C2005/2432, Transcript of Proceedings [2005] AIRCTrans 1680 (10 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12369-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2005/2432 C2005/2433

VOPAK TERMINALS AUSTRALIA PTY LTD
AND
NATIONAL UNION OF WORKERS
s.99 - Notification of an industrial dispute
(C2005/2432)

VOPAK TERMINALS AUSTRALIA PTY LTD
AND
NATIONAL UNION OF WORKERS
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/2433)

SYDNEY

10.07AM, FRIDAY, 29 JULY 2005

PN1

MR N CHADWICK: I seek leave to appear for Vopak Terminals Australia Pty Ltd and with me from the company is MR KELLAWAY and MR ROGERS who is sitting on Mr Kellaway's left.

PN2

MR S MUELLER: I appear for the National Union of Workers New South Wales and with me is MS A PERKINS, the organiser for the National Union of Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: I didn't catch your name, sorry.

PN4

MR MUELLER: Mueller, M-u-e-l-l-e-r.

PN5

THE SENIOR DEPUTY PRESIDENT: Sorry, yes. Sorry.

PN6

MR MUELLER: Ms A Perkins, she is the organiser on the site and also with me on the bar table are MR W COOPER, and MR S PERKINS, both site delegates and I don't oppose leave being granted for Mr Chadwick to appear.

PN7

THE SENIOR DEPUTY PRESIDENT: Sorry, you don't oppose?

PN8

MR MUELLER: Yes, I don't oppose.

PN9

THE SENIOR DEPUTY PRESIDENT: Leave is granted then, Mr Chadwick. I should also indicate I note that the written submissions that were put to the Commission up till now have mainly focused on issues of jurisdiction. I propose however that the parties address me both on jurisdiction and also on the substance of the matter because obviously I will then to look at - I don't want to have two hearings. I will have to look at the issue of jurisdiction and if I decide that I do have jurisdiction then I want to deal with the substance of the matter, so I want to hear arguments on both. I don't want to have, you know, just a hearing on jurisdiction.

PN10

MR CHADWICK: Yes. Your Honour, what in fact I was hoping to do this morning I guess by way of introduction is in fact take the Commission in another direction. I think the Commission will understand where I'm going probably in about 10 minutes time for good reason.

PN11

THE SENIOR DEPUTY PRESIDENT: Okay.

PN12

MR CHADWICK: Really what I'm about to say really focuses on the outline of contentions which has been put by both parties, so perhaps if I can just move straight into what I was - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Okay.

PN14

MR CHADWICK: Your Honour, can I say this, we have reached an unusual juncture in the proceedings. My client filed two applications in the Commission on 11 March 2005. Both of those applications deal with the same subject matter. That is, my client sought to operate its weighbridge with a contractor which resulted in the NUW and its members who are employed as operators taking industrial action in the form of a stop work meeting on 9 March 2005. Without retracing the history of the matter since 11 March, why I say that we have reached an unusual juncture is that both my client and the NUW in having filed their respective outlines of contention agree that the Commission cannot arbitrate the matter under section 170LW because the dispute is not over the application of the agreement. In other words, the certified agreement says nothing about the operation of the weighbridge and whose job it is and I suppose, your Honour, the rhetorical question that needs to be put to the Commission this early in the proceedings today is where does that leave us now.

PN15

Your Honour, the notifications to the Commission on 11 March 2005 arose from industrial action. It appears that the NUW and its members object to my client's right to engage a contractor to operate the weighbridge. Arising from having read and digested the NUWs outline of contentions my client is seeking that the Commission do the following this morning, firstly the section 99 dispute notification is presently before the Commission. My client has filed a witness statement from Mr Kellaway which describes the history of the dispute and the operation of the weighbridge. Based on the contents of Mr Kellaway's statement and the Commission's principles concerning management prerogative we are seeking that the Commission issue a statement or a recommendation pursuant to the Commission's conciliation powers under section 99 of the Act

PN16

That is, I guess, your Honour, we're putting and asking the Commission to make that statement or recommendation or direction in two parts. Firstly, that my client is prevented from engaging a contractor to operate the weighbridge, and secondly, in the event that Vopak engages as a contractor operate the weighbridge the union and its members must comply with the disputes procedure in the agreement. If I can just pause there, what I had planned to do, your Honour, was this, subject to the Commission's view about having just made that submission, is that the Commission should have on file Mr Kellaway's statement. I was seeking to either tender that statement and have it marked.

PN17

In the event that the NUW wish to cross-examine I suppose Mr Kellaway about the content of that statement, and again insofar as understanding that this is part of the Commission's conciliation powers in respect of the matter, they could cross-examine Mr Kellaway in relation to the content of the statement and consequently I was seeking to make a very short submission arising from the content of the statement and also the Commission's principles when it comes to management prerogative. Your Honour, in putting all of that to the Commission and the reason we submit that the Commission is importantly involved and remains involved in the matter is that there remains a dispute between the parties and certainly my client very much sees a role for the Commission to assist the parties in relation to the resolution of the dispute.

PN18

In saying that can I just take the Commission very briefly to section 102 of the Act and specifically 102(1) where it says and I quote:

PN19

Where an industrial dispute is referred for conciliation a member of the Commission shall do everything that appears to the member ...(reads)... of the industrial dispute.

PN20

And what we say about section 102(1), your Honour, is this in the context of this dispute, as I said before, this dispute remains alive. My client seeks to engage a contractor to operate its weighbridge. We would submit that my client is not prevented and should not be prevented from using a contractor to operate the weighbridge and we believe as part of the conciliation powers of the Commission the Commission is not prevented from making a statement or issuing a recommendation to that effect.

PN21

The other thing we say, your Honour, is this, if I can just take the Commission to section 3(h), being one of the objects of the Act, section 3(h), if I can just go to the first part of section 3 says:

PN22

The principal object of this Act to provide a framework for cooperative workplace relations which promote the economic prosperity and welfare of the people of Australia by -

PN23

if I can just go to (h):

PN24

Enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and where appropriate and within specified limits, by arbitration.

PN25

Again, the purpose of raising that object within the Act is to again submit to the Commission that the Commission is performing a very important functional and useful role in relation to the resolution of this dispute.

PN26

THE SENIOR DEPUTY PRESIDENT: I mean in terms of the - it was raised by the union in written contentions that there has to be somewhere if you like an interstate dispute, a dispute in terms of the Act. I mean you can deal with part of a dispute that may be intrastate. I think that's fairly well established.

PN27

MR CHADWICK: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Very well established. But is there ambit if you like that this makes this part of an actual technical dispute, are you aware of such?

PN29

MR CHADWICK: Well, as I understand it - can I just get some instructions just for a moment? To answer your Honour's question and it probably doesn't deal with it directly but I was just seeking instructions about whether my client had in fact been served with a log of claims initially which would then give rise to satisfying this notion of an industrial dispute and I suppose I haven't got an answer to that as we speak. But notwithstanding - - -

PN30

THE SENIOR DEPUTY PRESIDENT: It might be an issue at some stage, depending obviously on what the other side put.

PN31

MR CHADWICK: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: You're covered by a federal award though, aren't you?

PN33

MR CHADWICK: Correct.

PN34

THE SENIOR DEPUTY PRESIDENT: So that everyone speaks on ..... at some stage.

PN35

MR CHADWICK: Yes, exactly. And on that basis we'd submit that an industrial dispute is very much alive in the context of satisfying those requirements under the Act. So what I was intending to do, your Honour, from here and I suppose it's subject to what my friend puts from here, was to tender the statement of
Mr Kellaway, deem that as read I guess on transcript and then I was just simply going to make a short submission in relation to the matters arising from
Mr Kellaway's statement and I was simply going to take the Commission to that very important passage in the XPT case in relation to management prerogative, which again for the purpose of what we're seeking the Commission do today, we submit is very important.

PN36

THE SENIOR DEPUTY PRESIDENT: Are you going to address the issue of the 170LW application, that's in relation to the 99?

PN37

MR CHADWICK: I can deal with that in short form and that is in our submissions to the Commission, that is our outline, I think we indicated to the Commission that in respect of 170LW we submitted one of two things and that is, we believe that the subject matter of the dispute is not covered by the agreement and in essence the Commission was prevented from arbitrating the matter under section 170LW. In the alternative we submitted to the Commission that if the Commission went on to find or in fact goes on to find that the subject matter is part of the certified agreement, my client was not prevented from engaging a contractor to its weighbridge by virtue of the operation of the agreement.

PN38

THE SENIOR DEPUTY PRESIDENT: Because the obvious - well, I don't know if obvious is the right word, but the question or a question might arise if you look at clause 2 of the agreement the last dot point says deals specifically with the use of outsource labour. Are you sort of saying - you're presumably saying that clause or that subclause doesn't apply to what's proposed here? It says:

PN39

Use of outsource labour to be utilised only as prescribed within the guidelines as detailed in the relevant local agreement provisions.

PN40

MR CHADWICK: Your Honour, I've just sought some instructions in respect of your question. My client submits that it was never contemplated that the operation of the weighbridge - I withdraw that. The operation of the weighbridge was never contemplated as being connected with that part of the agreement which your Honour raises. It never has been, so in that respect we don't seek to necessarily rely on that part of clause 2 to say therefore that gives the Commission the jurisdiction to have private arbitration in respect of this dispute. I trust that that answers - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Well, it sort of does. I mean, you know, you're not saying it's irrelevant, but I mean on the face of it the words are pretty clear.

PN42

MR CHADWICK: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: You know, while issues of what was contemplated or what was the mutual intention of the parties at the time an agreement is struck is relevant if the clause is actually ambiguous.

PN44

MR CHADWICK: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, I mean why is it ambiguous?

PN46

MR CHADWICK: I think more accurately, there's nothing within any local agreement which would prevent my client from engaging a contractor to operate its weighbridge. So again perhaps that answers your Honour's question.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, it might but it sort of implies a different answer. That suggests that a different answer. I suppose it depends how you read it. Unless you read that clause as saying, well, in the context of the areas dealt with by the local agreement provisions and the use of outsource must be as prescribed by the guidelines, which isn't actually what it says.

PN48

MR CHADWICK: Yes. Well, perhaps can I deal with it this way, for that provision to have some work to do we'd submit that firstly, the operators who are covered by the agreement don't perform weighbridge duties now. So in respect of outsourcing per se we'd submit that provision is unrelated to the operation of the weighbridge because it was never contemplated by the parties that the operation of the weighbridge was relevant to that provision within the agreement. So in other words, operators don't perform weighbridge duties now. If my client wanted to outsource labour it would need to be work that the operators were already doing.

PN49

THE SENIOR DEPUTY PRESIDENT: So you're saying it's implicit that the reference to use of outsource labour is only in relation to work done by the people covered by the agreement?

PN50

MR CHADWICK: Indeed, yes. So your Honour, as I said before, I was intending to tender the statement of Mr Kellaway and then make a short submission in respect of an appropriate statement, recommendation or in fact direction the Commission should make in respect of its conciliation powers to assist in the resolution of the dispute.

PN51

THE SENIOR DEPUTY PRESIDENT: I will just flag that before I could down that track you would need to absolutely convince me that the fact the agreement didn't cover the issue, I mean you put it briefly as sort of an answer to my question but I would need to be convinced that it - well, if you want me to say - well, either you convince me that the agreement really doesn't have any bearing on the use of the contractor to perform this weighbridge on a weekend or that in fact that the agreement itself doesn't contain a restriction, there's nothing in the agreement. I'm just flagging that, you know, before I jump in and say, well, there's nothing in the agreement that prevents him doing it. You know, to me it's not obvious that that's the case. You will have to convince me of that.

PN52

MR CHADWICK: Yes. Well, perhaps I will take some instructions.

PN53

THE SENIOR DEPUTY PRESIDENT: Well, I wonder perhaps at this stage I might hear from Mr Mueller, more about I suppose the sort of procedural issues of how we go this morning.

PN54

MR MUELLER: Thank you, your Honour. I think for the sake of brevity I make the outline of contentions the substance of my submission and I just would like to expand on a few points. I might start with the section 170LW first because it's clear that it appears to be, your Honour, there is a joint position of the notifier and us as the respondent that the Commission has the power to arbitrate in this matter. I indicate in this context that the notifier actually sought arbitration. There was correspondence after these two initial dispute notifications, section 170LW applications put to your Honour in asking your Honour to arbitrate. There seems to be a turnaround in positions and it's a bit unclear which course the notifier actually embarks on in these proceedings.

PN55

So if my submission at this point seems somewhat convoluted is because we are confused about the actual proceedings and the line of actions taken by the notifier, so if your Honour bears with me on that - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. If I could just in though, the key issue for me in relation to this is do you, if you like, agree with the company that the issue of a contractor operating the weighbridge is not dealt with by the agreement? Do you agree with that proposition? For example, I mean about the other provisions as well, but that clause that I referred to, well, that subclause at the end of clause 2 says:

PN57

Use of outsource labour to be utilised only as prescribed within the guidelines as detailed in the relevant local agreement provisions.

PN58

Do you agree with the company that says that doesn't have any application to this particular matter that we're looking at?

PN59

MR MUELLER: May I answer and I have to make this clear, my answer would only refer to the question of the request to your Honour of conciliating this matter because if it relates to the issue whether or not the Commission has power to arbitrate it's clearly not sought any more by the notifier in this matter.

PN60

THE SENIOR DEPUTY PRESIDENT: Okay, but that's not the question I asked.

PN61

MR MUELLER: Okay, I just need to - - -

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, you need to be very clear because it is important for me in terms of the whole thing of how I approach this. I mean you're saying that the Commission doesn't have power to arbitrate under 170LW in this matter. That's what you put to me, correct? I'm just trying to understand or just be absolutely clear in my own mind as to why you're saying that, you know, in terms of what the implications are for your position because it seems pretty clear that if this was a dispute about the application of the agreement, given the nature of the disputes procedure in this agreement the Commission could arbitrate. It's not like the disputes - it talks about a matter could be referred when you've gone through all the steps, referred to the Commission for resolution.

PN63

It doesn't use the word arbitration but generally it's been held that when you use language like resolution that implies a level of finality which implies, while there may be some room for argument about this, that that could involve arbitration. It doesn't have to but it could ultimately involve arbitration. So if this is a dispute about something in the agreement then I assume you wouldn't deny that the Commission could arbitrate. So what you're presumably, that's what I want you to confirm though, is that you're arguing that this isn't about something in the agreement, otherwise what's the logic of your position?

PN64

MR MUELLER: The logic of my position is that this actually was the case and one would put it that something has arisen in these proceedings today that might affect our position in regards to whether the agreement covers this issue or not. That's a different kettle of fish that has arisen today. However, the question is do I need to expand on that point in regards to section 170LW because the application has been withdrawn and I understand it - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Well, no, it hasn't actually been withdrawn and to be honest, I want you to because I need to know your position on this question. I mean if you can't give me an answer now, if you really can't, then I would like you to maybe take some instructions or at some stage think about this. I mean, you know, if you don't know an answer now, okay, tell me. But it is quite important to me because - well, it's very important to me in determining how I proceed with this matter. I mean if you both agree, quite frankly, if you both agree that this particular issue is outside the agreement then the way deal with it might be, you know, there's certain options how I can deal with it.

PN66

If you say you don't agree with that, you actually think it actually is covered by the agreement, then I might go down some totally different track and certainly the questions I would be asking myself would be quite different. So it would really help me to know, you know, from you. You're putting to me that it's not covered - that I can't arbitration under LW.

PN67

MR MUELLER: Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: I need to understand. There could be all sorts of reasons why I might not be able to arbitrate under LW. I want to know what your reasoning is as to why I can't because it's not obvious that I can't.

PN69

MR MUELLER: Could I just get some instruction on that point just to be absolutely clear?

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. Do you actually want to have a few minutes?

PN71

MR MUELLER: Yes, that would be helpful.

PN72

THE SENIOR DEPUTY PRESIDENT: Because it's quite an important issue.

PN73

MR MUELLER: I understand. Certainly that would be helpful.

PN74

THE SENIOR DEPUTY PRESIDENT: I might even just adjourn for a few minutes and let me know when you're ready to answer that question.

PN75

MR MUELLER: Thank you.

<SHORT ADJOURNMENT [10.33AM]
<RESUMED [11.06AM]

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Mueller.

PN77

MR MUELLER: Thank you for this adjournment. Your Honour, the difficulty with the question put to us, whether or not the current agreement deals with this matter is twofold because it affects the jurisdiction as well as the merits of the recommendation sought. Before giving an answer to this question it's important for us because we were basically drawn in here to know what the status is of the section 170LW, I would ask a statement of the applicant what is sought because if clearly an arbitration is not on foot any more the question is what's the status of the section 170LW application.

PN78

THE SENIOR DEPUTY PRESIDENT: With all due respect, I mean I want to know your view on the question. I mean it's not really up to the applicant. I wan to know whether you think - I mean you've put to me that the Commission doesn't have jurisdiction to arbitrate over this matter under 170LW. I want to understand why you put that. I've heard the applicant's argument. We have both heard what the applicant has put. He has said that I can't arbitrate because this issue that we're looking at is not covered by the agreement. What I want to know is, you've said you agree with the applicant that I can't arbitrate, he's given me the reason why I can't arbitrate, I just want to make sure that you agree not only with the assertion that I can't arbitrate but also with the reasoning behind it.

PN79

I think for me it's an important question. It's not really a question for the applicant, it's a question for me. I know his views on it.

PN80

MR MUELLER: I'm not trying to be evasive.

PN81

THE SENIOR DEPUTY PRESIDENT: No.

PN82

MR MUELLER: I just need to know clearly. I just can't understand. My difficulty is am I answering in terms of section LWs jurisdiction or am I talking about should I address the merits of - - -

PN83

THE SENIOR DEPUTY PRESIDENT: No, this is a jurisdictional question so it's a technical legal question.

PN84

MR MUELLER: Well, the jurisdictional question has been dealt with because the applicant doesn't want you to arbitrate.

PN85

THE SENIOR DEPUTY PRESIDENT: But I haven't accepted his argument.

PN86

MR MUELLER: Well, it is an application to be put to the Commission and I don't - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Well, okay. I mean let me put it this way.

PN88

MR MUELLER: I don't understand the application.

PN89

THE SENIOR DEPUTY PRESIDENT: The application overall has not been dropped. A dispute has been notified to the Commission. For example, let me put it this way, the applicant has said he wants the Commission to make a finding or recommendation about whether there's anything in the agreement that prevents the employer actually having this work done by the contractor. Your view as to whether the agreement covers this issue is a very important thing I need to take into account. If you don't think the agreement covers this then that leaves me to go down one track. If you say, well no, it does cover it I then need to, if I accept what you're putting, I would then to, quite frankly, look at other issues. I would need to go down another track.

PN90

It's very difficult for me to proceed until I have worked out whether in fact the agreement does cover this issue. Now, I mean I can make that decision for myself at the end of the day but I'm extremely interested in your view as to this.

PN91

MR MUELLER: Okay.

PN92

THE SENIOR DEPUTY PRESIDENT: When I say you, I mean the union's view.

PN93

MR MUELLER: Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: And not as a sort of idle curiosity. I'm not trying to be difficult but it really is pretty - it does go to the nub of the issue actually and it's a jurisdictional, it's a legal issue. It's not a question of the merits. It's completely irrelevant. I mean the merits is another issue. I'm talking about the jurisdiction. You have agreed with the employer that there is no jurisdiction under LW.

PN95

MR MUELLER: Yes.

PN96

THE SENIOR DEPUTY PRESIDENT: As is your prerogative. But you haven't answered whether you agree with his reasoning for that and I need to know. Well, it's very difficult if I don't know what your position is on that.

PN97

MR MUELLER: If I could follow the line of the submissions I wanted to make it would become clear why I don't want to put the cart before the horse.

PN98

THE SENIOR DEPUTY PRESIDENT: Okay. I don't think it is, but still.

PN99

MR MUELLER: Yes, your Honour. It has been put to the Commission the question of making a recommendation about whether or not the current agreement prevents the company to do what it wishes to do, which is to operate the weighbridge with contract labour. Now, this recommendation as it's sought in my submission would be an arbitrated outcome. It is clearly a finding about the operations of this agreement. There is not only a legal argument to prevent the Commission to make such a recommendation, which I would like to expand later on, the other argument is it helpful to resolve this dispute. The current agreement will expire on 8 August and both parties have engaged in negotiations I'm instructed since early as March, in fact March of this year.

PN100

There was an initiation of a bargaining period lodged with the Commission on the 21st and it exactly deals with the issue at the heart of this dispute which is a claim that operators are to perform weighbridge duties after hours.

PN101

THE SENIOR DEPUTY PRESIDENT: Are you saying that's covered in the bargaining period notification?

PN102

MR MUELLER: This is in the initiation of bargaining period. One claim is that operators have to perform weighbridge duties after hours. Now, a finding and I reiterate in what's been put in the union's submissions, a finding of a nature that the company is not prevented from engaging contractors would include a workplace in a way an assessment of the operations of the workplace. It would in my submission not be helpful at this stage for the Commission to intervene in any sort of, even in the form of a recommendation. It is a matter between the parties. It will be addressed in the negotiation of the new agreement and it has done so in the past. In terms of the jurisdictional argument and the recommendations sought, my friend referred to section 102(1) which is that gives fairly broad powers to the Commission.

PN103

However, it's narrowed down, he clearly asked for a recommendation and recommendations are dealt with in section 111AA which is basically a recommendation by consent of the parties. Now, such a consensual decision is at the moment not before you.

PN104

THE SENIOR DEPUTY PRESIDENT: You can make recommendations in other contexts though obviously.

PN105

MR MUELLER: Certainly. I'm addressing whether it would help to resolve the issue or not and the union's position is that it would not because it should be left to the parties to perform part of the current enterprise agreement negotiations. In terms of the jurisdictional arguments we do not see an ability of the Commission to arbitrate in this matter and I get back to the point the issues - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Sorry, you're saying the Commission does have?

PN107

MR MUELLER: Does not have the power.

PN108

THE SENIOR DEPUTY PRESIDENT: Does not, okay.

PN109

MR MUELLER: And I get back to the initial point, this matter, the use of contract labour on the weighbridge is not currently dealt with in the agreement, to answer the initial questions.

PN110

THE SENIOR DEPUTY PRESIDENT: Okay.

PN111

MR MUELLER: Again we are left in the sort of - we were trying to the best of our abilities to answer or to support this bit of going away in this proceedings in a way that is set out in the Act. The initial point was a dispute notification under section 99 and an application under section 170LW. The Commission was subsequently asked to arbitrate. I note that, I wasn't present in the first conciliation conference, but it was my instructions that it was put to the company that they as well have to engage in the dispute resolution procedures they allege the union have not followed and there were meetings between the parties.

PN112

It has to be clear that all these meetings have been on the premises, that there are ongoing enterprise agreement negotiations and that the company actually asked the Commission because an agreement has not been reached at this stage to arbitration that was later put to the Commission. In the outline of the contentions, the way I read it, it is sought, well, the Commission shouldn't arbitrate and in fact can't arbitrate but it should make a finding. Now, this word finding, there is no back door for a finding. It is a clearly arbitrated outcome and it is a matter that has to be dealt with by a chapter 3 court because it is basically a judicial finding of existing rights and obligations and the union believes that as long as the parties talk and as long as there is a way of resolving the matter and will be resolved during the negotiations of the new agreement, which I again reiterate the current agreement expires on 8 August, that intervention by the Commission at that stage would not be helpful.

PN113

THE SENIOR DEPUTY PRESIDENT: What are you asking the Commission to do then?

PN114

MR MUELLER: I can't ask the Commission to do anything. It's not our application, but I recommend - - -

PN115

THE SENIOR DEPUTY PRESIDENT: Well, what do you suggest I do then?

PN116

MR MUELLER: I would firstly seek to have a clear - to be clear of what the section 170LW on foot, because it clearly affects the negotiations. Having a request for a private arbitration on foot which all the issues apparently do not arise in this agreement leads to confusion and it certainly is not helpful for the negotiations for the upcoming agreement and as I said, the weighbridge forms part of the claim and it has been subject to discussions involving the future. I mean it's obviously a contentious issue, however that's an issue between the parties. I have faith in the negotiation process. I don't see a necessity for the Commission to deal at the moment - - -

PN117

THE SENIOR DEPUTY PRESIDENT: Should I dismiss the applications or adjourn them, what is your submission?

PN118

MR MUELLER: If a recommendation is sought in terms of a finding on the current agreement I'm unclear about what the finding should be because currently the weighbridge is not dealt with in the agreement. I can't see what the Commission should do more than that and the union putting that on record. The conclusions drawn from this is up to the company, but it's basically said it's already resolved what the company asked for.

PN119

THE SENIOR DEPUTY PRESIDENT: So your answer in fact to the question I asked before is you agree with the company in saying that this issue is not dealt with in the current agreement?

PN120

MR MUELLER: Yes.

PN121

THE SENIOR DEPUTY PRESIDENT: You're arguing really not so much as a jurisdictional matter but more as a matter of discretion.

PN122

MR MUELLER: Both. Because it affects the LW application.

PN123

THE SENIOR DEPUTY PRESIDENT: Well, that's true. Look, I agree, if it's not covered by the - I think it's pretty clear that if I accept what both parties are putting which is that it's not covered by the agreement and quite frankly you're both happy to put and I probably would have accept it. I can see a logic in saying that okay, the issue of who operates the weighbridge is not covered by the agreement, therefore LW doesn't have any application, I accept there's a logic to that position. That actually does leave the 99 on foot. Now, as long as there's, if you like, ambit, and I imagine there - you know, I haven't had any evidence on this but I imagine there probably is.

PN124

Obviously there was a lot of claims to create the award. I just find it hard to believe that, for example, you didn't have in your log of claims something about the use of contractors. I haven't seen the log of claims but I'd be pretty - - -

PN125

MR MUELLER: I have got it with me.

PN126

THE SENIOR DEPUTY PRESIDENT: Have you got it?

PN127

MR MUELLER: Yes. I was going to hand it up.

PN128

MR CHADWICK: No, that's the bargaining period notice.

PN129

THE SENIOR DEPUTY PRESIDENT: No, I actually meant the log of claims to go right back to - because you need an interstate dispute. Technically you need an interstate somewhere for the Commission to exercise powers under its general conciliation and arbitration powers. If you can't use LW then you look at potentially conciliation powers under 99, et cetera, or 101, whatever it is. So you need to have an interstate dispute, but there must have been an interstate dispute to create the award but obviously the award doesn't deal with the - I mean it's probably the case that who operates the weighbridge - I don't want to put arguments in your mouth, but I mean it is certainly arguable it wouldn't be an allowable matter, for example. So it probably wouldn't be the case the Commission could arbitrate, but I'm not being asked by either party to arbitrate.

PN130

But the employer, the applicant, is still asking me to conciliate. Now, as long as there's a dispute in the sense of an interstate industrial dispute the Commission can conciliate even if they can't arbitrate. So as a matter of jurisdiction it doesn't mean that I should do it, it's just a question of just get the jurisdictional position. I mean I suppose really it's probably for the applicant to put this to me than not, but if you're still contesting the jurisdiction on the conciliation issue?

PN131

MR MUELLER: No, no, I've got to make this clear. I believe conciliation is possible. It's just there's a practical argument against it.

PN132

THE SENIOR DEPUTY PRESIDENT: Okay. So your jurisdictional argument relates to the LW, not to 99?

PN133

MR MUELLER: It relates to the finding that's been sought.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, I take your point. You couldn't make a finding as a sort of a judicial finding because the Commission is not judicial.

PN135

MR MUELLER: Yes.

PN136

THE SENIOR DEPUTY PRESIDENT: Okay, so that's the jurisdictional argument. But your argument really about why the Commission shouldn't get involved in this issue, apart from those jurisdictional arguments, you've got a discretionary argument which is look, given the Act and what's best for the parties it's not going to be helpful when they're negotiating this matter for the Commission to sort of butt in as it were.

PN137

MR MUELLER: Yes. And there are remedies available. In the course of these negotiations the need might arise for an umpire to get involved for both parties.

PN138

THE SENIOR DEPUTY PRESIDENT: But you don't think the Commission needs to get involved in helping conciliate the agreement as it were?

PN139

MR MUELLER: No. If the Commission pleases.

PN140

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Well, Mr Chadwick, where does that leave you?

PN141

MR CHADWICK: Your Honour, I think we're at I guess this fork in the road. I suppose can I put this to the Commission in short form about what should happen from here. We would submit that the operation of the weighbridge, or at least the company's desire to engage a contractor to operate the weighbridge is not a matter covered by the agreement. Both parties put to that to the Commission it seems. As a result of that the Commission should find therefore that it has no power to privately arbitrate the matter under section 170LW of the Act. I then come back to our position put earlier this morning and that is for good reason, and admittedly I don't have a copy of the log which might be a little difficult to find but be that as it may perhaps I'll just leave that for the moment subject to - - -

PN142

THE SENIOR DEPUTY PRESIDENT: Well, the union is not contesting that point.

PN143

MR CHADWICK: No, and so from here, your Honour, my client's position is this given what we foresee being the jurisdictional result, so your Honour should find no jurisdiction to privately arbitrate. The next step would be for me to tender the statement of Mr Kellaway and arising from the tendering of that statement and subject to the union's position regarding whether it wants to cross-examine
Mr Kellaway about any contents of that statement, we would be seeking that the Commission make a recommendation in relation to my client, for the purpose of conciliation, that my client is not prevented from engaging a contractor to operate the weighbridge and that the union should, arising from my client doing that, that the union should follow the disputes procedure in the agreement. So that's the fork in the road that we're at in our submission.

PN144

THE SENIOR DEPUTY PRESIDENT: Mind you, just on that question of following the disputes procedure in the agreement, you've just said this is not a matter covered by the agreement. What's the implication of the disputes procedure therefore? It's not a dispute that arises under the agreement. You've both told me that and I have to accept it.

PN145

MR CHADWICK: Well, there's also a disputes procedure in the award and falling back to that position we say that arising from - the matter comes to the Commission by way of section 99. We say clearly there's an industrial dispute. We say that my client's not prevented from engaging a contractor to operate the weighbridge, that the Commission should make a recommendation to that effect and the consequence of that recommendation and my client's, if you like, management prerogative to do that, the corollary of that should be, I guess, no further action as it were.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, I mean I might come back to that. I mean the union has said that they want to deal with the issue of the weighbridge in the negotiations for the agreement.

PN147

MR CHADWICK: Yes.

PN148

THE SENIOR DEPUTY PRESIDENT: And that's obviously, you know, something that's quite possible legally and so on. I mean you wouldn't contest that, obviously. I mean I don't know if you - obviously this isn't an issue that has been resolved in the negotiations.

PN149

MR CHADWICK: It hasn't, no, and if it's the union's intention to take that up in negotiations with my client that's a matter for the union.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR CHADWICK: Now, what happens between now and then again is a completely different matter, but when I say that the Commission in exercising its conciliation powers in these proceedings needs to have regard to, in our submission, the short history in relation to the operation of the weighbridge, the content of Mr Kellaway's statement to give rise to the reasoning behind why it should issue the recommendation.

PN152

THE SENIOR DEPUTY PRESIDENT: Well, I think perhaps at that point maybe we'll allow you to tender Mr Kellaway's statement.

PN153

MR MUELLER: I see a difficulty still. I mean to put it mildly, we did not ask to be here.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN155

MR MUELLER: And we have to know what's going on. It's really confusing and it's again now other things are getting thrown into this issue here about some further maybe industrial action and things - the submissions have not been clear. New things are being relied on that didn't fall part of your Honour's directions in terms of what is the outline of contentions. Now there's reliance on an award. We have to see the award and the statement that's now being tendered, there's a nexus apparently now in the statement, industrial action and an award and an interstate dispute. We can't agree in arbitration and I can't - - -

PN156

THE SENIOR DEPUTY PRESIDENT: I don't think we're in arbitration, I think everyone is agreed.

PN157

MR MUELLER: See, this is unclear too.

PN158

THE SENIOR DEPUTY PRESIDENT: Okay. Well, I mean I'm pretty clear that we're not talking about arbitration here and I accept that I've got the Commission - given what both parties have put to me I'm happy to accept that. This is not a matter covered by the current agreement, therefore I've got no powers to arbitrate under LW. I would take a hell of persuading that I've got new powers to arbitrate under the Commission's general arbitration powers because I don't think it's an allowable matter amongst other things. That doesn't mean that I can't conciliate and it hasn't been proven to me that I've got conciliation that is the subject to an industrial dispute, but I'd be pretty surprised if it isn't. So I'm happy to continue to at least look at the issue of conciliation.

PN159

But I've heard what you've put about it would not be helpful as the Commission should not make a recommendation and should - but before I can answer, you know, before I can respond I suppose to your submission on that, I mean I think, you know, the employer does have a right to make an application to deal with this matter. I have heard your argument that, you know, the Commission shouldn't interfere but I think at least before I make that decision whether I should or shouldn't interfere, if I could put it that way, I would like to get Mr Kellaway's statement put on the record because that will help me form my view as to what I should or shouldn't do.

PN160

MR MUELLER: If I may, sorry?

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. No, no.

PN162

MR MUELLER: There are transcripts available of these proceedings and it's put clearly in the union's outline of contentions and in my submissions that the agreement currently does not deal with this issue. I am putting it that it is a contentious issue hence it forms part of the negotiations and is part of the initiation of bargaining period, one of the claims that have been put forward to be included in the new agreement. I see this issue before the Commission as being resolved. By me giving the statement I don't know what more - if ..... sort of a Commission seal on what I just said this would be an arbitration outcome. I just don't see where it leads to. I'm unclear about where we're heading to.

PN163

THE SENIOR DEPUTY PRESIDENT: Okay. Well, I mean I don't necessarily know where we're heading. It does seem to me that I we have got, I've got, the Commission has got conciliation, there is an industrial dispute and okay, I can't arbitrate about it, but that doesn't mean the Commission has no other powers. The Commission does have conciliation powers to deal with industrial disputes. I haven't made any decision to exercise any powers beyond, you know, the directions that were issued for you to come today and so on and I haven't said I'm going to exercise any powers or not, including making recommendations or any other kinds of conciliation powers. But before I make a decision on that I want to give the applicant an opportunity to put Mr Kellaway's statement in evidence.

PN164

MR MUELLER: This would form the basis of - - -

PN165

THE SENIOR DEPUTY PRESIDENT: Well, there's an industrial dispute which I'm hearing under the Commission's powers, conciliation powers at this stage.

PN166

MR MUELLER: If it forms part of the conciliation it will be, in my submission, I would ask the Commission to discuss the contents of this agreement. It is very difficult, we've basically resolved an issue in my submission because it's been clearly stated by us the weighbridge is not dealt with in the current agreement and I can't see what other issues are there at stake. There wasn't anything alleged about pending industrial action. It wasn't industrial action as such, it was a stop work meeting for two hours that occurred I believe in March and now my friend wants to put evidence forward and ask these issues and I'm being blunt in a way, lay the ground work for some further proceedings, it's not necessary anyway because we're in conciliation and you can't rely on this. He is going to bring the evidence forward whenever he wants to, I don't understand - - -

PN167

MR CHADWICK: With respect, the matter of whether the - sorry. The issue of whether the matter has been resolved is a question of fact. Now, as part of the process this morning, if my friend is putting that the matter has been resolved, well, we take issue with that. We say that clearly it hasn't and if the Commission needs to be satisfied one way or the other whether it has or it hasn't I seek to adduce some evidence from Mr Kellaway who will go on to explain that the matter hasn't been resolved. Now, that's a question of fact. The union , and again I'm admittedly making some submissions from the bar table and again we're in conciliation in any event.

PN168

THE SENIOR DEPUTY PRESIDENT: Well, I must say I sort of made that comment that we were in conciliation. I suppose it's sort of arguable given the rule and this is all on the record.

PN169

MR CHADWICK: Yes. But Mr Mueller is suggesting the matter has been resolved. Clearly if he seeks some instructions from his delegates and Ms Perkins those instructions will be, I'm sure, along the lines that there's been a number of meetings. I put some submissions to Senior Deputy President Lacy when the matter came on for a directions hearing and those submissions to SDP Lacy basically indicated to his Honour that the matter hadn't been resolved. My client had sent a letter to Mr Belan and my recollection is the letter was sent on or about 15 June, clearly saying to Mr Belan that the matter had not been resolved.

PN170

Now, nothing has changed between then and now giving rise as to why the union should be submitting that the matter has been resolved.

PN171

THE SENIOR DEPUTY PRESIDENT: Can I possibly cut - well, it may or may not cut through this, but I mean once the - you know, subject to any other legal requirements, prima facie once the agreement expires, the nominal term expires, the union would be able to take protected action in support of a claim in relation to this matter, amongst other things, to put it in a new agreement. I mean if I could ask the union - I mean is your concern that there's going to be non protected industrial action on this matter?

PN172

MR CHADWICK: That's one of the concerns. That's certainly one of the concerns. The other concern, your Honour, is this, the issue relates, apart from what precipitated both notifications to the Commission was industrial action and largely in my client's view we're largely still here because of that. Now, one way of dealing with the matter is this and perhaps I can put it this way, if the union gives an undertaking here and now that it will abide by the disputes procedure in the agreement in the event that my client engages a contractor to operate the weighbridge, that might go a long way to resolving my client's issues and knowing we're in conciliation I put that as an issue because one of the things we're concerned - - -

PN173

THE SENIOR DEPUTY PRESIDENT: We probably should go off the record.

PN174

MR CHADWICK: Yes.

PN175

THE SENIOR DEPUTY PRESIDENT: I must say I've allowed this to sort
of - - -

PN176

MR MUELLER: I would like to explain on record before we go off the record?

PN177

THE SENIOR DEPUTY PRESIDENT: Do you want to stay on the record?

PN178

MR MUELLER: I would like to go off record but I would like to respond on record to the submissions that have been made.

PN179

THE SENIOR DEPUTY PRESIDENT: Okay, yes.

PN180

MR MUELLER: Your Honour, the issue at the heart of this in my submission has been resolved by the indication that it's not currently dealt with in the agreement. My friend seems to me to be putting submissions while we're here, while we're at it we might as well, we might as well raise issues in the future that might happen and then we might as well ask for an undertaking as well.

PN181

MR CHADWICK: I put those submissions because I was asked by the Commission.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN183

MR MUELLER: I think it's clear and I'm sure my friend is aware of all of the remedies available under the Act if a situation arises that may lead to perceive to seek an umpire. But we're talking about a stop work meeting for three at I don't even know when. In March?

PN184

THE SENIOR DEPUTY PRESIDENT: March, yes.

PN185

MR MUELLER: If we're talking about March and there was nothing raised - I mean this would form part of a different notification if it would but there was nothing raised and to my instructions there was no other stop work meeting in that sense. It was a meeting and that's clearly stated, from 8.15 until - six to 8.15 and it was a report back on the issues about the use of a security guard to use the weighbridge which is the first time in my understand - no, I withdraw that. There is a contract. It raises an issue whether or not a security guard can operate, and we're dealing with the petroleum industry, can actually operate a weighbridge with all the security aspects attached to it and it was of great concern to the workforce and there was a meeting held to talk about this issue.

PN186

In fact it had regard to the operational requirements because it was done four days later, after the delegate had knowledge of this, having regard to the procedural requirements, but there was a necessity of knowing how a security guard can deal in the petroleum industry at Port Botany and that was at the heart of the issue here. Unfortunately that was never talked about here but this is the difficulty behind all this and I clearly state that we move to arbitration on the request of the company and again the attitude now, we might as well throw everything in, this should not be part of anyone's time in here.

PN187

THE SENIOR DEPUTY PRESIDENT: If I could ask, Mr Chadwick, I mean the company - I mean, as I said, you know, in just over a week's time, I mean this is obviously going to be a matter that's going to be part of the negotiations, the first part of negotiations for a new agreement?

PN188

MR CHADWICK: Well, it's certainly - the company is on notice that it will be raised as a matter for negotiations. That's as much as we know.

PN189

THE SENIOR DEPUTY PRESIDENT: Okay. Obviously the scheme of the Act is that, you know, as far as possible the parties should take responsibility for their own affairs, if I could put it that way, and I don't think issues of managerial prerogative play out in quite the same way in relation to a CA that they would in relation an award. In other words, while the Commission should be reluctant to interfere with managerial prerogative clearly in this day and age certified agreements quite commonly deal with issues and your existing CA deals in quite a lot of detail actually with issues that might be considered in other cases things that would normally be managerial prerogative, quite frankly. But that is a legitimate question to be negotiated between the parties.

PN190

Given the timing, I mean there hasn't been - I mean presumably the employer has made no further efforts to have the security guard operate weighbridge presumably, is that correct?

PN191

MR CHADWICK: Yes. Well, can I just take - - -

PN192

THE SENIOR DEPUTY PRESIDENT: Yes, what is it?

PN193

MR CHADWICK: The Commission might recall back again, and I think we're going back to mid March, that one of the concerns of the Commission at that time was that we hadn't, I guess, step by step followed the disputes procedure. That is, there hadn't been proper and relevant discussions up the tree. Now, my client took those comments on board from the Commission. It went away and it had a number of discussions with the union about the issue. Now, I think the timing is very important because up until that point and whilst those discussions were going on the union made it very clear that it opposed, and as we understand it still does, my client from engaging a contractor to operate the weighbridge.

PN194

Now, in mid June it became very apparent to the union there were offers to resolve the matter, counter offers, counter proposals and so on. By the middle of June the matter hadn't been resolved. Mr Kellaway sent a letter to Mr Belan saying the matter is unresolved, we want to use the contractors to operate the weighbridge, if the matter can't be resolved we'll go back to the Commission. With that there was no response from Mr Belan, nothing to that letter. These were submissions I made to SDP Lacy some time ago. As a result of there being at that time a continued dispute I notified I think your associate to have the matter
re-listed. I won't go into all of that detail suffice to say that my client was acting all the time to resolve the matter, the whole time.

PN195

So it was never in my client's mind that the matter was resolved. That's why we're back here and the reason we're here today and having regard for the submissions of the union in respect of 170LW, my client is still in a position to press the Commission to assist in conciliation. My client's position in respect of that process is that it sees its position in relation to engaging a contractor to operate the weighbridge something that the Commission can delve into in conciliation and based on the content of Mr Kellaway's statement and based on the way my client sought to engage the Commission in assisting in the conciliation process which to date the matter is unresolved, we're here today seeking the Commission's assistance.

PN196

We still believe a recommendation or a statement is appropriate and available to the Commission in the terms that we seek it to assist the parties resolve the dispute.

PN197

THE SENIOR DEPUTY PRESIDENT: You referred to following the disputes procedure in the award. I haven't got the award with me, but what in practical terms, what do you mean by that? What do you think that would entail in the context in which this is a matter that the union has put that the nominal expiry date in the current agreement is 8 August, the union has indicated that the issue of who operates the weighbridge is actually a matter for negotiation for the new agreement, or as far as they're concerned they want to negotiate about it, what do you think the practical effect of saying, well, they've got to follow the dispute procedure in the award at this juncture?

PN198

MR CHADWICK: Well, because the issue that gave rise to the industrial action is the very issue we're addressing the Commission about in the statement of
Mr Kellaway. So that is, we wouldn't be here, we really wouldn't be here in my respectful submission but for the fact that there was industrial action arising from my client's decision to engage a contractor.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes. No, sure.

PN200

MR CHADWICK: And it seems that notwithstanding the Commission's jurisdiction regarding LW, notwithstanding that, the union has never put to the Commission, never put to the Commission that it hasn't got a difficulty regarding my client engaging a contractor to operate the weighbridge. So in essence the nub of the issue which relates to the possibility, likelihood of further industrial action is still alive and we'd submit to the Commission that the Commission shouldn't ignore that. It shouldn't ignore the prospect that industrial action may follow. It's still a live issue.

PN201

Now, the Commission might say, well, you've got other avenues in the Act to deal with that and yes, the answer to that is yes, certainly we have.

PN202

THE SENIOR DEPUTY PRESIDENT: That wasn't the question I was going to put to you.

PN203

MR CHADWICK: I apologise.

PN204

THE SENIOR DEPUTY PRESIDENT: What I was going to say was that, you know, I mean quite frankly as of a few days away they will be able to take, won't they, protected action in relation to this matter if they want? I mean not today or not tomorrow.

PN205

MR CHADWICK: I don't know what they're going to do.

PN206

THE SENIOR DEPUTY PRESIDENT: No, I'm not saying they will. I'm not encouraging them to but legally, you know, all other things being equal - - -

PN207

MR CHADWICK: Well, I think there are issues as to whether - without dealing with them now, there are issues about whether the action will be protected action. There's a whole range of I'll call them variables - - -

PN208

THE SENIOR DEPUTY PRESIDENT: I suppose it's a bit hypothetical - - -

PN209

MR CHADWICK: - - - in respect of whether any action they might take is protected action. But, your Honour, with respect, that is not the issue. The issue we're here today about is the resolution of a section 99 industrial dispute which the Commission has been aware of since 15 March 2005. It's unresolved and we're asking the Commission to access its conciliation powers to assist and in my respectful submission my client should be heard on that. My client should be heard on whether there's anything more the Commission can do to assist in the resolution of this industrial dispute and that's the position of my client.

PN210

THE SENIOR DEPUTY PRESIDENT: Well, I must say, Mr Mueller, before I make decisions about whether I - I mean you have put to me that I shouldn't get involved and it's a matter for negotiation. I'm not sort of dismissing that at all, but before I make a decision about whether I should do anything further I would like to have Mr Kellaway's evidence put on the record and you would have an opportunity to cross-examine him if you want to about what he's put before I really decide whether this is something the Commission should be involved. Well, I would have thought the Commission has power to continue to be involved in this dispute exercising conciliation powers.

PN211

I haven't made a decision that will be appropriate but at this stage I would like to give - I mean I don't see why I shouldn't allow Mr Kellaway's evidence to be presented to the Commission formally. I mean I'm not dismissing what you said about it.

PN212

MR MUELLER: I'm wondering what application or request this statement would assist because initially it assisted an arbitration being sought, that was a letter addressed to your Honour on 22 June:

PN213

We seek to have the matters re-listed so that the application can be brought and for arbitration.

PN214

Now, if my friend says there are outstanding issues still, even though the statement is clear, the dispute resolution is clear in the agreement and there were ongoing discussions for the new enterprise agreement and the crux of the matter, despite all those other issues or - yes, despite other issues, it has been from February you the use of these contractors on the weighbridge. Now, there's an agreement between the - there was an agreement in a consultative committee meeting on 9 March 2004 in which it was stated and signed by Mr Kellaway:

PN215

I, Jim Kellaway, agree that management will do the weighbridge all the time until the issue is resolved. The issue can be resolved by either reaching agreement or ...(reads)... will not do work in the weighbridge.

PN216

That followed the use of a security guard on 5 March 2005.

PN217

MR CHADWICK: Sorry, I've just got to check that the date needs to be addressed with Mr Kellaway.

PN218

THE SENIOR DEPUTY PRESIDENT: Well, yes. What you're actually doing is encouraging me to think that I would actually quite like to have Mr Kellaway put in the witness box.

PN219

MR MUELLER: I don't really - - -

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, I know you don't think I should.

PN221

MR MUELLER: We are in conciliation. The examination and
cross-examination of witnesses in conciliation is a novelty to me.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, true. But I guess I haven't really decided what I'm going to do yet. I suppose that's the trouble. I suppose we're more at an interlocutory stage really because I'm still trying to work out what the appropriate - - -

PN223

MR MUELLER: Can I suggest, I don't really know exactly. The company seeks your assistance to resolve this issue. On the other hand they're very big in pointing out managerial prerogative and your Honour put, well, some things should be well left to the parties, which is basically the gist of the Act as it stands. Now, we initiated a bargaining period. The agreement expires on 8 August and things will go their way. I mean it is clearly not dealt with in the current agreement and the company said on 9 March they don't want to use contractors until this issue is resolved. Now, where's the issue?

PN224

I mean my friend asks you to help him somehow and you don't even know what it is how you could help him.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, well, that's what I'm trying to find out.

PN226

MR MUELLER: The other way - no, I should reword it. The way is clearly he wants a recommendation but what exactly he wants you to say in there and what does he want you to help with?

PN227

THE SENIOR DEPUTY PRESIDENT: Well, I suppose that's what I'm trying to find out. I mean I'm not saying I agree to it. It's very hard for me to say I don't want to do what the applicant wants me to do until I have actually given him the opportunity to put to me his reasoning for why I should do what he wants. It doesn't mean I'm going to agree to it. I'm only giving him the opportunity to explain why he wants to me to do what he wants me to do.

PN228

MR MUELLER: That was put to your Honour following your recommendations and the evidence has been filed and served. This is before you. I can't see how any further cross-examination and examination, which in my submission are clearly arbitral proceedings, should be helpful at this stage, especially because a new issue has been raised of pending industrial actions and there is no factual basis for that.

PN229

THE SENIOR DEPUTY PRESIDENT: Are you able to actually indicate that there is no pending action, I mean leaving aside what might happened when the agreement expires because I mean obviously you will make any comments about protected action that might occur after that? But there's no plans. Are you able to indicate whether there are any plans of industrial action, if you like, before
8 August on this issue? I am not asking you to give an undertaking. I'm just asking to indicate are there any plans.

PN230

MR MUELLER: There was an agreement reached and signed by the union delegate and Mr Kellaway that the status quo should remain and that we stick to this agreement.

PN231

THE SENIOR DEPUTY PRESIDENT: Right, okay. Can I just ask,
Mr Chadwick, is that also your understanding of the factual, that there is an agreement that the status quo will remain? Well, presumably not forever.

PN232

MR CHADWICK: There's always that issue about what that word status quo means I think, your Honour, as your Honour would appreciate. But Mr Kellaway instructs me that the issue from the company's point of view is that the company would follow the disputes procedure in relation to the status quo until the matter was resolved.

PN233

THE SENIOR DEPUTY PRESIDENT: Look, I actually do think we should go off the record at this point.

PN234

MR MUELLER: Yes, I agree.

PN235

THE SENIOR DEPUTY PRESIDENT: So are you happy for that?

PN236

MR CHADWICK: Yes.

PN237

THE SENIOR DEPUTY PRESIDENT: So I think we will go off the record. We will adjourn the hearing and go into conciliation.

<NO FURTHER PROCEEDINGS RECORDED