C2005/3235, Transcript of Proceedings [2005] AIRCTrans 1496 (12 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12062-1

COMMISSIONER BACON

C2005/3235

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
AND
TEYS BROS (BILOELA) PTY LTD TEYS BROS (BEENLEIGH) PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/3235)

BRISBANE

10.09AM, THURSDAY, 30 JUNE 2005

PN1

MR L NORRIS: I appear on behalf of the Australasian Meat Industry Employees' Union.

PN2

MR M ROGERS: I appear on behalf of Hans Continental Small Goods Pty Limited, Wattle Glen Pet Foods Pty Limited and Wild Game Resources Pty Limited.

PN3

MR J SALTER: I'm employed generally for the Teys Brothers group of companies and more specifically Teys Brothers (Biloela) Pty Ltd, Teys Brothers (Beenleigh) Pty Ltd, Teys Brothers (Central Queensland) Pty Ltd, Teys Brothers (Innisfail) Pty Ltd, Consolidated Meat Group Pty Ltd, Teys Brothers Holdings Pty Ltd and Teys Brothers (Naracoorte) Pty Limited.

PN4

MR G JOHNSTON: I appear for the Australian Meat Industry Council and a number of other companies. If I could just tender this document at this stage - it's a document which the Australian Meat Industry Council have extracted from the files of the Commission. It may be tendered later. I assume it will be. Because it was extracted so late which was earlier this week, you'll see there are crosses on the left hand side of each of the pages of companies. They are members of the Australian Meat Industry Council and I appear for those companies as well. It's fairly clear. I don't think the Commission wants me to go through and name every number.

PN5

There's probably about 130 - 150 names there but because we haven't been able to cross check there are obviously a considerable number of others - cross checking against the records of AMIC and who's a member. If we could reserve our position in relation to those other companies who are members of AMIC that were served with a letter of demand and log of claims.

PN6

THE COMMISSIONER: How do you mean reserve your position?

PN7

MR JOHNSTON: Notifying the union and the Commission that they're a member of AMIC and by some chance we mightn't have been given instructions to appear here because we haven't been told about the letter of demand or log of claims by those companies.

PN8

MR S HALLORAN: I appear on behalf of Australian Meat Holdings.

PN9

MR H NANCE: I appear for the Queensland Chamber of Commerce and Industry Limited on behalf of QFCO Pty Limited trading as North Queensland Meats and the second company is Bucket of Beef Pty Limited.

PN10

MR M GUYMER: I'm from the National Retail Association appearing on behalf of Woolworths Limited, Coles Supermarkets Australia Pty Limited and Bi-Lo Pty Limited.

PN11

MS L VANDERSTOEP: I'm with the Australian Industry Group and I appear on behalf of Matilda Pet Food Pty Limited and Australian Game Processors.

PN12

THE COMMISSIONER: Thank you Ms Vanderstoep. Is that all the appearances in Queensland?

PN13

MR C MOSSMAN: I'm from BCI Law and I appear for Grunt Labour Services Pty Limited.

PN14

THE COMMISSIONER: Thank you Mr Mossman. Any others? What about in Melbourne?

PN15

MR T BLACKET: I appear for Murray Valley Meat Company Pty Ltd,
R N Woodward and Company Pty Ltd and Ashton.

PN16

THE COMMISSIONER: The Commission is also in possession of correspondence from solicitors for an entity named Perfect Pork who have apologised for their inability to attend this morning but in their letter do indicate on behalf of that entity that they will oppose the finding of a dispute. The Commission is also in possession of another document but it doesn't matter. It appears that Mr Blacket appears for the company named in that correspondence. Mr Norris?

PN17

MR NORRIS: In relation to all the applications for leave to appear there's no opposition at all, Commissioner.

PN18

THE COMMISSIONER: Very well, thank you.

PN19

MR NORRIS: Commissioner, I might start initially by tendering as exhibits, various material. There's a document tabulated and marked RMR1 being a list of employers who were served with the letter of demand and log of claims. I'd like to tender that as an exhibit in the proceedings and request that it be
marked RMR1.

PN20

THE COMMISSIONER: It's so marked unless there's any objection.

EXHIBIT #RMR1 A LIST OF EMPLOYERS WHO WERE SERVED WITH THE LETTER OF DEMAND AND LOG OF CLAIMS.

PN21

MR NORRIS: Commissioner, there is another piece of correspondence which is tabulated RMR2 and marked in felt pen RMR2 accompanying the notification of alleged dispute. It's a copy of the letter of demand dated 11 May 2005. I seek to tender that as an exhibit and that it be marked RMR2.

PN22

THE COMMISSIONER: Again, no objections? It's so marked, Mr Norris.

EXHIBIT #RMR2 COPY OF LETTER OF DEMAND DATED 11/05/2005

PN23

MR NORRIS: Accompanying the notification is also a document behind the tab RMR3. It's marked in felt pen RMR3, being a document of some 17 pages dated 4 May 2005. It's the log of claims. I seek to tender that as an exhibit and that it be marked RMR3.

PN24

THE COMMISSIONER: Again, if there's no objections the log is marked as exhibit RMR3.

EXHIBIT #RMR3 LOG OF CLAIMS DATED 04/05/2005

PN25

MR NORRIS: Accompanying the notification of an alleged dispute, Commissioner, there were documents marked RMR4 being a statutory declaration as to service and a list of those companies and employers to whom the letter of demand and log of claims was served along with copies of the registered post receipts. I seek to tender that as an exhibit and that it be marked RMR4.

PN26

THE COMMISSIONER: Again, it is so marked, Mr Norris.

EXHIBIT #RMR4 STATUTORY DECLARATION AS TO SERVICE AND A LIST OF COMPANIES AND EMPLOYERS TO WHOM THE LETTER OF DEMAND AND LOG OF CLAIMS WAS SERVED AND COPIES OF THE REGISTERED POST RECEIPTS.

PN27

MR NORRIS: Behind the tab RMR5 there's a statutory declaration signed by Mr Ross Michael Richardson, dated 1 June 2005, being two pages. I seek to tender that as an exhibit and that it be marked RMR5.

PN28

THE COMMISSIONER: Again on the basis there's no objection, it is so marked.

EXHIBIT #RMR5 STATUTORY DECLARATION SIGNED BY MR R RICHARDSON DATED 01/06/2005

PN29

MR NORRIS: Commissioner, I seek to hand up a proposed exhibit. It's a statutory declaration as to service signed by Lee George Norris dated 30 June 2005 being various records again as to the service by registered post of the notice of the alleged industrial dispute listing from the Commission and a copy of form R5 that's published under the rules of the Commission. I seek to tender that as an exhibit in the proceedings and that it be marked RMR7.

PN30

THE COMMISSIONER: Does that mean we don't have an RMR6?

PN31

MR NORRIS: It means that we have a potential exhibit up our sleeve apparently, Commissioner.

PN32

THE COMMISSIONER: In the anticipation of the emergence of an RMR7, I'll mark this document that's been handed up and described by Mr Norris as exhibit RMR7.

EXHIBIT #RMR7 STATUTORY DECLARATION SIGNED BY MR L NORRIS VARIOUS RECORDS AS TO THE SERVICE BY REGISTERED POST OF THE NOTICE OF THE ALLEGED INDUSTRIAL DISPUTE LISTING FROM THE COMMISSION AND A COPY OF FORM R5 DATED 30/06/2005

PN33

MR NORRIS: I seek to hand up a further statutory declaration, Commissioner. It's merely a declaration under the hand of Mr Ross Michael Richardson dated 30 June 2005, for the Commission's information, informing the Commission of written rejections of the log of claims that were received by the union, also attaching those written notifications. I seek to tender that as an exhibit and that it be marked RMR8.

EXHIBIT #RMR8 STATUTORY DECLARATION BY MR R RICHARDSON OF WRITTEN REJECTIONS OF THE LOG OF CLAIMS THAT WERE RECEIVED BY THE UNION DATED 30/06/2005

PN34

MR NORRIS: Commissioner, I seek to hand up a further statutory declaration. Again under the hand of Mr Richardson dated 30 June 2005. It's a statutory declaration as to the withdrawal of claims. I seek to tender those as an exhibit and that it be marked RMR9.

EXHIBIT #RMR9 STATUTORY DECLARATION AS TO THE WITHDRAWAL OF CLAIMS DATED 30/06/2005

PN35

MR NORRIS: For the sake of the record, Commissioner, I might just briefly speak to it. The statutory declaration advises that the AMIU has withdrawn its claim against the employer enumerated 179 being Laverton Knackery; Employer enumerated 265 being Corona Manufacturing Pty Ltd; Employer enumerated 285 being WR King (Smallgoods) Pty Ltd; employer enumerated 297 being A & C Meats Pty Ltd; employer enumerated 480 being the Master Grocers Association of Victoria Limited; employer enumerated 109 being Ausland Export Pty Ltd; employer enumerated 363 being Walgett Game Meat Processing Meats Pty Limited; employer enumerated 362 being Perry's Abattoir; employer enumerated 186 being the Numurkah Knackery.

PN36

When I speak of being enumerated, I'm referring to being enumerated in the exhibit RMR1. Commissioner, I seek to hand up a further statutory declaration. It's a statutory declaration under the hand of Mr Richardson dated 30 June 2005. It simply advises that the union has acceded to requests for further consultation with the following companies. Employer enumerated in RMR1 61, 62 and 71 being Wild Game Resources Pty Ltd; employer enumerated 31 being Wattle Glen Pet Foods Pty Ltd; employer enumerated 448 being Woolworths Limited; employer enumerated 481 being Coles Myer Limited; employer enumerated 482 being Bi-Lo Pty Limited; employer enumerated 19 being Coles Supermarket Australia Pty Ltd.

PN37

I seek to tender that as an exhibit and that it be marked RMR10, Commissioner.

PN38

THE COMMISSIONER: The document will be exhibit RMR10.

EXHIBIT #RMR10 STATUTORY DECLARATION BY
MR RICHARDSON DATED 30/06/2005

PN39

MR NORRIS: If the Commission has had an opportunity to briefly skim read the statutory declaration, the AMIU has acceded to the request from these companies to engage in further consultation but the AMIU reserves its right to have these parties made a party to any finding of a dispute that the Commission may make. Lastly, Commissioner, I seek to hand up a further statutory declaration under the hand of Mr Ross Michael Richardson dated 30 June 2005. It's marked RMR11. It advises the Commission as to the known objectors that the AMIU is aware of at this stage.

PN40

There may be more obviously today but this is for the Commission's information. I seek to tender it as an exhibit and that it be marked RMR11.

EXHIBIT #RMR11 STATUTORY DECLARATION BY
MR R RICHARDSON DATED 30/06/2005

PN41

MR NORRIS: In terms of correspondence, Commissioner, I note the Commission has received correspondence from Perfect Pork. Might I enquire if the Commission is in receipt of correspondence from the firm described as Norman Waterhouse lawyers on behalf of Metro Velda Pty Ltd. It's dated 29 June 2005. The union was forwarded a copy of correspondence which was apparently forwarded to the Commission on that date.

PN42

THE COMMISSIONER: Yes, I do have a copy of that and I omitted to refer to it earlier.

PN43

MR NORRIS: They're on the list in RMR11 of known objectors. I just wanted to check that the Commission had received that correspondence. There was some late breaking correspondence as well, Commissioner. It's dated 30 June 2005, received this morning by the union. It's from the Victorian Employer Chamber of Commerce and Industry. I think that's correct. It's addressed to the Commission. It's under the hand of Mr Phil Eberhardt on behalf of MTA Manufacturing Pty Ltd.

PN44

THE COMMISSIONER: I don't have a copy of that.

PN45

MR NORRIS: I will provide a copy for the Commission's attention. It actually wasn't addressed to the union. It was apparently addressed to the Commission and a copy was forwarded to the union. Within that correspondence, it's advised that the company has received a log of claims and the demand. The log of claims is rejected and:

PN46

An industrial dispute can be found within the meaning of Workplace Relations Act 1996

PN47

And:

PN48

That all rights with respect to any future applications are reserved.

PN49

Rather than tender a copy of that correspondence, I might just simply provide it for the Commission's attention. Commissioner, the manner in which we seek to press the notification today, is that we'll maintain that there's a strong prima facie evidential case where upon the Commission could be satisfied that an industrial dispute as defined in section 4 of the Act exists. There's satisfactory evidence as to all the elements that are required by the definition within that section. What we will be requesting the Commission to do is that in respect of any consenting parties and those who haven't chosen to appear that, a dispute be recorded under section 101 in a manner that's appropriate of course once we ascertain who those parties may or may not be.

PN50

In respect of those parties who appear in the exhibit RMR10 that they not be found party to any dispute today. But obviously as I've already indicated the union reserves its rights at a later time to seek to have them made parties to the dispute, if a dispute is found. The third category as I might propose to describe it would be all those objectors. The union would be submitting that as a matter of discretion. If the Commission were to refrain from making a dispute finding at this particular point in time in respect of all those parties either consenting or not appearing whilst it determined all the objections, it would, of course, place an onerous burden to notify all those parties until such time as all those objections had been determined.

PN51

All the parties would have to be notified of proposed listing dates. There may be more than one listing date. Under section 101 it's open to the Commission to vary or revoke a dispute finding. In the event that any objections are successful in whole or indeed, in part, the Commission is more empowered and capable of so adjusting the record. For those reasons, we'd submit that would be the most appropriate manner of proceeding. At this stage, I must indicated I'd need to hear the nature of the objections before one could suggest any timetable for any further processing and listing of those particular objections one would have to ascertain exactly how much time or estimate how much time would be involved.

PN52

Unless the Commission has some questions I would leave our submissions at this point in time subject of course to a right of reply.

PN53

THE COMMISSIONER: Thank you. Mr Rogers.

PN54

MR ROGERS: Commissioner, on behalf of Hans Continental Small Goods Pty Limited, the Colmslie and Hemmant sites of that particular employer are covered by the Hans..... Small Goods and Meat Products Award state and we would seek that both those particular sites of that employer be placed on the list of objectors. In relation to the Wacol and Blacktown sites, we basically reject ..... of the AMIU and effectively our client is in dispute with the AMIU which we believe is an interstate dispute and we would accordingly consent to dispute finding in respect of the Wacol and Blacktown sites of Hans Continental Small Goods Pty Limited but reserve our position with regards to the Colmslie and Hemmant operations of that particular employer.

PN55

THE COMMISSIONER: Mr Rogers, are those sites as you describe them, separate entities? Have they logged in some way that's different?

PN56

MR ROGERS: My understanding that they have individually been logged, Commissioner.

PN57

THE COMMISSIONER: But are they different employers?

PN58

MR ROGERS: They're not different employers, no.

PN59

THE COMMISSIONER: How does one exclude from the dispute finding a site as opposed to an employer?

PN60

MR ROGERS: Then we would seek place Hans Continental Small Goods Pty Limited on the list of objectors as a whole until we can resolve this.

PN61

THE COMMISSIONER: I thought they were the ones looking for a federal award. I've got one dispute somewhere else over the union's objection initially, trying to get a federal award - - -

PN62

MR ROGERS: Commissioner, my main concern is regarding the Colmslie and Hemmant sites. That's our concern and we'd like to hold further discussions with Mr Norris about that.

PN63

THE COMMISSIONER: As I understand it, your submission is that Hans Continental opposes the dispute finding.

PN64

MR ROGERS: At this stage yes, Commissioner. Perhaps it would be best if we could - as opposed to putting them on the objectors at this stage - put them on the same list as RMR10. Those parties seeking further consultation with the union. If Mr Norris would consent to that we would then hold further discussions with him.

PN65

THE COMMISSIONER: Can we deal with that now Mr Norris? Are you in a position to respond to that request?

PN66

MR NORRIS: If I might just have a very brief halt to take some instructions. Commissioner, potentially to resolve this controversy, what I can offer up on the transcript is an undertaking from AMIU that it has no intention to seek federal award coverage in respect of the Hemmant and Colmslie sites. The AMIU has no intention of seeking a federal award in respect of Hemmant and Colmslie. It's on the record. It may or may not adjust Mr Roger's position.

PN67

THE COMMISSIONER: Things are moving quickly, Mr Norris.

PN68

MR NORRIS: Might just add, by way of explanation, that the individual sites and indeed the registered office were all logged out of an abundance of caution.

PN69

MR ROGERS: Commissioner, on the basis of my friend's submission on record, we would then withdraw our objection and we would consent to a dispute finding being made.

PN70

THE COMMISSIONER: Very well, thank you. Mr Salter?

PN71

MR SALTER: Commissioner, all the entities upon whose behalf I appear are members of the Australian Union Industry Council and I understand my friend Mr Johnston has some submissions to make with which we concur. I note that one of the entities I appear for, that is Teys Brothers Holdings Pty Limited which is identified as employer number 493 under RMR1 is in fact listed as an objector under RMR11. I confirm that Teys Brothers Holdings Pty Limited is an objector in that it does not and is not likely to employ persons in capacities which would fall within AMIU's eligibility rules.

PN72

I've had some brief discussions with Mr Norris on that matter and I understand it, whilst the union has a contrary view to the one that I have, he and I are the ones that should be ventilating at a separate hearing in respect to all other entities that being those enumerated one, two, three, 18, 491, 492 and 84 subject to the submissions of Mr Johnston, I have no objection to a dispute being found.

PN73

THE COMMISSIONER: Thank you, Mr Salter. Mr Johnston?

PN74

MR JOHNSTON: Commissioner, can I ask through you, have all the exhibits of the AMIU been presented that we have to respond to in relation to the matter? I notice you referred to RMR6. Is that something - - - ?

PN75

THE COMMISSIONER: There does seem to be an administrative gap.

PN76

MR NORRIS: It's known as the slip rule. There is an administrative gap. There is currently no RMR6 exhibit proposed.

PN77

MR JOHNSTON: As I said in making the appearance, Commissioner, I appear for the Australian Meat Union Council which is the employer organisation registered under this Act. I appear for a considerable number of employer entities that were served with the letter of demand and log of claims. Why I wanted to, in effect, reserve our position in relation to those that are members that haven't given instructions at this point and why there are other entities. If I could just give an example of that - I don't wish to labour the point on this particular matter - but employer number 217 for example and 220 which are Greenham Investments Pty Limited - they are investment companies and they are entities that do not and will not ever employ labour in or in connection with the meat industry as their name suggests.

PN78

I'd assume in relation to this matter because it's in effect a telephone log in the sense that people may - and we're entitled to assume - that someone has gone to ASIC and done a search of companies which are named Greenham and come up with all those particular names. There may be others there - I'm sure there are and that's why in effect we wanted to reserve our position. Reserve's the wrong word but the Commission will know what we're meaning. I don't wish to make any other comment on those that were served with the letter of demand and log of claims at this point.

PN79

If I can then go to, in effect, the letter of demand and log of claims - I should say first this - this is the first log served by the Australasian Meat Industry Employees' Union for about 12 years. The last one in our records is about 1993. There's been no log which has been served in the intermediary period. Of course in that intermediary period there's been a change in the legislation completely with the advent of the Work Place Relations Act 1996.

PN80

So the starting point of this particular matter is the letter of demand which is a letter which is framed in terms of demanding particular matters for people who are employed in the industry or who are desirous of being so employed in the industry. I don't think anything turns on that. I've looked at the eligibility rules of the AMIU which we don't need to go into great detail at this point concerning as to who is eligible or who is not to become a member of the organisation.

PN81

We then come to the log of claims. I should say in relation to the particular matter the entities that I appear for including the registered organisation that on one hand it could be described as a fanciful log. But we're not going to run a submission at this point on that. For example, we note the rates of pay which are in clause 3.1 of the log for 2005 for piece workers for working 15 ordinary hours. The employee is the one who decides when the hours are and for those 15 hours, I presume if we take an example of five hours per day, that he's entitled to an hour's meal break which brings it down to four and two rest breaks which brings it down to three and lapo's in that five hour period which brings it down to two hours work, meaning six hours a week for 2500.

PN82

There've been judicial decisions over the years in relation to fanciful or genuine particular matters we're not raising at this point. We're simply saying that it goes beyond the realm of possibility that these conditions could ever come into effect but it is a log of claims which has been served.

PN83

THE COMMISSIONER: Is it the difficulty the court and as a consequence the Commission has in trying to balance the doctrine of ambit versus fanciful and - - -

PN84

MR JOHNSTON: That's true. The High Court didn't have any bother in the
CPF case which they said $7500 for 30 hours a week was a bit fanciful.

PN85

THE COMMISSIONER: The High Court rarely has trouble, it's everyone else that has the trouble.

PN86

MR JOHNSTON: We have a general submission that we do not - we cannot - I don't think - in relation to certain matters oppose the finding of a dispute because we are the industry employer body. But it's the advent of the new legislation from 1996 onwards which we suggest imposes conditions upon the Commission in relation to particular findings. What we say in relation to that is this, just by way of example, and I'm not going to go to it in detail. The Commission will know it but just by way of completeness. If I could just tender the relevant parts of the 1904 Act and the relevant parts of the 1988 Act.

PN87

The predecessors to the particular present Act.

PN88

THE COMMISSIONER: I'll mark those, Mr Johnston.

EXHIBIT #AMIC1 EXTRACT FROM 1904 TO 1973 ACT
EXHIBIT #AMIC2 EXTRACT FROM THE 1988 ACT

PN89

MR JOHNSTON: I don't need to go into great detail but the Commission as it is presently constituted understands and has a great deal of experience in relation to the particular matters. The 1904 Act as amended had a definition of industrial dispute and it was predicated on the basis of industrial matters which is far beyond what the present Act envisages in relation to particular matters. The 1988 Act also had a definition of industrial dispute which is found in the document that I tendered. I've also tendered out of that particular document sections 89 which concern the functions of the Commission generally in relation to it and 99 under a particular division of that Act dealing with notification and finding of disputes as defined under that Act.

PN90

The Commission's own website in relation to the scope of industrial disputes is clear as well. If I could tender that, which is under the heading, List of Allowable Matters.

EXHIBIT #AMIC3 LIST OF ALLOWABLE MATTERS

PN91

MR JOHNSTON: It deals with section 89A and it says that:

PN92

Industrial dispute normally limited to allow award matters.

PN93

Then it quotes the particular section of 89A and says:

PN94

For the following purposes and industrial dispute is taken to include only matters covered by subsections( 2) and( 3).

PN95

Then lists the following purposes that are referred to in the sub section which are:

PN96

Dealing with industrial disputes by arbitration, preventing and settling an industrial dispute by making of an order or an award.

PN97

The third one:

PN98

Maintaining the settlement of an industrial dispute by varying an order or an award.

PN99

The Commission's reference under this particular matter is exactly the same as the Act because then it goes on and talks about allowable award matters. The sum, 18 I think it is, allowable matters that are contained in 89A.

PN100

THE COMMISSIONER: There's still 20.

PN101

MR JOHNSTON: So you are dealing with here a particular matter which is under Part VI of the Act. Under Part VI is the general functions of the Commission which are to be performed, so says 88B. Having regard particularly to the objects of the section contained in that part as well, as the Commission knows, are the findings of an industrial dispute and recording them that my learned friend, Mr Norris has asked the Commission to so do. We can't find any reference but it appears to us that it's fairly clear that your scope in relation to the finding of dispute under that particular section is limited to the matters contained in 89A and matters incidental thereto.

PN102

Let me give an example, if I can, of the numbers of matters that are not contained that the Commission has the power to deal with. If they are not in or contained in section 89A(2). The first one would be, there's exceptional matters that are contained in the section. The second particular matter is the Commission has the power under the right of entry to make particular orders under I think it's 285G and that particular section that I've just referred to, the right of entry one, interestingly enough, says, subject to 89A. So that, in respect of this particular part, it's our submission that the matters concerning whether something can go to arbitration, whether something can go to the making of an order or an award.
That's what we're dealing with here in relation to the findings as to how it may go, that it is limited to the matters and the ambit of the matters contained in 89A(2) and matters incidental thereto.

PN103

Let me give another example if I can. Supposing in the log of claims there was a claim, no black cars shall be taken into any plant or shop or entity whatsoever for those served with a letter of demand and a log of claims. Could that be a matter the subject of an industrial dispute under the Act. Our submission is, no. Why? Because, one, it's not a matter that comes within section 89A2. It could never, ever be part of arbitration proceedings or the settlement - - -

PN104

THE COMMISSIONER: I assume that it's an industrial matter that pertains to the relationship between an employer and employee. If what you say is right, then that matter would bring you on to side of the black car by the employee or by the employer can never be the subject of a certified agreement which is made pursuant to section 170LS of the Act. Because it can never be part of an agreement and LS requires an antecedent industrial dispute to make the agreement that is ultimately to be certified.

PN105

MR JOHNSTON: We're not dealing with 170 at this point. What we're dealing with - - -

PN106

THE COMMISSIONER: Not dealing with 170.

PN107

MR JOHNSTON: We're not dealing with that part of the section in relation to a certified agreement. What we're dealing with is part 6 in relation to the finding of a dispute as covered within that part of the Act. That's what we're dealing with.

PN108

THE COMMISSIONER: But that part of the Act is the dispute finding on which section 170LS ultimately relies. There isn't a separate finding of the dispute for the purposes of section 170LS. An agreement may be pursuant to that subsection.

PN109

MR JOHNSTON: But it may well be that the industrial dispute that's referred to in 170 is the industrial dispute as defined in section 4. What we're here dealing with is a particular section 89A which says:

PN110

Scope of industrial dispute for the purposes of this part -Part VI.

PN111

Now, as we ascertain it, this matter has never been decided by the Commission and I can't find - - -

PN112

THE COMMISSIONER: I think that's wrong. To the best of my knowledge the matter has been decided by the Commission. I think there's an appeal from Commissioner Hodder here in Brisbane - I just can't recall the case but it's generally referred to as City Case or some name of similar function and I think ultimately the bench determined that of course 89A doesn't preclude the content of the dispute finding but it certainly limits the powers of the Commission to act on that dispute finding to make an award or order. That is to exercise - - -

PN113

MR JOHNSTON: The functions under this part.

PN114

THE COMMISSIONER: Other than if part of the function is to assist the parties out of a dispute finding to reach an agreement which they want certified pursuant to section 170LS. If you're right then 89A mandatorally must constrain the width of matters that can be contained in a certified agreement made pursuant to
section 170LS. Because the dispute finding can never be wider than the allowable matters in section 89A.

PN115

MR JOHNSTON: I'm simply looking at section 89A and I'm submitting, I'm not opposing the finding of a dispute. What I am doing is saying, in relation to the finding under 101 leading to any arbitration or the making of an order or an award under 89A(1) is limited to allowable matters. That's my submission. I don't think I can take it any further than that. I do have another particular matter which - perhaps I should do a general submission in relation to this particular finding in relation to the submission, Commissioner. For example, there's matters in the log like amenities and it's determined in relation to the hospitality case and others that the amenities - the subject the way it's framed in the log of claims - can never been part of an award or an order leading to the making of an award.

PN116

I don't know whether the Commission wants me to go through every clause in the award but that's the general submission - - -

PN117

THE COMMISSIONER: In the log you mean.

PN118

MR JOHNSTON: In the log. But that is the general submission in relation to the particular - - -

PN119

THE COMMISSIONER: I'm just trying to understand the position that you're putting, Mr Johnston. Are you saying that, look we have no opposition to a dispute finding being made in this matter. I accept that it's your position that the dispute finding must be constrained by 89A and further that there are other matters which we say ought be struck from the log so that that would further narrow the matters in dispute. Is that what you - - -

PN120

MR JOHNSTON: That's one of the things and the glaring example that I give is clause 3.3 which is Tally 10.54.38. I don't think the Commission wants me to go into the 50 years of history in relation to Tally's in the meat industry. We'll be here for longer than today. Clearly this section that I refer to 89A prohibits anything about Tally as an extension of the argument that I've briefly put to the Commission, that not only are matters contained in 89A but there is a specific prohibition in relation to Tally's in the meat industry. Tally's in the meat industry can have no other meaning than that they're normally referred to by the entities and the parties from the decisions over the past 50 years which is based on inputs.

PN121

Piece work is not based on inputs, it's based on outputs. What I am putting is that anyone who received a log of claims would know exactly what Tally's mean in the meat industry and there's a specific prohibition in relation to these particular matters. Again, along the lines of the argument that I've briefly put.

PN122

THE COMMISSIONER: Mr Johnston, I guess the point is, before a dispute finding can be made, it's necessary to determine the extent of the matters in which the parties are actually in dispute. If you say some of these things can't be included in a dispute finding because they're precluded on your submission by 89A or they're precluded for other reasons whatever those reasons might be. It's just a matter of whether you're in a position to put those submissions today, because Mr Norris' view was that we should proceed to a dispute finding today for a raft of companies on Mr Norris's submissions and then deal with the objectors at a time and place to be determined.

PN123

But if there are substantive objections from the employer from matters which you say are in the log and what must be struck from it for the purposes of the dispute finding then it's a bit hard to make any dispute finding until you know what those matters are.

PN124

MR JOHNSTON: To put it as a heading, they're matters that are not allowable.

PN125

THE COMMISSIONER: But a thing can be not allowable because it's not allowable by section 99A[sic] or it's not allowable because it doesn't pertain to the necessary relationship therefore, it can't form part of a dispute. Not allowable, I agree in general usage in industrial relations these days, generally refers to matters other than the 20 identified in section 89A.

PN126

MR JOHNSTON: Yes. We say, to give another example in relation to determination provisions:

PN127

No employee shall be terminated. There shall be no discipline against any employee whatsoever.

PN128

Now, the Workplace Relations Act has particular statutory matters about that. Whether one can ever say, yes or no in relation to those matters that are part of the statute, is debatable. So I just raise those two examples.

PN129

Is this submission put tongue in cheek? No, it's not because this log is the first one that's served in the meat industry since the Workplace Relations Act 1996. The parties are entitled to know specifically and in detail what the matters are in dispute because it's a paper log. It's not another dispute whereby it's being brought to the Commission via one or two employers in relation to matters that are in dispute at those particular plants, it's a paper log.

PN130

Paper logs have been around for eight decades. Paper logs haven't been around for eight decades in relation to the Workplace Relations Act. That's what we're putting. Is this a matter for another day? Are we happy for a dispute to be found but our rights are absolutely protected in relation to this particular issue? I'd have to say, as a matter of practicality, the answer's, yes. But we think there is a statutory duty on the Commission in relation to the finding and the matters to be found in industrial dispute and the width of it because that's what the statute says. Without going through each and every clause of the log that's the submission.

PN131

THE COMMISSIONER: I don't know how you can avoid going through each and every clause in your log. I'm suggesting it be today but if you say things - from this point, on that submission, there's only two ways to think in advance. One is that a dispute finding can be made and it can be made subject to further proceedings to determine which matters must be struck from the log because for whatever reasons are going to come forward, they can't form part of a dispute under the Act. Alternatively, there can be no dispute finding until it's made clear what matters are permitted to be in dispute under the Act.

PN132

MR JOHNSTON: As a matter of practicality, on behalf of the employer organisation, we're happy with the first course.

PN133

THE COMMISSIONER: In any event, I think that in relation to your
section 89A argument, I'll be in a position to include a decision about that which unless there are other issues that you want to raise - and I understand what you said, that you don't have a fanciful objection. But if there are others about whether the matters pertain or any of those other things, the High Court determined can't be included in dispute findings. If there's none of those, it's simply a matter of dealing with the submission in relation to section 89A.

PN134

MR JOHNSTON: We're not putting a fanciful argument

PN135

THE COMMISSIONER: There's no matters pertaining - - -

PN136

MR JOHNSTON: It is fanciful but it may not be fanciful in the industrial sense.

PN137

THE COMMISSIONER: I understand that argument funnily enough which says something about me, I think. There's no other lines of objections that matters don't pertain to the employer employee relationship, et cetera. There's no other objections you have. If the 89A argument - if the Commission can, as far as the Commission is currently constituted is concerned can deal with that, then there's no objection to the finding of a dispute.

PN138

MR JOHNSTON: No. That was one submission but there are matters in the award that do not pertain to the employer employee relationship. I'm happy in relation to the - we are satisfied if our position could be along the lines of the first particular course of action that the Commissioner adopted. There are matters in our submission that do not pertain to the employer employee relationship but they can be dealt with if it satisfies the Commission and deserves our position at some future point. We're not resiling from that particular matter. I just wanted the Commission to know that.

PN139

THE COMMISSIONER: Thank you.

PN140

MR NORRIS: Commissioner, I just arise because if that is the full extent of Mr Johnston's submissions, I'm in a position to deal with it today and perhaps assist the Commission. I intend only to be brief for way of response to his submissions. Commissioner, it's certainly the case that section 89A(1) places a limitation on what the Commission may or may not do. I quote the first part of that particular subsection being (1):

PN141

For the following purposes and industrial dispute is taken to include only matters covered by subsections(2) and( 3).

PN142

For the following purposes - I emphasise. Then there's paragraph:

PN143

(a) Dealing with an industrial dispute by arbitration;
(b) Preventing or settling an industrial dispute by making an award or order;
(c) Maintaining the settlement of an industrial dispute by varying an award or order.

PN144

So, it's only for those purposes that there is a limitation on the Commission's power. There is no limitation whatsoever in relation to an industrial dispute finding that is required to be recorded pursuant to section 101.

PN145

THE COMMISSIONER: Or what the Commission might deal with, by way of conciliation powers.

PN146

MR NORRIS: Yes, that's agreed, Commissioner. Let it be supposed that Mr Johnston's submission is correct, that an industrial dispute can only include the 20 allowable matters as they've been described. That immediately renders the Commission's exceptional matters powers to be ..... because an exceptional matter may, which is a matter outside the 20 allowable matters, may be included in an industrial dispute subject to a range of statutory criteria being met. If
Mr Johnston's correct, the exceptional matters power is redundant. That could not possibly be the case.

PN147

I'd only cap off to say, as the Commission's already noted, pursuant to
section 170LS parties can certify agreements in settlement of a dispute. That's something that traditionally has not been permissible for the majority of the time in the industrial relations system at the federal level. It is also a factor that must be taken into account in my submission when one considers a log as well. Because tests of alleged extravagance of fancifulness are forwarded or applied to the particular log, one must consider that it's not just an award that could possibly be made, it's industry going rates or something analogous to paid rates as well.

PN148

For those reasons, we submit that the Commission is not constrained as to the matters it can find the parties to be in dispute about. The only constraint rests in section 4 that it must be about a matter pertaining to the relationship of employees and employers as such.

PN149

THE COMMISSIONER: While you're on your feet, Mr Norris, Mr Johnston says that he has some arguments that he wants to put relying on that doctrine as well. But nevertheless, he's content for a dispute finding to be made and we'll subsequently strike those from the dispute finding after hearing argument about those points.

PN150

MR NORRIS: Yes. As I understand it, let it be supposed that an industrial dispute is found and recorded. Let it be supposed that the AMIU takes some action in relation to the log. It's at that point in time that all of Mr Johnston's members that he represents reserve their rights to say, hang on a minute, this could not possibly have been included in the log. If that's the position, we're content with that as well.

PN151

THE COMMISSIONER: As it is, I understand your position, Mr Johnston.

PN152

MR JOHNSTON: I don't want to stand up anymore but I did exclude exceptional matters in relation to the argument that I was running.

PN153

THE COMMISSIONER: Yes, Mr Halloran?

PN154

MR HALLORAN: Commissioner, ..... as a member of the Australian Industry Council we've had discussions with Mr Johnston and all I'd like to say is that we support and concur with Mr Johnston's submission.

PN155

THE COMMISSIONER: Thank you. Mr Nance?

PN156

MR NANCE: In respect to the organisations that we represent they are listed in RMR11 as employer number 77 and 33. In respect to those two organisations they ..... dispute . We have no objections to that. We believe that further discussions with the union or the application in this matter, we will hopefully have our names taken off the list because of certain reasons.

PN157

THE COMMISSIONER: I'm sorry, Mr Nance, can you say that again. I just missed it.

PN158

MR NANCE: Which part?

PN159

THE COMMISSIONER: You're happy for a dispute finding?

PN160

MR NANCE: No, no dispute finding at this stage. Both parties are reserving their rights. The applicant is reserving its right to have these companies made a party to the dispute after discussions. We would reserve our rights to have no dispute found at this stage. We are hopeful that after further discussions that our names will be added to A and nine, if the Commission pleases.

PN161

THE COMMISSIONER: Very well, thank you. Mr Mossman?

PN162

MR MOSSMAN: Yes, Commissioner,..... is to again reserve our rights in respect to the findings of the dispute and perhaps any further discussions with the union in respect to that.

PN163

THE COMMISSIONER: So, at this stage you don't want to be found to be a party to the dispute.

PN164

MR MOSSMAN: We'd seek to reserve our rights at this stage in respect to that preliminary issue as to whether there is in fact an industrial dispute.

PN165

MS VANDERSTOEP: Commissioner, in relation to the two organisations that I'm representing, we ..... that we don't want to be found that there's an industrial part of the - there is and industrial dispute. There are some instruments ..... in the workplace and we reserve our position in making further applications in relation to that. But the position of the companies that I represent, is that we do not want to be found that there is an industrial dispute at this point.

PN166

THE COMMISSIONER: You represent two employers.

PN167

MS VANDERSTOEP: Two, that's correct. That's Matilda Pet Foods Pty Limited and Australian Game Processors.

PN168

MR GUYMER: If it pleases the Commission, there's also one additional client that we represent and it's Coles Myer Pty Limited. Commissioner, our clients are not in a position at this stage to consent or object to the existence of a dispute. We have held a brief discussion with the AMIU of this preliminary point. Their understanding is they've kindly agreed not to pursue a dispute finding today. They've also agreed to an adjournment so that their clients are able to further consider their position on whether a dispute is in fact in existence. Commissioner, we therefore request that by consent between the parties that a no dispute finding is made at today's hearing. That this part of the matter be adjourned that relates to our clients and that each of the parties be granted leave to call the matter back on at a later date.

PN169

It's understood that each of the parties reserve the right in relation to the issue of whether a dispute is in existence. Commissioner, just to avoid any possible confusion in relation to exhibit RMR10, I just wish to clarify on behalf of our clients that our clients have not agreed to further consultation with the AMIU in relation to the substance of the log of claims. But at this stage considering their position in relation to whether or not a dispute is in existence and have agreed to notify the AMIU of that position at a later date prior to the determination of this jurisdictional issue, if it pleases the Commission,

PN170

THE COMMISSIONER: Mr Guymer, can I just ask you one question. For the employers you represent exhibit RMR10 is an accurate reflection of the position other than the way in which you've clarified it. That is, the position of those companies is that at this stage you're not intending to talk to the union about the substantive matters in the log but about whether or not you should be party to the dispute.

PN171

MR GUYMER: That's right. The AMIU have kindly agreed for our clients over a period of time to further consider their position in relation to whether there is a dispute in existence. There are several matters - some of those have been general matters which have been raised today but there's also some specific matters relating to our clients. For example, the existence of current federal awards that they're respondent to and also to several agreements related to the relevant employees, both the AMIU and the SDA depending on where they're located. So, there're several issues which need to be looked into and further considered by our clients prior to being able to put a considered objection or consent into a dispute finding.

PN172

We'd undertake to notify the AMIU and suggest that the best course of action may be for leave to be granted to either of the parties to call the matter on for a determination in regard to a dispute finding at a later date.

PN173

MR NORRIS: If I might interrupt again, Commissioner. Just to indicate RMR8 contains correspondence for the union to proceed rejecting the log of claims. Now, the first two letters as annexed are from Coles Myer and Woolworths. It covers all of the entities that Mr Guymer represents here today. It's well understood that the log has been rejected and the consultation that's occurring is about whether or not they should or should not become a party to the dispute. RMR10 is simply saying that the AMIU is reserving to bring its right to bring the matter back on and by of the exercising of the Commission's powers have it recorded as a party under dispute under 101.

PN174

THE COMMISSIONER: Thank you. Mr Blacket?

PN175

MR BLACKET: Thank you, Commissioner. On behalf of the ..... to confirm Murray Valley Meat R N Woodward and Ashton, my instructions are to object to the finding of an industrial dispute today.

PN176

THE COMMISSIONER: Do you have any submissions to make about that?

PN177

MR BLACKET: What my instructions are that if the matter is further listed for hearing of that dispute finding and we're to make submissions before, they will relate to some of the matters that have been raised previously by others today in Brisbane, including industrial matters, the application of Electrolux and also some issues pertaining to coverage and eligibility which we're still seeking instructions on.

PN178

THE COMMISSIONER: Mr Norris?

PN179

MR NORRIS: That sounds like an objection which would require at least a hearing day and in my submission a written outline. It doesn't sound at this stage, from what Mr Blacket's saying that there would be witness evidence. I stand to be contradicted that these objections would effectively be on the papers as it were. Commissioner, I would seek at this stage to have liberty to apply to the Commission for further directions as to the conduct of that objection. Because I would, at this stage, like to hear from the other objectors to see if they can be joined in that hearing and indeed whether there would be some objection to the joinder of the parties objecting.

PN180

THE COMMISSIONER: Mr Blacket, do you have any response that that?

PN181

MR BLACKET: I'd say that I do think written submissions will suffice and insofar as any joinder is concerned I'd need to take instructions on that. But wait and see who they are and what the nature of their objections are.

PN182

THE COMMISSIONER: There's not much point to a joinder in the event that the matter's going to be dealt with by written submissions. If it's going to be dealt with by way of written submissions then - - -

PN183

MR NORRIS: I do believe a hearing day would be appropriate, particularly, even though much of the controversy can be ventilated through written submissions. It's always opportune both for the parties and indeed, in my submission, for the Commission to have oral submissions as well. That was the reason why I leapt over the question of joinder, Commissioner. If some party yet to advise of their objections has objections of a similar nature, we'd say they can all be dealt with in the one proceeding.

PN184

THE COMMISSIONER: So at this stage you just - - -

PN185

MR NORRIS: Might wait to see what the position of Perfect Pork is, if the Commission pleases.

PN186

MS VANDERSTOEP: Commissioner, we would be, in terms of our objection willing to put in written submissions. I would seek to take further instructions in relation to joining the matters.

PN187

MR NORRIS: Before we get up a spate of - it might be best to leave it till the end Commissioner, because there were a group that I was going to characterise as the 111AAA objections which the union, I believe, is not in a position to determine its position on those matters. It may be the case with further consultation those matters can be resolved. So, I don't believe they should be programmed at this stage. I was going to group the 111AAAs together and Mr Nance's clients are in that category from recollection. We haven't had the fanciful or the genuine objection raised as yet.

PN188

But the ones who seek to make submissions about matters pertained and so on in the other group. Now in the first group the 111AAA as I said, it would be appropriate before we do any programming to have further consultation. It may sort those situations out. The other ones can be programmed.

PN189

THE COMMISSIONER: Mr Salter?

PN190

MR SALTER: I represent one entity explained in exhibit RMR11. We would have no objection to joinder or the suggestion of written submissions or in fact the hearing days.

PN191

MR NORRIS: The particular controversy with Mr Salter's organisation turns on the application, in my submission, of the decision in Re AMWU Shell Company of Australia Pty Ltd in the High Court in 1993. It all relates to, although an entity may not be employing anyone, if it's in a position, as was the case in the Shell case, by virtue of its shareholdings in another entity, to directly influence, exercise some power which could affect the relations of employers and employees in the other entity, it may be a party to an industrial dispute.

PN192

That's the argument with Mr Salter's organisation. There's no reason why it wouldn't go along with the objections which are foreshadowed in relation to the Electrolux issue as well.

PN193

MR JOHNSTON: The entities that I appear for do not have any interest in
111AAA but having regard for what's fallen from my friend in Victoria, we obviously have some interest in those submissions because he was referring to what we said. So, to that extent we would be involved.

PN194

THE COMMISSIONER: It seems to me that the most useful way to deal with all of this would be to simply list dates on which hearings will be conducted to listen to those who have objections. You say, that we can deal with that, as it were Mr Norris, in groups depending on which objections are being raised by which entities.

PN195

MR NORRIS: Yes, Commissioner. The ones that I've described are the
111AAA, I don't believe should be listed at this stage. The union will consult with those people and if the union is satisfied that particular state award is being advanced is actually applicable, it may change the union's position in relation to that. As much as I can say, it may. So there's no utility in listing those particular objections at this stage of my submission. The ones relating to, we don't employ anybody. The ones relating to, matters pertaining and other miscellaneous objections of with respect, an unspecified nature, I believe that a hearing date - a day should suffice for my submissions - should be set with a program for written submissions prior to the event.

PN196

THE COMMISSIONER: It seems to me that there will be a requirement to perhaps have a day of hearing. For instance, for those people who are in Queensland or can make it to Queensland. I assume that could be done by video link for instance. Those companies that Mr Blacket represents and there were from memory a South Australian company as well, is there not?

PN197

MR NORRIS: Metro Velda Pty Ltd wrote an objection on the basis that they've already got industrial arrangements in place.

PN198

THE COMMISSIONER: So, it may be if there's only one of them, it's probably just as easy to do that by video.

PN199

MR NORRIS: We'd agree with that proposition.

PN200

THE COMMISSIONER: Thank you. Is there anything else you have at this time, Mr Norris?

PN201

MR NORRIS: Only to refresh my primary submission that I think it might be useful for the record to go through them. The employers in RMR11, Ready Workforce Pty Ltd have an objection of an unspecified nature that was communicated to me. They could go into the group which may be subject to directions and a hearing date that the Commission may fix. Perfect Pork being employer 329, I believe have an objection based on the proposition that they don't employ anybody. They can be one of the parties who ..... hearing.

PN202

Bowen Abattoir being employer 77 and Bucket of Beef being employer 33, the union will undertake further consultation with. Metro Velda have an objection which can be dealt with as a party to the proceedings that may be listed.
Teys Brothers Holdings again, I won't go over that again. Their objection is based on, we don't employ anybody. The three companies Mr Blacket represents being Murray Valley Meat Company Pty Ltd, Swan Hill Abattoirs - Ashton Pty Ltd trading as Swan Hill Abattoirs and the third one, I'm sorry, just escapes me at the moment can be part of the group which may be listed for further hearing.

PN203

Now, in respect of the employers that Ms Vanderstoep represents, Matilda Pet Foods have a 111AAA position. The union will undertake further consultation but it appears that Australian Game Processors, in my submission, should be listed further in the group of objectors to be heard at a later time. Grunt seem to have an objection.

PN204

MR MOSSMAN: Commissioner, we probably are more suitable to be linked with the first group of people that Mr Norris referred to be dealt with the other employers in RMR11 in that program of providing written submissions and attendance at a hearing at a later date.

PN205

MR NORRIS: I'm not in a position to accede unless I get some information as to what the nature of the objection is. If it's 111AAA I can certainly consider putting Mr Mossman's client in that category.

PN206

MR MOSSMAN: Probably it does step beyond 111AAA objections, so we probably would ask to be programmed into that program. The other program, I should say.

PN207

MR NORRIS: It sounds to me like they're going into the second category.

PN208

MR MOSSMAN: Yes.

PN209

MR NORRIS: I'm fairly sure I've covered them all at this stage, Commissioner. In respect of those which haven't been specifically mentioned either in the statutory declarations or as requiring further consultation as advised verbally today, consented to by the union or being programmed for further hearing and determination of their objection. In my submission, there is a satisfactory evidential case for the Commission whereby a dispute finding can be made in respect to all those remaining employers listed in RMR1. Now, I did have a draft order, I don't have it in the Commission at the moment but I can forward it to the Commission.

PN210

In its terms, it will seek to be precise as which parties the union seeks to have made party to a dispute finding at the moment.

PN211

THE COMMISSIONER: Isn't there a gap? As I understand it, the gap is that
Mr Johnston says that, here's a document that's got all these exes on it and they're the people who are our members who don't oppose a dispute finding subject to certain matters that he's discussed. But there are others we have that are in here that are our members but we don't have instructions about them so we don't know. So that to the extent that you've got some people who are now into these categories of objectors and you've got some who are clearly not objecting to a dispute finding.

PN212

But as far as Mr Johnston's concerned, there's others who he can't identify at this time who are members of AMIC who may or not object, we're just not sure.

PN213

MR NORRIS: It's my submission and I don't believe this is being oppressive in any way - - -

PN214

THE COMMISSIONER: I'm not suggesting - I just want to hear - - -

PN215

MR NORRIS: Those particular employers gave satisfactory evidence that they'll serve with the initial log and serve with the letter of demand. There's satisfactory evidence that they were notified of the listing. There has been abundant time in my respectful submission, for them to make their position known to Mr Johnston in the event that they do have a position. If they've chosen not to do that then it's traditionally been the Commission's practice in regard to non appearers that they become a party to the dispute finding, subject to all the other elements being satisfied. Mr Johnston may have something to say.

PN216

THE COMMISSIONER: I'm going to put something to Mr Johnston about that so that we can get some certainty about all of this. Mr Johnston, prima facie, subject to what you might say, are you prepared to act in the way described by
Mr Norris subject to anybody who has good reason why they haven't been able at this time object but think they should not be a party to a dispute finding can make application to have their name removed from the dispute finding.

PN217

MR JOHNSTON: As I understand it, a lot of the documents that were tendered as RMRs, so to speak, have been around for a while unbeknownst to us. They were tendered, I'm told, and I learned this week, in proceedings before the Commission, last week in relation to particular matters.

PN218

MR NORRIS: That's not so, Commissioner, they weren't actually tendered.

PN219

MR JOHNSTON: Might I indicate, Mr Santinella of the Queensland division of AMIC requested a copy of these documents of me and was provided them within a day or so, from my recollection and if Mr Johnston would have made the same request I would have been more than happy to accommodate.

PN220

MR NORRIS: You recall, I said about an hour ago, that the whole of the documents did not come into my possession until this week. I would prefer that we be given some amount of time and the Commission can put a time on that, whether it's seven days to have an opportunity to go through the list. I don't think that's unreasonable.

PN221

THE COMMISSIONER: There's certainly nothing, it would seem, Mr Norris, unless there's an issue that I'm not aware of and I'm sure there's many. It seems that for those people about whom we're certain - the AMIC members who don't oppose for instance - a dispute finding could be made. For anybody who doesn't object in the next 14 days they could be automatically added to the disputes finding, it will just be amended to include those. Anyone who objects will be heard.

PN222

MR NORRIS: Might I suggest, perhaps as far as an intermediate position, that a period of seven days be given in order to allow any further objections to filter through to make those objections known to the Commission and at that seven day mark, the Commission then reports a dispute finding against everybody else.

PN223

THE COMMISSIONER: I would do that except I won't be even in the country. That's why I nominated 14 days. I won't get back until 17 July.

PN224

MR NORRIS: Yes, Commissioner, given the Commission's commitments, if a period of 14 days is allowed for all objectors to come forward and unless they come forward by 18th - - -

PN225

THE COMMISSIONER: If no one's objected by 18th a dispute finding will be made that incorporates everybody who hasn't objected.

PN226

MR NORRIS: Hasn't objected at this point in time or whom the union isn't undertaking further consultation with, as notified.

PN227

THE COMMISSIONER: Yes, that's satisfactory to you, Mr Johnston?

PN228

MR JOHNSTON: Yes it is but I don't it misunderstood as to what my friend was saying in Victoria that we are involved in that particular matter as well.

PN229

THE COMMISSIONER: Yes, I understand that.

PN230

MR GUYMER: Commissioner, can I just confirm that that's is exclusive of those employers listed in RMR10.

PN231

THE COMMISSIONER: Yes, it is.

PN232

MR NORRIS: It seems we've arrived on a consensus in relation to that position, Commissioner. In relation to the objectors, we'd seek a hearing date to be fixed and that the objectors go first in terms of written outlines of submissions and that that be a period no earlier than three weeks before the hearing.

PN233

THE COMMISSIONER: Three weeks before the hearing, did you say?

PN234

MR NORRIS: The hearing date to be fixed, yes. The AMIU to be allowed a two week period to respond to those submissions and then the matter can be heard on the date the Commission has fixed. That's our proposal. I'm sure the Commissioner will hear from other parties about it.

PN235

THE COMMISSIONER: Does anyone object to that course?

PN236

MR NORRIS: Consensus breaks out again. If the Commission can fix a hearing date and make those directions and forward that material to the AMIU, the AMIU will serve all of those parties with that material in accordance with the rules.

PN237

THE COMMISSIONER: That will be done. To be clear about all of this, I intend to deal with the 89A matter before Friday. The arrangements for those objectors will be as we've just discussed and for those people who aren't objectors, a dispute finding will be made on 18 July. It's understood that some of those parties who are not objecting to the dispute finding are not objecting on the basis that they want to be party to hearings that may see an item or items struck from the log and thus the finding of dispute narrows. Unless there's anything further, I'll adjourn on that basis.

<ADJOURNED INDEFINITELY [11.41AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RMR1 A LIST OF EMPLOYERS WHO WERE SERVED WITH THE LETTER OF DEMAND AND LOG OF CLAIMS. PN20
EXHIBIT #RMR2 COPY OF LETTER OF DEMAND DATED 11/05/2005 PN22
EXHIBIT #RMR3 LOG OF CLAIMS DATED 04/05/2005 PN24
EXHIBIT #RMR4 STATUTORY DECLARATION AS TO SERVICE AND A LIST OF COMPANIES AND EMPLOYERS TO WHOM THE LETTER OF DEMAND AND LOG OF CLAIMS WAS SERVED AND COPIES OF THE REGISTERED POST RECEIPTS. PN26
EXHIBIT #RMR5 STATUTORY DECLARATION SIGNED BY MR R RICHARDSON DATED 01/06/2005 PN28
EXHIBIT #RMR7 STATUTORY DECLARATION SIGNED BY MR L NORRIS VARIOUS RECORDS AS TO THE SERVICE BY REGISTERED POST OF THE NOTICE OF THE ALLEGED INDUSTRIAL DISPUTE LISTING FROM THE COMMISSION AND A COPY OF FORM R5 DATED 30/06/2005 PN32
EXHIBIT #RMR8 STATUTORY DECLARATION BY MR R RICHARDSON OF WRITTEN REJECTIONS OF THE LOG OF CLAIMS THAT WERE RECEIVED BY THE UNION DATED 30/06/2005 PN33
EXHIBIT #RMR9 STATUTORY DECLARATION AS TO THE WITHDRAWAL OF CLAIMS DATED 30/06/2005 PN34
EXHIBIT #RMR10 STATUTORY DECLARATION BY
MR RICHARDSON DATED 30/06/2005 PN38
EXHIBIT #RMR11 STATUTORY DECLARATION BY
MR R RICHARDSON DATED 30/06/2005 PN40
EXHIBIT #AMIC1 EXTRACT FROM 1904 TO 1973 ACT PN88
EXHIBIT #AMIC2 EXTRACT FROM THE 1988 ACT PN88
EXHIBIT #AMIC3 LIST OF ALLOWABLE MATTERS PN90