:

PN69

the matter may be notified to the Commission -

PN70

which seems to indicate an element of discretion rather than a mandatory process. It continues to say in 10(g)(v):

PN71

While the procedure specified herein are being followed work shall continue normally and the status quo of the matter shall remain.

PN72

Now, without going through each of the other steps, the question that I have there for you is, to what extent do the provisions of clause 10(g)(viii) establish the reference to the ACTU as the only mechanism for the resolution of demarcation disputes as distinct from an optional mechanism.

PN73

MR WILDER: If the Commission pleases, it actually spells out demarcation issues as a separate issue in regards and not an industrial issue. I mean, the rest of the orders of industrial disputes allows the Commission to hear whereas the demarcation dispute is set out as a completely separate issue altogether. Therefore the clause is -

PN74

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN75

MR WILDER: As I told the Commission before, there clearly is not a dispute occurring in this present point of time anyway. The only dispute here is between the union parties. The actual work itself is being carried out quite well by the person involved and has done for quite a substantial amount of time now. The only way to resolve any demarcation issue that should arise between the two union parties seeing as there is no dispute occurring on the site at the moment, would be through the ACTU as per clause 10(g)(viii).

PN76

THE SENIOR DEPUTY PRESIDENT: The second question I have, which is a related one, is that should I understand you to be saying that because the agreement establishes a process for the resolution of demarcation disputes then there is no capacity for the Commission to consider use of section 133 of Schedule 1B.

PN77

MR WILDER: That is correct, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Perhaps you could expand upon that issue for me. You see there's a difference between the Commission not having the capacity to utilise section 133 of Schedule 1B and the Commission deciding that it did have the capacity but chose not to exercise the discretion inherent in that section. If I haven't spelt out my question clearly enough, please - - -

PN79

MR WILDER: Please repeat yourself again.

PN80

THE SENIOR DEPUTY PRESIDENT: It may be that you're saying to me that the provisions of the agreement which deal with demarcation disputes mean that there is simply no ability or jurisdiction for the Commission to utilise section 133 of Schedule 1B. That is the agreement provisions effectively usurp any capacity to consider section 133. Or it may be that you're saying to me that whilst section 133 of Schedule 1B is available to the Commission, the provisions of the agreement which deal with demarcation disputes and the absence of the
pre conditions set out in section 134 mean that, that jurisdiction should not be exercised.

PN81

MR WILDER: That's correct, sir.

PN82

THE SENIOR DEPUTY PRESIDENT: It's that second option.

PN83

MR WILDER: The second option sir, yes.

PN84

THE SENIOR DEPUTY PRESIDENT: It's not so much an argument saying that section 133 is not available to the Commission, rather it's the case that you say, it ought not to be utilised.

PN85

MR WILDER: No, I think I might have confused the issue somewhat but clearly section 133 is available to the Commission but that section should not be utilised because of section 134.

PN86

THE SENIOR DEPUTY PRESIDENT: I've cut you off so feel free to keep going now.

PN87

MR WILDER: I think what I was actually going to do is in danger of repeating myself again, referring to your correspondence of 7 June 2005. In reply to that again, I was going to answer the questions one by one. Part 1:

PN88

What do the parties say is the relationship between section 133 Schedule 1B?

PN89

I think I've already answered this, but we're saying there is no relationship between section 133 Schedule 1B and the AIC enterprise agreement:

PN90

There is not, and never has been a problem with the AWU asking an electrical store person whether he would ...(reads)... the duties in that store.

PN91

Part 2, the section 133 Schedule 1B:

PN92

Allow the Commission to make an order with respect to work covered by the agreement where the agreement ...(reads)... in clause 10(g)(viii).

PN93

What we are saying is, no, the Commission is unable to make an order.

PN94

THE SENIOR DEPUTY PRESIDENT: No, can I stop you there just to be clear. That question goes to 10(g)(vii).

PN95

MR WILDER: That's correct.

PN96

THE SENIOR DEPUTY PRESIDENT: Not (viii)?

PN97

MR WILDER: I was just following on:

PN98

The issue is clearly one of demarcation. The enterprise agreement clearly sets out the process regarding demarcation issues that all parties have previously agreed to.

PN99

This does not involve - - -

PN100

THE SENIOR DEPUTY PRESIDENT: Perhaps I should clarify that question. 10(g)(vii):

PN101

Establishes the objectives of the procedure shall be to promote the resolution of disputes by measures based on consultation, cooperation and discussion to reduce the level of industrial confrontation and to avoid interruption to the performance of work and the consequential loss of production and wages.

PN102

Now, the issue that I was endeavouring to invite comment on in that regard, is that 10(g)(vii) doesn't talk about arbitration. It talks about consultation, cooperation and discussion. As such, the AWU has brought this application to the Commission, in effect wanting an arbitrated outcome albeit pursuant to
Schedule 1B. So the issue that I'm inviting comment from the parties on in that regard goes to the extent to which an arbitrated decision pursuant to section 133 of Schedule 1B is indeed consistent with the process outlined in 10(g) of the agreement.

PN103

MR WILDER: I don't believe it is. Again referring to clause 10(g)(vii):

PN104

The discussion reduced the level of industrial confrontation to avoid interruption to the performance of work and the consequential loss of production and wages.

PN105

This clearly is not the case. This is not happening. This is, Senior Deputy President, just basically a demarcation issue - solely a demarcation issue - between two unions, so it refers to clause 10(g)(viii). Clause 133, orders about representation Schedule 1B. Clearly the Commission does have the ability to arbitrate on that matter but that matter has nothing to do with the case here. The person concerned is already a member of a union which clearly has coverage of that task involved due to the scope of work involved. We would say that
section 133 Schedule 1B is totally irrelevant and just part of a manufacturing of a dispute that does not occur at all.

PN106

Therefore, I again refer to section 134(2)(a) and (b). The fact that there is no restricting in the performance of work, there is no loss of production or wages and the task at hand has been performed adequately. The person involved is already a member of a union, has coverage of that person due to the scope of work involved. We would say that section 133 is purely a manufactured fishing trip.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR WILDER: I go on to reply to your correspondence dated 7 June 2005. I've just covered number three, pre conditions of making order under section 133. As I have mentioned, as per section 134 Schedule 1B parts (a) and (b), pre conditions do not exist for the Commission to make an order because there is no dispute occurring. Part (iv):

PN109

In the event of a section 133 Schedule 1B does operate independently of the provisions ...(reads)... made by the Commission.

PN110

The answer to that would be, yes. Clause 10 (g)(viii)_ was the only option available to settle the matter of demarcation. Going back to part (iii) where the pre conditions do not exist. In answer to number (iii), that question's irrelevant due to the section 134 Schedule 1B(a) and (b). That's pretty much it, Senior Deputy President.

PN111

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wilder. Mr Llewellyn?

PN112

MR LLEWELLYN: Yes, thank you, Senior Deputy President. Senior Deputy President, I wasn't aware that we were going to be discussing the pre conditions set out in section 134 of Schedule 1B of the Workplace Relations Act. So I haven't provided the documentary copies to establish that those pre conditions have been met. I do have a copy of a number of letters which perhaps I could get your associate or my associate to go photocopy later on the proceedings so that we could all get a copy of them. If I can perhaps give the Commission a brief background.

PN113

THE SENIOR DEPUTY PRESIDENT: Perhaps before you do, the issue of the pre conditions attaching to the making of any order under section 133 may or may not be argued to be a jurisdictional issue. I suspect not in that they simply relate to the pre conditions that must be met before the jurisdiction inherent in
section 133 can be in fact exercised.

PN114

MR LLEWELLYN: Can be exercised - yes, I accept that.

PN115

THE SENIOR DEPUTY PRESIDENT: If I'm wrong in that regard then it probably matters not, given what I'm about to say. As I understand a component of Mr Wilder's argument to be the proposition that section 111(1)(g) of the primary Act should be used to terminate the further consideration of this matter on the basis that section 133 can't work any way because those pre conditions aren't met and because the agreement provides for the only mechanism and if not the only, the only appropriate mechanism for the resolution of a demarcation difference between the parties.

PN116

Now, to that extent it occurs to me that you may well have come along today ready to argue the more pure jurisdictional argument rather than consider the implications of section 134 of that Schedule 1B and I'm just anxious to establish first of all, whether that's the case and whether or not consideration of section 134 of that Schedule is something you're prepared or equipped to do today. I certainly don't want to disadvantage you in any regard.

PN117

MR LLEWELLYN-JONES: Commissioner, perhaps if I could move back one step in terms of how I understand the arguments of the CEPU have played out. I see this as being three distinct yet quite interrelated issues have been raised by the CEPU. One is their beliefs that the pre conditions are in order for the Commission to exercise its jurisdiction under section 134 Schedule 1B of the Workplace Relations Act have not been met in this instance. That's the first issue. The second issue is the list of issues in their application that give ground to the fact that the Commission should cease hearing this matter on the basis of its power to do so under section 111(1)(g) of the Workplace Relations Act.

PN118

The third issue is that in one way or another, the Commission's capacity - or the Commission should exercise its discretion not to exercise its power under
section 133 of Schedule 1B of the Workplace Relations Act because of the specific demarcation clause contained within the Enterprise Bargaining Agreement. I suppose how those arguments have all merged and now relaying back on to what the Commission has just said to us, is that fundamentally the application of the EBA and its relationship to the powers the Commission has under Schedule 1B and the problems of pre conditions when combined together could potentially give the Commission grounds under say section 111(1)(g)(iii) to cease hearing the dispute.

PN119

That leads us in to this territory, I believe in respect to the AWU. It leads us to a position where we would have to at least on a preliminary basis establish there's a reasonable argument to be said that the pre condition has been met. I don't believe we'd have to establish the pre condition has been met. I believe that we could do that at the proper hearing but we would have to rebut their statement that the pre conditions had not been met. The second issue then, would be to
discuss - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Or at least establish there is an arguable position in that regard.

PN121

MR LLEWELLYN-JONES: Yes, I believe that's right. The second issue of course then is to analyse at law what the relationship between the EBA and the powers the Commission contains under section 133 of Schedule 1B of Workplace Relations Act is. I believe we can probably do both of those now. What I might do though, sir, and I'm willing to accept that this may be objectionable to my friends, especially the CEPU's position. What I might do is - I have documentary evidence regarding the dispute and why I believe we've fulfilled those
pre conditions. I can't hand it up now.

PN122

I can hand it up to you now. I can't hand it to my friend now because I just don't have another copy of it. But I also have other material back at the office that I could provide the Commission at a later date, if that would assist the Commission in that issue. Alternatively, I could get a photocopy, say, in the course of the next half an hour and I could move on to other issues and get back to that later on in the submissions.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wilder, do you have a problem with the proposition that Mr Llewellyn-Jones might outline or go on to deal with other matters and then provide to the parties over the next half an hour or so additional documentation?

PN124

MR WILDER: Can I just take leave.

PN125

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN126

MR WILDER: No, your Honour. We don't have a problem. As long as we get a copy.

PN127

THE SENIOR DEPUTY PRESIDENT: Would it help you, Mr Llewellyn-Jones, if I gave you say five minutes now to copy that material which you have and provide it to the parties whilst accepting that there might be more material coming later?

PN128

MR LLEWELLYN-JONES: Yes, sir. I think under the circumstances, it might be the easiest way of doing it.

PN129

THE SENIOR DEPUTY PRESIDENT: Do any of the other parties here today have any objection to the approach that we seem to be following?

PN130

MR SHORT: I'm comfortable with the approach of the material being provided to us. As to what our stance is after that, we'll have a look at the material.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Gresty, are you happy with that approach?

PN132

MR GRESTY: Always keen to gain further knowledge sir.

PN133

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter for five minutes or so. If you need help from my associate in copying material just ask.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [10.52AM]

PN134

THE SENIOR DEPUTY PRESIDENT: Mr Llewellyn-Jones?

PN135

MR LLEWELLYN-JONES: Yes, thank you, sir. Senior Deputy President, I've got three letters here to hand up. We won't want to mark them as they're handed up. I should say though before we do hand them up whether or not any of my friends object to them being handed up.

PN136

THE SENIOR DEPUTY PRESIDENT: Are there any objections to what ever documents Mr Llewellyn-Jones is going to hand up being admitted?

PN137

MR WILDER: No, your Honour.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes.

PN139

MR LLEWELLYN-JONES: I'll hand them all up together.

PN140

THE SENIOR DEPUTY PRESIDENT: What about if I mark them first in sequential order.

EXHIBIT #AWU1 CORRESPONDENCE FROM THE AWU TO MR TUNNY DATED 23/02/2005
EXHIBIT #AWU2 DOCUMENT SIGNED BY MR TUNNY FROM THE ASC CORPORATION DATED 28/02/2005
EXHIBIT #AWU3 CORRESPONDENCE FROM THE AWU TO MR TUNNY DATED 1/03/2005

PN141

MR LLEWELLYN-JONES: Sir, before I get you to read those letters if I could, or before I read them to the court, I might just give some factual background which is, I understand on 21 February '05, a number of our members walked out on the ASC because they were aggravated by a number of factors. We - that being the union in its corporate capacity went and approached them and convinced them to return to work. We got them to pass resolution and when that happened on 23 February - once they did that it was recorded - - -

PN142

THE SENIOR DEPUTY PRESIDENT: Just your members was it?

PN143

MR LLEWELLYN-JONES: It was our members and the metal workers members as well, sir. The metal workers, I believe, followed about two hours after the AWU members followed. In any event there was a meeting between our union and our members and we convinced our members to return to work and we managed to pass a resolution which can be seen as being conveyed by us to Mr Tunny on 23 February 2005. I'll leave the letter of 28 February 2005, aside for now. What I will do is turn to the letter of 1 March 2005 and if I can draw the Commission's attention to point 2 of the following resolutions of the new resolution which have been made at this point.

PN144

They were made in response to the condition of the ASU on 28 February. You will see:

PN145

Negotiations commenced immediately with ASC for the fourth position to be filled in the electrical store position (which is an operated classification) -

PN146

That was the view of our members:

PN147

and the position go through the employment process as agreed by the parties incorporating the ability for an internal application to fill the operator position in the first instance.

PN148

What we say these letters do, if it pleases the Commission, is they make a prima facie case that the pre conditions set under section 134 of Schedule 1B are fulfilled because of Schedule 134(2)(b)(i). It's unfortunate, but it appears to be that one of the reasons why our members were willing to return to work and to pass their resolution is contained in the second set resolutions of 1 March and there's a requirement that this dispute involving who has the right to represent this position. Is it a store's position or is it an electrician's position. It's fairly critical in maintaining industrial harmony at ASC.

PN149

THE SENIOR DEPUTY PRESIDENT: Mr Llewellyn-Jones, you've obviously lived with this matter for a few months. I haven't. Is it the case that if I look at the ASC document that you asked me to put aside for a moment. - that's the one I've called AWU2 - that the second point in that document, which says that one additional position was made available in the warehouse in early April, is referring to the electrical store function. That is, is the warehouse the same as the electrical store?

PN150

MR LLEWELLYN-JONES: No, it's not, sir. I understand it's a different position. I understand this document was provided to our members and it was taken into consideration when they passed their two later resolutions of 1 March.

PN151

THE SENIOR DEPUTY PRESIDENT: Should I understand then that what was in dispute was in effect the filling of four positions. Is that correct? I'm now looking at AWU3. It seems to be referring to four positions.

PN152

MR LLEWELLYN-JONES: Yes. It actually has to do with a belief by our members that a number of people who were on a casual contractor basis should have been hired to preference of external people. What happened was a number of people - not wanting to get into it in any great detail - but I understand a number of people external to the site - people who weren't working there were hired to fill a number of new roles when they arised. There was a belief that our members had that these roles should have been filled by people who were on repetitive fixed term contracts or casual employees or what ever that be.

PN153

So that was that concern regarding the three positions. Then there was this concern regarding the electrician and the electrical stores position or what we considered the stores position. These two factors combined I think - became the real gravemente of the dispute.

PN154

THE SENIOR DEPUTY PRESIDENT: So nowhere is it the case that there's been an agreement with the ASC that there is in fact an additional or new position within the electrical store. We're only dealing with the existing position and the question of who fills that position. Is that the case?

PN155

MR LLEWELLYN-JONES: Yes. By way of background to that, the reason why this has erupted now as an issue is because once again bordering on - I'm probably getting a little bit too detailed at this stage in the proceedings - but there was an injured electrician who the AWU agreed could have that role because I believe they were a delegate of the CEPU for a while. About nine years ago they came in and took on that role. I understand it was this year that they were replaced by another electrician and the view of the AWU members at the site being that it was reasonable.

PN156

That the AWU had acted I suppose, compassionately in allowing this electrician to take what it believed to be one of its jobs and that of course reacted to what it seemed to be this setting of a precedent. That all of a sudden they actually lost control of the job as it was.

PN157

MR WILDER: If I may, your Honour, this is not an argument of jurisdiction. This is an argument based on the merit which we're not actually here for.

PN158

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your concern
Mr Wilder, but I must say and as I've just said to Mr Llewellyn-Jones. You folks have been dealing with this for a few months. I'm just trying to get my head around what it is that's under pinning this enormous effort going in to this particular matter. I don't understand that Mr Llewellyn-Jones is actually putting an argument at this stage but rather endeavouring to give me some background.

PN159

MR LLEWELLYN-JONES: No. In fact to be fair to Mr Wilder, I prefer myself to work off this topic and get back to the issue of jurisdictions.

PN160

MR GRESTY: Commissioner, that may be the somewhat opportune position adopted by my friend but seeing that he's raised the issue it may be pertinent that we actually establish historic fact rather than turn it into future opportunity because the dispute we're referring to had absolutely nothing to do with the demarcation dispute between the ETU and the AWU. What it was, was a criticism of the company's lack of accepted procedure with respect to advertising positions on the site. As a result of being some what critical of the company and in my view, justifiably so, that the AWU walked off the site in protest.

PN161

As a result of there being no ..... or people able to take people off the boat in the event of injury, many of my members, for the safety issue, proceeded to leave the site also. So, at that point there was no issue about a demarcation dispute between the AWU and the ETU and never in that brief dispute was it ever brought to anybody's attention, let alone conceded to, that the AWU had exclusive right in calling on the positions that were subsequently in questions, sir. If the Commission pleases.

PN162

THE SENIOR DEPUTY PRESIDENT: I'll note that issue, Mr Gresty. You may proceed though, Mr Llewellyn-Jones.

PN163

MR LLEWELLYN-JONES: Yes, thank you, sir. Senior Deputy President, in many respects I think Mr Wilder is right in that this is a matter which is probably best dealt with in terms of the merits of the application. What these documents I hope do achieve, is that they create a prima facie face that there is - or that the pre conditions set under section 134(2)(b)(i) - but that section generally - have been fulfilled and as such it would then become incumbent upon the Commission to either receive further material from Mr Wilder or to not exercise the powers under section 111(1)(g)(iii) because it could not be convinced that those pre conditions had not been met.

PN164

If I can move off that topic for now though and head to the application by the CPU in terms of section 111(1)(g). I might go through that first. I might, in fact discuss briefly what this application is about. Very briefly again go through the application to the authorities in terms of making an order pursuant to section 1(11)(1)(g) and then discuss briefly the relationship between the EBA and the Commission's power under the Workplace Relations Act in this instance. Because that, falls very, I suppose, correctly into the ambit of the questions that the Commission has asked from the parties.

PN165

So that's the order I intend to proceed upon. If I can possibly say what this dispute is about. It is about this one electrical stores position but it has its basis in something far more significant. What it's about is about a stream or an agreement which delineated union representation at the ASC site - from before the site was set up in fact. If you look at the original consent award of '89, you'll see that there's three streams that have been created. One for stores, which is for the AWU. One for the metal workers union and one for the CEPU and all jobs were effectively meant to fall into one of these three streams.

PN166

These streams in different forms - because now there's a single stream of a modular system - but these streams in different forms have been operating consistently from the date that this site came into operation to today. Every now and again there's a problem. Every now and again one union ends up representing someone and another union believes that that person falls into their stream according to the agreements and so forth. This is one of those situations. The reason why our union takes this so seriously is because we're very concerned about making sure that the stream system remains in force.

PN167

Because it protects us, it protects the AMWU, it protects the CEPU. It allows ASC to have a fairly luxurious position of effectively running a business with very solid delineation between where the unions are and a lot of harmony for where the unions are. Of course the consequences, should that break down, in our view, should this stream system or delineation break down, then - our concern of course we don't know where that ends and we don't know how the relationship between three unions at this site could end.

PN168

So, we're not of the view that we're coming towards the Commission today with this kind of trivial or flippant nature. We're not dancing around saying, hey, hey, we're the monkeys, we want to monkey around and we're not trying to do a kind of chicken little, the sky is falling. We have a very serious concern regard what happens if this stream system which has been continuously agreed on for the last 20 years isn't followed through. Now if I can turn to the CEPU's submissions.

PN169

They've alleged that the Commission should make an order under
section 111(1)(g) of the Workplace Relations Act. They've done that generically, I suppose but they seem to be relying predominantly on three grounds. One that it's trivial; one that it's in the public interest to make such an order; and one that the AWU is hindering the resolution of the dispute. I've provided the AWU's position in terms of this. I don't intend to go through it again in absolute terms. I do make a number of observations regarding whether or not an application of this nature should be brought to the challenge of jurisdiction but seems to have been resolved earlier on in today's hearing.

PN170

Perhaps I'll deal generally with how the Commission should exercise its discretion and then discuss the relevant facts that we believe have been raised by the CEPU which we don't believe warrant the exercise of discretion ..... Of significance, one factor that we would say before we begin looking at how the discretion should be exercised is we would also submit that there's a pre condition for the discretion being exercised. In the case of section 111(1)(g)(i) for example. The Commission can exercise that discretion, the discretion to refrain from hearing the dispute if it believes the dispute is trivial.

PN171

That's a two stage process. The Commissions forms a view that the dispute is trivial and then, once having formed that view, looks at all the facts again to determine whether or not it will exercise its discretion. It is not if the dispute is trivial it will exercise its discretion absolutely and it is not a situation where the Commission can not make a finding as to whether or not the dispute is trivial and then exercise its discretion to refrain from hearing the matter. It requires a two stage equation The public interest test is slightly different. The authorities in terms of that - especially the High Court authority of Re Media Entertainment and Arts Alliance and sir, because I've provided a fairly comprehensive list of authorities, I would ask if I can be excused from using complete citations but that case - - -

PN172

THE SENIOR DEPUTY PRESIDENT: Perhaps before you go there, can I take it that all of the parties have had the opportunity to consider the authorities put by the ..... view in this regard?

PN173

MR LLEWELLYN-JONES: I did send the list off to everybody.

PN174

THE SENIOR DEPUTY PRESIDENT: No one's going to be disadvantaged if we accept that Mr Llewellyn-Jones is just going to refer to the short titles of those authorities? It might just take us an extra hour or so if we go down the other path, so, yes, proceed on that basis Mr Llewellyn-Jones.
MR LLEWELLYN-JONES: Thank you, sir. In terms of that case at paragraph three, the High Court gives a fairly clear understanding. As well as going through the authorities which had existed to that point, bearing in mind that decision is based in '93, regarding how the public interest power under section 111(1)(G)(iii) should be ulitised. It says in that case what it is. It's a matter of balancing interests. So that's slightly different to the power under section 111(1)(g)(i) - in the power under section of section 111(1)(g)(i) - it's a two state approach. The determination of the matter of the matter is trivial and then exercising discretion on the balance of interests.

PN175

In the public interest, it's just simply a matter of balancing interests. With that exception though, the principles which apply to the exercise of the Commission's discretion are fundamentally the same and they're mostly derived from two main cases. One which is colloquially known as the Elcom case which is the Association of Professional Engineers and Scientists of the Hydro Electric Commission of Tasmania and one which we referred to already today which is the decision affirming the decision of Munro J in the South Australian v the Australian Education Union case.

PN176

What those cases do, in our view, they set eight main principles which must be factored into by the Commission in terms of exercising its discretion in this instance. There's two procedural - having gone through the cases - three which deal with the issue of presumption and evidence and three which deal with the decision making process itself. These are all found of course at page five of the AWU's submissions. For the sake of brevity, I think I'll exclude going over the procedural issues because we're willing to waiver our concerns regarding them. I will say that you can find reference to them at the case of Elcom at page 317, if you're looking for the direct reference for them.

PN177

What I will do, however, is go into some detail regarding the issue of presumption. Now, there's a solid legal basis for this proposition. In fact it's very solid and it deals with discretionary powers outside the context of this statutory power. That is, a power where a body is given the capacity to refrain or cease hearing a matter. Given a general industrial dispute an organisation has a prima facie right to exercise the jurisdiction conferred to it and that the applicants, in this case the CEPU must make a case which of itself would justify denying the disputants in this case our usual capacity to have the matter heard.

PN178

That's of course taken from the state of South Australian and the Australian Education Union as well sir. Of importance, I believe in this application is the principle that should the applying party fail to advance considerations then the application must fail. What that means, I suppose in a generic sense, is whatever considerations are put forward by the CEPU are the only considerations that the Commission is able to take into account in terms of using them or utilising them to find one, the capacity to use its discretion and then to use its discretion. That's taken quite clearly from page 325 of the Elcom case where I'll read - I don't know if you want me to sir - have you had that case before you?

PN179

THE SENIOR DEPUTY PRESIDENT: I don't have it open but I can open it very quickly. Yes, indeed.

PN180

MR LLEWELLYN-JONES: At page 325 - - -

PN181

THE SENIOR DEPUTY PRESIDENT: I should say my numbering system's different to yours.

PN182

MR LLEWELLYN-JONES: Is it a ..... copy you've got there or - - -

PN183

THE SENIOR DEPUTY PRESIDENT: Mine's an internet based copy.

PN184

MR LLEWELLYN-JONES: There should be section 7 of the case. Should be probably about 12 pages into the case - section seven one - relevant principles, ascertainment of public interests. The second paragraph down from there - I don't know if the Commissioner's had a chance to find it.

PN185

THE SENIOR DEPUTY PRESIDENT: No, I won't waste any more time. You can read the citation if you wish.

PN186

MR LLEWELLYN-JONES: I will, sir:

PN187

If the party applying under section 111(1)(g) fails to advance considerations which on balance favour the outcome it seeks then that failure must result in a failure of its application and consequently in the Commission not being persuaded that it should refrain from exercising the jurisdiction.

PN188

In this case we believe that the real factors CEPU have put forward - there's fundamentally two fine facts that they have put forward as considerations to the commission to exercise its powers. Three, if you include the issue of the
pre condition in section 134. But if you remove that, there's two main facts they've put forward. Which is, one, this application deals with only one person and two this application deals with one person who's a member of the CEPU and therefore, there's a freedom of association issue.

PN189

We say that the Commission should be very mindful there that those are the two factual propositions which the CEPU tries to seek to use as a basis for their application. Decision making process itself, I've discussed already in length which is, of course, depending on which sub section you apply, it's either a two stage test or simply just a matter of balance seeing the interest. Now, I might deal with the two main facts as they've been put forward by the CEPU and their application in terms of the law.

PN190

If I can deal firstly with the issue of, is the fact that this application only deals with one person, is that a matter which makes it trivial. We'd say quite clearly that it's not and we'd point to a number of cases to support that proposition.
One, we'd clearly report to is the Professional Radio and Electronics of Australasia Aussat Pty Limited which was in fact, I think the first case that dealt with the issue of triviality in terms of the number of people in terms of an application under section 111(1)(g)(i). I can't confirm that, but it's definitely a very old case.

PN191

What it says - I now return you to my submissions at page eight, is:

PN192

The dispute is not trivial simply because it concerns only a small number of employees in a particular enterprise.

PN193

In fact, in the case of Aussat, that was quite clearly that the issue of the number of employees was not a factor which would be taken into consideration in determining whether or not a matter was trivial. If you look at the other determining factors that come up in terms of the ratio of this case - they also say that the Commission should address both the nature of the dispute itself and the circumstances surrounding the dispute. It's the submission of the AWU, sir, that in this instance this dispute is not trivial because what it is, is the matter of not what this one person's role is in terms of the CEPU and the AWU and the ASC but rather this system of delineating union representation which has existed since this site came into operation as I said earlier sir, in my submissions.

PN194

It's the application of this case in terms of that. From the AWU's point of view, there's no power in the Workplace Relations Act or under the Enterprise Bargaining Agreement for us to apply to the Commission to seek an order that they enforce an agreement the three unions have come up with in order to delineate representation. All we can do is bring an application regarding when we see a breach of that agreement. Now, in this case, this breach only applies to one person but it's the agreement itself that has to be addressed as to whether or not it's trivial. We'd say the agreement is not trivial.

PN195

Because if the agreement's breached, then the agreement ceases to have the same force and effect and acceptance that it should have. That's why I believe this ratio in fact is there because it's really not looking at the right issue. We'd say the Commission shouldn't be looking at what person is being affected by this order but what arrangement is being breached and what remedy the union will seek in terms of that. In any event the authority's very clear and I go through the authorities to some extent in the written submissions provided regarding the meaning of, trivial, from points 21 to 25.

PN196

I don't intend to go over them again in any further detail. The other issue that the CEPU raises a concern for there, is that they believe that this violates freedom of association or this person is a CEPU member. I'm not entirely sure, sir, when you could ever have a demarcation dispute where a person in that dispute would not be a member of a union opposed to the application, but in any event I think it's prudent to look at the case law regarding whether or not there is a conflict between the principles of freedom of association and the application of a demarcation order.

PN197

If I can turn the Commission then to points 47 of my submissions - most particularly 49 in fact - 47 is the beginning of the section of the submissions - 49 is probably the relevant point. It refers to a decision of Food, Metal and Engineering Union v Philip Morris. I might just read that section to you. The section's reproduced in the submissions but I think it's a fairly effective summary of the law that should be applied. In this case it says:

PN198

I recognise the object of the Act relating to freedom of associations and the choice not to join or to join organisation. It is, however, but one of the objects set out in section 3. Section 118(a) -

PN199

That is, of course now been supplemented by section 133 of Schedule 1B - that's the old demarcation dispute now.

PN200

Section 118(a) is primarily concerned with the question of representation - not membership. In my view that ...(reads)... established by the Act for cooperative work place relations.

PN201

Of course, that's why, in many demarcation cases, if you read them, there is this tendency of the Commissioners to address the object of 3(e), which is of course the object which states that's it's an objective to provide a framework of rights, responsibilities for employers and employees and the organisations which support fair and effective agreement making and ensure that they abide by awards and agreements that apply to them. What we'd say is this, once again ties into this main gravemente of our argument which is this is not about just one particular member. It's about the agreement that delineate whether these unions operate in terms of ..... which we're seeking to protect.

PN202

That is preserved by objects 3(e) of the Act. I am very conscious of a number of things, one being that I have provided 18 pages worth of submissions, so I don't intend just to read through them. I believe I've probably covered the two main points which have been addressed by the CEPU in its applications today.

PN203

THE SENIOR DEPUTY PRESIDENT: It's probably remiss of me, Mr Llewellyn-Jones, I'll mark those submissions as AWU4.

EXHIBIT #AWU4 SUBMISSIONS

PN204

MR LLEWELLYN-JONES: Perhaps if I could turn then, having at least in the AWU's view, addressed those three main facts - the three conditions under section 134 of Schedule 1B, the issue of the fact that this application deals with only one member - because the breach only applies to one member and to deal with the issue of freedom of association. Having dealt with those three main heads, I might now turn, as I said, towards the Commission's questions. These four questions, of course, deal with the relationship between the power the Commission has under section 133 of Schedule 1B and the Enterprise Bargaining Agreement.

PN205

I think we'll deal with this in three separate ways if I could. The AWU at the beginning of this problem had three possible avenues to resolve this issue. It could apply under just the private arbitration power section 170LW for the Commission to arbitrate it but of course that wasn't possible because there's no knowledge of this agreement as to whether or not arbitration requires the consent of parties or doesn't. So that became an option which couldn't be followed. The AWU has the capacity to seek the ACTU's input in terms of (g)(viii) and of course that's not a contentious decision not to have exercised that. Of course the AWU has the path that it has chosen to take which was an application under section 133 of Schedule 1B.

PN206

We believe that this was fundamentally elective. We believe that if you interpret the meaning of the words in terms of (g)(viii) of the Enterprise Bargaining Agreement, the word, "may", is very, very clear. May is a word which connotes an elective choice. In fact it goes to an elective choice without any inference of preference or priority. Not that it should. So we believe that fundamentally, we did have a choice in terms of that. In terms of how one interprets the EBA. In any event, the application between an EBA albeit a state EBA and whether or not the no extra claims part of that EBA precludes bringing an application for a demarcation dispute has been addressed by the Commission before this submission.

PN207

In fact in the case that's already been referred to as the Association of Professional Engineers and Scientists of Australia Hydro Electric Commission of Tasmania - the Elcom case. I might ask the Commission to note that at page 325 of that decision again of that submission - I don't know if you have a law report version of that decision - I don't believe you did - I think we once dealt with it before. At part 7 of the decision, if you can go up from that by about three paragraphs, there'll be a section which discusses the application of no further claims part of the state EBA on the demarcation dispute.

PN208

Of course it simply just says that even if it was to be granted that the no extra claims commitment of the PPEEA, which is the name of the agreement, were to be treated as binding upon the federal organisations which correspond to the state registered unions signatory to the PPEEA, it would not follow that the underlying dispute never existed or that it had been extinguished or abandoned.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN210

MR LLEWELLYN-JONES: What we'd say is at a basic level. I don't believe we really need to extrapolate this argument to a last agreement because I believe that the interpretation of the agreement is sufficient to allow us to utilise even one of these mechanisms. But should there be this argument that the agreement says you can only bring this application and should this then deemed to be a further claim, we'd say there's authority to suggest that the statutory powers that the Commission can exercise are still able to be utilised irrespective of whether or not there's private arbitration powers can be utilised.

PN211

That applies to applications under section 127 of the Workplace Relations Act as it does to applications under section 133 of Schedule 1B of the Workplace Relations Act. There's simply no ground in our view to say that because it's a private arbitration power on the agreement that could be utilised or because there's a different type of arbitration power which involves another peak body which could be utilised, the statutory remedies in the Workplace Relations Act can't be. However, not wanting to make my submissions completely cyclical but we would also state at the course, the use of the word, "may", here very clearly connotes that we have the capacity to elect which one we want to go to and which one we don't.

PN212

The question then is why would we choose to go to the Commission rather than the ACTU. There's a reason for that. There's really two reasons for that. One, the ACTU's decision would be given steps to enforce under section 133 as a factor to be taken into consideration by the Commission. But once the agreement has expired it would have no greater force than that. It may resolve the disputes or likely agreement but the agreement will expire in 2006 and beyond that bar being a fact that the Commission can take into account in the order that we are seeking in this instance, it would have no weight upon the parties.

PN213

Second of all, the reason why we prefer the Commission to arbitrate the dispute as opposed to the ACTU is that we're concerned that this arrangement which has existed for the unions to co-exist peacefully at this site, albeit with the occasional problems, that arrangement is so important, it's better to have something authoritative like the Australian Industrial Relations Commission make a decision than it is the ACTU. Especially when the parties would be aware that a separate application could be made to overrule that decision in a sense - in a quasi, sort of a technical sense, could be made after the EBA expires.

PN214

I would like to draw the attention of the Commission, not because it really forms part of my argument, but just simply because I think it's something the Commission should be aware of in order to make its decision. That there has been a demarcation application brought on this site before, once by the Australian Submarine Corporation as it then was and once by the CEPU - as they call it the ETU as they then were. I have all those documents. I'll just tender them up now, if I could.

PN215

THE SENIOR DEPUTY PRESIDENT: Perhaps while that's happening, Mr Llewellyn-Jones, can I get some clarification on the earlier issue raised.

PN216

MR LLEWELLYN-JONES: Yes, of course.

PN217

THE SENIOR DEPUTY PRESIDENT: You've referred to the matter as a more significant issue than a dispute over one particular position and you've said that it has its genesis in the three streams which were agreed back in 1989.

PN218

MR LLEWELLYN-JONES: In fact prior to '89, sir.

PN219

THE SENIOR DEPUTY PRESIDENT: I see. Now, who brokered that arrangement? Was it something just agreed between the three unions that are here today or - how did that come into being? I'm not after a long dissertation and if you don't know, it may become absolutely irrelevant.

PN220

MR LLEWELLYN-JONES: I understand that it was brokered as an informal deal, I might say. Originally brokered by the ACTU - the ACTU have no records of brokering it. There is records in a transcript - a '95 transcript - the industrial officer of the ETU makes reference to it. But I understand it was as simple as, I think, a number of unions wanting to get involved with the ASC in terms of the consent award and the ACTU effectively telling which ones could and couldn't and then there was an informal discussion as to how the ..... would apply and this agreement eventually got incorporated as part of the ..... award.

PN221

THE SENIOR DEPUTY PRESIDENT: Secondly, then, if what you're wanting to do is what your wanting to do able to be described as in effect reinforcing for the future the extent to which the three stream approach could be relied upon. Is that a fair way of summarising it? Is it a major concern underpinning this issue?

PN222

MR LLEWELLYN-JONES: Yes. I'll just hand up a document which might help.

PN223

THE SENIOR DEPUTY PRESIDENT: It might be best if I mark all of these documents then.

EXHIBIT #AWU5 DOCUMENT WRITTEN ON AUSTRALIAN SUBMARINE CORPORATION LETTERHEAD. DATED 19/12/1995
EXHIBIT #AWU6 DOCUMENT DATED ON CEPU LETTERHEAD 26/12/1996
EXHIBIT #AWU7 DOCUMENT ON AMWU LETTERHEAD DATED 19/05/1996

PN224

MR LLEWELLYN-JONES: If I can then draw the Commission's attention to AWU7 on page 2 of AWU7 - what there was, was an agreement which resolved the last demarcation dispute if you will. Point 2 of that was an agreement that the parties - the AWU and the CEPU give - this was the term that was used in this agreement at point 2, it was at the end of it:

PN225

Give proper regard to the traditional and historical coverage of each union on the site in the areas of work and award classification.

PN226

We believe we can establish what the traditional and historical coverage of each union on the site was. We believe that this individual here is currently outside that historical coverage of each union. We believe the Commission should make an order saying the AWU is entitled to represent that person because by making an order that order then reinforces the fact that this traditional coverage and historical coverage is important. It reinforces the importance of that an all the benefits which come with that for the three unions. I'd like to reiterate that we're not the only union which benefits from that.

PN227

Every union, including the ASC benefit from having a coverage system they understand especially one which has operated for as long as this one has. Which is, of course, why I think the last time this application was brought it was brought by the CEPU against the AMWU. So the CEPU in their own right, can benefit from this structure just as we can. It's just a matter, in this instance, we believe, we're the aggrieved party.

PN228

THE SENIOR DEPUTY PRESIDENT: Mr Llewellyn-Jones, the issue that I'm struggling with here is that it appears to me that what you're saying is that the fundamental question here is not so much what happens with the electrical store function, but rather the integrity of the three stream process. Now if I've got that wrong you need to tell me.

PN229

MR LLEWELLYN-JONES: You have to this extent, Senior Deputy President. What I mean to say is that the main dispute is what happens to the electrical stores person but the matter is not trivial because the surrounding context of the circumstances, as indicated by the Aussat case involved the preservation of this streams matter. Therefore, an application under section 111(1)(g)(i) cannot succeed.

PN230

THE SENIOR DEPUTY PRESIDENT: I understand that submission, but what's particularly plaguing me here is that you've said that AWU chose to utilise section 133 Schedule 1B, rather than utilise the ACTU as was outlined in clause 10(g)(viii) of the agreement. Because fundamentally, of a desire that the arrangement that was put in place would have a life beyond that disagreement. Is that the case?

PN231

MR LLEWELLYN-JONES: It's difficult in the sense that I suppose these two arguments fall back on themselves. What we're saying is that we believe we had the capacity to make a choice as to which application we ..... for.

PN232

THE SENIOR DEPUTY PRESIDENT: I understand that aspect.

PN233

MR LLEWELLYN-JONES: We chose this application and I suppose what we're doing, is actually trying to explain why we chose this application as much as the CEPU to be honest with the Commission. We chose this application because we believe the matter is not trivial. If we believed the matter was just a simple standard kind of trivial - well not trivial - but something we didn't consider was significant, then we would have utilised the ACTU because it creates a temporary circumstance and it doesn't have this kind of resonance that the Australian Industrial Relations Commission has.

PN234

But because we can see how significant this application could be, we believed it was better to do it in this forum. That's what I'm getting at. It doesn't affect what we believe our rights.

PN235

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN236

MR LLEWELLYN-JONES: Senior Deputy President, this application was brought by the AWU. It had this matter heard on its merits to determine whether or not an order as sought by the AWU should be granted by the Commission. It appears that the jurisdictional pre conditions have been met. What does appear is that the CEPU has severe doubts about whether or not the Commission should continue hearing the order and as such, they've brought an application under section 111(1)(g) of the Workplace Relations Act to ask the Commission to cease hearing a matter.

PN237

They appear to have done that, in our view, based upon three main factors. One that the pre conditions as required to actually exercise the Commission's power, irrespective of whether it hasn't under section 134 of Schedule 1B of the Workplace Relations Act do not exist. We believe that on the evidence tendered to the Commission this morning, that we have created a prima facie case to rebut that statement. Their second ground was that the application only applies to one person and therefore, it's trivial under section 111(1)(g)(i). We have submitted that when the case law or the authorities determine what trivial is, when that definition as defined by the case of Aussat is applied, this matter is not trivial.

PN238

Therefore, with respect to the Commissioner, the Commission doesn't have the power to exercise its discretion in that instance, not having got over the first tier. The third ground they seek the Commission to exercise its powers under is that this application deals with a CEPU member and it violates their freedom of association. As we've stated we do not believe that it violates section 3(f) of the objects of the Act in any event it's consistent with section 3(e) and the case law supports that proposition. We therefore say, that the CEPU have submitted no grounds which the Commission could make an order under section 111(1)(g) and as such their application must fail.

PN239

We'd respectfully ask this matter to be listed for determination.

PN240

THE SENIOR DEPUTY PRESIDENT: Can I take you back to the questions I put to the parties. Do you have those in front of you?

PN241

MR LLEWELLYN-JONES: Yes, that's fine.

PN242

THE SENIOR DEPUTY PRESIDENT: Perhaps starting backwards, if I can take you to that last one. Do you then say that because section 133 will allow the Commission to make an order provided the pre conditions set out in 134 have been met, that the ACTU might still be called upon by virtue of that discretionary provision in clause 10(g)(viii). If so, would that ACTU process then override what ever the Commission might do?

PN243

MR LLEWELLYN-JONES: I don't believe that the ACTU - well, obviously if the Commission made the order, then I suppose the view of the AWU would be that the dispute would stop and therefore, the application of the agreement in terms of the dispute would no longer be applicable.

PN244

THE SENIOR DEPUTY PRESIDENT: I wish it were the case in every Commission order that stopped every dispute.

PN245

MR LLEWELLYN-JONES: Perhaps I'll put it this way, which is, I can answer the question a number of different ways and I think I can draw the correct answer out of it. The ACTU's decision is binding, I suppose in terms of the life of the EBA, but it's not binding on the Commission. It's only a factor which can be taken into account under section 135. We would say that if the Commission made an order - sorry Commissioner, I'll go back a step.

PN246

THE SENIOR DEPUTY PRESIDENT: I'm in your hands.

PN247

MR LLEWELLYN-JONES: Thank you, Senior Deputy President. The view is this, that the correct reading of the importance of the industrial disputes clause in this agreement would mean that if you were to read 10(g)(viii), it creates an elective to go to the ACTU. If a party chooses not to go to the ACTU but it chooses to resolve a dispute in another manner, whether it be inside or outside the belief of that clause then they wouldn't be able to go over to the ACTU again. The meaning of that clause would therefore suggest that. If the Commission were to make an order which was of the nature that the AWU wanted, then the dispute would cease.

PN248

Therefore, the ACTU would have no standing to hear the matter. The only question of course, would be if the Commission didn't make an order in the nature that the AWU wanted could the AWU then apply to the ACTU under 10(g)(viii).

PN249

THE SENIOR DEPUTY PRESIDENT: That's one question. If the Commission made an order that the CEPU didn't like, could they similarly go to the ACTU under 10(g)(viii)?

PN250

MR LLEWELLYN-JONES: Let's say they did get an order made. The ACTU made an alternative order and you now have the position with the AIRC has made one order and the ACTU has made another order. Then the ACTU would be asked to determine which one of those orders it would follow and I assume that the position would be that the AIRC would determine that its ruling was the correct one. I believe that at a basic level an order on a - - -

PN251

THE SENIOR DEPUTY PRESIDENT: We normally find our orders are the correct ones, Mr Llewellyn-Jones. It's other jurisdictions that have problems with them at times.

PN252

MR LLEWELLYN-JONES: Yes, I suppose. I understand that point. At a basic level we believe, no you can't. At a basic level we believe that you're not empowered under the agreement once you've resolved this matter under a section 133 application to actually utilise this. Because what it's saying is, if there's a demarcation dispute the parties may agree to a further matter to the ACTU. There's two elements there - there's the may and the plural. The parties may agree to send it to the ACTU, means both parties have to agree to it. The may, of course, means it's elective.

PN253

We'd say that realistically, even if it could be referred to the ACTU, it's unlikely that both parties would agree to refer it to the ACTU because one of the parties would apply for a 133 application. So what it really is, is applied to another application. It's meant to be read as that. That's why it requires both parties to consent to it. That why it requires an elective thing. It's meant to be at this stage of the dispute you have the option to go and utilise your powers under the Act because of course it refers to a demarcation dispute so it must be aware that there's provisions in the Act to deal with that. You can choose to do that - if you don't - or you may - the parties collectively may go to the ACTU.

PN254

So we believe it's effectively a one or another deal. We believe that the reading of that clause infers that. We also would point to the fact that by use of the term demarcation dispute, it's utilising the language of the Act. It is a term which has legislative weight. So, as such we can infer that the legislation is also acknowledged to exist within the context of the clause.

PN255

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I then take you to the second of the questions that I raised. That question refers to 10(g)(vii). It seems to talk about a process of consultation, cooperation and discussion. I've asked that question, having considered the overall provisions of that clause 10(g), having reviewed the transcript of the certification process associated with this agreement such that I'm unable to find, as I suspect you are too, any reference to an arbitral role as part of the dispute resolution process. In fact, the only reference that I can find to something akin to an arbitral function, is in 10(g)(viii), where the provisions of the agreement require the parties to accept the decision of the panel or tribunal determining the matters.

PN256

Presumably being the panel or tribunal established under the ACTU's demarcation procedures. The first component of my question here is, do you agree with me so far?

PN257

MR LLEWELLYN-JONES: Yes. There is clearly nothing in the agreement which confers arbitration power upon the Commission unless it's read in the transcript and of course the transcript has been lost.

PN258

THE SENIOR DEPUTY PRESIDENT: Yes, and in that event can I take you then back to section 134 of the Schedule 1B.

PN259

MR LLEWELLYN-JONES: Yes, I have it before me.

PN260

THE SENIOR DEPUTY PRESIDENT: To some extent you've already addressed the pre conditions. If I can deal with those separately - first of all can I take it that what you're saying is that 134(1) has been met because of the endeavours to resolve this matter through the conciliation process.

PN261

MR LLEWELLYN-JONES: Yes.

PN262

THE SENIOR DEPUTY PRESIDENT: Are you also saying that 134(2)(a) is not relevant to this particular matter but 134(2)(b) is relevant in that action is not currently occurring?

PN263

MR LLEWELLYN-JONES: Yes, that's correct.

PN264

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN265

MR LLEWELLYN-JONES: Senior Deputy President, in fact I might just raise this for your consideration because it may assist the Commission in terms of the fourth question. It just occurred to me that there's a language issue here that I believe, we may well have been reading (g)(viii) incorrectly. The first sentence begins with, "in the event" - this is in the enterprise agreement. The second sentence begins with, "in that event". I've assumed, as I suspect the Commission has, that, "in that event", refers to something under the established ACTU provisions.

PN266

I now believe it's more likely that, "in that event", actually applies to the demarcation dispute which would mean in the event of a demarcation dispute arises the parties may do this - or they have their other plenary demarcation dispute. In that event, ie. in the case of a demarcation dispute, the parties will accept the decision of the panel or tribunal determining the matter, which of course then resolves this problem of well, if you go one way, what's to stop you from going the other way.

PN267

THE SENIOR DEPUTY PRESIDENT: I understand your construction. I must say, I fall into that first category. I've read it as you have to date, such that the panel or tribunal referred to would be a panel constituted under the ACTU's demarcation disputes procedures.

PN268

MR LLEWELLYN-JONES: I accept that. However, it seems to me, now to be possibly argued that the event as referred to is the demarcation dispute and therefore, in that event the demarcation dispute, the parties will, because of the consistency and phraseology from the first sentence and second sentence.

PN269

THE SENIOR DEPUTY PRESIDENT: I understand what you're putting to me. I'll consider that.

PN270

MR LLEWELLYN-JONES: Yes, thank you.

PN271

THE SENIOR DEPUTY PRESIDENT: I don't have any other questions for you, thank you. Thank you Mr Llewellyn-Jones. Mr Gresty?

PN272

MR GRESTY: No sir, I can only comment on the much used reference to the word, "may", in respect to the agreement. For someone who's been involved in that agreement for some considerable years, I think the choice of that word, was one of politeness rather than choice. By example, I was just thinking about when you get off planes and in particular, Sydney comes to mind because they have those advanced things, you get off the plane without getting wet. They pass messages to you that when the plane stopped and seatbelts are off, passengers may exit the plane by the front door.

PN273

Which is, in fact the only door you can exit the plane from - so I think they use the wording which is the word that they've used with respect to 10(g) in the grievances. So it was never envisaged that the party would seek the assistance of the Commission with respect to demarcation. It was always the intention of the parties that we would use the ACTU as a vehicle of resolving those disputes. If the Commission pleases.

PN274

MR LLEWELLYN-JONES: Sorry sir, I don't mean to be cantankerous. I just have real problems with that assertion considering there's been two previous demarcation disputes brought before the Commission.

PN275

MR GRESTY: We would suggest that lack of the ..... agreement doesn't forgive that sir..

PN276

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Gresty, can I take you beyond that issue. Should I take it then that what you're saying to me is that the AMWU position is that section 111(1)(g) of the Act should be used so that the Commission would decide not to proceed with this matter further.

PN277

MR GRESTY: I should have said from the outset, it was not our intention to present a position with respect to this jurisdictional argument. I was making comments with respect to historic references in proper context.

PN278

THE SENIOR DEPUTY PRESIDENT: Yes, I don't want to put you on the spot. If you don't have a position on this question of jurisdiction or the preliminary matters that we've been debating this morning, I don't want to force you into expressing a view.

PN279

MR GRESTY: I appreciate that. We haven't come prepared with a view. We merely wish to provide some context to some of the comments that were made thus far.

PN280

THE SENIOR DEPUTY PRESIDENT: Does the same absence of a position prevail with respect to the four questions that I alerted the parties to on 7 June?

PN281

MR GRESTY: Again, I don't think we've responded to those questions.

PN282

THE SENIOR DEPUTY PRESIDENT: No, you haven't. I'm simply inviting you to do so, should you wish to do so.

PN283

MR GRESTY: Providing I'm not required to make comment now, I would be able to do so.

PN284

THE SENIOR DEPUTY PRESIDENT: You are required to make comment now, if you choose to do so. If you don't choose to do so, then I'm going to need to go away from this hearing today and reach a decision, which decision might encompass some of the issues which were foreshadowed in that 7 June correspondence. So if you want to comment on those four issues, then now's the opportunity to do so.

PN285

MR GRESTY: No, I'll reserve our position on the matter.

PN286

THE SENIOR DEPUTY PRESIDENT: Mr Short.

PN287

MR SHORT: Yes, Senior Deputy President, consistent with that previously indicated stance, we don't seek to put any submissions in relation to jurisdiction. In relation to your communication of 7 June 2005, I recognised the Commission has raised legitimate issues. We don't seek to take up the invitation to put submissions on those matters today. There is just one brief matter - I may have misunderstood my learned friend, Mr Llewellyn-Jones, but I thought he suggested that the transcript of the enterprise agreement approval in 2003 had been lost. We certainly have it.

PN288

THE SENIOR DEPUTY PRESIDENT: :I don't understand it to be lost. I just don't understand that it addresses this question of the role of the Commission in terms of an arbitral as distinct from a conciliation function.

PN289

MR SHORT: Yes, well I agree with that. Apart from referring to the existence in which disputes procedure at clause 10(g). It doesn't go into any detail about that, the practical operation of the role of the Commission.

PN290

THE SENIOR DEPUTY PRESIDENT: Yes. I think I located that for the parties and sent it out to all of the parties at an earlier time.

PN291

MR LLEWELLYN-JONES: Yes. I think it was the 2000 transcript that we were seeking.

PN292

THE SENIOR DEPUTY PRESIDENT: Mr Short, there are a couple of other questions that I want to raise with you. Obviously, you've got the capacity to decline to answer them if that causes you or your client some difficulty. Does the ASC give any credence or recognition to the three stream approach to which
Mr Llewellyn-Jones referred?

PN293

MR SHORT: That's a matter of which I think I should take some instructions.

PN294

THE SENIOR DEPUTY PRESIDENT: Perhaps I'll raise these questions with you. My apologies - they're not documented questions. They're issues that have occurred to me in the course of this morning. That's the first issue. The second is - am I correct in understanding that the issue here is in terms of this employee in the electrical store, a question of which union can appropriately cover that employee?

PN295

MR SHORT: It's my understanding that the application relates to that particular position which union would have the right to represent that employee's industrial interest. The industrial interest of the occupant of that position who ever it may be from time to time

PN296

THE SENIOR DEPUTY PRESIDENT: Mr Wilder raised a number of questions or issues associated with his proposition that section 111(1)(g) ought to be utilised so as to preclude further consideration of this matter on the basis of the freedom of association concern that the employee in the electrical store was already a member of a union and that consideration of the position being put by the AWU would invoke concerns associated with freedom of association. Does the ASC have any view on that issue at all?

PN297

MR SHORT: The way in which we would see a section 133 order if made, operating, would be that it would not require some one to join or cease to join a union or any particular union, rather it would deprive membership of a union other than the successful union from having any ability to do anything for that member. So, the position holder could remain a member of the CEPU but they would be paying their membership fees for nothing. They could join some other union if they came within its eligibility rule, but again would be paying for nothing.

PN298

If they want any representation, anything for their money, they could only get that from the AWU if it succeeded. But they would not have to join the AWU.

PN299

THE SENIOR DEPUTY PRESIDENT: I see. So the ASC position in that regard, in response to Mr Wilder's proposition is predicated on that particular application of section 133 of Schedule 1B.

PN300

MR SHORT: That's the way we see it - that the effect of an order from the Commission, so would that lead to a change in the current situation. One could apprehend that it may well do. But that would be a matter for the position holder from time to time.

PN301

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you want to take the other two questions that I've raised away and confer briefly with your client? I think it's only the first question that I've raised that you haven't answered.

PN302

MR SHORT: Yes. That was the stream classification, so perhaps if I take some instructions on that.

PN303

THE SENIOR DEPUTY PRESIDENT: If I gave you five minutes to do so, would that be adequate time?

PN304

MR SHORT: I would hope so and if it isn't I'll come back and tell you.

PN305

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter for five minutes.

<SHORT ADJOURNMENT [12.04PM]

<RESUMED [12.18PM]

PN306

THE SENIOR DEPUTY PRESIDENT: Mr Short?

PN307

MR SHORT: Thank you for that time sir. I hope this is an answer to your question. My understanding is that historically there was a three way division in relation to union membership whereby ETU covered electrical roles. Metal roles were covered by the AMWU and operator roles were dealt with by the AWU. My understanding is that that's moved on to a degree in that the AMWU has some people who operate roles. The ASC is not party to any formal agreement in relation to union membership in relation to its employees. This has been a matter that has occurred over time and I assume has been a matter of some discussion with the unions and indeed, from what Mr Llewellyn-Jones has handed up today it seems to have been the subject of more than just mere discussion. I also understand that the dispute regarding the particular position in issue, is whether that role of employment is appropriately classified as an operator role and electrical role. I hope that answers your question.

PN308

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Unfortunately, Mr Short, while we were out, I thought of another question. The question relates to section 134 of that Schedule 1B and it goes to in some measure, an interchange between Mr Gresty and Mr Llewellyn-Jones. If I understand the position put by Mr Llewellyn-Jones, and I'm sure he'll correct me if I've got it wrong, it is that the condition or pre-conditions set out in section 134(2) has been met because there was industrial action earlier this year. Whilst that industrial action has ceased it could well recur. If I understand the position put by Mr Gresty, it is that the industrial action that occurred was related to matters quite apart from the question of union membership in the electrical store. Does the ASC have a view on that particular issue?

PN309

MR SHORT: Can I say, I listened with interest to that debate and we've been informed as it developed. I don't have instructions that go to the detail of what Mr Gresty and Mr Llewellyn-Jones canvassed. I can seek those instructions if that would assist the Commission.

PN310

THE SENIOR DEPUTY PRESIDENT: I'm just anxious to give you the opportunity to respond to the question if you wish to.

PN311

MR SHORT: Certainly, we were aware there was to be industrial action, as to the motivation for that action - - -

PN312

THE SENIOR DEPUTY PRESIDENT: I mean you may not know the answer to the question.

PN313

MR SHORT: We can't - no - we can have our suspicions but we weren't the ones walking out the door. I could make a comment that 134(2)B talks about the action ceased but is likely to recur. I don't want to create a problem for us. I don't know how you go about assessing a likelihood of industrial action. There would be occasions where it's patently clear that perhaps a particular outcome people are going to go out - I simply don't know where this matter is. You may well feel that that's not a jurisdictional issue but rather a merit issue after you hear all the evidence.

PN314

THE SENIOR DEPUTY PRESIDENT: Yes, it may well be the case. I've reached no conclusion in that regard at all. If you want to seek instructions so as to be able to answer the question, I'm happy to give you that opportunity - albeit it will be our second break.

PN315

MR SHORT: I've taken instructions and I'm told it's the company's understanding that the disputation was about other matters. Now, the company's understanding may be wrong in that regard - it may be right. That is the company's understanding.

PN316

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Wilder?

PN317

MR WILDER: Thank you, Commissioner. I will concur with my friend
Mr Gresty that the dispute that's been referenced by the AWU, was actually an industrial dispute involving management error of applying employment procedures and was not a dispute that involved a demarcation issue in electrical stores.

PN318

THE SENIOR DEPUTY PRESIDENT: Mr Wilder, were members of your union involved in that dispute?

PN319

MR WILDER: No.

PN320

THE SENIOR DEPUTY PRESIDENT: So how do you know what the dispute was over?

PN321

MR WILDER: I was involved in the discussions after the dispute had occurred. We came down there. It just seems strange that the CFU was the only union which did not take industrial action. The AMWU took industrial a for a safety issue.

PN322

THE SENIOR DEPUTY PRESIDENT: That reflects your extraordinary commitment to the absence of industrial action doesn't it?

PN323

MR WILDER: Yes but ..... also ..... a better forum to bring that up. I'll just go back to the AWU1. In the AWU1 letter to Mr Tunny and signed by Mr John Braithwaite, it basically says that AMWU members - I won't go into it all:

PN324

Called upon senior management to become involved in a formal resolution of this matter and further that it resolve in a broader issue of the dispute resolution process for the future.

PN325

This was an issue revolving around what we've said before, which was the management error in applying employment procedures and I notice that AWU2 was skipped out. This was the proposed resolution of the dispute over the operating position. This was the resolutions dispute for the guys from the AMWU to return to work. On AWU2, I've noticed there is no mention whatsoever of the electrical stores position. That wasn't a reason for the guy in the dispute at hand. It also wasn't the reason for the guys to go back to work. There's actually no reference to the electrical stores position whatsoever.

PN326

AWU3 ..... part 2. This was not agreed - this is where it has reference to the electrical store position - this was not agreed between the parties. This is purely a letter between Mr Tunny and Mr John Braithwaite and this is exactly where the issue before you commenced. Not over the industrial dispute. So the industrial dispute has nothing to do with the electrical stores position.

PN327

THE SENIOR DEPUTY PRESIDENT: Except that point 2 which is the paragraph beginning the words, "negotiations commence immediately", reflects as I understand, a resolution of members of the AWU.

PN328

MR WILDER: If you take note of the date, that was 1 March 2005 and was a letter between Mr Braithwaite and Mr Tunny and it may be their understanding, but it was not the understanding of the other parties involved in the issue and the process of resolution of dispute mentioned in AWU2 was actually the reasons for the guys returning to work. These were the proposed resolution and in no area of that proposal or resolution does it mention the electrical stores position. So I hope that answers that question.

PN329

Basically, this whole issue, and I don't want to spend too much more time on this issue, but it comes down to a matter that there is an option to resolve the issue and that's in the enterprise agreement. It's purely a matter of demarcation between the parties. There are some issues that have come about from a - it's been manufactured on paper basically - is a list of disputes for the AWU to get themselves a position in the electrical store. I believe it's quite frivolous and vexatious and no need to take up any more of our time, to be honest with you. That's pretty much it, your Honour.

PN330

THE SENIOR DEPUTY PRESIDENT: There's nothing else you want to say to me in response to the various issues raised by Mr Llewellyn-Jones?

PN331

MR WILDER: In regards to?

PN332

THE SENIOR DEPUTY PRESIDENT: This is your opportunity to respond to any of those issues.

PN333

MR WILDER: I've responded to the AWU1, 2 and 3. AWU5, 6 and 7, I haven't actually had the opportunity to go through them. I haven't seen them before, so I'm really reluctant to reply to them. Just to reconfirm the position that the manufacturers' dispute on paper that there's a dispute no longer occurring. Referring back to section 134(2) part B subsection 1 whether the dispute is likely to reoccur, that must be a position for the AWU because the original dispute did not involve the electrical store position. Any other dispute out there is purely created - manufactured on paper.

PN334

THE SENIOR DEPUTY PRESIDENT: Is it the case that your union also recognises the three stream approach?

PN335

MR WILDER: Yes, I believe so.

PN336

THE SENIOR DEPUTY PRESIDENT: Is that documented anywhere other than that original consent award?

PN337

MR WILDER: I believe the only area where I've actually seen the documentation of the three stream approach would be in the enterprise agreement.

PN338

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wilder. I'm going to reserve a decision in this matter. I foreshadowed to the parties that I would hope that decision would be made available to them within the next two weeks. I can't guarantee that but I would hope that to be the case.

PN339

MR LLEWELLYN-JONES: I'm very sorry, Senior Deputy President. You did invite me to correct you if I thought I'd misinterpreted it. Sir, I'd just make the observation and I didn't express this as clearly as I should of, which is that AWU3, in my mind fulfils section 134 subsection 2 subsection B(i) but it also could be said to fulfil section 134 subsection 2 subsection A, threatened conduct, as a resolution regarding the conditions of returning to work.

PN340

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Very well, I'll reserve a decision on this matter and adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [12.31PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT # CEPU1 DOCUMENT FROM MR WILDER DATED 17 MAY PN28
EXHIBIT #AWU1 CORRESPONDENCE FROM THE AWU TO MR TUNNY DATED 23/02/2005 PN140
EXHIBIT #AWU2 DOCUMENT SIGNED BY MR TUNNY FROM THE ASC CORPORATION DATED 28/02/2005 PN140
EXHIBIT #AWU3 CORRESPONDENCE FROM THE AWU TO MR TUNNY DATED 1/03/2005 PN140
EXHIBIT #AWU4 SUBMISSIONS PN203
EXHIBIT #AWU5 DOCUMENT WRITTEN ON AUSTRALIAN SUBMARINE CORPORATION LETTERHEAD. DATED 19/12/1995 PN223
EXHIBIT #AWU6 DOCUMENT DATED ON CEPU LETTERHEAD 26/12/1996 PN223
EXHIBIT #AWU7 DOCUMENT ON AMWU LETTERHEAD DATED 19/05/1996 PN223