C2005/3325, Transcript of Proceedings [2005] AIRCTrans 1691 (10 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12350-1

COMMISSIONER LARKIN

C2005/3325

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
ALLIED MINE SERVICES PTY LIMITED
s.99 - Notification of an industrial dispute - Log of claims
(C2005/3325)

SYDNEY

10.04AM, THURSDAY, 28 JULY 2005

PN1

MS J GRAY: May it please the Commission, I'm for the CFMEU, the applicant union.

PN2

MR A BROWN: I'm seeking leave to appear on behalf of Leibherr Australia Pty Limited.

PN3

MR B DUDLEY: May it please the Commission, I seek leave to appear on behalf of MRAEL Limited.

PN4

MS GRAY: Commissioner, the union doesn't oppose leave being granted to the legal representatives.

PN5

THE COMMISSIONER: Thank you, Ms Gray. Certain correspondence has been received in relation to the file. I presume, Ms Gray, you appear to have been copied in.

PN6

MS GRAY: Yes, I was copied in on all but the one from Craig Joy Workplace Consulting but your associate gave me a copy of that before we commenced this morning. Thank you.

PN7

THE COMMISSIONER: Also, there was correspondence on behalf of Comiskey Earthmoving Pty Limited advising that they don't oppose a finding of dispute. That's been noted and of course the correspondence from Mr Joy, representing Anderson Industries states they oppose the dispute finding being made and also correspondence from Gadens Lawyers on behalf of Boom Logistics also opposing the finding of a dispute. I'll hear your submissions Ms Gray.

PN8

MS GRAY: Thank you, Commissioner. Commissioner, on 16 May, 1 June and 22 June, the union served a copy of its CFMEU Mining and Energy April 2003 log of claims and letter of demands on a number of companies. None of those companies have to date acceded to the claims contained in the log. We did file on 29 June a statement of service in respect to that particular service. Today, Commissioner, I have a further statement of service relating to the service by the union of a copy of the section 99 notification, a copy of the notice of listing, a copy of form R5 pursuant to rule 16 and also an explanatory letter which the union sent to the proposed parties to the dispute finding.

PN9

I seek to hand up a copy of that statement of service this morning, Commissioner, along with a draft record of findings and a copy for the convenience of the Commission of a decision of Drake SDP in PR952134.

PN10

THE COMMISSIONER: Ms Gray, the relevance of her Honour's decision - - -

PN11

MS GRAY: The relevance about her Honour's decision, Commissioner, is that the log of claims which was served on all the companies is the log of claims as authorised by our governing body in April 2003. In previous matters relating to exactly the same log of claims, there were objections to particular clauses in that log - about 30 of the clauses - as to whether or not they were permissible. That matter was heard by her Honour and determined in the decision which I propose to hand up on 8 October 2004, wherein her Honour determined that all of the clauses in the log were permissible with the exception of 5.

PN12

So ,in the draft record of findings which I'm seeking to hand up this morning as well, Commissioner, we have amended the log of claims in accordance with the decision of Drake SDP in PR952134 by deleting those clauses which her Honour found to be impermissible.

PN13

THE COMMISSIONER: So, the respondents that were served have been served with your log as amended. You've removed any - - -

PN14

MS GRAY: No, they've been served with the log as authorised, Commissioner. But what we're seeking the dispute finding in respect to, is the log as amended.

PN15

THE COMMISSIONER: Yes, thank you. Could I interrupt your submissions Ms Gray for one moment please. Mr Brown is your client opposing a dispute finding being made?

PN16

MR BROWN: It is, Commissioner.

PN17

THE COMMISSIONER: Yes, thank you. Mr Dudley, your client is opposing the dispute finding?

PN18

MR DUDLEY: Yes, Commissioner. My client opposes being made a party to the dispute finding. That's correct.

PN19

THE COMMISSIONER: Yes, thank you. It probably has not escaped your notice but the Commission as currently constituted is not a part of the panel that handles the coal industry. Why the file was allocated remains a mystery. However, as we had listed and advised the union of the date and to ensure that we didn't disadvantage people or change the date where the union would have to
re-serve, it was agreed by panel heads that I would maintain my listing this morning here. If there was no opposition to certain respondents to a finding and providing of course all the i's were dotted and t's crossed and I was comfortable that an industrial dispute for those respondents was in existence, I would make that finding.

PN20

Any parties opposing, and my associate I think as advised gave me the lawyers who were acting on behalf of Boom Logistics - any opposition to a dispute finding would not be heard this morning and the file will be forwarded to a member of the coal panel. Of course, if anyone has a different view, or another suggestion they may raise it and of course, I'll always have regard to submissions put to me. But that's the lay of the land at the moment. So I thought I would put the parties on notice. Yes, Ms Gray.

PN21

MS GRAY: Thank you, Commissioner. The union thinks that's an eminently sensible course of action and we had discussed that amongst the parties present today to put that to yourself, Commissioner, but that's been determined. That's good. What we've done with the draft dispute record of findings which we've handed up a moment ago, is that we have in schedule A, those parties who we have been advised, or who were not, to our knowledge, opposing a dispute finding are listed in schedule A which we're seeking to have made party to a dispute finding found to exist, hopefully, by yourself, Commissioner.

PN22

We have a schedule B which is a leave reserve clause, containing the objectors as we knew them before we left the office this morning, which was Boom Logistics, Liebherr Australia Pty Limited and MRAEL Limited. We need to further amend that, Commissioner, to add Anderson Industries because we hadn't been advised of their objection until we arrived here this morning, and to take Anderson Industries from schedule A. So, with that amendment and we would be happy to send to the Commissioner's associate an amended draft record of findings reflecting moving Anderson Industries from schedule A to schedule B. We would seek that the record of findings be made in accordance with the draft to be amended.

PN23

I think that's all that the union has to put subject to any questions from the Commission. When the matter's reallocated to a member of the coal panel obviously, we would then be seeking that the objectors' cases be programmed for hearing. But we understand that you wouldn't be dealing with that this morning, Commissioner.

PN24

THE COMMISSIONER: No, it would be in the hands of the particular member who will be taking care of the file. I've also received a statement as to authorisation.

PN25

MS GRAY: Yes.

PN26

THE COMMISSIONER: That was forwarded in - not with the file - but I've received that from Mr Maher and that's dated 28 June.

PN27

MS GRAY: Yes, that was lodged with the registry on 1 July, Commissioner. Does the Commissioner have a stamped copy of that?

PN28

THE COMMISSIONER: Yes, I do. I'm just thinking that it might be appropriate in the circumstances, that I actually do mark Mr Maher's statement as to service dated 8 July as CFMEU1 and your draft record of finding which of course has schedules - schedule A, the list of respondents the unions seek a finding of dispute be made with, of course to be amended to exclude Anderson Industries Australia Pty Limited from that and also schedule B which are companies which the unions seek to put on the reserved list and do not seek a finding with those entities and of course Anderson Industries would be added to schedule B.

PN29

Schedule C is the log of claims that the union seek a dispute to be found in relation to and as you've stated, you've removed what a member of this Commission considered to be an offending provision.

EXHIBIT #CFMEU1 STATEMENT AS TO SERVICE MR MAHER DATED 8/07/2005

PN30

MS GRAY: That's correct.

PN31

THE COMMISSIONER: We might mark that draft record of finding with the attachments.

EXHIBIT #CFMEU2 DRAFT RECORD OF FINDING WITH ATTACHMENTS

PN32

THE COMMISSIONER: Ms Gray, you will forward to my associate the correct copy of CFMEU2 which you've amended in transcript.

PN33

MS GRAY: I will. Thank you, Commissioner.

PN34

THE COMMISSIONER: Mr Brown.

PN35

MR BROWN: Thank you, Commissioner for the practical progress of this matter in referring those parties disputing it to members of the coal panel.

PN36

THE COMMISSIONER: Thank you. Mr Dudley.

PN37

MR DUDLEY: Commissioner, likewise, my client has no objection to you referring the matter of the objections to a member of the coal panel and we await the further listing of the matter.

PN38

THE COMMISSIONER: Yes, thank you. The matter before me concerns a log of claims served by the CFMEU on Allied Mines Services Pty Limited and others as outlined in attachment A on the file and also schedule A of the CFMEU served on the respondents outlined in attachment A on the file with the notification of dispute. The details of service have now been recorded on the Commission's file. CFMEU now submits that a finding of dispute be made pursuant to section 101 of the Workplace Relations Act 1996.

PN39

Having considered the documents which form the basis of the notification of dispute under section 99 of the Act, having heard Ms Gray on behalf of the CFMEU and having regard to correspondence and submissions of Mr Brown and Mr Dudley in proceedings today, I am satisfied that I can make a finding of an industrial dispute within the meaning of the Act in relation to the logs of claims and letters of demand served by the CFMEU on 16 May, 1 June, 22 June.

PN40

That dispute finding will reflect respondents to that dispute finding as found in schedule A to CFMEU2 as amended. That dispute finding will not exclude the respondents listed in schedule B as amended, part of CFMEU2. Those respondents will be placed on the reserve list. The matters in dispute are contained in the log of claims and the letter of demands. I think that covers it all. In that regard, I will now make a finding of dispute to give effect to the decision. We refer the parties into conference and of course the matter may be listed on application. A formal dispute finding will issue reflecting the union's draft record of findings as tendered in proceedings.

PN41

Is there nothing further at all? Thank you for your attendance ladies and gentlemen. Commission stands adjourned.

<ADJOURNED ACCORDINGLY [10.20AM]