C2005/3329, Transcript of Proceedings [2005] AIRCTrans 1623 (28 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12293-1

COMMISSIONER ROBERTS

C2005/3329

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.111(1)(b) - Application for an award or order
(C2005/3329)

SYDNEY

11.03AM, WEDNESDAY, 20 JULY 2005

PN1

MS J GRAY: I'm from the CFMEU.

PN2

MR G GILLESPIE: If the Commission pleases. I appear on behalf of Broadmeadow Mining Services Pty Limited and Sedgman Muswellbrook Workshop Pty Limited.

PN3

MS V PAUL: I'm from AIG appearing for the list of companies provided to your associate. If we could have it marked, just for ease.

EXHIBIT #PAUL1 SERVICES FOR LIST

PN4

THE COMMISSIONER: Anybody further? Ms Gray?

PN5

MS GRAY: Thank you, Mr Commissioner. I did lodge a statement of service in this matter but I have further statement of service which related to a return .....and the re-service.

PN6

THE COMMISSIONER: I don't have the first statement of service, Ms Gray.

PN7

MS GRAY: I'm sorry, Mr Commissioner, I don't have another copy with me. It was certainly lodged with the Commission back on 7 July. No, I'm sorry.

PN8

THE COMMISSIONER: It might be the early matter, was it?

PN9

MS GRAY: I'd like to think so, but no it wasn't. I have no excuse for that one. No, there's a statement of service and then a further one in this matter, Mr Commissioner.

PN10

THE COMMISSIONER: The first statement of service we'll mark as
exhibit Gray1 and the second is exhibit Gray2.

EXHIBIT #GRAY1 FIRST STATEMENT OF SERVICE
EXHIBIT #GRAY2 SECOND STATEMENT OF SERVICE

PN11

THE COMMISSIONER: Yes, Ms Gray.

PN12

MS GRAY: Mr Commissioner, in addition to the service ..... statement of service Gray1 and 2 we also circulated by email to all of the representatives whose details we had from the dispute finding that we're seeking part settlement of, in this matter, copies of the proposed roping in. We've had discussions with numerous employer representatives in this matter and as a result of that we have an amended draft order which I seek to hand up today.

EXHIBIT #GRAY3 AMENDED DRAFT ORDER

PN13

MS GRAY: Thank you, Mr Commissioner. The parties which appear in schedule B in this draft order in Gray3 are those which the union was aware of at 7 o'clock last night were objecting. I think the majority of these are represented by Ms Paul today. We would be seeking that any of the objectors represented would be seeking directions that they have six weeks to provide to the union and lodge outline of those submissions and witness statements substantiating their objections and we would seek a report back to the Commission on the same date that's been allocated on the other matter - for this one.

PN14

If there are any further changes necessary to exhibit Gray3 as a result of today's proceedings, I think Mr Gillespie's notified us of a couple, then we would undertake to provide an amended Gray3 to yourself, Mr Commissioner, by your associate this afternoon, which would then reflect in schedule A all companies who are not objecting to a roping in. We would seek that, that roping in be then made in the form of the amended draft order to exhibit Gray3.

PN15

THE COMMISSIONER: Your current draft order says clause 2(b), The company's listing schedule. I take it there's supposed to be an (a) there, is there?

PN16

MS GRAY: There is supposed to be an (a) there, Mr Commissioner. I'll make that change on the amended document I'll send to you as well as the deletion of the words, "As varied from time to time", which -jumping the gun ..... I'm assuming he'll have the same argument on this, in respect of the clients he represents in this matter and the last one. So the union will be opposing the deletion of those words.

PN17

MS PAUL: Sir, if I may just jump the queue. We would agree with the union with respect to the timetable ..... if the Commission will issue directions ..... for the members represented by us in Paul1.

PN18

THE COMMISSIONER: Four weeks.

PN19

MS PAUL: Six weeks, sir.

PN20

THE COMMISSIONER: Six weeks. Exactly the same timetable as the previous matter.

PN21

MS PAUL: Yes and the report back being 23 September. Sir, that is the case. May we be excused?

PN22

THE COMMISSIONER: You may.

PN23

MR GILLESPIE: Commissioner, with respect to Sedgman Muswellbrook Workshop Pty Limited, that company has not operated for some considerable time and consequently we believe it ought to be struck out or at least put on to the schedule B. We could, if necessary, supply to the union a letter confirming that that is the case. I would add, by the way, that Sequin Employment Services Pty Limited who would be covered by the roping in award in the previous matter would be the employer if they did have anybody in any case, in New South Wales from now on.

PN24

We'd ask that certainly Muswellbrook Workshop should be deleted or at least be put on to schedule B. With respect to Broadmeadow Mine Services Pty Limited, we would have no objection to the making of a roping in award as amended as discussed.

PN25

THE COMMISSIONER: What do you say about Sequin?

PN26

MS GRAY: We have no objection to put in Sedgman Muswellbrook Workshop Pty Limited in schedule B. The applicant of course will simply delete it entirely. It just helps us to track things more than anything else, Mr Commissioner.

PN27

THE COMMISSIONER: Is there anything further? So Ms Gray, I take it you're going to supply me with an amended draft order Gray3?

PN28

MS GRAY: Draft order - yes, Mr Commissioner and draft directions in this matter as well.

PN29

THE COMMISSIONER: You're seeking that the order be made today?

PN30

MS GRAY: Yes, thank you, Mr Commissioner. We would circulate that to all the parties who've been represented, although it's only Mr Gillespie in this one today.

PN31

THE COMMISSIONER: I take it from what you said earlier that as we grind through these things that eventually all of these people will end up in the main award.

PN32

MS GRAY: Yes, Mr Commissioner.

PN33

THE COMMISSIONER: After you've cleaned out the dead wood and got the correct addresses and the rest of it.

PN34

MS GRAY: Yes. We've actually been having discussions for the past 12 months with some industry representatives, Mr Commissioner . It started off with an application by the union to amend the award in respect to an ambiguity or uncertainty dealing with public holidays. As a result of that the parties said, we may as well have a look through the award and see what else is in it that's ambiguous, uncertain or obsolete. So ,those discussions have been ongoing for over a year. We've got another meeting of this industry task force on 1 August.

PN35

After that, the union will confer with the metal workers and the CEPU, the other unions party to the award and the employer representatives will consult with all of their clients and companies, related corporations. We will then, hopefully, report back program before Drake SDP to come back for a report back on that matter and hopefully with consent application to vary the award encapsulating a basket of variations. It may well be that the respondency list is dealt with at that stage, at least insofar as we can, Mr Commissioner. Obviously, the objectors will string out beyond that timeframe but that's the optimistic view from the union.

PN36

THE COMMISSIONER: Just one small matter of concern to me. Are Drake SDP and I crossing across each other at all in the proceedings were both conducting.

PN37

MS GRAY: I don't think so, Mr Commissioner. I have advised Ms Paul for example, this morning because she's representing a number of companies who say that they are in the engineering industry, rather than the coal mining industry. So, I have advised her that there is an appeal from a decision of Drake SDP which deals with Harnischfeger, that's P & H Shovels which is the open cut ...... Her Honour found that a dispute with Harnischfeger existed at Bulga. The company has appealed that it has gone to a Full Bench presided over by Ross VP. It's a separate and different Full Bench to that which dealt with the Dyno appeal.
So, those things are ongoing Mr Commissioner.

PN38

We have another objector Komatsu which was up to speaking to the written final submissions before her Honour last week when Dyno was handed down. The parties agreed in that matter that we would await a decision of the Ross appeal from Harnischfeger and then make submissions to her Honour on both the Dyno and Harnischfeger appeals. The Harnischfeger is more relevant to the engineering side as Dyno is a explosives company involved in the blasting area of coal mining, whereas Harnischfeger's involved in maintenance.

PN39

So, I advise Ms Paul that that was on the move and what dates that was before the Full Bench. Nonetheless, it will be helpful to the union and I expressed this to Ms Paul, helpful to the union to have in writing, at least an outline of the basis for objections to allow the proper consultation between the parties. If we're able to resolve the matters good and well and that will certainly also involve the Metal Workers' Union from our perspective, Mr Commissioner. At the report back which you set for these matters, we'll be able to advise, Mr Commissioner, what we know of the Harnischfeger appeal and what parties we've been able to reach agreement with.

PN40

Obviously, we were brought into any further programming of the matters, the impending decisions or effects of that sort, to make sure that nobody's been ambushed or having things dealt with without full knowledge.

PN41

THE COMMISSIONER: More for my own interest than anything else because it affects another outstanding matter that you and I have had for some time. Is the Dyno matter going further on appeal?

PN42

MS GRAY: It's likely to, Mr Commissioner. I'll be pleading with counsel on Friday and then there'll be an executive meeting about a union and I think that both Dyno's representatives and ourselves were of the view that whichever way it went it was likely to go to the High Court. I think that's still a likelihood.

PN43

THE COMMISSIONER: I'm just wondering about those poor people at Mainstream. As you're aware, I've had the decision outstanding since 2003 awaiting the various permutations of this matter.

PN44

MS GRAY: Exactly, Mr Commissioner, which is why we're always loath to have these matters held up by things which are ongoing in those other decisions and appeals. But with Mainstream there was a case which was so similar in terms of industrial cleaning before her Honour that we really felt that it was - and that was my insist - that it would be helpful to have that decision handed down and dealt with. Her Honour has stood the matter over awaiting the decision in the Ross appeal of the Harnischfeger matter. Because the industrial cleaning, we say, is connected with maintenance, so it's very relevant.

PN45

THE COMMISSIONER: That was your argument in Mainstream.

PN46

MS GRAY: Yes, Mr Commissioner. The union is very happy to have that decision reserved until at least that further appeal is handed down.

PN47

THE COMMISSIONER: Which one, my one or her one?

PN48

MS GRAY: The Harnischfeger. Perhaps by then, we'll know exactly what's happening with the High Court or otherwise. We're the applicant in that matter, Mr Commissioner. We realise it's an inordinate amount of time but we have absolutely no desire to have that matter go ahead and then be subject to perhaps an unnecessary appeal. Particularly, it's a very small operator, it would probably be unfair on the company to put it through that exercise. Perhaps the union should contact the representative from Mine Assist, have that discussion and we might be able to send in some correspondence to yourself if you'd like that, Mr Commissioner, just asking that you reserve the decision.

PN49

THE COMMISSIONER: It would be helpful to me. It continually turns up on the list of things I haven't done.

PN50

MS GRAY: Maybe you're very tidy, no doubt.

PN51

THE COMMISSIONER: I don't have many decisions back to May 2003. But I take it, I retire in 2016. Perhaps it will be finished by then.

PN52

MS GRAY: I remember when we started these proceedings, Commissioner Bacon said at that stage that it should take me through until retirement and I laughed. I'm not laughing any more.

PN53

THE COMMISSIONER: No. Now back to exhibit Gray3. Does anybody want to address me any further on this matter, the making of this roping in award?

PN54

Subject to the amendments that Ms Gray has identified which parties are bound clause, the rectification of a typographical error there. The amendment to clause 3 application to strike the words, "as varied from time to time", and the movement of Sedgman Muswellbrook Workshop Pty Ltd from schedule A to schedule B. Are they the only amendments Ms Gray?

PN55

MS GRAY: Yes, those are the only amendments on this one, Mr Commissioner.

PN56

THE COMMISSIONER: An order will issue in the terms sought subject to the receipt of the amended draft order from Ms Gray with the date of effect today's date. We're adjourn.

<ADJOURNED INDEFINITELY [11.20AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PAUL1 SERVICES FOR LIST PN3
EXHIBIT #GRAY1 FIRST STATEMENT OF SERVICE PN10
EXHIBIT #GRAY2 SECOND STATEMENT OF SERVICE PN10
EXHIBIT #GRAY3 AMENDED DRAFT ORDER PN12