C2005/3464, Transcript of Proceedings [2005] AIRCTrans 1576 (21 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12198-1

COMMISSIONER ROBERTS

C2005/3464

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, THE
AND
AIRLY COAL PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/3464)

SYDNEY

11.23AM, TUESDAY, 12 JULY 2005

PN1

MS C BOLGER: I appear on behalf of the Association Professional Engineers, Scientists and Managers, Australia. With me today is MS S INGLAS.

PN2

MR G GILLESPIE: I seek leave to appear on behalf of a list of some 20 separate companies. I have given a copy of the list to your associate Commissioner.

PN3

THE COMMISSIONER: I have that list Mr Gillespie. It might be easiest if I mark that I think, rather than read it into the record.

EXHIBIT #G1 LIST OF REPRESENTED COMPANIES

PN4

MS V LEEDS: I appear for Leighton Contractors Pty Ltd.

PN5

MR M BRENNAN: I appear for Austar Coal Mine Pty Limited.

PN6

MR J DE MEYRICK: I appear for a company called Vale Statutory and Mining Services Pty Ltd.

PN7

THE COMMISSIONER: You are a solicitor?

PN8

MR DE MEYRICK: I am a barrister.

PN9

THE COMMISSIONER: So you are seeking leave?

PN10

MR DE MEYRICK: Seeking leave, yes.

PN11

THE COMMISSIONER: We will come back to that.

PN12

MR G BOYCE: I am appearing for some 14 companies, the list of which I have handed up. Sorry Commissioner, I seek leave to appear in respect of this matter.

PN13

THE COMMISSIONER: I will adopt the same practice Mr Boyce, and mark your list of companies.

EXHIBIT #B1 LIST OF REPRESENTED COMPANIES

PN14

MS K DRIVER: I appear for Ground Consolidation.

PN15

MR D FLETCHER: From the firm Freehills and I appear for some
11 companies. I have also provided a list to your associate. I should note Commissioner, though, that I have added one company by hand. So I might beg your indulgence and send over a typed list at some point?

PN16

THE COMMISSIONER: I am happy with the list with the hand written addition. If you wish to be extremely neat you can send another list.

EXHIBIT #F1 LIST OF REPRESENTED COMPANIES

PN17

THE COMMISSIONER: Ms Bolger do you object to leave as and where it is required?

PN18

MS BOLGER: No Commissioner, except for Mr Fletcher has not provided us with a copy of the companies he is representing, whereas Mr Gillespie and Mr Boyce have.

PN19

THE COMMISSIONER: If that oversight is attended to do you object to his appearance?

PN20

MS BOLGER: No Commissioner.

PN21

THE COMMISSIONER: Leave is granted in all cases where it is required. Ms Bolger.

PN22

MS BOLGER: Thank you Commissioner. This is an application pursuant to section 99 of the Workplace Relations Act for a finding of dispute between APESMA and various companies we have served the log on. In terms of the service of the log, Commissioner, we served the log on a number of employers on 3 June 2005. It was served by registered post. We subsequently notified a dispute to the Commission on 14 June 2005. Accompanying that notification, which should be on the Commission's files, is relevant statements made by Mr Jefari of the association, in accordance with our rules, as well a copy of the registered post receipts of the serving of the dispute.

PN23

To complete the picture in terms of service, Commissioner, on 25 June 2005 we notified the parties of the hearing date details of today's hearing, by registered post. Once again we lodged those receipts of registered post in the Commission on 29 June 2005. They should all be on the Commission's files.

PN24

THE COMMISSIONER: They appear to be.

PN25

MS BOLGER: Thanks Commissioner. The log itself, in terms of authorisation, the log has been duly authorised by the national board of APESMA. Commissioner I have copied the relevant extract from the national board minutes which authorises the log of claims, and I have prepared an affidavit swearing that this extract is a true copy. If I may tender that.

PN26

THE COMMISSIONER: Do you have copies to the other sides? Is there any objection to tendering?

EXHIBIT #APESMA1 AFFIDAVIT C. BOLGER PLUS ANNEXURE

PN27

MS BOLGER: Commissioner we have had some discussions and correspondence with some companies. We also had some returned mail. If I firstly can go to the correspondence we have had with some of the companies.
I will hand up that correspondence to the Commission. It is in respect of QCC Resources, DMA Alliance Coal Operations, and two of the Rio Tinto subsidiary companies. That is Rio Tinto Limited and also Australian Coal Holdings Pty Ltd.

PN28

THE COMMISSIONER: I might add that I am in possession of a letter from a company titled Storeright Pty Ltd, consenting to the finding of a dispute with that company.

PN29

MS BOLGER: It would be useful to mark that as well Commissioner.

EXHIBIT #APESMA2 LETTER FROM QCC RESOURCES 14/06/05 TO APESMA REQUESTING COMPANY BE REMOVED FROM LOG OF CLAIMS
EXHIBIT #APESMA3 LETTER FROM DMA BHP BILLITON MITSUBISHI ALLIANCE 07/06/05 SEEKING WITHDRAWAL OF LOG
EXHIBIT #APESMA4 LETTER FROM RIO TINTO 07/06/05 ADVISING IT HAS NO EMPLOYEES COVERED BY LOG RE RTL
EXHIBIT #APESMA5 FURTHER LETTER FROM RIO TINTO 07/06/05 REFERRING TO AUSTRALIAN COAL HOLDINGS ALLEGING ACH HAS NO EMPLOYEES COVERED BY LOG
EXHIBIT #APESMA6 LETTER FROM STORERIGHT PTY LTD ADDRESSED TO COMMISSIONER ROBERTS UNDATED, RECEIVED 12/07/05 CONSENTING TO FINDING OF DISPUTE

PN30

MS BOLGER: Thank you Commissioner. Commissioner as I said, we have had some discussions and correspondence with some of the companies. We also had some returned mail. So I have prepared three lists which I have circulated to the parties here this morning. I would now like to give a copy to the Commission. The front page of this is entitled schedule 1. Perhaps Commissioner I think we might be up to APESMA7.

EXHIBIT #APESMA7 APESMA LOG OF CLAIMS, COMPANIES AGAINST WHICH AIRC SHOULD PROCEED TO FIND DISPUTE

PN31

THE COMMISSIONER: I take it all the other parties are up to speed with the documentation? Proceed Ms Bolger.

PN32

MS BOLGER: Thank you Commissioner. Perhaps if I just briefly explain these three lists. As I have indicated the first list which is of two pages is the companies against which APESMA seeks that the Commission should proceed to find a dispute. In respect of that we say we understand that there may be some companies objecting to the finding of dispute and later on in my submissions I will put to you a proposed way of dealing with that. But for the companies, including Storeright and the other companies who are not objecting to the finding of dispute we will be seeking that the Commission find a dispute against them this morning.

PN33

The second list, which is at the page in - which is only on one page, is headed companies to be removed from the log of claims, and that is schedule 2. You will note Commissioner there are some hand written amendments to that. That is Mount Arthur Coal and Ravensworth East Coal. We have removed them from that list and put them on schedule 1, as a result of some discussions this morning. Then the third list is schedule 3, and that is we have euphemistically entitled it the reserve list. I understand this is a quite common way of calling this list. This is the list against which we do not remove from the log but we are not proceeding with a finding of dispute in respect of these particular companies. They may employ some time in the future. As a result of the correspondence we have received from them, they are not employing as of today.

PN34

THE COMMISSIONER: That is a common practice.

PN35

MS BOLGER: As I have outlined APESMA submits that the log has been properly authorised and served. The employers have rejected the log of claims and APESMA has notified a dispute to the Commission. As I indicated earlier, and I have only had the benefit of the employers' lists of representatives this morning, but perhaps as they speak I will be able to go through list one and work out which companies here today are objecting and which ones aren't. I will return to that. But what we seek is the Commission proceed to the finding of dispute against those companies in list one who do not object to a finding of dispute.

PN36

In respect of those employers who I understand may be objecting to the finding of dispute, APESMA suggests that the best way forward is for the Commission to issue some directions to progress the matter, and that would be a direction as to the timetable of hearing. Commissioner I have taken the opportunity to prepare some draft directions for the Commission to consider. This is based on an approach that was taken by Commissioner Bacon in a similar matter a few years ago. So if I may table those directions? I have not had discussions with the other parties here today on these directions as yet.

PN37

THE COMMISSIONER: I am about to come to that, but rather than you try and work it out as they address me - this is the last matter I have today. Would it be best for us to adjourn for a while, if you can sort it out with the parties, and come to me with a more considered view after that? It might assist the other parties too.

PN38

MS BOLGER: Certainly Commissioner.

PN39

THE COMMISSIONER: Is that view generally acceptable to the representatives? Just a general nod will do me. How long would you like to do that Ms Bolger? How long would it take, half an hour.

PN40

MS BOLGER: I think that in half an hour we should be able to.

PN41

THE COMMISSIONER: We will adjourn until 12.15.

<SHORT ADJOURNMENT [11.38AM]
<RESUMED [12.20PM]

PN42

THE COMMISSIONER: Ms Bolger.

PN43

MS BOLGER: Commissioner I am in a position now to be able to advise the Commission which companies are not opposing the finding of dispute, which is essentially the parties not represented at the table here today.

PN44

THE COMMISSIONER: Are we going to work off APESMA7?

PN45

MS BOLGER: Commissioner I have prepared a highlighted document for the Commission, which I thought might make it easier to proceed.

PN46

THE COMMISSIONER: Anything that makes it easier is good.

PN47

MS BOLGER: If we could table that particular document, and I will read it out for the benefit of the rest of the parties.

PN48

THE COMMISSIONER: So you wish to tender this as APESMA8?

PN49

MS BOLGER: Yes please Commissioner.

EXHIBIT #APESMA8 NEW SCHEDULE 1, 2, 3 DOCUMENT

PN50

MS BOLGER: Commissioner in terms of the main changes to this are at schedule 1, which the companies represented at the table today have advised us who are opposing. So once we have taken those companies off the list we are left with the residual companies who we are seeking the Commission to find a dispute against today, and we have highlighted those in orange for the Commission. But for the purposes of the other parties I will read it onto the transcript. So those companies include Australian Coal Processing Pty Ltd, Central Western Mining Pty Ltd, Coal and Allied Industries Limited, Coal Quality Services, CSC Australia, Delta Mining Pty Ltd, Donaldson Coal Pty Ltd, Duralie Coal Pty Ltd, Ellemby Management Pty Ltd, Enhance Place Pty Ltd, Foxleigh Joint Venture, Foxleigh Mining Pty Ltd, G&S Engineering, Glennies Creek Coal Management Pty Ltd, Gloucester Coal Limited, Gujarat NRE Australia Pty Ltd, Hunter Colliery Services, Korn Mining Services Pty Ltd, Mining Safety Services, MJ Mine Management Services, Namoi Valley Coal Pty Limited, Oaklands Coal Pty Limited, Queensland Mining Employment Services Pty Ltd, Rixs Creek Pty Ltd, Storeright Pty Ltd, who we have received correspondence from. Tunnel Mining Pty Ltd, United Mining Support Services, Vanwove Pty Ltd, Walter Mining
Pty Ltd. The other change we have made in the break - - -

PN51

MR FLETCHER: If I might just jump in here Commissioner. I have just noticed - I am going through the list of Ms Bolger who has read out Coal and Allied Industries Limited, and I suspect that although the list provided to me by my client purports to have all the Rio Tinto businesses I have got a very strong suspicion that a company called Coal and Allied Industries Limited may well indeed be a Rio Tinto company and I probably should oppose that dispute finding on their behalf.

PN52

THE COMMISSIONER: Without quite knowing whether you represent them or not.

PN53

MR FLETCHER: I am afraid, it is a difficult situation I understand that. Could we perhaps place it in the reserve list?

PN54

THE COMMISSIONER: I will refer to Ms Bolger before I make a comment on that.

PN55

MS BOLGER: I suppose there is two steps here. Firstly, whether they are acting for these particular parties and, secondly, what the instructions would be.

PN56

THE COMMISSIONER: He doesn't and he is terrified of finding out that he does when he gets back to his office I think is probably what it comes down to.

PN57

MS BOLGER: No Commissioner, we don't agree to placing them on the reserve list, but what we could do is perhaps take a short break at some stage, if they wanted to ring and get instructions.

PN58

MR FLETCHER: Happy to do that.

PN59

THE COMMISSIONER: We will do that and we will do it very soon. On the list you handed up to me the next one, Coal and Allied Operations is sort of half marked in orange.

PN60

MS BOLGER: That may be just a texta mistake. They are clearly objecting, Coal and Allied Operations.

PN61

THE COMMISSIONER: Perhaps I am being naive, but if Coal and Allied Operations Limited is objecting why wouldn't Coal and Allied Industries also be objecting? I take it they are the same group?

PN62

MS BOLGER: They are one of the Rio Tinto companies. You never know, some of them might have a change of heart.

PN63

THE COMMISSIONER: We will adjourn to give time for Mr Fletcher to hit the phone.

PN64

MS BOLGER: Do you want to do that now Commissioner, or perhaps I can continue and go to the schedule 3 changes.

PN65

THE COMMISSIONER: All right. We will run through the whole thing.
In fact, if you haven't got any problems with schedules 2 or 3 Mr Fletcher, you might - - -

PN66

MR FLETCHER: I might absent myself - - -

PN67

THE COMMISSIONER: - - - and make your phone call.

PN68

MS BOLGER: In respect of schedule 3, after some discussions with some of the parties around the table we have agreed to move a number of companies to the schedule 3 list, and I have termed them 3B, subject to us receiving correspondence from those companies confirming what they verbally had thought that their representatives had told me here today. That is that they don't employ people.

PN69

THE COMMISSIONER: So these five companies listed now, as proposed 3B, they come out of one do they?

PN70

MS BOLGER: They do. Actually there should be seven companies. So I will read through the companies. There are two extra Coal and Allied companies which perhaps aren't on these, which I will read to the Commission. So the companies that should be there are, Anglo Coal Kayuga Management Pty Ltd, Australian Premium Coals Pty Ltd, Burton Coal Pty Ltd, Ragg Australia Coal Pty Ltd, Saddlers Creek Coal Pty Ltd. And the two extra companies are Howell Creek Marketing.

PN71

THE COMMISSIONER: Yes, but they have been crossed out now.

PN72

MS BOLGER: So they are on the reserve. Howell Creek Marketing and Queensland Coal.

PN73

THE COMMISSIONER: Schedule 2 hasn't changed?

PN74

MS BOLGER: Schedule 2 hasn't changed.

PN75

THE COMMISSIONER: The other parties have heard the list from Ms Bolger as to which companies agree. I take it you are saying they agree to the finding of a dispute, or they just don't object?

PN76

MS BOLGER: The companies that we have highlighted we are pressing a finding of dispute against them today. We have not heard back from them except for Storeright Pty Ltd. They are not represented.

PN77

THE COMMISSIONER: Is anybody amongst this group of employer representatives represent any of the companies as enumerated by Ms Bolger?

PN78

MR BOYCE: Commissioner I just seem to have, for the record two companies which appear to have been left on schedule 1 without having seen the list that Ms Bolger has handed up. Mount Arthur Coal Pty Ltd and Ravensworth East Coal Management Pty Ltd. They are two companies as to whether they have actually been - it is questionable as to whether they have actually been served with the log, and therefore whether they oppose the log or not, or the disputes finding, is still subject to me getting instructions and indicating to Ms Bolger.

PN79

THE COMMISSIONER: They haven't been listed by Ms Bolger as companies to proceed with today.

PN80

MR BOYCE: They haven't, but I think they have been into schedule 1 as companies that have been served and will be opposing the dispute, which we say they are in a different category to those companies. Because we are unaware that they have actually been served.

PN81

THE COMMISSIONER: But all of schedule 1 is not going to be proceeded against today.

PN82

MR BOYCE: That's correct.

PN83

THE COMMISSIONER: So you are saying that you think the Mount Arthur Coal and Ravensworth East possibly don't even know about it?

PN84

MR BOYCE: Well they may not have been served. I suppose we are saying they should be on the schedule 2 list, or possibly being on the schedule 2 list, as opposed to the schedule 1 list.

PN85

MS BOLGER: It might assist if I clarify. In exhibit B1 Mr Boyce actually represents Ravensworth East Coal and the other company being Mount Arthur Coal. So he represents those companies here today. I had some discussions with him today and indicated that we thought there may have been, for example, BHP Billiton, Mount Arthur Coal is one of those companies. There are a number of BHP Billiton companies that have been served with this log. We needed to clarify whether they had been served at the appropriate address, is the issue. So I have said to Mr Boyce he needs to go to his clients that he represents and come back to us, whether there is an issue around this or not. And we are not proceeding with the finding of dispute against them today, subject to Mr Boyce coming back to us.

PN86

THE COMMISSIONER: So I don't see a problem Mr Boyce.

PN87

MR BOYCE: No Commissioner, it was just really for the purpose of the record that those two companies are somewhat in a different category to the general schedule 1.

PN88

THE COMMISSIONER: That is a discussion you can have with Ms Bolger. Can I come back to my earlier question. Does anybody here represent any of the companies listed by Ms Bolger as being companies which should be proceeded with today, in terms of the finding of dispute? Or is there any clarification needed?

PN89

MR GILLESPIE: Commissioner I don't represent any of the companies, to answer the specific question. There are some that I was waiting to hear back from. I am very concerned, just generally, that we would be wanting to have a finding of dispute - part of the companies that are served. It would tend to be messy. We will have a whole series of dispute findings. They are not represented. We don't know in fact whether they have been served, they know what the log means. There also needs to be established the current position of the log itself, as to whether some of the issues in that log can in fact be dealt with. It just seems messy.

PN90

THE COMMISSIONER: These are issues you wish to argue, or some of them you wish to argue prior?

PN91

MR GILLESPIE: I would have thought that they needed to be argued before dispute findings were made, yes Commissioner.

PN92

THE COMMISSIONER: So would I. I think we will just go around the table first.

PN93

MS BOLGER: Then I will come back to Mr Gillespie's points.

PN94

THE COMMISSIONER: Then come back to you and you can answer them sequentially. You all know the questions so has anybody got an answer about any of these questions? Mr Fletcher you were outside to discover something.

PN95

MR FLETCHER: I can confirm that we do indeed act for Coal and Allied Industries Limited, and they oppose the finding of dispute. So it might be appropriate for me to indeed send you an updated list.

PN96

THE COMMISSIONER: I am going to get awfully lost in this unless somebody starts giving me updated lists. Ms Bolger.

PN97

MS BOLGER: In respect to the points Mr Gillespie has made, they are well known points to us, because he has raised those type of points before. Firstly, if I can go to the issue of service. As indicated, and on the Commission's files, all of those parties who we seek a finding of dispute against today have been properly served. We have provided evidence to the Commission via the registered post receipts. So they all have been properly served. As part of the standard documentation that the Commission provides to parties, when they notify a party of a hearing of dispute, the information sheet for employees which was served on them, it is attached to the documentation in the Commission's file with the Commission's stamp on it, dated 29 June 2005. It is four pages in. I am sure the Commissioner is familiar with this. That particular information sheet goes through the process and tells the parties at paragraph 3:

PN98

You are not obliged to attend the hearing, however if you do not attend or are not represented, the hearing will normally go ahead in your absence and decisions may be made by the Commission.

PN99

And it goes on. So each and every one of those - I can provide a copy of that to the Commission if it is not easily discernible from the files.

PN100

THE COMMISSIONER: I think I know it off by heart Ms Bolger.

PN101

MS BOLGER: I thought perhaps the Commissioner might. So each and every one of the employers who we seek a finding of dispute against today are aware of what the hearing is for today, have been advised that they are not obliged to attend and that a dispute finding may well be made against them. So Commissioner I think that deals with the issue of service, and the parties understanding of the matters. The other issue that Mr Gillespie raised is - he perhaps didn't rate it in these particular terms, but this is what I understand he means. Should the Commission find to sever something from the log of claims how would that impact upon the people who we are seeking that a dispute be found against today?

PN102

Commissioner this is something that we are prepared to give the Commission undertakings on. And that is should the Commission decide to sever something from this log then we would agree that for the parties, if the Commission were to go ahead and find a dispute against those parties today, that that also would be severed from the dispute finding in respect of those parties, so we have consistency. We don't, hopefully, think that there will be a likelihood of the Commission severing things from this particular log of claims, but should there be we also will give the Commission the undertaking that that would also apply to the parties, if the Commission goes ahead today and finds a dispute finding against.

PN103

THE COMMISSIONER: Except that Mr Gillespie has a right to run his argument prior to me making any dispute finding.

PN104

MS BOLGER: Certainly he does. This is a similar undertaking we gave to Commissioner Bacon a few years ago in respect of the former log of claims, and in that particular matter that was seen as a way forward, in that case, where some disputes were made on the day and then there were later matters. It was a different matter I acknowledge. Quite a different matter, I acknowledge that. But we think that there is no substance in the arguments to be put by the employers. The union - - -

PN105

THE COMMISSIONER: He hasn't put them yet.

PN106

MS BOLGER: Unfortunately Commissioner, we have had a lot of experience with the type of arguments that they will run, and we have spent a lot of time and effort in formulating this log, having regard to former decisions of this Commission, including Commissioner Bacon and Senior Deputy President Drake, in related matters. So we think that there will be no substance to the employers arguments, so we are seeking that the Commission go ahead and make the finding of dispute in respect of those companies that we have highlighted.

PN107

THE COMMISSIONER: Again, prior to hearing his argument?

PN108

MS BOLGER: Yes Commissioner. Because these parties are not objecting. It is quite common practice in the Commission to make disputes in respect of those who aren't objecting, and then to hear the objections of the other parties. We are not sharing those objections?

PN109

THE COMMISSIONER: True enough. In relation to Mount Arthur Coal you served them at 12 Help Street, Chatswood, New South Wales. And Ravensworth East Coal Management was served at Level 34, 1 Macquarie Place, Sydney, New South Wales. Now you represent both of them Mr Boyce?

PN110

MR BOYCE: That's correct Commissioner.

PN111

THE COMMISSIONER: There appears to be proof of service, at least of post, to those addresses. Are those the registered addresses?

PN112

MR BOYCE: I meant to get those instructions Commissioner. What I am told from Ms Bolger is that they were returned in the mail saying incorrect address. the problem I have had is that I attempted to get a list of this log off Ms Bolger over a week ago and I wasn't able to obtain that. I got that at short notice and contacted the companies on the list, and they sought my representation. Now I have yet to be able to ascertain whether they have actually been in receipt of the log. And that is the issue in respect of those two companies, that Ms Bolger has brought to my attention.

PN113

THE COMMISSIONER: Are they the proper addresses for the two companies?

PN114

MR BOYCE: I am not clear on that Commissioner.

PN115

THE COMMISSIONER: A phone call should do that shouldn't it?

PN116

MR BOYCE: It should. If I am able to - - -

PN117

THE COMMISSIONER: They are your members I take it?

PN118

MR BOYCE: They are members of the New South Wales Minerals Council, yes.

PN119

THE COMMISSIONER: I take it you write to them at some address?

PN120

MR BOYCE: Generally at an email address these days.

PN121

MS BOLGER: I might be able to assist in respect of this. We have had returned mail from those companies, as I discussed with Mr Boyce. So we think that potentially it is the wrong address. However what we are having discussions about is whether the companies chose to take a point in respect of service, given that they are being represented here today by Mr Boyce, and they have already got the log of claims through their other subsidiary companies. So we need to clarify whether they are actually going to be taking the point of service, which might take a little bit of time to work out.

PN122

THE COMMISSIONER: Is there anything further from any party, before I consider the finding of dispute against the named companies in schedule 1? From which, by the way Ms Bolger I have deleted Coal and Allied Industries Limited, based on Mr Fletcher's advice. Does anybody wish to address me?

PN123

MR GILLESPIE: Commissioner there is just one point for clarity. Are any of those companies that it is proposed by Ms Bolger to have a dispute finding made in regard to, were any of those return addresses for correspondence?

PN124

THE COMMISSIONER: I take it you are asking Ms Bolger through me?

PN125

MR GILLESPIE: Yes Commissioner.

PN126

THE COMMISSIONER: Did you answer on the Ms Bolger?

PN127

MS BOLGER: No Commissioner.

PN128

MR FLETCHER: I have two comments, more by way of questions than submissions. The first one is your undertaking with respect to withdrawing in regards to areas in the log that are severed. Does that apply to the whole log, if the whole log falls over? Will you not proceed with the whole log? Well you are aiming to get a dispute finding today against the companies that are on the first schedule. What happens if the remaining companies manage to have the log thrown out, for whatever reason, as a result of our submissions?

PN129

MS BOLGER: It is a very unusual way of conducting a hearing Commissioner, but - - -

PN130

THE COMMISSIONER: Is that a comment to me?

PN131

MS BOLGER: No, no. Sorry.

PN132

THE COMMISSIONER: Anything that helps us move this thing along is okay with me.

PN133

MS BOLGER: In respect of the undertaking about the highlighted companies that should anything be severed from the log, of course that would be severed from their dispute finding. I thought that was relatively clear. What I understand the second issue to be is if the whole log falls over, which we do not think will be the case. If the whole log falls over what does that say in respect of the dispute finding against those people? That is something I would have to take advice on and get back to the Commission on. I think it is self explanatory but I will just need to get some advice.

PN134

MR FLETCHER: I will address the Commission rather than addressing ..... directly. I think that is a pretty important issue. Because you wouldn't want to be in a situation where the log doesn't result in a dispute finding for some of the companies, and there is a dispute finding already made, potentially resulting in an award where they are making a basis for a section - - -

PN135

THE COMMISSIONER: If that happened the companies against them in dispute may be found today would seek revocation of the dispute finding wouldn't they?

PN136

MR FLETCHER: I would accept what you are saying Commissioner, but I think the safest thing is if we might just get an undertaking from APESMA today. The second issue, if I might raise that as well. If the dispute finding is made today does APESMA intend to commence conciliation of the award .....?

PN137

THE COMMISSIONER: On the second point, APESMA is obligated to do so. Ms Bolger you have heard the questions this time addressed through me to you.

PN138

MS BOLGER: Mr Fletcher does not represent any of the parties highlighted, so I am not quite sure in respect of his second question, if there is any relevance to that.

PN139

THE COMMISSIONER: Attempt to answer him anyway would you.

PN140

MS BOLGER: If a dispute is found we will conduct our discussions with employers in the normal way.

PN141

THE COMMISSIONER: If a dispute is found I will direct conciliation, if that helps you.

PN142

MR FLETCHER: And if that occurs Commissioner, there might be a situation where perhaps there is a consent award for the finding in dispute in relation to parties who are opposing the dispute, to which the parties who are opposing the dispute might then be roped in, without having the opportunity to engage in negotiations. The point that I am making - - -

PN143

THE COMMISSIONER: I am certain that if any party, in addition to those who may have a dispute finding made against them today, wish to enter into discussions with APESMA I would be extremely surprised if you would refuse to talk to them. I don't think that would be the case would it?

PN144

MS BOLGER: No Commissioner.

PN145

MR FLETCHER: I think the point that I am making is that I don't think that there really should be a commencement of negotiating an award until the situation with respect to the dispute finding is settled in relation to all of the parties.

PN146

THE COMMISSIONER: I see. You are suggesting there should be no conciliation until there is a final list of the dispute finding.

PN147

MR FLETCHER: That's exactly what I am suggesting Commissioner.

PN148

THE COMMISSIONER: Ms Bolger. At this early stage I am fairly agnostic about how things proceed.

PN149

MS BOLGER: Commissioner obviously it a matter for the parties, should a dispute be found, to conduct their proceedings in the way they see fit. Mr Fletcher does not represent those parties, so it is really a matter for the parties.

PN150

THE COMMISSIONER: I couldn't have said it better myself Mr Fletcher. There is absolutely nothing that would - if a finding of dispute was made today against one or more companies there is absolutely nothing which can allow any other party to prevent discussions between those ......

PN151

MR FLETCHER: I would submit, Commissioner, that is a basis for not making a dispute finding today. You should wait until - - -

PN152

THE COMMISSIONER: It is open for you to make that submission.

PN153

MR FLETCHER: And it is a submission I want to make. I don't think that - for an industry award that applies to everyone that is on the list splitting the negotiations, as it were, between now, the people who you make a dispute finding against today, and in the future, assuming you get your dispute finding, the people that are opposing the finding, doesn't suit an industry style award, which is what you are looking for. And that is my submission.

PN154

THE COMMISSIONER: Thank you. Does anybody else wish to make any submission to me?

PN155

MR BOYCE: Commissioner we just make a submission that the course proposed by APESMA is messy, to the point that we submit that it is inappropriate. We believe that just because - sorry. We will be advancing submissions in respect of the Commission's jurisdiction. It may or may not result in severability. It may or may not result in the whole log being thrown out. We are yet to be able to formulate those arguments and, indeed, get instructions in respect of those. We would submit the most appropriate way forward is for the whole matter to progress and a dispute finding not be made as against those unrepresented parties, and that their failure to object isn't any prima facie case for the Commission's jurisdiction.

PN156

THE COMMISSIONER: I think it is. Ignoring a log is a positive act isn't it?

PN157

MR BOYCE: It is, but our arguments will go to - - -

PN158

THE COMMISSIONER: I mean are you telling me that no award could be made if all of the employer respondents just chose to stay mum?

PN159

MR BOYCE: No Commissioner, I am suggesting that we will be advancing - they may be technical arguments as to whether a dispute finding cannot be found, but they do go to the jurisdiction of the Commission. And proceeding by way of undertaking and in part for some and not for others we say is a messy way forward. It is obviously a matter for the Commission.

PN160

THE COMMISSIONER: Without seeking to have an argument with you, I put this to you. Is it not fairly normal practice, it certainly has been my practice in the past in mining industry matters, to basically find the dispute against those who either positive don't object or positively agree, or whatever. And then you sort of whittle away at the list from then on, by way of those companies which wish to strenuously object.

PN161

MR BOYCE: Yes, that is perfectly - - -

PN162

THE COMMISSIONER: Is that uncommon?

PN163

MR BOYCE: It is not uncommon Commissioner. I am not aware of undertakings though in respect of arguments that may or may not be run and outcomes that may or may not occur.

PN164

THE COMMISSIONER: All right. Anybody else?

PN165

MR GILLESPIE: Commissioner two matters that Ms Bolger referred to, one of Commissioner Bacon and one of Senior Deputy President Drake. My understanding was that a dispute finding was not made until the arguments in relation to the log were heard and decided.

PN166

THE COMMISSIONER: That is an interesting point which I will seek an answer to in due course.

PN167

MR DE MEYRICK: Commissioner I was going to just add to something Mr Gillespie has put. It seems to me that if there are any threshold issues in relation to the log those matters should be determined before we even proceed. It seems to me that unless we are all putting our cases on the basis that the dispute is a legitimate and proper dispute with full jurisdiction we may be finding that there are some threshold issues that later turn the matter around. So it seems the proper course to me that if there are any threshold issues they should be dealt with.

PN168

THE COMMISSIONER: Thank you. Ms Bolger.

PN169

MS BOLGER: There are a couple of other matters now Commissioner. Just to clarify - - -

PN170

THE COMMISSIONER: Particularly in relation to that point about what
SDP Drake and Commissioner Bacon did, in what you claim to be similar circumstances.

PN171

MS BOLGER: Commissioner Bacon did make a finding of dispute. That was in respect of Roach Mining. And then he subsequently heard the objections of the rest of the parties. I cannot advise the Commission of what Senior Deputy President Drake did in respect of her matter.

PN172

THE COMMISSIONER: She is upstairs. I will ask her myself.

PN173

MS BOLGER: Commissioner that then leaves us with the question of, if the Commission wishes me to proceed on the question of the parties who are objecting, and the draft directions for the proceeding, with hearing the objections of those matters, and I have had some discussions with the parties in the break. We haven't reached agreement but we have had some movement on dates, taking into account the Commission's diary as well. And could I tender a copy of our proposed draft?

PN174

THE COMMISSIONER: Please. I will just take that on notice for the moment.

PN175

MS BOLGER: Perhaps if I can speak to it Commissioner. We started at point 3 and moved backwards essentially, understanding that the Commission was away and we were not available for the first week after the Commission got back, the hearing dates were to be 26 and 27 September.

PN176

THE COMMISSIONER: That doesn't appear to present a problem to me.

PN177

MS BOLGER: In respect of point 1 of the proposed draft directions, that gives the employers almost six weeks to prepare their submissions, about five and a half. And then in respect of point 2 that provides the union with three weeks to respond to the employer objections. I understand the employers wanted to push it out even further. The union will not be in a position to be able to push it out beyond 9 September because our legal person and barrister who will assist is not available in those two weeks between 9 September and 26 September. He has got a two week trial. If the Commission pleases.

PN178

THE COMMISSIONER: It won't worry me, those earlier dates. But the outline of directions looks okay to me, if it comes to that. From my convenience point of view.

PN179

MR GILLESPIE: Commissioner we could respond and have some comment about that. As you appreciate, from the companies I am representing, there is some 27 companies at the moment. Even if some of those are taken out it is not simply a matter of just sort of putting in affidavits or whatever is necessary from one company. It is a matter of contacting each of them to see what their position might be.

PN180

THE COMMISSIONER: So you are saying you just don't know at this stage?

PN181

MR GILLESPIE: I don't know at this stage, and certainly six weeks does not seem to be a long time. I also can't see any point in having both lots of submissions in the hands of the Commission when the Commissioner is not here. So that even if there is a two week trial that their barrister is involved in, then it is only a matter of making it after that date. Just postponing the hearing another week or so, and then we can all get a reasonable period of time to prepare our documents, et cetera.

PN182

THE COMMISSIONER: Anybody else got a comment on that, on the draft directions?

PN183

MS DRIVER: Commissioner I would like say, for your information, that the CEO of Ground Consolidation was absent overseas when the log was served, and is still absent. So I am in a position where I am unable to obtain any instructions in relation to submissions. I understand he is returning next week, and in circumstances where he doesn't know anything about the log at the moment, I just flag with you, and I have indicated to Ms Bolger if there are any significant problems we will be corresponding direct with APESMA.

PN184

THE COMMISSIONER: So at this stage you are objecting just in case?

PN185

MS DRIVER: You could put it that way, yes.

PN186

THE COMMISSIONER: Anybody else with anything?

PN187

MR FLETCHER: Commissioner just a quick comment. I would reiterate Mr Gillespie's points, but I would also point out that it was September 2004 that Commissioner Bacon last threw out the APESMA log. So we have had a period of almost 12 months since that occurred. I really don't see what the union is of having a carefully filled out and proper timetable that allows the parties to put on proper evidence and make proper submissions, especially in view of the current economic circumstances in the industry, specifically with the people within the union's rules. I just don't see that there is any pressing need for a safety net award when it appears that conditions in the industry are pretty buoyant, and it has taken APESMA a year to start the process again.

PN188

THE COMMISSIONER: I take it you are saying Mr Gillespie that there is need for even further argument about the log itself?

PN189

MR GILLESPIE: Yes, that is correct Commissioner. There is some points in that log that we object to. So consequently that is what our submissions would
go to.

PN190

THE COMMISSIONER: How would you suggest I proceed with them?

PN191

MR GILLESPIE: I am just suggesting that if the barrister for APESMA is not available from the 19th for a fortnight then a fortnight after that again for him/her to be able to assist them in preparing is not going to be of any major concern, particularly based on the comments that Mr Fletcher has just made. So the whole thing can be put out a little bit without there being any real disadvantage to anybody.

PN192

THE COMMISSIONER: I suggest you and others can bash this around with Ms Bolger. We will have a short adjournment while you do that. Do you wish to take a lunch break now, or keep pressing on with this?

PN193

MR GILLESPIE: I think it might be easier to press on, as far as I am concerned.

PN194

THE COMMISSIONER: Ms Bolger.

PN195

MS BOLGER: Commissioner I am happy to have another round of discussions with the parties at the table. The dates you have in front of you aren't the dates that we had first proposed or then discussed with the parties. So there has been some movement. I am happy to have those discussions, I am just not sure - - -

PN196

THE COMMISSIONER: It is not necessarily the sort of discussion you can have sort of one by one on transcript. But going back to yet another question. Do you wish a lunch break or press on?

PN197

MS BOLGER: Press on, if that suits the Commission.

PN198

THE COMMISSIONER: It suits me. We will adjourn until 1.10.

<SHORT ADJOURNMENT [12.59PM]
<RESUMED [1.22PM]

PN199

THE COMMISSIONER: Ms Bolger.

PN200

MS BOLGER: Thank you Commissioner. We have had some discussions amongst the bar table on proposed directions for the conduct of this matter, and we have been unable to come to agreement on those dates. So from APESMA's perspective we would seek that the Commission make the directions as we have previously advised the Commission. We think that that is sufficient time for the employers to be able to prepare, particularly given they have already had the log for over a month. So we seek that the Commission issue directions with the dates as we have previously proposed, and obviously the employers don't agree with that Commissioner.

PN201

MR GILLESPIE: Commissioner our proposal is simply that to allow Ms Bolger the two weeks when her counsel is not available to then add on three weeks after that, it would seem that if they had to put in their reply, working backwards, by 17 October, and we put in our submissions or outlines, et cetera, by 29 August, and then a hearing could be on the week commencing 24 October or thereabouts. That then means that we have got seven weeks, they have got seven weeks, and the hearing could be a week after that or longer if you would need more time to look at the documentation.

PN202

THE COMMISSIONER: In the break I have the chance to talk to the Vice President Lawler, who is also my panel head. He is concerned about the length of stretching out of this that is involved, even in the proposed directions handed up by Ms Bolger. But in any event the parties will be advised of hearing dates after I have consulted further with the Vice President. In relation to the finding of dispute today I have decided that I will not make finding of dispute against any companies, subject to argument, particularly argument concerning the validity of the log or sections thereof. And that is the matter which will be set down for initial argument. The problem is I have is after speaking to Vice President Lawler he wants me to be doing other things during those dates. So I will have to adjourn on that basis. That we will issue directions, but the directions will be for technical argument prior to the finding of any dispute. Is there anything further the parties wish to put to me?

PN203

MS BOLGER: No Commissioner.

PN204

MR GILLESPIE: No Commissioner.

PN205

THE COMMISSIONER: Nobody?

<ADJOURNED INDEFINITELY [1.25PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 LIST OF REPRESENTED COMPANIES PN3
EXHIBIT #B1 LIST OF REPRESENTED COMPANIES PN13
EXHIBIT #F1 LIST OF REPRESENTED COMPANIES PN16
EXHIBIT #APESMA1 AFFIDAVIT C. BOLGER PLUS ANNEXURE PN26
EXHIBIT #APESMA2 LETTER FROM QCC RESOURCES 14/06/05 TO APESMA REQUESTING COMPANY BE REMOVED FROM LOG OF CLAIMS PN29
EXHIBIT #APESMA3 LETTER FROM DMA BHP BILLITON MITSUBISHI ALLIANCE 07/06/05 SEEKING WITHDRAWAL OF LOG PN29
EXHIBIT #APESMA4 LETTER FROM RIO TINTO 07/06/05 ADVISING IT HAS NO EMPLOYEES COVERED BY LOG RE RTL PN29
EXHIBIT #APESMA5 FURTHER LETTER FROM RIO TINTO 07/06/05 REFERRING TO AUSTRALIAN COAL HOLDINGS ALLEGING ACH HAS NO EMPLOYEES COVERED BY LOG PN29
EXHIBIT #APESMA6 LETTER FROM STORERIGHT PTY LTD ADDRESSED TO COMMISSIONER ROBERTS UNDATED, RECEIVED 12/07/05 CONSENTING TO FINDING OF DISPUTE PN29
EXHIBIT #APESMA7 APESMA LOG OF CLAIMS, COMPANIES AGAINST WHICH AIRC SHOULD PROCEED TO FIND DISPUTE PN30
EXHIBIT #APESMA8 NEW SCHEDULE 1, 2, 3 DOCUMENT PN49