C2005/3633, Transcript of Proceedings [2005] AIRCTrans 1419 (30 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11921-1

SENIOR DEPUTY PRESIDENT ACTON

C2005/3633

JOHN ANDERSON AND OTHERS
AND
AMCOR AUSTRALASIA CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3633)

MELBOURNE

10.00AM, FRIDAY, 17 JUNE 2005

Continued from 14/6/2005

PN222

THE SENIOR DEPUTY PRESIDENT: No change in appearances? Yes, there is a change in appearance.

PN223

MR G SIVARAMAN: I am here in place of Mr Borenstein today, for
Mr Selvidge and the other applicants.

PN224

THE SENIOR DEPUTY PRESIDENT: Who wants to report back? Mr Smith?

PN225

MR SMITH: Perhaps I should, your Honour. Your Honour, I won't go into the background. Perhaps I will just turn quickly to the events of yesterday. At 8 am yesterday morning, we took the turbine off line and we ran boiler only. So at that time we went to a one man operation for the boiler but we did provide extensive back up. We had a day worker who was there to provide back up if required. We also, during this sort of transitional phase which is, when we talk about transitional we talk about a phase where if there are any issues then they should come out and come onto the table to be sorted out. There is no length of time for that, it is however long it takes but we are also providing further coverage of the backup person on afternoon and night shift and all shifts over the weekend, and that person effectively sits there, doesn't have anything to do but is there for support if needed. There were no issues that came out of yesterday, no requests to use back up at all. At about 9 o'clock, we had two inspectors and two engineers from WorkCover arrive.

PN226

THE SENIOR DEPUTY PRESIDENT: This was 9 o'clock yesterday morning?

PN227

MR SMITH: 9 o'clock yesterday morning, so one hour after we took the turbine off line. They went and spoke with the OHS rep in the area, went through that person's issues which we were very pleased about actually, because we have been trying for six months to get the issues onto the table. Apparently, the issues did come onto the table and WorkCover went through them with the OHS rep. After that meeting there was a meeting with the company at which time WorkCover requested a number of documents, the documents were provided and some of those documents have previously been provided, they were provided again but there were some new documents they asked for and we gave them those. There were no issues raised by WorkCover at all, certainly no pin notices or requests to stop work or anything of that nature. WorkCover didn't see the need to come back today, they are going to come back on Monday. They did issue a field report and I can hand you a copy of that. I only have one copy, so I apologise, your Honour, on the condition of the copy.

PN228

THE SENIOR DEPUTY PRESIDENT: Do you wish me to mark that?

PN229

MR SMITH: It might be useful, yes, your Honour.

EXHIBIT #S1 FIELD REPORT OF WORKSAFE VICTORIA, DATED 16/06/2005

PN230

MR SIVARAMAN: Thank you, your Honour. We do have another copy so there will be one available to both parties. Your Honour, I won't take you through this, it basically just says that they attended. It says in the second paragraph that the purpose of the visit was to review issues raised regarding the proposed implementation of a one man boiler operated task, a boiler trial without the turbine on line commenced today, the current system of work is being implemented with the aid of a stand out operator. The company advised that the stand out arrangement is anticipated to continue until at least early next week. In paragraph 2, it identifies the various issues that were raised. In paragraph 3 it talks about the documents that were requested and received. Paragraph 4 talks about some further documents that have been asked for which will be provided. And that is basically the extent of the statement. So no issues and certainly no immediate risks to health and safety. There may be some issues come out of it when they look at the documents and we will deal with those over the period.

PN231

To the extent that we need to keep the backup people in place, we can keep those backup people in place until any issue is resolved that needs to be resolved. So, your Honour, the safety issue has been dealt with, it has been dealt with by the appropriate authority and will continue to be dealt with by the appropriate authority and the company will continue as it has to, to cooperate with that authority and ensure that any outstanding issues are resolved. The other issue perhaps I should just mention to you, your Honour, is that we talked last time about the redundancy issue and I mentioned to you that as a backup position, anyone whose position disappears in the boiler house would go into a pool. It now transpires that that will not need to occur. You will recall that I said that in the boiler house there would be a reduction of four positions. Well, there have been, in fact, two resignations and we have two people who have volunteered to take redundancy in the boiler house.

PN232

So, in effect, the fours positions are covered and so there is no need to make anyone move into a pool. The people who are there in the boiler house will remain in boiler house positions. So, any issue, and I think Mr Borenstein said last time that their issue was with the pool. There is no pool for these people, so there is no issue. So in our view, your Honour, the two issues that have been raised are really non-issues. The safety issue is being sorted through, through the appropriate authority and at the moment the trial is now up and running, or the transition is up and running with appropriate backup to ensure that all issues can be covered. Their second issue was the redundancy issue, there is no redundancy issue. We really don't see why this application is being pressed and for that purpose we are looking at what else might be available under the Act to try and bring these proceedings to a more swifter conclusion. Those are the things that we will look at over the next day or two. If the Commission pleases.

PN233

THE SENIOR DEPUTY PRESIDENT: Mr Smith, in terms of the actual application before me which was made by seven individuals, are you saying that some of those seven now no longer work for Amcor?

PN234

MR SMITH: I am sorry, your Honour?

PN235

THE SENIOR DEPUTY PRESIDENT: The application before me was made by seven individuals.

PN236

MR SMITH: Yes.

PN237

THE SENIOR DEPUTY PRESIDENT: On the last occasion I think I was told one had resigned.

PN238

MR SMITH: Yes, that's right.

PN239

THE SENIOR DEPUTY PRESIDENT: Is there now another one of those who has resigned?

PN240

MR SMITH: No, your Honour, Mr Dryburgh had resigned previously. The other six remain employed.

PN241

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything you want to add, Mr Sivaraman?

PN242

MR SIVARAMAN: Your Honour, you will understand that I will probably need to get instructions in relation to what has happened in terms of WorkSafe conducting an investigation. I note that the investigation hasn't finished. There is going to be a follow up visit and Mr Smith has already referred to the fact that other issues may arise. In our correspondence to you on 16 June I think we outlined what our position was ..... our instruction and that is we are still instructed to pursue the substantive application and I appreciate that WorkSafe is now conducting the investigation but we would say that that doesn't preclude you from determining the dispute over the application of the agreement in relation to clauses that are in dispute. And based on the outcome of, or how you determine the jurisdictional objection, if you dismiss the objection we can still proceed with the substantive application.

PN243

THE SENIOR DEPUTY PRESIDENT: So you still want me to determine the jurisdictional issue?

PN244

MR SIVARAMAN: Those are my instructions, yes.

PN245

THE SENIOR DEPUTY PRESIDENT: Do you require time for any more instructions?

PN246

MR SIVARAMAN: I wouldn't mind a few minutes if that was possible, your Honour, just in light of what has been handed to us.

PN247

THE SENIOR DEPUTY PRESIDENT: Okay. I will adjourn until 25 past 10.

<SHORT ADJOURNMENT [10.10AM]
<RESUMED [10.35AM]

PN248

THE SENIOR DEPUTY PRESIDENT: Mr Sivaraman?

PN249

MR SIVARAMAN: Your Honour, thank you for that short break. Your Honour, our position is this. Information has been raised, new information, Mr Selvidge hadn't seen this report. I know it says that a copy was provided to him on report, he hadn't seen it until just then. We would like to be able to speak to the other prime applicants about what was raised both in terms of the report and the redundancies. I note there is also a follow up visit on Monday and what we would like to be able to do, with the Commission's consent, is write to him by close of business on Monday to indicate whether or not we still press with the jurisdictional objection to be determined. We would also seek that if that further report is provided on the Monday, Mr Selvidge isn't at work. He is on an 11 day break. We would seek that a copy be sent to our offices. That is our position, your Honour.

PN250

THE SENIOR DEPUTY PRESIDENT: What do the other parties say about the termination of jurisdictional issue? Mr Gardner?

PN251

MR GARDNER: Our point of view, your Honour, consideration is being given to an application under section 111(1)(g) in relation to this but in circumstances where the prospect that the matter might go away, we would have no objection to, in the circumstances, time until Monday afternoon being given but we can foreshadow that we will be inclined thereafter if the matter is to proceed to make an application under section 111(1)(g) to have that application heard and determined prior to the, or in conjunction with the jurisdictional hearing, have something go on. I simply foreshadow that as something that is under active consideration by my client. That's all. Thank you.

PN252

THE SENIOR DEPUTY PRESIDENT: Mr Smith?

PN253

MR SMITH: Your Honour, our position is identical to that of Mr Gardner. In light of the information I think that we have put to you today, it certainly seems to fit squarely within the fact that any further proceedings would be of the trivial kind and certainly would not justify any proceedings in the public interest. And we do know, of course, that the Commission could deal with this of its own notion but we are happy to wait until we see the outcome of Monday's deliberations.

PN254

THE SENIOR DEPUTY PRESIDENT: And you are content to provide the report to the gentleman who is going to be on leave or something? I think that was the request.

PN255

MR SIVARAMAN: Yes. Well, if there is a report that is actually given to us on Monday we can fax a copy through to Maurice Blackburn.

PN256

THE SENIOR DEPUTY PRESIDENT: Very well.

PN257

MR GARDNER: Your Honour, I might just add that one of the matters that my client has given consideration to is whether it is in the public interest for a proceeding to continue of this kind in circumstances where one of the complaints that is put is that the employees concerned don't have access to their union of choice, namely the CEPU. That raises a question of whether they are eligible for the CEPU at all and that is one element of any of 111(1)(g) we would
anticipate .....

PN258

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Sivaraman?

PN259

MR SIVARAMAN: No, your Honour.

PN260

THE SENIOR DEPUTY PRESIDENT: So you are going to write to me towards the end of Monday and tell me what you want to do anyway.

PN261

MR SIVARAMAN: Yes.

PN262

THE SENIOR DEPUTY PRESIDENT: All right. I will adjourn this matter on that basis.

<ADJOURNED INDEFINITELY [10.40AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 FIELD REPORT OF WORKSAFE VICTORIA, DATED 16/06/2005 PN229