C2005/2955, Transcript of Proceedings [2005] AIRCTrans 1626 (28 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12311-1

COMMISSIONER LARKIN

C2005/2955

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TOMAGO ALUMINIUM CO PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/2955)

SYDNEY

2.01PM, WEDNESDAY, 20 JULY 2005

Continued from 30/6/2005

Hearing continuing

PN647

THE COMMISSIONER: Appearances remain the same I presume, ladies and gentlemen?

PN648

MR BOATSWAIN: Yes, Commissioner.

PN649

THE COMMISSIONER: Yes, whenever you're ready. Mr Boyce, I believe you have a problem for tomorrow, so you would like to address your submissions prior to Mr Boatswain continuing?

PN650

MR BOYCE: That's correct, Commissioner.

PN651

THE COMMISSIONER: Yes, when you're ready.

PN652

MR BOYCE: Commissioner, I filed an outline of submissions on 7 June 2005, and also a list of authorities on 28 June 2005. I seek to tender those submissions.

EXHIBIT #AMMA1 SUBMISSIONS ON BEHALF OF AUSTRALIAN MINES & METALS ASSOCIATION

PN653

MR BOYCE: Thank you, Commissioner. Alcan Gove adopts and supports the submissions in these proceedings of Tomago Aluminium. Additionally we make submissions in respect of clause 49 of the log entitled Contracting/Subcontracting/Labour Hire. In respect of that clause in the log it states that:

PN654

The employer will not employ contractors or consultants except with the express approval of the union, the employees, being essentially without agreement there's an absolute prohibition on employing contractors or consultants.

PN655

The clause then goes on to identify a number of conditions where contractors or consultants are employed, and again at paragraph C of that clause it again says:

PN656

The employer shall not engage former employees as contractors except with the express approval of the union and employees.

PN657

So again a further prohibition. The third paragraph in that clause then prohibits pyramid subcontracting, which we submit isn't illegal per se, however, the clause also doesn't define what pyramid subcontracting actually means. The fourth paragraph then goes on to require the employer to ensure that subcontractors and contractors pay their employees the wages and conditions in this log. And the fifth paragraph then talks about:

PN658

The employer immediately upon deciding to engage contractors to notify the union, and also immediately forward by certified mail the names and addresses of the contractors and the number of employees employed.

PN659

Commissioner, we say that that clause in respect of where it prohibits or requires agreement of the union to engage contractors is one that has the potential to breach section 45E of the Trade Practices Act, and we annexe a copy of 45E to our submissions. We're not advancing in these submissions that there is a breach. We're talking about a potential breach of that clause. Just taking the Commission to section 45E of the Trade Practices Act 1974, it says there at subsection 1 the section applies in the following situations, and subsection 1(b) says:

PN660

An acquisition situation, in this situation a person, the first person -

PN661

Being Alcan in our submission:

PN662

has been accustomed or is under an obligation to acquire goods or services from another person, being the second person.

PN663

That would be the contractor or the subcontractor. And then it goes on to say that sections A and B don't apply unless the second person or the first person is a corporation, or both of them are corporations. And obviously Alcan Gove is a corporation. We then take the Commission to the prohibition for contracts, arrangements or understandings affecting the supply or acquisition of goods and services at section 45E subsection 3. And down there on the fourth line it talks about containing a provision or for the purposes of:

PN664

Preventing or hindering a first person -

PN665

Being Alcan:

PN666

- from acquiring or continuing to acquire goods and services from a second person.

PN667

And the clause goes on and it then says that there's no contravention, there at 45E(4), where there's written consent. We note there's been no submission advanced by the union that there is any potential for written consent. Commission, in respect of the issue of purpose, if I take you to section 4F of the Trade Practices Act, that says there in 4F(2) that:

PN668

The definition of purpose under section 4F(1) does not apply to section 45E.

PN669

Indeed, it's our submission that the definition of purpose is broader under section 45E and includes purpose or purposes, and does not require a substantial purpose test as was the case prior to the '96 Act amendments. We note that section 4F(2) was inserted by Commonwealth Act number 60 of '96, section 3, schedule 17, effective 17 January 1997.

PN670

THE COMMISSIONER: Sorry, what part of the '96 Act, Mr Boyce, did you just say? I missed that.

PN671

MR BOYCE: It's an annotation in the Trade Practices Act at section 4F(2).

PN672

THE COMMISSIONER: I see, yes.

PN673

MR BOYCE: And it says that section 4F(2) is inserted by Commonwealth Act number 60 of 1996, section 3, schedule 17, and became effective on 17 January 1997. Commissioner, the authorities I refer to, I've gone to the trouble of making a copy to actually hand up to assist in going through those.

PN674

THE COMMISSIONER: Yes. I might just ask you, on your list of authorities, the last dot point, I presume you mean the Workplace Relations Act 1996, or do mean the Industrial Relations Act 1988?

PN675

MR BOYCE: No, the '96 Act.

PN676

THE COMMISSIONER: Yes, the Workplace Relations Act. So that would be a typographical error. Just have a check and make sure. That's how I read it.

PN677

MR BOYCE: Sorry, no. Industrial Relations Act 1996, New South Wales. Yes, Industrial Relations Act 1996, New South Wales.

PN678

THE COMMISSIONER: New South Wales. And you have a copy of that particular - - -

PN679

MR BOYCE: I don't. It's actually referred to in one of the authorities. I don't really seek to rely on it other than differentiate that Act from the Workplace Relations Act. Commissioner, I'd firstly take you to the case of Bullock and Others v Federated Furnishing Trades Society of Australia and Others.

PN680

THE COMMISSIONER: Okay. But they're not in order in front of me, are they? So which was the case?

PN681

MR BOYCE: It's Bullock.

PN682

THE COMMISSIONER: That's the second one, yes.

PN683

MR BOYCE: And it was an 11 February 1985 case, Full Federal Court of Australia, General Division. I'd take you to page 238 of that decision. And the first three paragraphs there really just set out for the Commission's assistance the operation of section 45E. It talks there about:

PN684

So far as section 45 is concerned the appellants contend that 45E was designed to protect, in this case the contract carpet layers, from carpet suppliers and workshops who are accustomed to acquire their services from the effects of an agreement by such suppliers and workshops with a union by which they are prevented from acquiring or continuing to acquire the services of such carpet layers.

PN685

Then it talks about, in the second paragraph:

PN686

This section provides that a person being accustomed to acquire services from a second person, a contract carpet layer, shall not make a contract with a union if that contract contains a provision that has the purpose of preventing the person from acquiring or continuing to acquire services from the second person at all or on conditions as to the terms on which services might be supplied.

PN687

And a reference is there, section 45E(1)(b). Commissioner, in the third paragraph there, the second sentence, Smithers J is referring there to the old purpose test under section 4F(1), which no longer applies under 45E, and he says there in the second sentence:

PN688

The critical inquiry is whether the purpose for which the provision was included in the contracts was to prevent the second person from acquiring or continuing to acquire from the carpet layers from whom they customarily acquired the same subject to a condition as to the terms on which those services might be supplied.

PN689

And it then goes on and at the top of the fourth paragraph it talks about:

PN690

Therefore the case for the appellants as far as it was based on 45E exhibited good prospects of success.

PN691

This case was really about injunctive relief and not actually grounding the 45E breach, but looking at the prospects for success. So we'd submit that once a purpose is established to merely prevent or hinder on a condition Alcan from continuing to acquire services then it would satisfy those words on 45E. Taking the Commission now to Devenish and Others and Jewell Food Stores, a decision of a five member Bench of the High Court of Australia. I take you to page 283 of that decision, and it's the last paragraph there at 47. And what we're looking at here is the High Court authority on the issue of prevents for the purposes of section 45D, and we'd submit that that equally applies to section 45E. We merely note that there's no authority on the word prevent or hinder in the context of 45E, and this is as close as we're able to submit.

PN692

It's the decision there of Mason CJ there at 47 at the bottom of page 283, where he says:

PN693

The second reason advanced by the appellants in support of restricting the operation of section 45D through the introduction of the word directly was that several other sections of part 5 of the Act ...(reads)... directly hinders or prevents.

PN694

It goes on to say:

PN695

While there is some force in this submission, the interpretation is equally open that an unqualified reference to hindrance or prevention means hindrance or prevention ...(reads)... wider interpretation.

PN696

So we'd say in respect of clause 49 of the log of claims that that clearly satisfies hinder or prevent in terms of accustom to acquire. Commissioner, I then take you to the case of the Full Bench of the New South Wales Industrial Commission in Electrical Contractors Association New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Another (2003) NSW IRC 404. At paragraph 194 of that Full Bench decision their Honours refer there to a clause which seeks to in essence prohibit similar to clause 49 of the log, labour hire companies, and goes on to require them to have an enterprise agreement with the union signatory to the agreement that was before the Commission.

PN697

They talk there about the language being somewhat more directory than the other clauses. They refer to that in the decision, and they go on to say that:

PN698

It would appear that a condition that required the labour hire company to have an EBA with a specific union is capable of hindering the relevant acquisition situation having regard to the meaning of hinder discussed by Mason CJ in Devenish v Jewell Food Stores Pty Ltd.

PN699

Commissioner, I then take you finally to the decision of Gibbons and Others v Australian Meat Industry Employees Union and Others, a decision again of Smithers J, and I take you to page 363 of that decision. We merely advance this case to say that there is Federal Court authority to say that the mere containment of an arrangement that's proved by the Commission, albeit in this case in conciliation proceedings, doesn't grant immunity from the Trade Practices Act. And his Honour, on page 363 at point 12 there, it's the second paragraph there on the page, referred there to an agreement mentioned above which he called a conciliation agreement reached between Borthwicks and the union. The terms of the agreement were reduced to writing and delivered to the Deputy President with a request that they should retain custody thereof and regard as confidential. And Smithers J then sets out the nature of that agreement.

PN700

On page 364, the last paragraph on that page, he makes some comments about the agreement which contains an exclusionary provision in respect of Borthwicks' use of contractors, and says that:

PN701

It may be observed that although as between Borthwicks and the union there may have been some element of propriety, there was grave risk that the resolution was made in contravention of section 45D ...(reads)... the aspect of the matter could be proper.

PN702

He then goes on at page 365 at the top, and says there that:

PN703

It is contended on behalf of the respondent that the institution and resolution by agreement of the proceedings described above ...(reads)... I am unable to accept this submission.

PN704

And then at 20 he says:

PN705

But what is contended is that an agreement arrived at by conciliation proceedings exclusively between the parties to a proceeding in the Federal Court ...(reads)... there is no such clear words.

PN706

Commissioner, in respect of the union's submissions as to our submissions on the potential for 45E breach, they say at paragraph 5.4 that, in the second sentence:

PN707

However it does not follow necessarily that clause 45 of the AWU log of claims offends section 45E of the Trade Practices Act.

PN708

THE COMMISSIONER: I'm sorry, just where are you, the AMWU submissions?

PN709

MR BOYCE: That's correct, Commissioner.

PN710

THE COMMISSIONER: But whereabouts?

PN711

MR BOYCE: Outline of submissions at 5.4.

PN712

THE COMMISSIONER: Yes, thank you.

PN713

MR BOYCE: It's the second sentence there where they say that:

PN714

It doesn't necessarily follow that their log of claims at clause 49 offends section 45E of the Trade Practices Act.

PN715

And again we make the submission we're not saying that it actually offends. We're saying it has the significant potential to offend. The AWU then there at 5.6 says that:

PN716

Section 45E requires that the contract, arrangement or understanding must have the relevant purpose of preventing or hindering the relevant acquisition situation.

PN717

And they go on to say that it should be properly characterised as having a purpose of securing the conditions of employment of AMWU members. And that may well be the case, however, it doesn't stop it from having other purposes such as preventing or hindering companies from continuing to acquire goods and services. Commissioner, in respect of the case that I advanced by the Full Bench of the New South Wales Industrial Relations Commission, we only seek to rely on it for that point at 194. But I note that the AMWU seeks to also rely on it in its list of authorities. We'd simply say that in respect of that case it's a totally different statutory regime.

PN718

Paragraphs 148 to 177 set out the statutory regime in the New South Wales jurisdiction, and some of those differences go to issues such as the relevant test under that Act for jurisdiction is not an industrial matter but a condition of employment. And the relevant objects of that State Act, the Industrial Relations Act 1996, New South Wales, at section 3, require the Commission to consider in any test the encouragement of representative organisations of employers and employees.

PN719

And thirdly, the decision talks about, or goes to the approval of an enterprise agreement, and in many ways, given the wide scope of conditions of employment under that state jurisdiction, the mere consent to an arrangement enlivens the Commission's jurisdiction. And indeed the Full Bench of the Commission at paragraph 212 of their decision go to saying that:

PN720

Finally we stress that our decision in this matter is limited to the jurisdictional and related arguments raised by the parties ...(reads)... to those most immediately concerned.

PN721

And they cite a case there and they say:

PN722

Relevantly the parties to the enterprise agreement.

PN723

Then it says that:

PN724

The Commission's role as such, as two such instruments is limited by the statute and subject to the terms of the statute and the principles laid down ...(reads)... merits of the agreement.

PN725

We'd say in the context of these proceedings that that case has no value in terms of its outcome. Finally, Commissioner, in closing we'd say that the extent to which a clause in a dispute finding can regulate contractors and labour hire employees companies is a matter of degree. Here the constraints are not only substantial but they're absolute, and we'd say that on the basis of these submissions the Commission wouldn't be approving something that has the potential to be contrary to law, and in any event that the Commission should not approve or find jurisdiction for a dispute in respect of clause 45 - 49 of the log of claims.

PN726

THE COMMISSIONER: Yes, they're the submissions, Mr Boyce?

PN727

MR BOYCE: Yes, if the Commission pleases.

PN728

THE COMMISSIONER: Yes, thank you for those submissions. Whenever you're ready, Mr Boatswain.

PN729

MR BOATSWAIN: Thank you, Commissioner. You will recall on the last occasion we were addressing on behalf of Tomago the demands contained in the AMWU log that we object to on the ground of being fanciful and therefore not a genuine demand within the meaning of the Act. You will also recall, Commissioner, that we had made general submissions concerning the principles established by the High Court that are to apply in assessing whether a demand is genuine. These principles are set out in our written outline, which is TOMAGO1, from paragraphs 27 to - sorry, paragraph 2.7 to paragraph 2.1.8, supplemented by the statement of principle concerning genuineness and dealing with the Full Bench of Thiess Contractors which I handed up on the last occasion.

PN730

THE COMMISSIONER: Sorry, Mr Boatswain, just go back. TOMAGO1 from what paragraph? What paragraphs did you take me to? I'm sorry, I missed it.

PN731

MR BOATSWAIN: It is 2.7 through to 2.1.8, and as I indicated, supplemented by - - -

PN732

THE COMMISSIONER: 2.18?

PN733

MR BOATSWAIN: Yes, it's 2.18, supplemented by the statement of principles regarding the genuineness contained in the Full Bench of Thiess Contractors, which commenced at page 6 of the decision on the last occasion.

PN734

THE COMMISSIONER: I'm sorry? You're relying upon the decision in Thiess Contractors?

PN735

MR BOATSWAIN: Yes, I am. And you will recall I tendered it on the last occasion, Commissioner.

PN736

THE COMMISSIONER: You said at page something?

PN737

MR BOATSWAIN: Yes, at page 6. I handed up - - -

PN738

THE COMMISSIONER: No, that's okay, thank you, that's all I - - -

PN739

MR BOATSWAIN: I handed up an electronic copy. Unfortunately it doesn't have paragraph numbers but there's a heading of Genuineness, which is halfway, point 5 of page 6 of that extract.

PN740

THE COMMISSIONER: Yes, continue. I'll find it.

PN741

MR BOATSWAIN: If it isn't, then I'll certainly find another copy of that decision.

PN742

THE COMMISSIONER: No. I'm sure I would have it.

PN743

MR BOATSWAIN: And I should indicate, Commissioner, I'm just, I suppose, laying the ground with where we're at in the context of where we're to go.

PN744

THE COMMISSIONER: Yes, that's fine.

PN745

MR BOATSWAIN: These principles are essentially established by the High Court decisions of the SPSF decision and the Attorney General for the State of Western Australia, Riordan, that had been extracted and referred to in TOMAGO1. We confirm that in our outline of submissions, and in particular in relation to schedules A and C, where there has been a reference to what's been described as the Riordan decision, Commissioner, that represents a reference to the general principles as we have extracted and submitted by an assessing of whether a demand contained in a log of claims is genuine, whether a dispute is real and genuine as a matter of fact. And that is addressed at SPSF page 304:

PN746

In assessing the genuineness of a demand the Commission is to have regard to the terms of the log ...(reads)... industrial regulation.

PN747

And again that extract is from the decision of Mason CJ, Dean and Gaudron JJ at page 268 of the SPSF decision.

PN748

If the demand is not real and genuine as understood within the relevant principles the demand will not give rise to an industrial dispute so as to enliven the Commission's jurisdiction ...(reads)... beyond the jurisdiction of the Commission.

PN749

You will recall, Commissioner, we got to the situation where we described the schedule A objections have been concluded in relation to fanciful, and I was commencing to address those objections that are addressed in schedule C. Before I do that, however, Commissioner, I took on board and reflected on some observations you made on the last occasion in relation to the position of the log of claims that was the subject of the Airly Coal decision. For a matter of completeness, and I do not intend to take you to it in detail other than to cross reference and have available, I'd seek to tender the log of claims that was filed in the Airly Coal decision.

EXHIBIT #TOMAGO4 LOG OF CLAIMS IN AIRLY COAL DECISION

PN750

MR BOATSWAIN: If I could then proceed by taking you to schedule C to TOMAGO1, Commissioner.

PN751

THE COMMISSIONER: Yes?

PN752

MR BOATSWAIN: Sorry, I thought you were still looking for it.

PN753

THE COMMISSIONER: No, I have it.

PN754

MR BOATSWAIN: You will see that the first column deals with the claim numbers 13 through to 18, 17, dealing with minimum weekly wage special rates. Commissioner, I addressed these submissions in relation to schedule A, or the objections in relation to schedule A, so obviously it's not my intention to repeat the submissions that I already made in relation to that set of clauses, but merely to remind you that both in terms of the collective approach which was adopted by Commissioner Bacon on the basis that each of the allowances were bare allowances, bare claims for merely attending work, that they could be considered collectively, either collectively or individually. As previously indicated they were found by Commissioner Bacon in Airly Coal to be fanciful and were struck from the log. In relation to - - -

PN755

THE COMMISSIONER: Just on the - your submissions are going to the aggregation of those particular claims?

PN756

MR BOATSWAIN: Yes.

PN757

THE COMMISSIONER: Yes. There is a Full Bench. I don't know whether the union's authority pulled it out, I'm unsure. There is a Full Bench decision that cautions the Commission against aggregating claims, and that particular Full Bench does make reference to SPSF and also Ludeke in drawing its conclusions.

PN758

MR BOATSWAIN: Yes, Commissioner. Our respectful submission is that the cautioning against aggregation of claims is not of the nature that we're undertaking here, but in assessing the extravagance of the log of claims that's been filed overall, if I can use an example. If you look at, for example, taking the wages and bare allowances in this log, it gives rise to $245,000 or 300,000 annual salary, where there is in excess of 30 or 32 weeks paid leave, on a 25 hour working week with, when you take into account the allowances - sorry, the rest breaks and the meal breaks, that reduces the working week to less than 12 hours a week. When you take in the travel claim that's been made which is to be treated as time worked, $300,000 aggregated over this log of claims could be paid for less than two hours actually worked a week. That's the aggregation, in our respectful submission, the High Court and the Full Bench have said you should not undertake.

PN759

What we respectfully submit Commissioner Bacon correctly did was to assess the substance of the wages claim and what he described as fair claims for allowances where they were paid for merely turning up to work. They were not contingent on any activity or special activity such as working at heights or conditions, or having worked so many hours. The mere attendance of work allowed or required the payments specified in each of the clauses identified - or claims I should say identified in the AMWU log, and correspondingly the APESMA log to be able to be treated as forming part of the wages claim.

PN760

In our respectful submission that's not aggregation, that's a proper assessment of the nature of the claims that are made in the log. And we say that, for example, the claim 3 in the AMWU log for $1000 minimum per week as an all purpose special rate is a bare claim as described by Commissioner Bacon. And similarly claim 4 is for an industry allowance claiming that all employees, and that is all employees on the site shall be paid a minimum all purpose industry allowance of 200 per week. Each of the specified allowances in this aspect of the objection are what was described as a bare claim.

PN761

It might be convenient then to just again look at how it was addressed by Commissioner Bacon, and that's at paragraph 44 of his decision in Airly Coal, and this is after he has addressed the minimum wages. And he says this:

PN762

In addition to the above the log also demands the payment of a number of allowances, and these claims are bare claims ...(reads)... SPSF attack by the employees.

PN763

I think that should be employers:

PN764

The following table examples the weekly wages and allowances to be paid to the lowest and highest classification level.

PN765

And the Commissioner then sets those out. You may recall that that is the basis of schedule B to our submissions, TOMAGO1. We undertook a similar exercise looking at the lowest and highest, although there are more than five classifications in the current log under consideration. The Commissioner then moved in paragraph 45 to address some of the individual matters, and then proceeded in paragraph 46 and talked about the same view of the amounts claimed for each of the allowances payment, describing them as fanciful.

PN766

We would submit, as has been, we would suggest, directly addressed by Commissioner Bacon in paragraph 44, that this is not the aggregation that was cautioned against by the High Court in SPSF, but the proper assessment of the nature of the claim, and in the circumstances of all purpose allowances to all staff for merely attending work, we'd respectfully submit the proper way to assess that would be to follow the path adopted - the approach adopted by Commissioner Bacon and treat them as forming part of the wages.

PN767

But we do not shy away from the fact, Commissioner, that considered as forming part of the bare wages and also considered individually - and I have addressed you previously on each of those - we submit either way you would come to the conclusion that the demands for those all purpose allowances and to wages considered collectively or individually, you would be of the view that they are clearly extravagant within the terms of the principles beyond the scope of the document and should be struck from the log of claims.

PN768

THE COMMISSIONER: I might make reference to that Full Bench that I referred to earlier. It's a Full Bench decision in Australian Industry Group, and it was an appeal brought against a decision of Senior Deputy President Harrison in AMWU v ANA Contract Staff. The Full Bench decision, being the President, Deputy President Blain and Commissioner Lawson, was delivered on
13 September 2002, and it's found in print PR921867, and her Honour's decision which was upheld by the Full Bench was delivered 6 May 2002, and it's found in print PR917411. But I think, Mr Boatswain, you indicated that you're familiar with that decision.

PN769

MR BOATSWAIN: I have sighted it, Commission, and as I've submitted, the issue of aggregation was directly addressed by Commissioner Bacon in his decision and, as indicated, was a matter that was addressed in submissions to him. It's our respectful submission that the aggregation that is being talked about is viewing the entirety of all - or aggregating all of the claims contained within the log of claims served through this process rather than dealing with each one individually. That does not prevent the approach adopted by Commissioner Bacon properly assessing claims. In fact, as indicated in paragraph 44, he expressly addresses the fact that the purpose of disaggregating the wages in the way presented in the log may well be to avoid an SPSF, in the context I think it should say by the employers.

PN770

If I could then take you to the next objection which is in relation to claim 9 in the log of claims, Commissioner. You will note that the claim itself is that the employer shall provide transport for all journeys between the employee's usual place of work and residence, the duration of all journeys shall count as time worked, in addition employees shall be paid $500 per week to compensate for travelling. The second paragraph is that travelling time outside of ordinary working hours shall be paid at travel time, and it finishes in the third paragraph where employees are required to attend for duty at a place other than his or her usual place of work employers shall pay for the first class travel and accommodation of the employee and the employee's family and pay an allowance of $1500 per week for the period of leaving home and returning home.

PN771

Now, the first aspect of the demand in claim 9 was claim 10 in the early whole log, if I can use that, Commissioner, and was addressed in paragraph 56 of the Commissioner's decision. And this relates to the first sentence, providing that the employer shall provide transport for all journeys between the employee's usual place of work and residence. Commissioner, if you look at the decision in paragraph 56, we can see that Commissioner Bacon did not regard that claim to be fanciful, however, his reasoning for that was the history in the coal mining industry of drive-in, drive-out mines, and the fact that some of those mines the employer provided transport to and from the site at which the employees are accommodated during each tour of duty.

PN772

He then refers to employer providing transport to and from the mine and accommodation facility, and refers to other arrangements exist. It's on the basis of the existence of those conditions in the coal mining industry, we would submit, that the Commissioner did not find that that clause was fanciful in its principles. Now, we would respectfully submit that there is no equivalent practice within the, certainly in relation to some of those operations, and that therefore in the absence of such a practice being in place in the industry, and particularly in relation to Tomago, we respectfully submit that the claim for transport to be provided would be considered beyond the scope of the ambit doctrine and to be excessive.

PN773

There is no similar corresponding entitlement contained in the contemporary industry standard, if I can use that term, the drafting of award as I described it, or the Clerks Award which we referred to earlier as comparators for the purpose of this exercise, do not contain such a provision. I should also note, Commissioner, that there is a reference in my submissions and list of authorities to a decision, a Full Bench decision in the Retail Trades Association Victoria and Others v Wesfarmers Limited. That's at print M6550.

PN774

Interestingly, Commissioner, in page 11 of that extract the Full Bench there made a reference to findings made by an earlier Full Bench in the Lamsoon decision and made findings of a number of claims that were considered to be fanciful, and they are extracted. There are nine numbered paragraphs there. Interestingly there, Commissioner, item 6 refers to clause 74 requiring payment at double time rates for travelling to and from work at ordinary time and at travel time rates for travelling to and from work outside of ordinary time. They are the same entitlements to be advanced in claim 9 of the AMWU log. I just mention that in the fact that that is a decision that I have referred to not only a principle of consistency but there is - - -

PN775

THE COMMISSIONER: A 1995 decision. I mean, apart from that it's 10 years. You're talking about the quantum of the allowance, are you not?

PN776

MR BOATSWAIN: Well, the quantum allowance is a mere aspect of duration of journeys being counted as time worked. We respectfully submit that the contemporary industrial standard has not changed in that period of time, and that particularly - - -

PN777

THE COMMISSIONER: Which part? I thought you said point 7. It's on page 14?

PN778

MR BOATSWAIN: No, it's point 6, I should say, paragraph 6.

PN779

THE COMMISSIONER: Well, you may have said 6. I was looking at 7.

PN780

MR BOATSWAIN: It's clause 74. It refers to clause 74, which is the clause within the log being addressed from Lamsoon, this being a direct extract by the Full Bench in RTA Victoria v Wesfarmers, of the findings of the earlier Full Bench in Lamsoon. We respectfully submit that that finding is relevant for your consideration, Commissioner, in terms of the contemporary industrial standard, that a claim for journeys by employees usual place of work and their residence counting as time worked, in addition to which they will receive a $500 per week compensation for that travelling in addition to it being treated as time worked, and that travelling outside of ordinary hours being paid at travel time. We respectfully submit all of those entitlements are clearly beyond the scope of the ambit doctrine. There is no prospect of those claims being obtained through the framework of negotiation, consideration and arbitration, and therefore cannot give rise to an industrial dispute, and they should be struck from the log.

PN781

I also note that in relation to the third paragraph the claim that where employees are required to attend for duty at a place other than the usual place of work there is a requirement for first class travel and accommodation for both the employee and his family, his or her family, together with a $1500 per week allowance. That is in addition to the other claims and entitlements that are sought within this demand. Again we submit that such a demand is beyond the scope of the ambit doctrine and cannot give rise to an industrial dispute within the meaning of the Act.

PN782

Could I then take you to claim 10 of the log of claims, being motor vehicle allowance. I should say, Commissioner, that in our written submissions we objected to this on the grounds of not pertaining to the employment relationship. However, we also submit that the elements of the first paragraph would have to be considered as fanciful. The basis of that is that the claim is that where an employee uses his or her motor vehicle in the course of employment the employer shall compensate the employee all annual standard costs (registration, insurance, depreciation, licence, etcetera) and all running costs, fuel, repairs and maintenance, etcetera, all payment allowance comprehending the above.

PN783

It's interesting they use the word comprehending and not compensating. It's our respectful submission that such a claim does not reflect the contemporary industrial standard or anything which is remotely a prospect to be obtained through the framework of negotiation, conciliation or arbitration. It's not advanced as a form of salary sacrifice, but prescribes payments or compensation for all annual costs incurred in owning and operating a vehicle. So the mere use of this vehicle on one occasion for the purpose of employment would result in the annual costs of owning and operating a vehicle would be met by the employer.

PN784

The drafting award which we have referred to, at clause 5.5.1 has what we submit is a traditional contemporary provision where an amount of 61 cents per kilometre is paid for the use of the vehicle for business. We submit that that is a standard contemporary where there has to be and there is a connection between the actual use of the vehicle for business purposes and the costs associated with that use. And equally in the second paragraph where there's a reference to, or a demand that gives rise to additional insurance premiums or taxes or charges the employer shall meet the additional cost. It is unclear what they're referring to there.

PN785

It is our submission that the entirety of that clause or that demand cannot be considered to be capable of giving rise to an industrial dispute and cannot see how the second paragraph would have any meaning would be severed and therefore the entire clause should be struck out. Turning over the page, the last paragraph talks about where there's a hiring of a motor vehicle shall pay all hire and running costs. We don't take issue with that. The statement that in addition fines incurred by the employee whilst using a vehicle is fanciful within the meaning and should be struck out. Equally the addition of employer paying allowance of $20 per kilometre, when we look at 61 cents a kilometre contained in the drafting award, clearly demonstrates the extreme extravagance of the claim and it should be struck out as being fanciful and not genuine.

PN786

If I could then take you to claim 14, which is inclement weather. The inclement weather demand contained in the log provides, Commissioner, that:

PN787

The employee shall have a right to determine that work shall not proceed because of inclement weather or the effects thereof and may leave the site for the remainder of the day and all shift allowances paid. For the purpose of this clause inclement weather shall include conditions of rain, hail, snow, cold and high temperatures .....

PN788

And the last clause:

PN789

In any area subject to climate conditions the employer shall observe such cyclone procedure as is determined by the union whose members are employed by the employer.

PN790

Commissioner, we submit that on the basis of the general principles that we have outlined and on the issue of current or contemporary industrial reality it is fanciful to demand that employees will determine that work will not proceed due to the weather, particularly in circumstances where it entitles the employee to leave the site without loss of pay. If this claim - if it's asked whether this claim is something that would be obtainable through the framework of negotiation, conciliation or arbitration in due course, the answer we would submit is clearly not. There are no equivalent provisions in the drafting award to which this log purports to rope Tomago into, or the Clerks Award. We would submit there's no prospect within the framework of negotiation, conciliation or arbitration for this demand to be obtained. It is beyond the scope of the ambit doctrine and should be struck out in its entirety.

PN791

Can I then take you to demand 15 in the log of claims, that is the demand dealing with clothing. That demand claims employees shall be supplied with clothing, including all protective clothing required for a job free of charge. In addition, on a six monthly basis the employer shall provide free of charge five pairs of overalls, five Tasmania bluey jackets and five pairs of safety boots. I assume, Commissioner, you're aware of what a bluey is?

PN792

THE COMMISSIONER: Sorry?

PN793

MR BOATSWAIN: Are you familiar with what a bluey jacket is?

PN794

THE COMMISSIONER: No, I don't. I may have been, I may have forgotten. Refresh my memory.

PN795

MR BOATSWAIN: Well, a bluey jacket is a term familiarly used in construction and the waterfront and those industries. They traditionally are a waterproof blue jacket, hence their name, with - I can't remember what's the material. It's got a very warm lining as well as normally some of them come with an extractable hood. Blue is the term or phrase that's been used for jackets that are provided because of their waterproofness and the fact that they provide considerable warmth. I don't know, I cannot talk from my own personal experience, whether they are jackets that are provided in the aluminium industry, but that's a certain phrase I'm familiar with from the construction industry.

PN796

THE COMMISSIONER: Well, I know what they were in the aluminium industry, and it is blue and it's quite heavy and it is wool.

PN797

MR BOATSWAIN: Well, it's probably that, Commissioner. The basis of the objection to this clause on the grounds of being fanciful, Commissioner, is that the first sentence requires that employers shall supply the employees with clothing including all protective clothing required for the job free of charge. It then says in addition on a six monthly basis. So that what they're seeking is clothing in addition to that required for the job. Further, the demand of, on a six monthly basis, providing five pairs of overalls, five Tasmanian bluey jackets and five pairs of safety boots is clearly excessive and is certainly fanciful. Anyone who has ever, I suppose, owned a bluey would suggest whether anyone seriously could suggest that you could use 10 blueys within a single calendar year.

PN798

On that basis we submit that - and I should say that the contemporary industrial standard as we've referred to, in clause 5.5.5 of the drafting award provides for direct reimbursement of special clothing for any employees required to work in normal conditions, therefore the demand for all clothing to be provided, or required for the job free of charge and then in addition on a six monthly basis, the five overalls, five blueys and five pairs of safety boots is clearly, we submit, not genuine. There is no prospect for it being obtained within the framework of negotiation, conciliation or arbitration and therefore it should be struck from the log.

PN799

The next matter that we take issue with and object to is the hours of work contained in the demand, Commissioner, and that's at clause 17. This is a matter that we have addressed in schedule A and was a matter that was struck down as fanciful by Commissioner Bacon at paragraph 58. And I just note that the finding there was by the Commissioner that there was no prospect that such a claim is achievable in the foreseeable future. We can only repeat that we rely on our earlier submissions in relation to that clause.

PN800

The next claim that is listed as an objection on the grounds of fanciful, Commissioner, is claim 18, shift work. For your reference, Commissioner, that was claim 26 in the APESMA log, and it was struck down in paragraph 59 of Commissioner Bacon's decision in Airly Coal. We have addressed it in terms of schedule A, and I do not repeat that. However, there is one difference that I thought I should draw to your attention. The claim that was addressed by Commissioner Bacon on the APESMA log had an all purpose minimum of $50 a week. You will note the shift work claim that is contained in the current log that is before you, in the third paragraph is an all purpose minimum of $500 per shift in addition to normal shift rates. So that apart from the fact that there is a tenfold higher allowance sought in this matter or this log as opposed to the one that was considered by Commissioner Bacon, the terms are, we say, we respectfully submit that on the basis of the principles and the submissions we've already made in relation to this clause, that this clause should be struck out, this demand should be struck out in its entirety.

PN801

The next objection is taken to demand 19, which is the overtime demand, Commissioner. You will see that that demand seeks that all overtime shall be paid for at quadruple the rate for the day on which the overtime is worked with a minimum payment of six hours. The working of overtime shall be at the discretion of the employees. Where an employer requests an employee to work overtime the employee shall be paid in addition the minimum payment of $1000 per overtime shift worked. Now, it's unclear whether the minimum payment of $1000 per overtime shift is in addition to the quadruple rate of the day, but I only mention that, and I don't think much turns on that aspect.

PN802

Again, on the basis of the principles concerning genuine claims that we have referred to it's our respectful submission that - - -

PN803

THE COMMISSIONER: What part of Action, Food Barns do they talk about overtime?

PN804

MR BOATSWAIN: They don't talk about overtime, they talk about the test by which you assess - - -

PN805

THE COMMISSIONER: Well, they're general tests. I mean, when you put - you see, I think I raised that with you on the last occasion because quite often throughout the schedule you refer to Electrolux, and I think I said to you on the last occasion, well, where in Electrolux is that particular issue? I think I was talking about travelling time on that occasion, and I said to you, well, where in Electrolux is the travelling provision in the log? And I think we ended the session earlier, and I think you said, well, you would address that.

PN806

MR BOATSWAIN: The Electrolux issue I'll deal with separately and, as I've indicated, it's a similar approach. What I have attempted, Commissioner, is to set out the general propositions that have been established by the High Court as the appropriate test to assess whether a particular demand is genuine or not, and that I do not suggest that in - - -

PN807

THE COMMISSIONER: You're not going to take me to the Full Bench in Electrolux when they talk about Portus or when they talk about Alcan, particular sections? You're just saying generally re Electrolux, and you'll get the general thrust of it, and that's what we say applied to this log?

PN808

MR BOATSWAIN: No, Commissioner. When it comes to the matter pertaining ground, where there is a specific reference that addresses a particular aspect of the demand, remember I indicated to you in my submissions to you I would direct you to those particular passages.

PN809

THE COMMISSIONER: All right. So when you talk about sick leave, claim 26, sick leave, accident pay, and you rely upon Electrolux as not pertaining, you don't give me a page number of that High Court decision. But when you get to claim 26 you would take me to Electrolux.

PN810

MR BOATSWAIN: Correct. And I should indicate that - - -

PN811

THE COMMISSIONER: No, that's fine, that will be fine.

PN812

MR BOATSWAIN: But in respect of your question in relation to the fanciful aspects, the approach that we submit is appropriate is that each one of the demands must be measured against the test as laid out by the High Court as to whether this is a genuine demand. And so that when I refer to the general principles they are the ones that I have referred to in TOMAGO1 which I referred to.

PN813

THE COMMISSIONER: And nothing further in the decision.

PN814

MR BOATSWAIN: No.

PN815

THE COMMISSIONER: If it's not outlined in the beginning of TOMAGO1 in your submissions then there is no other part of that particular decision that you seek to take the Commission to?

PN816

MR BOATSWAIN: No. It's the TOMAGO1 supplemented by the test for genuineness that is set out in the Thiess Contractors. So what I've set out in TOMAGO1 in those paragraphs I've mentioned - - -

PN817

THE COMMISSIONER: Yes, that you have taken me to.

PN818

MR BOATSWAIN: And that passage that I took you to in the Thiess Contractors, they set out what the tests are, what the job principles are. As indicated at the commencement of this matter, they have established an approach where the Commission must assess the genuineness of demand by having regard to the terms of the log measured as a matter of fact in each case, and evaluated I suppose objectively against the evidence which is presented against any inference and having regard to the terms themselves, and against the Commission's own specialist knowledge and experience of what are general industrial standards and general patterns of industrial regulation.

PN819

You will remember in TOMAGO1 I made reference to the fact that we nominated as a basis for comparison to the industrial standards or general industrial regulation for example, the drafting award which they're trying to rope - the metal workers are trying to rope Tomago into by this log of claims. Now, for example, if there is a claim for, as we've just referred to, formal - - -

PN820

THE COMMISSIONER: Well, that's not before me though, Mr Boatswain, is it?

PN821

MR BOATSWAIN: I get your pardon?

PN822

THE COMMISSIONER: Do I have that? I don't have an application to rope into a particular award, do I, from the AMWU? I know I had a few files last year in relation to an issue of that nature.

PN823

MR BOATSWAIN: Well, there's no application, but the union's submissions attach the process by which authorisation and the log of demands, for the log of demands to be made. In that document there is a reference to the log being sought for the purpose of roping into the draft award.

PN824

THE COMMISSIONER: Yes, thank you. You've answered my question.

PN825

MR BOATSWAIN: Thank you. Again, when we refer to the principles set out in Attorney General, Western Australia and Riordan, which is what we've referred to as Action Food Barns, it is the application of general test and applied to each of the demands that have been made, and that is an approach that has been required because of the non aggregation principle that we've discussed earlier this afternoon. What claim are we up to?

PN826

THE COMMISSIONER: Claim 19.

PN827

MR BOATSWAIN: Claim 19, thank you. And as I was submitting, the claim for overtime being on quadruple rates for a minimum of six hours at the discretion of the employee together with an additional payment of $1000 per overtime shift worked, must be viewed we submit as a whole, that is the whole overtime claim. It does not reflect the reality of contemporary industry standards. Again, by reference to the drafting award, the provisions for overtime reflect the traditional standards, we would submit, Commissioner, of one and a half times for the first three hours worked and double time thereafter and double time on Sundays. There is no additional loading of any kind, and the working of overtime is at the requirement of the employer with an obligation on the employee to work reasonable requests for overtime. That's clause 6.4 of the drafting award.

PN828

The similar traditional rates that I've just outlined and described are also contained in the Clerks Award which is at clause 20 of the Tomago Clerks Award which I tendered to the Commission on the last occasion. On the basis of considered in light of the industrial standards we'd respectfully submit that the demand for quadruple rate each day of a minimum of six hours, $1000 per overtime shift and the working of overtime being at the discretion of the employee is fanciful, it is not genuine within the principles established by the High Court. It is beyond the scope of the ambit doctrine and therefore there is no prospect that it will be achieved through the framework of negotiation, conciliation or arbitration and should be struck from this log in its entirety.

PN829

The next matter refers to claim 20, which is the stand by allowance. The demand in the log of claims is that the employees who are required to hold themselves in readiness to work after ordinary hours shall until released be paid standing by time of triple time in the time the employees are required to hold themselves in readiness. Again, Commissioner, we submit that this does not reflect the contemporary industrial standards, it does not reflect reality, there is no prospect that such a demand of triple time will be achieved through the framework of negotiation, conciliation or arbitration.

PN830

There is in the drafting award at clause 6.4.4 a stand by allowance is paid at the ordinary rate of pay. There is no such stand by allowance contained in the Clerks Award. A claim for triple time we submit is beyond the scope of the ambit doctrine and therefore cannot give rise to an industrial dispute and should be struck from the log. On a similar basis, Commissioner, I should indicate we did not list this in schedule C as an objection, but we also raised for the same reasons the call back allowance which is demand 21.

PN831

THE COMMISSIONER: So there's another objection there?

PN832

MR BOATSWAIN: There is.

PN833

THE COMMISSIONER: There's another claim?

PN834

MR BOATSWAIN: There is, Commissioner.

PN835

THE COMMISSIONER: So you seek to amend the submissions?

PN836

MR BOATSWAIN: We do. It's a very short submission.

PN837

THE COMMISSIONER: All right. Well, I take it that schedule C are the claims that are objected to.

PN838

MR BOATSWAIN: They are.

PN839

THE COMMISSIONER: So on the document, on schedule C in attachment TOMAGO1 you seek to amend page 3 of that schedule to include clause 21, call back allowance?

PN840

MR BOATSWAIN: I do. And the basis of the objection is the same as I've just advanced for stand by allowance. You will note that claim 21 is that an employee called back to work after ordinary hours shall be paid a minimum of six hours at the rate of quadruple time. Such payment shall include all travelling time to and from the employer's premises. It's our submission on the same basis that we have just referred to on the stand by allowance that such a demand does not reflect reality and does not reflect the contemporary industrial standards, and accordingly it is not genuine within the meaning of the principles. Accordingly it does not have any prospect to be obtained in the framework of negotiation, conciliation or arbitration, in particular the fact that there is no equivalent provision contained within either the drafting award or the Tomago Clerks Award.

PN841

The fact that the demand should also include travel time to and from the employer's premises at the quadruple rate is also covered by the same submissions and therefore we submit that the entire demand in claim 21 should be struck from the log. The next objection is taken to clause 22, the meal breaks, on the ground they're fanciful. The demand contained in clause 22 of the AMWU log, Commissioner, is that no employee will be required to work for more than three hours without a break for a meal of a minimum of one hour, which shall count as time worked, but at the option of the employee a longer meal break may be taken.

PN842

It is our submission, Commissioner, that that claim seen as a whole or even broken down to the elements contained within it would be regarded as exceedingly excessive, as not genuine as it lacks any relevant industrial reality. To suggest that there is a minimum one hour break for each three hours worked, where the employee has the option of taking a longer meal break is something that just cannot be achieved and will not be achieved through the framework negotiation, conciliation or arbitration.

PN843

There is no provision, in this provision, in any of the relevant awards that we've referred to. There is a provision entitling a meal break where there has been five hours overtime worked in the drafting award, and that's obviously a 38 hour week in circumstances of a 30 minute break to a maximum of one hour and after five hours overtime. So again viewed as a whole it's our submission that clearly this demand is beyond the scope of the ambit doctrine and should be struck out in its entirety.

PN844

The next clause we take objection to in schedule C is 23, the rest clauses. The demand contained in the log is that every employee shall be entitled to a paid rest pause of 30 minutes duration in the employer's time for each hour of employment.

PN845

THE COMMISSIONER: Sorry, Mr Boatswain, please continue.

PN846

MR BOATSWAIN: Again, Commissioner, it is our submission that the relevant principles applied to such a demand must lead to a conclusion that such a demand is not genuine. It is so excessive, so unrealistic that there is no prospect that it will be obtained within the framework of negotiation, conciliation or arbitration. Clearly it is simply beyond the scope of the ambit doctrine. It should be noted that this is in the context of a demand for a 25 hour working week. On the face of the rest pause that will reduce the working week to 12.5 hours, and that's even if you exclude the claim for a meal break. We respectfully submit that this claim would be considered to be unachievable and should be struck out in its entirety.

PN847

The next claim to which objection has been taken is the annual leave clause. Again, Commissioner, this is a matter which I addressed you in terms of schedule A, having been the same clause or similar clause struck down as fanciful by Commissioner Bacon at paragraph 60. I do not wish to repeat, but do rely on the submissions I made previously in relation to that matter, but there is just one additional matter that I think I should raise with you in response to some observations you made and questions you made in relation to this matter on the last occasion, or this demand on the last occasion.

PN848

You will recall, Commissioner, the demand here is that all employees shall be entitled to 10 weeks annual leave for each 12 months and an additional five weeks for shift workers. The second sentence or paragraph provides that all employees shall be paid for such leave at a rate equivalent to the highest rate of pay the employee received in the preceding period before going on leave. And the next one, the next paragraph talks about annual leave loading of 25 per cent. You may recall, Commissioner, that you addressed me in terms of Commissioner Bacon's decision, that is, reference to the annual leave clause contained in the APESMA log, which is clause 31. The only difference was it referred to a rate of 325 per cent.

PN849

In that regard, Commissioner, I'll just draw your attention to the shift work demand that is contained in claim 6 of the AMWU log, and remind you that the rates that are claimed in clause 6 are for treble and quadruple rates.

PN850

THE COMMISSIONER: Claim 6?

PN851

MR BOATSWAIN: Claim 6 of the - - -

PN852

THE COMMISSIONER: The training allowance? I'm sorry, the APESMA log are you talking about?

PN853

MR BOATSWAIN: No. Bear with me for one moment. I may have written down the wrong clause. I do apologise, Commissioner. It's clause 18, I should apologise. Clause 18, and I don't wish to dwell on this other than the fact that you will see that the first claim in claim 16 is that all employees shall be paid treble time for all shifts worked Monday to Friday, shift work performed Saturday, Sunday or a holiday is quadruple time.

PN854

Now, in that context the second paragraph of the annual leave demand is claim 24, is that the employees taking leave will be paid at a rate equivalent to the highest rate of pay the employee received in the preceding period before going on leave. From your own experience of the Tomago site, Commissioner, you would be aware that it's a predominant form of work is conducted by shift work, therefore the demand that the employee will be paid at the highest rate equivalent, effectively because of the shift work demand constitutes either 300 or
400 per cent of the ordinary rate. When you add the loading of 325 per cent that will convert it to 325 per cent or 425 per cent, depending on which was the highest rate that the employee worked.

PN855

So that read in that way, Commissioner, there is no distinction between the clause, the APESMA clause that was considered by Commissioner Bacon and the demand that is currently before you. Although it's expressed slightly different the effect is the same. In fact, the potential is for a higher rate of leave to be payable to an employee if they are a shift worker who had worked at least one weekend or one public holiday.

PN856

The next demand that we have objected to, Commissioner, is claim 25, the public holidays, Saturdays and Sundays. It is submitted that this demand considered in its entirety is not genuine. You will see that the demand is that all employees shall be entitled to 30 days in each year as paid holidays, two of which shall be union days, union picnic days. When I indicated, Commissioner, and talk about the paid holidays, I think it would be appropriate to obtain the context of those holidays from the heading of the demand being public holidays, and they're seeking 30 public holidays a year, two of which will be union picnic days.

PN857

The second paragraph of that demand is that any employer who terminates the employment of an employee for whatever reason shall pay the employee a day's ordinary wages for each holiday which falls within 28 consecutive days after the date of termination. There is then a third paragraph, demanding quadruple time shall be paid for all work performed on Saturday, Sunday and public holidays. I must say I struggle to make the connection between that demand being placed in that clause and earlier demands which I've referred to as in shift, but in any event the demand is there so we have to address it.

PN858

It's our respectful submission, Commissioner, that by any standard a demand for 30 days public holidays is excessive and will not be considered as genuine. It is clearly beyond the scope of the ambit doctrine and certainly is not reflective of industrial reality. For example the drafting award provides 11 days public holidays, which is clause 7.5, as does the Clerks Award in clause 26 of that award. It also would be open to you, Commissioner, to take into account that traditionally there has been little movement in the number of public holidays enjoyed in, for example, New South Wales for a very long time.

PN859

The only adjustments that I am aware of are for single days that have been reflected by the change in the treatment of Anzac Day for example, where it fell on the weekend, the Monday - if it falls on a Sunday the Monday normally is now a public holiday, and equally some adjustment by the government around Christmas time, where there has been situations where Christmas Day has fallen on a Sunday. But in circumstances where we're talking about adjustments of one or two days over many decades, a suggestion that there should be a claim of more than 2.5 times an increase in the industrial standard in any measure must be, we respectfully submit is simply excessive.

PN860

Equally it is excessive and beyond the scope of ambit doctrine to suggest that the employer should be paying for an employee public holidays which fall 28 days after the date of termination. We note that the demand is for termination for whatever reason. So it would appear this demand would suggest that even if an employee was dismissed for serious and wilful misconduct the demand would require that the employer would be bound to pay for any public holiday or each holiday which fell within 28, or roughly four weeks after the date of termination. We suggest that such a demand is clearly beyond ambit. It would not be considered to be genuine within the principles that have been established and therefore should be struck from the log. The next matter that we have listed in schedule C, Commissioner, is claim 28.

PN861

THE COMMISSIONER: I'm sorry, did you do sick leave?

PN862

MR BOATSWAIN: We've listed sick leave as an objection not pertaining - - -

PN863

THE COMMISSIONER: I see what you mean, yes. Yes, you're doing fanciful, yes.

PN864

MR BOATSWAIN: I thought that was just the easier way of doing - - -

PN865

THE COMMISSIONER: No, that's fine. I do remember you mentioning it to me, that's all. So the next?

PN866

MR BOATSWAIN: Is claim 28, the maternity, paternity and adoption leave clause. That is a demand that all employees shall be entitled to paid leave of absence for up to 24 months on each occasion of the birth of a child of an employee or the adoption or fostering of a child by the employee. The employee shall be paid during such absence at the rate of pay he or she would have received if he or she had been at work. In addition further leave without pay shall be granted on a request of the employee. All leave under this clause shall count as service for all purposes. All employees will be entitled to return to the same job and work reduced hours if sought at the same rate of pay.

PN867

The demand which is 28 of the AMWU log is the equivalent of claim 41 in the APESMA log, and it was addressed in paragraph 42 of Commissioner Bacon's decision. I do apologise, it was dealt with in paragraph 66 of Commissioner Bacon's decision. In the Commissioner's decision he was of the view that a demand that all 24 months be paid tips the balance to the conclusion that this claim is fanciful. We would submit that that finding would also be one that you would make in relation to this particular demand.

PN868

One of the matters that you would take into account, Commissioner, is that the
24 months paid leave of absence certainly exceeds the current contemporary industrial standards, particularly the notion that the paid leave will also count as time for the purpose of accrued entitlements. Equally to the extent that further leave without pay shall be granted upon the request to the employee, I have interpreted that to mean that that would be at the discretion of an employee. It is also, we respectfully submit, fanciful and not a genuine demand to suggest that employers would lose the ability to have any input in respect of the return to work following an agreed period of maternity or paternity leave.

PN869

It is our respectful submission that similar to the approach adopted by Commissioner Bacon that the demands are so fanciful that they cannot be severed and that as they are not genuine and are extraordinarily excessive that they have no prospect of being achieved through the framework of negotiation, conciliation or arbitration. The clause, or the demand in its entirety should be struck from the log. The next matter that objection is taken to is demand 29, the special family leave provision. The demand that is contained in demand 29 is that all employees shall be entitled to paid leave from work for special family leave purposes, including to care for sick children, meet with the child's school requirements or school closed periods.

PN870

I should not, Commissioner, that this claim is in addition to all of the other leave that has been sought within the log of claims. It is our respectful submission that this demand is not reflective of industrial reality and as such the claim is beyond the scope of the ambit doctrine. When it is compared with the drafting award for example, that award provides for what is probably a more traditional approach of carer's leave being available within the personal leave provisions of that award and provides that up to 40 hours paid carer's leave is available for an employee to care for sick members of its immediate family. And you will find that in clause 7.2.6 of the drafting award.

PN871

There is a similar provision contained in the Clerks Award which is found at clause 23. It's relevant, Commissioner, when you contrast the limitation both in terms of hours, the fact that it is found within the existing personal leave provisions and adopts the industry standard of being available to be applied to care for sick members of the immediate family, the unlimited scope of the demand 29, and you will note that there is no restriction on time at all, which is contrasted to the APESMA log which, I must say, I believe had a 10 day limitation which was interesting, but here it is unlimited and it's not restricted in any way to the immediate family, but it goes further in relation to child's school requirements or school closed periods. We respectfully submit that such a demand is well beyond the scope, has no prospect of being achieved through the framework of negotiations and arbitration and accordingly should be struck from the log.

PN872

The next matter to which we have taken objection in schedule C, Commissioner, is claim 30, compassionate leave, and that is a claim that an employee shall be entitled to 60 days leave without loss of pay during each year of service, such leave be granted by the employer being notified of death or serious injury either inside or outside of Australia of a relative, including a de facto spouse and his or her children of an employee. There is then a provision providing for reimbursement to the employee for all travel expenses and accommodation costs associated with the taking of such leave.

PN873

Commissioner, this was addressed in terms of Commissioner Bacon's decision in reference to schedule A. It's claim 43 of the APESMA log considered at paragraph 67 of Commissioner Bacon's decision. The Commissioner found in that matter that the claim was fanciful. It was, in his words:

PN874

It was over the top and cannot give rise to industrial dispute.

PN875

On the basis of consistency and in relation to the principles we previously addressed it is our view that, or we submit that you would reach a similar finding and would strike that claim from the log as well. The next objection on the grounds of fanciful is the special leave demand which is demand 32 of the AMWU's log of claims. This is equivalent of claim 45 of the APESMA log, and is addressed at paragraph 68 of Commissioner Bacon's decision, again where he held that the claim was fanciful. Again we do not repeat our submissions previously made in relation to this clause and adopt our earlier submissions, that this clause for the reasons advanced would not be considered to be genuine and therefore cannot give rise to industrial dispute within the meaning of the Act, and should be struck from the log.

PN876

The next claim that we have objected to in schedule C is claim 33, which is the leave without pay demand. That demand provides that all employees shall be entitled upon request to leave without pay up to a maximum of two years at any one time. The period of such leave shall count as continuous service for all purposes. We submit that this claim, in particular the second sentence, would not be considered genuine. It would be considered beyond the scope of the ambit doctrine and would not be capable of giving rise to an industrial dispute within the meaning of the Act.

PN877

Of particular note is that the right to leave without pay is provided to the employee. There is no right of the employer to withhold such a request. Furthermore, the demand that the period of any leave without pay would count as continuous service for all purposes is also not reflective of industrial reality and is an element of a claim that would not be likely to be achieved through the framework of negotiation, conciliation or arbitration, and therefore beyond the scope of the ambit doctrine.

PN878

For the reasons of a clause with both of the sentences that comprise that demand we would submit that it cannot be severed and the demand should be struck from the log. The next matter that was listed as fanciful, Commissioner, was claim 34, the conciliation and arbitration leave, and this was a matter that we addressed in the context of schedule A on the previous occasion based on the decision in Airly Coal at paragraph 68 of the Commissioner's decision. Commissioner, having had the benefit of looking at the award - sorry, the log that was considered by the Commission, we have been able to realise that that submission cannot be made and we withdraw that submission. That is to the extent to which we rely on the decision of Commissioner Bacon at paragraph 68 of his decision.

PN879

You may recall, Commissioner, there was some discussions that we had in relation to - there were effectively three elements, or three claims were dealt with in the one paragraph. Referring to paragraph 68 he talks about claim 45, this is the 30 days special leave, and makes the finding it's fanciful, and then he says:

PN880

As is the claim 72.4.1 for 20 days paid leave per year to attend meetings, including stop work meetings.

PN881

It is my mistake that I regard that as being equivalent to the conciliation and arbitration leave.

PN882

THE COMMISSIONER: I'm sorry, I missed that.

PN883

MR BOATSWAIN: I said it was my mistake that in my submissions based on the review of the decision in Airly Coal, comparing it with the log of demands that is before you in AMWU, I regarded or considered that the claim 72.4.1 that is referred to in the third sentence of paragraph 68 of the Commissioner's decision was in relation to the equivalent of clause 34 of the AMWU demand, having access to the actual log, was able to establish that that is not the case. So to the extent that I rely on consistency and in respect of finding in that third sentence to the 20 day paid leave claim, 72.4.1 of the APESMA log, I withdraw that submission. I apologise to the Commission.

PN884

THE COMMISSIONER: But you still maintain your submission in regards to the leave itself?

PN885

MR BOATSWAIN: Yes, I do.

PN886

THE COMMISSIONER: So you still object to claim 34?

PN887

MR BOATSWAIN: Yes, I do, on the basis of all the matters I addressed you on, on the previous occasion, absent the connection with clause 68 of - sorry, paragraph 68 of Commissioner Bacon's decision. Just bear with me for one moment. I should indicate, if you refer to 46, clause 46 of the APESMA log, and I don't - - -

PN888

THE COMMISSIONER: 46 or 72?

PN889

MR BOATSWAIN: What is TOMAGO4 is now the APESMA log. I was just going to address, Commissioner, that claim 46 of the APESMA log was titled Arbitration Leave. I don't require you to go to that at the moment. It differs from the conciliation and arbitration leave claim that is in the AMWU log in that the APESMA log was addressed to proceedings under the Workplace Relations Act or before other recognised industrial relations tribunal to assist in the research or preparation of material associated with those proceedings. The claim which is demand 34 of the AMWU log is not so restrictive. It provides that an employee shall be granted paid leave to attend proceedings under federal or state industrial relations legislation and to assist in the research and preparation of material that may be required under federal or state industrial relations legislation.

PN890

Therefore the demand which is currently before you is not restricted to proceedings involving the employer. In fact, the research and preparation of material is in fact not limited to proceedings before conciliation and arbitration.

PN891

THE COMMISSIONER: Well, it's the only difference really, isn't it, that the APESMA claim 46 is specifically addressed to the Workplace Relations Act 1996. The rest of the terminology of the clause is very similar to claim 34 in the AMWU log. The AMWU log has got federal or state.

PN892

MR BOATSWAIN: No. There's a more significant - and I should say 46 talks about the Workplace Relations Act or any other recognised industrial relations tribunal or panel.

PN893

THE COMMISSIONER: Or any other recognised tribunal.

PN894

MR BOATSWAIN: But the significance is then following. It says then to assist in the research and preparation of material associated with those proceedings where the current demand - - -

PN895

THE COMMISSIONER: Is to assist in the research and preparation of material that may be required.

PN896

MR BOATSWAIN: That may be required under federal or state industrial relations legislation. It's my submission that that does not necessarily tie it to the proceedings. There may be requirements for the union that they may ask for an employee to undertake research totally unrelated to any proceedings before the Commission. That is a possibility on the drafting of this clause. The difference in the drafting in preparation of this demand, and we would submit that that is a significant variation. In that respect we suggest - we submit that tips this clause, or this demand across the line so to speak as to a demand that is fanciful and not genuine within the meaning of the Act.

PN897

The next demand that we object to is demand 35, the study and training leave. That is claim 47 in the APESMA log, which is dealt with at paragraph 68 of Commissioner Bacon's decision. Again we do not repeat our submissions other than to rely upon those. The only difference between the two is that the demand that's currently before you has in addition to employees undertaking training leave will be paid a minimum of $100 per day in addition to all other payments. Secondly, it is again unclear from the face of the document that the study leave and training leave is not restricted to the profession, if we use that term, that the employees engage with on behalf of Tomago.

PN898

We again would suggest that those differences are factors that increase the accessibility, if I can use that term, or the fancifulness of the demand, and renders this demand even more excessive and fanciful than the one that was struck down by Commissioner Bacon at paragraph 68 of his decision. The next matter that we take objection to is demand 38 of the log of claims which is before you, Commissioner. That is headed Contract of Employment. And in particular we look at - for the purpose of fanciful we look at the second paragraph, the sentence which reads:

PN899

Employees shall be entitled to retire at the age of 40 years with full entitlement to benefits.

PN900

It's our respectful submission that a demand that requires or entitles an employee to retire at the age of 40 and obtain full benefits is a matter that is beyond the scope of the ambit doctrine. It does not reflect contemporary industry standards and, in fact, is contrary to the developing concepts and issues of skill retention that is standard currency in the Australian economy, and in particular the concept of utilising the skills of an ageing work force. A claim that provides for retirement at 40 with benefits we respectfully submit is beyond the scope of the ambit doctrine, will not be obtained by the framework of negotiation, conciliation or arbitration, and as such is not capable of giving rise to industrial dispute within the meaning of the Act and should be struck from the log.

PN901

The next demand which is objected to on the grounds of it being fanciful is claim 39, the recognition of prior service. That demand provides that:

PN902

For the purpose of calculating an employee's service, the period with the employer, all periods of employment with any previous employer shall be deemed to be service with the employer.

PN903

This particular demand is in the same terms as claim 60.2 of the APESMA log which was addressed by Commissioner Bacon at paragraphs 70 and 71 of his decision. The Commissioner in regards to that log did not strike it out, Commissioner, but on the basis that there was a history in the coal industry for the purpose of long service leave of portable long service. In fact, at paragraph 71 of his decision the Commissioner notes that:

PN904

The employer submits that this claim is fanciful. In considering the claim on its face one might quickly agree.

PN905

Then he goes:

PN906

However in the coal industry -

PN907

And without reading on he talks about the principle of portable long service leave which has been in place for about 50 years. Commissioner, we respectfully submit that the absence of any history of portable long service in the aluminium industry would restore the initial response of Commissioner Bacon and that, we would respectfully submit, in the absence of any history of portable long service that this claim would be considered to be fanciful within the meaning of the relevant principles beyond the scope of the ambit doctrine, and cannot give rise to industrial dispute.

PN908

In that respect, Commissioner, the demand that is before you in claim 39 is not one which is restricted to employment within the aluminium industry. It is any employment undertaken previously by an employee. We suggest that such a provision is one which cannot - sorry, I withdraw that. We respectfully submit that is a demand which has no prospect of being obtained through the framework of negotiation, conciliation or arbitration, and therefore cannot give rise to an industrial dispute, and the demand should be struck from the log.

PN909

The next matter which was objected to was demand 41, and that is a claim of reinstatement. The reinstatement provision is equivalent to the claim 68 in the APESMA log. It is a demand that:

PN910

The employer shall not dismiss any employee whether or not such dismissal takes place before the making of any award or agreement made in settlement of the log of claims.

PN911

The second paragraph:

PN912

The employer shall reinstatement forthwith any employee dismissed whether or not such dismissal takes place before the making of any award or agreement made in settlement of the log of claims, and shall pay the employee any wages lost as a result of dismissal.

PN913

Again, Commissioner, this is a matter that we have addressed as part of schedule A, and addressed at paragraph 69 of the decision of Commissioner Bacon. Again, Commissioner, having access to the actual log of claims in APESMA suggests that that connection in that submission is incorrect, and I withdraw it.

PN914

THE COMMISSIONER: What paragraph of the Commissioner's decision?

PN915

MR BOATSWAIN: Yes. I take you to - - -

PN916

THE COMMISSIONER: I just need the number. I didn't pick it up.

PN917

MR BOATSWAIN: Just bear with me one moment and I'll make sure. It's 69. It refers to - and it's significant, and I'll just take you to this aspect - 69 of Commissioner Bacon's decision reads:

PN918

Claim 60.1 removes from the employer the right under any circumstances to terminate an employee's employment. I do not intend to make light of the claim but the observation is generally made that it is not my expectation that the coal mining employers will give up their right to terminate employment during my lifetime, nor do I think it's likely the Commission in the foreseeable future will remove from employers such a fundamental right. The claim is unrealistic and fanciful.

PN919

It is on the basis of the reinstatement clause giving effect to that, effectively the removal of that right, that I made an assumption. That assumption is incorrect. There is a difference between the two, although I should say that the reinstatement clause does appear in the APESMA log. Significantly claim 60.1 of the APESMA log differed from the AMWU log in a material way, in that 60.1 of the - clause 60 of the APESMA log was headed Contract of Employment. 60.1 provided:

PN920

Unless the employee and the union agree otherwise an employee is employed permanently subject to the employee's right to terminate the employment at will.

PN921

Now, there were various submissions made in relation to that clause, and it was accepted that that gave rise to a removal of the right to terminate. Such a provision is not contained in the AMWU log which is before you. In fact, the proceedings before Commissioner Bacon did not in fact address the equivalent to paragraph 41 of the APESMA log, it would appear, because the findings had already addressed that issue in terms of the demand 60.1.

PN922

We respectfully submit that to the extent that demand 41 of the AMWU log does purport to remove the capacity of the employer in this industry to dismiss an employee, we submit that the observations made in paragraph 69 by Commissioner Bacon's decision remain valid. We respectfully submit that it would be fanciful to suggest that employers would forego the right to dismiss an employee, particularly in circumstances where that right may have been exercised before there is an award or agreement made in settlement of a log of claims. It is even further fanciful to suggest that an employer will be required to reinstate forthwith any employee dismissed, whether or not such dismissal has taken place before the making of any award or agreement, and shall pay the employee any wages lost as a result of the dismissal.

PN923

The second paragraph appears to impose an obligation for employers to reinstate employees who were dismissed for serious and wilful misconduct prior to the log being served. It is our respectful submission that such a demand is clearly fanciful, has no prospect of being achieved by the framework of negotiation, conciliation or arbitration, and is therefore obviously and clearly beyond the scope in the ambit doctrine and cannot give rise to industrial dispute within the meaning of the Act and should be struck out in its entirety.

PN924

The next matter that we take objection to is claim 42, which is the redundancy and retrenchment demand contained in the log. This is a matter that is addressed at paragraph 73 of Commissioner Bacon's decision in respect of claim 69 of the APESMA log, which is in effect the same as which is set out here. Again we do not repeat the submissions that we have made in respect of schedule A, to the extent that the Commissioner struck out this clause. We equally submit that the various demands contained throughout 42.1, 2, 3 - there is no 4, it goes 3, 5, 6 - are not capable of being severed and therefore the claim in its entirety should be struck from the log.

PN925

The next matter to which objection is taken on the grounds of fanciful, Commissioner, is at claim 52, which is the superannuation demand. The demand provides that:

PN926

The employer shall participate in a superannuation fund ...(reads)... all employees eligible to become members of the union.

PN927

It's our respectful submission that the quantum of contribution that is sought in this demand is not reflective of contemporary industry standards, in fact represents what some might suggest, almost a 300 per cent increase of the standard requirements. It is a matter where movements in the standard entitlements for contribution to superannuation have moved in single digit percentages over the past decades. It is our respectful submission that a demand of 30 per cent of the weekly wage for each employee is a demand that is beyond the scope of the ambit doctrine, and is so excessive to be lacking in reality and therefore there is no prospect of it being obtained through the framework of negotiation, conciliation or arbitration, and therefore cannot give rise to industrial dispute and as such it should be struck out in its entirety.

PN928

Again we'd seek leave to amend the objections to add one additional objection on the ground of fanciful, and that relates to claim 55, parking of vehicles. Commissioner, I should apologise that this aspect has slipped through with all the detail that's contained in the demand, in particular the second sentence of that demand where it states:

PN929

All times required to park vehicles shall count as and be paid for as time worked.

PN930

It's our respectful submission on the basis of the various principles and having reference to industrial standards, a suggestion that time required by an employee to park his or her vehicle should count as and be paid as time worked is excessive, sufficiently excessive to take it beyond the scope of the ambit doctrine. It has no prospect of being obtained through the framework of negotiation, conciliation or arbitration and therefore cannot give rise to an industrial dispute. Equally the demand that an employer shall fully insure the employee's vehicle so parked against loss or damage, is a matter we also suggest is equally fanciful for the reasons that we have advanced. It is not a demand that is reflective of industrial standards, and one which we say is unlikely to be achieved through the framework of negotiation, conciliation or arbitration, and accordingly it should be struck out, struck from the log.

PN931

The next demand that we object to on the ground of fanciful, Commissioner, is demand 63, which is headed Retirement Severance Pay. That demands provides:

PN932

Employees who retire or upon leaving the service of the employer shall be entitled to payment of six weeks wages for every completed year of service (this payment shall be additional to any long service leave or superannuation entitlements.)

PN933

It's our respectful submission, Commissioner, that based on the statement of principles that we've outlined, that you would be of the view and come to the conclusion that such a demand is unlikely and will not be capable of being obtained through negotiation, conciliation or arbitration. It is not reflective of any contemporary industrial standard and has no prospects of being achieved. To suggest that there would be six weeks wages for every completed year of service in addition to long service leave or any other superannuation entitlement in the circumstances of retirement is a matter that we submit is so excessive as to be beyond the scope of the ambit doctrine, therefore it is not genuine and cannot give rise to industrial dispute. The demand in its entirety should be struck from the log of claims.

PN934

Commissioner, that's the extent of the objections that we take on the ground of fanciful to the log of claims. I do note the time. It would be, in my submission, appropriate for the objections to the matters pertaining to commence tomorrow morning.

PN935

THE COMMISSIONER: How long will you require tomorrow, Mr Boatswain?

PN936

MR BOATSWAIN: I haven't actually timed it. I would say that I would require at least an hour to address the matters pertaining principles.

PN937

THE COMMISSIONER: I would have thought you required more than an hour for your submission.

PN938

MR BOATSWAIN: Probably more. A couple of hours I'd say should finish the matters that I wish to raise, Commissioner.

PN939

THE COMMISSIONER: Mr Boyce, you won't be presenting any submissions tomorrow I gather? I thought we checked that this morning.

PN940

MR BOYCE: That's correct, Commissioner, yes.

PN941

THE COMMISSIONER: I thought I'd just confirm that. Yes, thank you. And, Ms Booth, how long will you be in your reply?

PN942

MS BOOTH: Commissioner, I will attempt to be as succinct as possible, but it will be quite proportional to what additional comments Mr Boatswain has to make tomorrow about matters pertaining, how much evidence I need to actually provide in response to his - - -

PN943

THE COMMISSIONER: Evidence or submissions?

PN944

MS BOOTH: Sorry, submissions, Commissioner. So I would hope that it would not take more than one or two hours. Certainly if Mr Boatswain needs to raise significant matters tomorrow morning I imagine it would take me longer to address them.

PN945

THE COMMISSIONER: I think my query wasn't so much, I suppose, in regards to whether you would be one hour or two hours. My query - and thank you for that - my query was the concern that we wouldn't finish. That's why I wanted to ask you. But on that basis I'm sure we will finish tomorrow. Yes, Mr Boatswain?

PN946

MR BOATSWAIN: I'm sorry, Commissioner. I was just going to indicate I would be confident we would be able to finish the matter tomorrow.

PN947

THE COMMISSIONER: Yes. I mean, at the very most, Mr Boatswain, you would be finished before a luncheon adjournment, and quite possibly a fair way before that, and Ms Booth should be able to be finished in the afternoon with her reply. I don't think there was anything else. We'll adjourn until 10 o'clock tomorrow.

<ADJOURNED UNTIL THURSDAY 21 JULY 2005 [4.12PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMMA1 SUBMISSIONS ON BEHALF OF AUSTRALIAN MINES & METALS ASSOCIATION PN652
EXHIBIT #TOMAGO4 LOG OF CLAIMS IN AIRLY COAL DECISION PN748