C2005/2955, Transcript of Proceedings [2005] AIRCTrans 1788 (30 August 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12510-1

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

10.32AM, TUESDAY, 16 AUGUST 2005

Continued from 21/7/2005

Reserved for Decision

PN1358

THE COMMISSIONER: The matter's called on this morning in continuation of the previous hearing. Appearances remain the same, ladies and gentleman. It's my understanding, Ms Booth, we're to hear the AMWU.

PN1359

MS BOOTH: Yes, Commissioner. Thank you, Commissioner. Firstly, the AMWU seek to tender the outline of submissions dated 21 June and the amendment dated 22 June 2005.

PN1360

THE COMMISSIONER: What amendment?

PN1361

MS BOOTH: Yes, Commissioner. An amendment was provided to the parties dated 22 June 2005. It made an amendment in respect of a number of numbering provided at 5.3, 5.4 and 5.6.

PN1362

THE COMMISSIONER: Just a moment. I'll have a look. Well, it's a document that amends the first document filed on 21 June. It's not a complete amendment.

PN1363

MS BOOTH: No, Commissioner. Yes, that's exactly right. It's an amendment to the document dated 21 June.

PN1364

THE COMMISSIONER: Yes, and it goes to specific paragraphs and what have you. I think we'll mark the written submissions filed on 21 June 2005 from the AMWU plus the document amending particular paragraphs dated 22 June as AMWU3.

EXHIBIT #AMWU3 WRITTEN SUBMISSIONS OF THE AMWU FILED 21/06/2005 AND DOCUMENT DATED 22/06/2005

PN1365

MS BOOTH: Thank you, Commissioner. Commissioner, we wish also to seek the list of authorities dated 28 June 2005.

PN1366

THE COMMISSIONER: I don't know that we need to mark authorities, do we?

PN1367

MS BOOTH: No, Commissioner.

PN1368

THE COMMISSIONER: It's not evidence, it's what you rely upon. You'll take me to those authorities, Ms Booth, I presume?

PN1369

MS BOOTH: Yes, Commissioner.

PN1370

THE COMMISSIONER: Thank you.

PN1371

MS BOOTH: Thank you, Commissioner. During the course of my submissions today, Commissioner, I will first deal with the matter of genuineness, going first to the principal of genuineness which is a matter which has been the subject of lengthy submissions by Tomago. I wish to make submissions in regards to the particular clauses identified in Schedule C at the time of our submission. Also, Commissioner, we wish to address the issue of matters pertaining to the employment relationship, both in it's generality and in specifics in terms of the clauses identified in the Tomago Schedule C and then also deal with the matters of those clauses which are before you to be ..... again identified in Tomago Schedule C.

PN1372

Commissioner, firstly in regards to the issue of genuineness, this is a matter which has been the subject of rather lengthy submissions. Tomago have made submissions asserting that the appropriate test to be applied when considering the matter of genuineness is that of whether the claim might reasonably be obtainable through the framework of negotiation, conciliation and arbitration in the foreseeable future. Tomago have faced this test on Commissioner Bacon's decision in Airly Coal drawing on the judgment of Brennan and McHugh JJ in the Riordan case and also incorporating the language of Kirby J in the Riordan case.

PN1373

Commissioner, the AMWU assert that this test is a narrow interpretation of the test and it was the narrow interpretation rejected by the Full Bench in the decision of the AMWU v A&A Contract Staff a Full Bench decision dated 13 September 2002 and that decision is cited at full in the AMWU list of authorities at number six.

PN1374

THE COMMISSIONER: That's an appeal from her Honour Senior Deputy President Harrison?

PN1375

MS BOOTH: Yes, Commissioner. It's the appeal to the decision of Commissioner Harrison.

PN1376

THE COMMISSIONER: No, not Commissioner Harrison. Senior Deputy President Harrison.

PN1377

MS BOOTH: My apologise, Commissioner. Senior Deputy President Harrison.

PN1378

THE COMMISSIONER: That appeal was an appeal and a decision of her Honour, which was found in print PR917411 dated 6 May 2002.

PN1379

MS BOOTH: That's correct, Commissioner and that is also provided in the AMWU's list of authorities.

PN1380

THE COMMISSIONER: Yes, which you would seek to amend because you're referring to Commissioner Harrison.

PN1381

MS BOOTH: My apologies, Commissioner. Yes, I wish to amend that list of authorities to reflect that appropriately. If we go to that decision, Commissioner and go specifically to paragraphs 13 and 14 of that decision, the Full Bench indicate at paragraph 13:

PN1382

Mr Gallagher sought to persuade us that the ratio of Riordan is to be found in the following passage from the joint judgment of Chief Justice Brennan and Justice McHugh ...(reads)... would require us to adopt a narrower approach than has hitherto been applied. We note that no other member of the Court adopted such a formulation.

PN1383

Commissioner, on the basis of that the AMWU assert that the test forwarded by Tomago as too narrow a test. I take the opportunity now, Commissioner, to have a look at the leading authorities and attempt to try and better define the more appropriate test and the test which the AMWU assert is the appropriate test to be applied in this case is that a claim is genuine when it provides a framework for serious negotiation of the dispute and to the extent the dispute is unresolved conciliation and arbitration of the dispute.

PN1384

In formulating that test, Commissioner, I wish to take you to a number of authorities, the first being an authority provided by Tomago in this case, the case of the Retail Traders case which was provided - this is a decision of the Full Bench of the Commission, print number M6550. The decision was in October 1995. Commissioner, page 9 of that decision the Full Bench said:

PN1385

It is well recognised that the length of ambit in paper disputes- - -

PN1386

THE COMMISSIONER: Wait a minute. Page 9 is a big page - where abouts on page 9?

PN1387

MS BOOTH: Sorry, Commissioner. Down towards the latter part. Two paragraphs under the heading "8 The Demands".

PN1388

THE COMMISSIONER: So about seven on the page?

PN1389

MS BOOTH: Yes.

PN1390

THE COMMISSIONER: Yes, thank you.

PN1391

MS BOOTH: Thank you, Commissioner. To begin at the paragraph:

PN1392

It is well recognised that the need for ambit in "paper" disputes entitles unions to make demands which, at the time when they are made, appear excessive, extravagant ...(reads)... have this quality, the demands do not represent what the union wishes to achieve but are made for some separate purpose, such as attracting the jurisdiction of the Commission.

PN1393

Thus in their joint decision, Mason CJ, Deane and Gaudron JJ said:

PN1394

To ascertain whether demands are `genuine demands', it is sometimes asked whether the demands are seriously advanced or, in the case of demands by or on behalf of employees, whether they are advanced with a view to obtaining improved terms and conditions ...(reads)... within the framework of the claims made.

PN1395

Commissioner, I'll also refer you - - -

PN1396

THE COMMISSIONER: You're finished your quote from the decision at that point?

PN1397

MS BOOTH: Yes. Thank you, Commissioner. Commissioner, I'll also refer you to the decision of Thiess Contractors, again a decision by the Full Bench print number P9291 and it's by the Full Bench Senior Deputy President Marsh, Deputy President Duncan and Commissioner Smith on 18 March 1998. At page 7 of that decision, Commissioner, a quote which has already been referred to in the course of submissions by Tomago. If we move to the second, half way through the first paragraph at the top of page 7 - - -

PN1398

THE COMMISSIONER: If you could wait a moment, I'll just wait until I have that decision in front of me, please.

PN1399

MS BOOTH: Certainly, Commissioner.

PN1400

THE COMMISSIONER: Is that a Tomago authority, Ms Booth, is it?

PN1401

MS BOOTH: Yes, Commissioner. A copy was provided. It wasn't provided as part of the supplementary authorities filed, but it was provided in the first part of submissions I understand.

PN1402

THE COMMISSIONER: By Tomago?

PN1403

MS BOOTH: Yes, Commissioner.

PN1404

THE COMMISSIONER: All right. Specify that you're quoting from a decision if you would, please, because otherwise transcript might just take it to be your submissions. So if you could indicate where you start a quote and where you finish a quote from the decision, please.

PN1405

MS BOOTH: Certainly, Commissioner. To begin the quote:

PN1406

Where it is contended that the demands made are not "real and genuine", the answer to the inquiry thereby initiated is not to be found by measuring the log against inferred standards derived ...(reads)... has encouraged, nonetheless indicate a framework for serious negotiation of a dispute and, to the extent that it is unresolved, conciliation and arbitration by the Commission.

PN1407

Commissioner, I'll also draw you to the decision of Australian Transport Network, a decision found at number two in the AMWU list of authorities. It is a single member decision, Commissioner by Commissioner Raffaelli dated 4 March 1998 print number P9241.

PN1408

THE COMMISSIONER: Yes, I have that decision, Ms Booth. When you're ready.

PN1409

MS BOOTH: Thank you, Commissioner. At page 5 of that decision, Commissioner, there are a series of quotations from Kirby J in the Riordan decision. The quote that I refer to is the third of those.

PN1410

THE COMMISSIONER: So really, you're actually quoting from the Attorney General of Queensland v Riordan decision, the High Court?

PN1411

MS BOOTH: Yes, Commissioner, but drawing attention to the way in which the Commission has looked at that decision and the authority that is drawn from that decision. The second quotation comes from the third paragraph in page 5, five lines down beginning with the words:

PN1412

Apparent extravagance in some of the claims made will not, of itself, destroy the "genuineness" of the demand to its capacity to give rise to a real industrial dispute.

PN1413

THE COMMISSIONER: I'm sorry, you've lost me. I don't even know where you are. What are you quoting? Are you quoting from the Commissioner's decision or are you quoting upon Kirby Js decision in the Riordan High Court case?

PN1414

MS BOOTH: It is a quote from the Kirby J in the Riordan decision which has been repeated or replicated here in the decision.

PN1415

THE COMMISSIONER: All right. So, the paragraph you're looking at - and correct me if I'm wrong - you're looking at the Commissioner's last paragraph where he commences "then at page 473(12)"?

PN1416

MS BOOTH: Looking at the third of those quotations, Commissioner, beginning at "page 475(16)".

PN1417

THE COMMISSIONER: And you're on page 5 of the Commissioner's decision?

PN1418

MS BOOTH: Yes, Commissioner. The copy I have provides it at page 5.

PN1419

THE COMMISSIONER: How does the paragraph start, Ms Booth, please?

PN1420

MS BOOTH: Certainly. The paragraph starts with:

PN1421

It is also clear that demands set forth.

PN1422

THE COMMISSIONER: Well, we must have the wrong - are you looking at print P9241?

PN1423

MS BOOTH: Yes, Commissioner.

PN1424

THE COMMISSIONER: Page 5?

PN1425

MS BOOTH: Page 5.

PN1426

THE COMMISSIONER: And how does the paragraph start?

PN1427

MS BOOTH:

PN1428

It is also clear that demands set forth.

PN1429

Starting with "at" and it's a reference to 475(16). Commissioner, my print-out is from the copy available from the Commission's website. It may be that that
page - - -

PN1430

THE COMMISSIONER: Could I have a look at your print-out, please? Who provided us with this print, Ms Booth?

PN1431

MS BOOTH: That is from the AMWU's list of authorities, Commissioner.

PN1432

THE COMMISSIONER: You see, when we don't receive a copy we get the original prints up so you need to be conscious of that fact otherwise we waste time.

PN1433

MS BOOTH: Certainly, Commissioner. I'll certainly be sure that we rectify that.

PN1434

THE COMMISSIONER: Well, you're on page 6 of my print, Ms Booth.

PN1435

MS BOOTH: Thank you, Commissioner.

PN1436

THE COMMISSIONER: Thank goodness we now do paragraph numbers.

PN1437

MS BOOTH: Yes. So, Commissioner, beginning the quotation with the words which are five lines down:

PN1438

Apparent extravagance in some of the claims made will not of itself destroy the genuineness of the demand in its capacity to give rise to a real industrial dispute.

PN1439

THE COMMISSIONER: You're quoting from?

PN1440

MS BOOTH: This is a quote from Kirby J, Commissioner, in Riordan's case.

PN1441

In examining the demand made in a particular case, the Commission at first instance, and the courts thereafter, will be justified in considering the real industrial context in which ...(reads)... industrial arbitration in Australia in introducing conditions of employment once considered "fanciful", but in time, viewed as standard.

PN1442

And that's the end of that quote, Commissioner. Finally, Commissioner, I draw your attention to the Full Bench decision in A&A Contract Staff as previously noted.

PN1443

THE COMMISSIONER: Is that PR921867?

PN1444

MS BOOTH: Yes, Commissioner. Commissioner, again I draw you to paragraph 11 which I will note quote in full but again, the Full Bench in that decision referenced Kirby Js decision in Riordan's case and at paragraphs 14 and 15 discussed further the application of that case. At paragraph 14, not quoting the first sentence, starting with the words:

PN1445

It seems to us the question in each case is whether the demands made are real and genuine in a sense that they are put forward with the genuine intention of obtaining improved terms and conditions within the framework provided. As SPSF demonstrates, that question will be answered in the negative if the claims are so lacking in industrial reality that they amount to nothing more than a claim for increased wages and allowances as determined by the Commission.

PN1446

Commissioner, on the basis of those cases which I've drawn to your attention, the AMWU wish to assert that the appropriate test to be applied- - -

PN1447

THE COMMISSIONER: You're not relying on paragraph 15? You said to me you rely upon paragraph 11, 14 and 15. Are you relying upon 15?

PN1448

MS BOOTH: Yes, Commissioner. We also wish to rely upon paragraph 15, which reads:

PN1449

As the judgments to which we have referred indicate, some generosity of approach is required when considering whether a claim can be properly described as fanciful. It is proper ...(reads)... those employers provide labour in a wide range of classifications to a variety of industries, that fact also is relevant in assessing the type and amount of the claims made.

PN1450

THE COMMISSIONER: Is this the same log that was before her Honour Senior Deputy President Harrison?

PN1451

MS BOOTH: Yes, it was, Commissioner.

PN1452

THE COMMISSIONER: So there'd been no change? This is still the union standard log that her Honour, in her decision in PR917411, refers to?

PN1453

MS BOOTH: Yes, Commissioner. So, Commissioner, on the basis of those decisions the AMWU wish to assert that the appropriate test to be applied when considering the genuineness of the AMWU log is not whether, as Tomago assert, the claim might reasonably be obtained through the framework of negotiation, conciliation and arbitration in the foreseeable future but whether the claim provides a framework for serious negotiation of the dispute and to the extent it is unresolved conciliation and arbitration of that dispute. The AMWU also assert on the basis of the authorities provided that in determining the genuineness of that claim, consideration should be given that whether the union is genuinely seeking the approvement of the wages and conditions over time that it be considered over a larger length of time than what is in the test applied by Commissioner Bacon, which is "the foreseeable future".

PN1454

In regards to the AMWU log which has been presented to the respondents in this case, this log has been the subject of considerable scrutiny by this Commission as has been noted by the Commission here today. The log, which was the subject of consideration by Senior Deputy President Harrison in the A&A Contract Staff case and the subsequent appeal before the Full Bench is the same log of claims as was presented to the respondents in this case. The AMWU log was the subject of minor variation in 1998 and there are two previous decisions which we've included which examined the log in it's previous form, a form which has not been considerably varied and they are decisions of the Australian Transport Network at print P9241, the single member decision by Commissioner Raffaelli.

PN1455

THE COMMISSIONER: And that was when you say the standard log was amended?

PN1456

MS BOOTH: Yes, Commissioner. It was the previous log. It has not be substantially varied so it is, in substance, the same log as the one that has been presented in this case.

PN1457

THE COMMISSIONER: But was the submission that it was amended in 1998 by Commissioner Raffaelli's decision?

PN1458

MS BOOTH: No. Sorry, Commissioner. The standard log was varied by an authority of the AMWU at that time.

PN1459

THE COMMISSIONER: But amended due to Commissioner's decision?

PN1460

MS BOOTH: I am unaware of the history. I do know that it was varied at about that time, Commissioner. I would assume that it was varied in response to various decisions that had been made by the Commission at that time.

PN1461

THE COMMISSIONER: Well, to what extent was it varied?

PN1462

MS BOOTH: There were only minor variations. Unfortunately I do not have them to present to the Commission here today. I simply make the observation for the purposes of assisting the Commission by ..... .

PN1463

THE COMMISSIONER: So it's not the same log that was before her Honour?

PN1464

MS BOOTH: No, it's not the exact - it's the same log that was before her Honour Senior Deputy President Harrison, Commissioner, in the decision at PR917411.

PN1465

THE COMMISSIONER: All right. I'm clear now. The log that I have before me is the same log that was before her Honour Senior Deputy President Harrison?

PN1466

MS BOOTH: Yes, Commissioner and it is the same log that was considered by the Full Bench.

PN1467

THE COMMISSIONER: Thank you.

PN1468

MS BOOTH: Commissioner, I wish to also address the issue of industrial reality. That is a matter which, it's apparent from all the authorities we have raised, is an important consideration for the purposes of determining the genuineness of the claim. The concept of industrial reality is not a narrow concept. It is not limited by issues such as what is currently available or whether the provision of any particular demand would incur an extraordinary cost. And authority for this is found in the Full Bench decision of Munroe J, Deputy President Byron and Commissioner Simmonds on 1 March 1996 at print M9752 in the Western Australian Mint case.

PN1469

In that decision, Commissioner, the Commissioner looked at a number of the claims and made the- - -

PN1470

THE COMMISSIONER: Commissioner Hodder, the member that was on appeal?

PN1471

MS BOOTH: This is in regards, the decision I refer to, Commissioner, is the Full Bench decision.

PN1472

THE COMMISSIONER: Yes, but you said the Commissioner looked at it.

PN1473

MS BOOTH: My apologies. The Full Bench.

PN1474

THE COMMISSIONER: Thank you.

PN1475

MS BOOTH: Commissioner, again I apologise for not providing you a copy. I'm looking at a copy of this decision which is provided on the internet so I expect that we may have problems here.

PN1476

THE COMMISSIONER: Well, what page are you on?

PN1477

MS BOOTH: I'm on page 5 of that decision, Commissioner, with a paragraph that commences:

PN1478

A claim is not deprived.

PN1479

THE COMMISSIONER: Yes. That's on page 6, last paragraph on my print. Thank you, I've found it.

PN1480

MS BOOTH: Thank you, Commissioner, for your assistance. Commissioner, starting at that paragraph:

PN1481

A claim is not deprived of industrial reality or of relevant genuineness merely because it addresses a working condition not yet encountered, or not likely to be encountered at a ...(reads)... relevant industrial experience would disclose instances of " fares out" being paid from isolated locations, or from some offshore or intensive work projects.

PN1482

And that's the end of that quote, Commissioner. Commissioner, also in evaluating industrial reality, Commissioner Bacon in the Airly Coal decision at paragraph 38, at this paragraph, Commissioner, Commissioner Bacon cautions against using a current award for the purposes of establishing a starting point. Now, in this case, Commissioner, Commissioner Bacon was concerned with establishing what is achievable in the foreseeable future for reasons previously provided. The AMWU assert that is not the appropriate test to be applied. However, in going beyond the first sentence in that paragraph 38, Commissioner Bacon looks at how he might determine the starting point to establish the level of benefits currently provided and he cautions against the use of the safety net award for the purposes of determining what levels of benefit are currently available to employees.

PN1483

In view of that, Commissioner, the AMWU seek to tender a number of enterprise agreements. These are recent enterprise agreements. The first of those, Commissioner, was certified in October 2003. ETRS and the AMWU.

PN1484

THE COMMISSIONER: I'm missing the end of that. Is it 17 October 2003, is it?

PN1485

MS BOOTH: 2003, Commissioner. Yes. It's the ETRS Pty Ltd NDT Enterprise Agreement Victoria 2003.

PN1486

THE COMMISSIONER: Yes.

EXHIBIT #AMWU4 ETRS PTY LTD NDT ENTERPRISE AGREEMENT VICTORIA 2003

PN1487

MR BOATSWAIN: In respect, Commissioner, can I just indicate that these documents have just been given by Ms Booth. I reserve my rights to object on the basis on the assessment of the documents.

PN1488

THE COMMISSIONER: Yes. I understand that, Mr Boatswain. It is a very thick document.

PN1489

MR BOATSWAIN: I beg your pardon?

PN1490

THE COMMISSIONER: It is a very thick document and I do realise you've only just sighted it.

PN1491

MR BOATSWAIN: Yes.

PN1492

MS BOOTH: The second certified agreement, Commissioner, was certified in July 2005 and it's the Mayfield Engineering Pty Ltd New South Wales NDT Enterprise Bargaining Agreement 2005.

EXHIBIT #AMWU5 MAYFIELD ENGINEERING PTY LTD NEW SOUTH WALES NDT ENTERPRISE BARGAINING AGREEMENT 2005

PN1493

MS BOOTH: Commissioner, it's not my intention at the moment at this time to go through those documents but to use them for the purposes of dealing with the issue of industrial reality when proceeding through the clause as identified in the Tomago Schedule C. And finally, Commissioner, in regards to the issue of industrial reality, consideration also must be given to the unpredictable nature as provided at paragraph 15 of the Full Bench decision in A&A Contract Staff at paragraph 15, which has already been quoted so we do not intend to do that again. But in that paragraph, Commissioner, the Full Bench caution against taking at face value issues such as inflation, recognising that such factors are unpredictable and can vary substantially.

PN1494

Commissioner, at this point I wish to go through the clauses which have been identified in the submissions in respect of fanciful. Going through the document Schedule C, which was part of the Tomago outline - bearing in mind, Commissioner, when going these clauses as previously indicated the current AMWU log is the log that was before the Commission in the recent decisions of A&A Contract Staff and were considered both by Senior Deputy President Harrison and the Full Bench. So many of the comments in respect of the issue of fancifulness are dealt with in terms of acknowledging that the Commission did not find those claims fanciful in those decisions.

PN1495

Then turning to Schedule C for ease, the first number of clauses which have been identified as potentially being fanciful are under the first heading, and there's been a grouping of a number of clauses there, being clauses 1, 3, 4, 5, 6, 7, 8, 9, 11, 18 and 37. Commissioner, the issue of aggregation, which is what has occurred in this case, was the subject of submissions by the advocate for Tomago and I wish to, in responding to that, refer to the decision of Senior Deputy President in A&A Contract Staff at paragraph 28 and I refer to the second line of that paragraph, which begins with:

PN1496

A log is a catalogue of claims and one does not aggregate the claims for the purposes of arguing they are not genuine. The attempt made by ARG to aggregate the claims is not a valid approach.

PN1497

And I wish to stop the quote at that point.

PN1498

THE COMMISSIONER: It's not at paragraph 28 though, is it?

PN1499

MS BOOTH: Yes, Commissioner. The quote I just drew was from paragraph 28 of that decision.

PN1500

THE COMMISSIONER: I've got the Full Bench one, sorry.

PN1501

MS BOOTH: Would it be of assistance if I - - -

PN1502

THE COMMISSIONER: No, I do have that, thank you. I just pulled up the Full Bench one.

PN1503

MS BOOTH: In the subsequent Full Bench decision in A&A Contract Staff, specifically at paragraph 16, the Full Bench said:

PN1504

As in other cases in which it is sought to challenge a finding of dispute on the basis that the written log of claims is not real and genuine, the appellants aggregated the various claims in order to demonstrate a lack of industrial reality. We think this approach is simplistic.

PN1505

And if we go further down in that paragraph to the last line:

PN1506

Organisations can not reasonably be expected to moderate ambit demands because the cumulative effect if they were all achieved at once would be economically unsustainable and un-industrially unrealistic.

PN1507

Commissioner, on the basis of the authorities, the AMWU assert that the practice of aggregation is a practice where the log of claims, as a catalogue of claims, are dealt with as a group rather than individually. The AMWU assert that this practice is contrary to those decisions where it involves the aggregation of a number of claims or all of the claims found within the log. As was asserted by Senior Deputy President Harrison, the log is a catalogue of claims and any attempt to break down the individuality of any one claim is contrary to the principle of the ambit doctrine. Commissioner, the Tomago in this case sought to aggregate the claims listed of being 1, 3, 4, 5, 6, 7, 8, 9, 11, 18 and 37 on the basis of the decision of Commissioner Bacon in Airly Coal.

PN1508

The AMWU seek to tender a comparison of the allowances and payments both from the AMWU log and the APESMA log. I apologise to the Commission in advance, the document I'm giving you lists the name of the allowances but unfortunately does not list the - yes, it does list the appropriate clauses from the AMWU log but not from the APESMA log.

EXHIBIT #AMWU6 ALLOWANCES AND CLAUSES

PN1509

MR BOATSWAIN: Again, if I have the indulgence to compare it against the actual original documents this purports to summarise.

PN1510

THE COMMISSIONER: Yes, Mr Boatswain.

PN1511

MS BOOTH: Commissioner, the AMWU provide this comparison for the purposes of identifying the differences that exist between the APESMA log and the AMWU log in response to the practice of aggregation which has been made as part of the Tomago submission. The AMWU assert that the allowances and payments provided in the AMWU log are not of the kind which were contrary to the principles found in SPSF and therefore should not be aggregate in the manner followed by Commissioner Bacon in Airly Coal. Commissioner, in making that assertion I wish to draw your attention to paragraph 54 of Senior Deputy President Harrison's decision in A&A Contract Staff, where in the first line of that decision her Honour said:

PN1512

The AMWU log of claim in this matter bears little similarity to the one served by the State Public Services Federation.

PN1513

THE COMMISSIONER: And that was to do with the SPSF matter? That's what her Honour is referring to, is it?

PN1514

MS BOOTH: Yes, Commissioner.

PN1515

THE COMMISSIONER: What paragraph was it, I'm sorry?

PN1516

MS BOOTH: Paragraph 54 of Senior Deputy President Harrison's decision. Commissioner, drawing forth then to paragraph 55 of that decision where her Honour said:

PN1517

The AMWU log claims in this matter is detailed and comprehensive. It can not be compared to the one criticised by the High Court in SPSF.

PN1518

MR BOATSWAIN: I don't mean to interrupt.

PN1519

THE COMMISSIONER: Yes, Mr Boatswain?

PN1520

MR BOATSWAIN: Is this Senior Deputy President Harrison's decision in A&A Contract? The extract I have only goes to paragraph 32. Is this PR917411?

PN1521

MS BOOTH: That's correct.

PN1522

THE COMMISSIONER: The decision runs to 71 paragraphs in 23 pages.

PN1523

MR BOATSWAIN: That's interesting.

PN1524

THE COMMISSIONER: Ms Booth, you don't have an extra copy of her Honour's?

PN1525

MS BOOTH: Unfortunately I don't, Commissioner.

PN1526

THE COMMISSIONER: Well, Mr Boatswain, I'll ask my associate if he wouldn't mind. He'll print it out for your, Mr Boatswain.

PN1527

MR BOATSWAIN: Thank you for that. For some reason our print stopped at page 6 of 6.

PN1528

THE COMMISSIONER: Goodness gracious, just as well the Full Bench didn't have that before them. I don't know, does it end?

PN1529

MR BOATSWAIN: On mine it does. It doesn't appear to continue on. Anyway, I'll wait until I see - I do apologise to interrupt, your Honour. My friend's just - I wasn't sure.

PN1530

THE COMMISSIONER: Yes. My associate will print it out for you. All right, Ms Booth, we're now on 55 are we?

PN1531

MS BOOTH: Yes, Commissioner. If it will assist the Commission, I will start at the start of that paragraph again.

PN1532

The AMWU log claims in this matter is detailed and comprehensive. It cannot be compared to the one criticised by the High Court in SPSF . This log reflects a fifteen level ...(reads)... submission of Mr Gallagher I am not persuaded that the claims made in this log fall on the wrong side of the line.

PN1533

THE COMMISSIONER: The AMWU log before me goes to level 14.

PN1534

MS BOOTH: Yes, Commissioner. It does go to level 14. It is the same log that was provided to the Commission.

PN1535

THE COMMISSIONER: So you lost a level somewhere along the line?

PN1536

MS BOOTH: Thank you, Commissioner, for drawing that to my attention. I've not previously seen that. I'll find out why that- - -

PN1537

THE COMMISSIONER: It may be a typographical in her Honour's decision. I really don't know, but you might take that on board.

PN1538

MS BOOTH: Yes, I will, Commissioner. Thank you. Also, Commissioner, in looking at the claims identified in this first area, also look at the Retail Traders decision where a series of claims that formed part of the SDA log were found fanciful. The Retail Traders decision is the Full Bench decision, where the Full Bench actually affirmed the decision made at first instance.

PN1539

THE COMMISSIONER: That's the Wesfarmers decision? The decision print M6550?

PN1540

MS BOOTH: Yes, Commissioner.

PN1541

THE COMMISSIONER: Okay. I refer to it as Wesfarmers, but Retail Traders .....

PN1542

MS BOOTH: If the Commission will prefer I quickly- - -

PN1543

THE COMMISSIONER: No. At this stage I don't refer anything.

PN1544

MS BOOTH: Yes. Commissioner, I just need to distinguish it from the subsequent Wesfarmers decision which is the subject of submissions regarding matters pertaining.

PN1545

THE COMMISSIONER: All right. And where about are you?

PN1546

MS BOOTH: In respect of that decision, Commissioner, if you go to what - and again we had problems with print-outs - I refer to page 11 of that decision where the Full Bench refers to- - -

PN1547

THE COMMISSIONER: What's the paragraph? On my page 11 there's a number of clause numbering.

PN1548

MS BOOTH: Yes and my reference is to those clause numbers, Commissioner. It's in regards to the training allowance at dot point 7:

PN1549

Clause 81 requires an employer, in addition to all other payments claimed, to pay an employee whilst undergoing training $500 per week.

PN1550

In that case, Commissioner, a sum of $500 per week was found to be fanciful. The AMWU log of claims at clause six has a training allowance of $200. The AMWU assert that's reduced for- - -

PN1551

THE COMMISSIONER: At claim six?

PN1552

MS BOOTH: At claim six.

PN1553

THE COMMISSIONER: Yes, training allowance, $200 week.

PN1554

MS BOOTH: The training allowance, Commissioner. The training allowance in the AMWU log is of substantially lower figure of $200. The AMWU assert that quantum is not fanciful in contrast to the sum of $500 in the SDA log of claims.

PN1555

MR BOATSWAIN: I hesitate to object during submissions, Commissioner, but this is not the first time that unfortunately the submission made is not supported by the extract to which the union was referred to. There's nothing in that decision which suggests that it was the $500 per week is the basis that the claim, which is clause 81, was found to be fanciful. It is the fact that simply clause 81 implies an employer - and it's underlined - in addition to all other payments claimed to pay include, whilst undergoing training at $500 per week, is held to be fanciful. The entire clause is held for those reasons. There is nothing in the decision which suggests it's the $500 per week quantum.

PN1556

I'd just ask my friend to be a little bit careful in that regard because there have been a number of submissions made based on authorities that does not accurately reflect the extract referred to and it is a little bit difficult for me to go at the end of submissions to correct that.

PN1557

THE COMMISSIONER: Well, Mr Boatswain, you'll have an opportunity.

PN1558

MR BOATSWAIN: If it pleases the Commission.

PN1559

MS BOOTH: Thank you, Commissioner. So finally, Commissioner, in regards to the series of claims identified at the first point of Schedule C the AMWU assert that the claims are not fanciful, that they are genuinely advanced by the AMWU and consistent with the finding of Senior Deputy President Harrison and the Full Bench they are capable of being the subject of an industrial dispute. Commissioner, I'll now move on to claim number nine, which was identified in the submissions of Tomago. Firstly, Tomago sought to rely on Commissioner Bacon's decision in Airly Coal. Commissioner Bacon in Airly Coal at paragraph 56 and 57 found the clause of the APESMA log to be fanciful on the basis that it was unlikely to be achieved in the foreseeable future.

PN1560

For reasons previously provided, we seek to distinguish this decision as not being consistent with the test for genuineness provided by the Full Bench in the decision of A&A Contract Staff. At this point we wish to draw attention to the decision of Australian Transport Network, which is again the decision by Commissioner Raffaelli where, at my page 5, your page 6 the Commissioner examines a series of claims found within the log and looks at clause nine which is travelling fees and board. At that paragraph the Commissioner says:

PN1561

I do not consider a demand for paid travel at first class level and payment of a living away from home allowance as fanciful. In this respect I note that a similar claim was in ...(reads)... family members, this demand may be extravagant and ambitious but on balance not fanciful. I do not doubt that the union generally demands such.

PN1562

In regards to this claim I also draw the Commission's attention to the Mayfield's Engineering Enterprise Agreement.

PN1563

THE COMMISSIONER: What exhibit number, Ms Booth?

PN1564

MS BOOTH: AMWU5.

PN1565

THE COMMISSIONER: Thank you.

PN1566

MS BOOTH: Where at clause 31 there is provision for payments for travel. I don't intend to read those provisions in full, just draw to the attention of the Commission for the purpose of establishing that it is practical and reasonable for a claim such as that found in the AMWU log to form a framework for negotiation, conciliation and arbitration in that such provisions do form part of enterprise agreements.

PN1567

THE COMMISSIONER: I don't think the complaint was necessarily - wasn't the Tomago complaint, well, I know the training issue was in regards to an employee's family.

PN1568

MS BOOTH: Yes, Commissioner. In regards to the matter of clause nine, my record of - - -

PN1569

THE COMMISSIONER: It was clause nine. It was the first sentence, was it?

PN1570

The employer shall provide transport for all journeys between the employee's usual place of work and residence.

PN1571

MS BOOTH: My record of the objections raised by Tomago relied on the decision in Airly Coal and also the clauses in the Retail Traders decision.

PN1572

THE COMMISSIONER: Yes. Right, well, we'll read transcript.

PN1573

MS BOOTH: Commissioner, again as was found in the decision of A&A Contract Staff this clause has been found not to be fanciful and capable of providing the framework for negotiation, conciliation and arbitration.

PN1574

THE COMMISSIONER: You're not suggesting the Full Bench specifically addressed claim nine in the AMWU log? You're relying upon the overall decision of the Full Bench?

PN1575

MS BOOTH: Yes, Commissioner. More importantly, the decision by Senior Deputy President as was approved by the Full Bench.

PN1576

THE COMMISSIONER: Yes, but her Honour didn't particularly specify or make any comment on the specific claim found in claim nine?

PN1577

MS BOOTH: No, Commissioner. Senior Deputy President Harrison did not go to any particular claim within the AMWU Log.

PN1578

THE COMMISSIONER: Except she made reference to the classification structure and a number of allowances and leave provisions, I think.

PN1579

MS BOOTH: Yes, Commissioner. Otherwise, the log was found to be capable.

PN1580

THE COMMISSIONER: Yes. Well, I think really your submission in regards to this particular issue, fancifulness, you're relying upon the Full Bench decision and her Honour's decision in relation not what you say is the AMWU's standard log?

PN1581

MS BOOTH: Yes, Commissioner.

PN1582

THE COMMISSIONER: Thank you.

PN1583

MS BOOTH: Commissioner, in regards to claim 10 which is the motor vehicle allowance, objections were raised in regards to the claim at paragraph one where all annual standing costs and running costs should be paid by the employer and further, into paragraph two, where allowance of $20 per kilometre is provided.

PN1584

THE COMMISSIONER: Correct me if I'm wrong, claim 10 of the AMWU log was objected to on the basis of matter pertaining?

PN1585

MS BOOTH: I have here that it was also objected on the basis of fancifulness, Commissioner. Perhaps Tomago can assist us.

PN1586

THE COMMISSIONER: Because I haven't marked my copy of Schedule C so I could be incorrect, but I thought it had marked it where you had changed the document in regards to Tomago's position. I don't have it down as not genuine of fancifulness.

PN1587

MR BOATSWAIN: I don't have the actual document in front of me, which I submit, but the early copy did mark that - and I believe I did object on the basis of fancifulness as well.

PN1588

THE COMMISSIONER: All right. I've evidently not marked it so I'll make sure I have a thorough look through transcript and Ms Booth, I'll hear your submissions on that then.

PN1589

MS BOOTH: Thank you, Commissioner. In regards to the objections, the AMWU assert that the AMWU claim, although ambitious, is not so extravagant or extreme as to be lacking in genuineness, particularly in view of the raising fuel prices and raising associated costs of maintaining a vehicle in Australia, it's not unreasonable. The figure provided of $20 per kilometre is not so extravagant as to be unable to form a framework for negotiation, conciliation and arbitration. Progress now on to claim 14, inclement weather. It's asserted by Tomago that this clause is fanciful on the basis that employees have a capacity to determine whether work shall not proceed because of the weather.

PN1590

The AMWU assert that any rights to determine that work shall not proceed is subject to the following definition of inclement weather, which is provided in paragraph two of the claim and that the claim is not so extravagant or unrealistic as to be guilty of fancifulness. Further, the AMWU assert that there is an increasing awareness of occupational health and safety responsibilities, both on the part of the employer and on the employee. The AMWU assert that the claim Is consistent with that raising responsibility and therefore does provide a framework for negotiation, conciliation and arbitration. Moving on to claim 15, Commissioner, this claim addresses the provision of clothing.

PN1591

Objections were raised to this claim on the basis of the words in sentence two "in addition". It was asserted by Tomago that the words "in addition" implied that employees would be supplied with all clothing required for their work and in addition would be provided on six monthly basis arranged clothing, which was implied as not being required for work. The AMWU assert that a correct reading of these words should recognise that the words "in addition" are a reference to the ongoing supply and maintenance of clothing required for work, being that sentence one which reads:

PN1592

Employees shall be supplied with clothing including all protective clothing required for work free of charge.

PN1593

It refers to the principle of the provision of protective wear and also the initial provision of that clothing and that sentence two, which reads:

PN1594

In addition on a six monthly basis the employer shall provide free of charge five pairs of overalls, five Tasmanian blue jackets and five pairs of safety
boots -

PN1595

Is a reference to the need to provide that clothing on an ongoing basis. Commissioner, I refer you to clause 35 of the Mayfield's Engineering Certified Agreement AMWU5, which provides the advocate for Tomago asserted that the claim 15 lacked industrial reality because no such clauses or claims could be found within the relevant awards. The AMWU assert that the provision of protective clothing is not an unrealistic one and it is reflecting industrial reality. Specifically I refer you to clause 35.6 which refers to the ongoing provision of protective clothing and equipment which, in this basis, is on the basis of fair wear and tear on the job. Accordingly, the AMWU assert that claim 15 provides a framework for negotiation, conciliation and arbitration and is not fanciful.

PN1596

I move next to claim 17, which is hours of work. Objection was raised to this claim on the basis firstly of the decision by Commissioner Bacon in Airly Coal where, at paragraph 58, the Commissioner found that a similar claim in the APESMA log was unlikely to be achieved in the foreseeable future. Then the AMWU distinguish the Airly Coal decision has been based on an overly narrow application of the test. Objection was also raised by Tomago on the basis of the relevant awards having hourly rate of 38 hours per week. In respect to this I refer to clause 26 of the Mayfield's Enterprise Agreement. It should noted in this case, Commissioner, for ease I have principally referred to the Mayfield's Engineering Certified Agreement or Enterprise Bargaining Agreement but the other enterprise agreement provided, AMWU4, has very similar conditions.

PN1597

Clause 26 of the agreement provides for a process for the introduction of a reduced 36 hour working week. What this demonstrates, Commissioner, is there is an increasing recognition on the part of employers and employees that workers need to find a balance between hours of work and leisure time as is reflected in the heading to that clause. This increasing need to find flexibility and balance between working hours and family life is also reflected in the decision in the recent working and family test case. Accordingly, the AMWU assert that the claim 17 is reflective industrial reality and it does provide the framework for negotiation, conciliation and arbitration.

PN1598

I move now to claim 18, Commissioner. Again, Tomago relied extensively on the decision of Commissioner Bacon in Airly Coal at paragraph 59 where it determined that the claims sought in that case was unrealistic in the foreseeable future. This was a decision based on Commissioner Bacon's extensive experience in the coal industry and it was discussed at that time, the decision was peculiar to that industry. Again, we seek to distinguish the Airly Coal decision on the basis that the test applied by Commissioner Bacon in that case was a narrow one and that a wider test should be applied. In respect to the matter of industrial reality, again we refer to clause 26 of the Mayfield's Enterprise Agreement and the recognition that there needs to be a balance found between people's working life and leisure life and we go so far as to say that the recognition of shift work is an important part of that.

PN1599

Accordingly, the AMWU assert that the claim is not fanciful and it does provide a framework for negotiation, conciliation and arbitration. We move on to claim 19 and the claim regards to overtime. In regards to this objection, Tomago relied on provision found within the current award. In regards to this, the AMWU makes similar submissions as been provided for clause 17 and 18 that there is an increasing recognition that there needs to be a balance between work and family life and that where people work they should be appropriately compensated for that. Accordingly, the AMWU assert that that claim is not extravagant and that it does provide a framework for negotiation, conciliation and arbitration.

PN1600

The next claim is number 20, the stand-by allowances. The AMWU assert again that this claim does provide a framework for negotiation, conciliation and arbitration. It may be extravagant and ambitious however, as has been previously submitted, ambition is not necessarily an indication that the claim is not genuine. The claim is reflective of the disruptive nature of being on call and is again reflective of the increasing recognition of the need to balance work and family. The next is claim 21, which is the call back allowance. Tomago's objections were based on the lack of such a provision within the relevant awards. I refer you to clause 30 of the Mayfield's Enterprise Agreement where there is provision for call back arrangements.

PN1601

THE COMMISSIONER: Wasn't the Tomago submission directed to the awards that apply of Tomago?

PN1602

MS BOOTH: Commissioner, the awards that were referred to by Tomago related to at least one award that is currently applied at Tomago, which is for clarity say the Clerks Award. The Driving Award is not currently applied.

PN1603

THE COMMISSIONER: But it's the award that the union thinks should apply, is it not?

PN1604

MS BOOTH: Yes, Commissioner.

PN1605

THE COMMISSIONER: But this agreement does apply to aluminium at all, does it?

PN1606

MS BOOTH: No, Commissioner.

PN1607

THE COMMISSIONER: By saying that, I mean AMWU5 and AMWU4.

PN1608

MS BOOTH: Yes, Commissioner.

PN1609

THE COMMISSIONER: They are not agreements that are operating in the aluminium industry?

PN1610

MS BOOTH: Not exclusively, no, Commissioner.

PN1611

THE COMMISSIONER: No, all right.

PN1612

MS BOOTH: But they're there to clarify industrial reality, bearing in mind the limitations on the safety net awards in terms of reflecting what is currently available.

PN1613

THE COMMISSIONER: And these are AMWU agreements? They're parties to these agreements?

PN1614

MS BOOTH: Yes, they are, Commissioner. Commissioner, in regards to clause 21 again the AMWU assert that the claims may be considered ambitious but this is not equal to a lack of genuineness and that they do provide a framework for negotiation, conciliation and arbitration. In regards to claim 23, which is rest pauses.

PN1615

THE COMMISSIONER: Did you do 22?

PN1616

MS BOOTH: Thank you, Commissioner. 22, meal break. Commissioner, again objection was made to this claim on the basis that it was not obtainable for framework negotiation, conciliation and arbitration which the AMWU assert is not the appropriate test to be applied in this case. The AMWU assert that the meal break claim, although ambitious, is a recognition of occupational health and safety concerns regards continuous work. They are not unrealistic in that respect. They do provide a framework for negotiation, conciliation and arbitration and although ambitious, this is not equal to a lack of genuineness.

PN1617

In claim 23, Commissioner, a claim for rest pauses, again the AMWU assert that this claim is not unrealistic in view of the increasing recognition of occupational health and safety concerns regarding continuous work and the need to take breaks in the course of work to rest. On this basis, the AMWU assert that the claim, although ambitious, is not lacking in genuineness and it does form the framework for negotiation, conciliation and arbitration. The next claim is claim number 24, which is annual leave. Again, Commissioner, Tomago objected to this claim on the basis of the decision by Commissioner Bacon in Airly Coal.

PN1618

Commissioner Bacon at paragraph 60 asserted that the claim was not likely to be achieved in the foreseeable future. The AMWU assert that this is a narrow test and is not the appropriate test to be applied in this case. Equally, Tomago have asserted that the claim lacks in industrial reality because of the provisions in the safety net awards, being four weeks or five weeks in the case of a shift worker. Again, the AMWU assert that the clause, although ambitious, recognises the increased need for a balance between work and family and increased responsibility on the part of the employer to assist employees to meet their family responsibilities.

PN1619

Accordingly, the AMWU assert that the claim, although ambitious in the current, is not unrealistic or extravagant and it does provide a framework for negotiation, conciliation and arbitration.

PN1620

THE COMMISSIONER: Ms Booth, can I just - and I hate to interrupt submissions - but you seem to have, we have 70 odd claims I think. Something, not 70 odd, but quite a few claims are objected to. It would appear that a number of the claims are subject to the same submission.

PN1621

MS BOOTH: Yes, Commissioner.

PN1622

THE COMMISSIONER: Is there any way you can just highlight the claims that attract the submission that you're making in regards to whether you say that it can be found in another award or agreement, whether you say there are concerns of occupational health and safety, work and family. I'm just wondering if there is any way of just bunching those claims under a specific submission that you make. I don't want to disrupt your submission and I realise you've compiled it and that's how you've planned to work, but I only think to myself I think by 5 o'clock tonight I might get to the last claim of the log which was appendix 1.

PN1623

MS BOOTH: Yes. I understand, Commissioner. Perhaps it would be of assistance then, Commissioner, if I simply in addressing each particular under the hearing of fancifulness, just refer you to previous submissions and only highlight any particular clauses or agreements or any particular points, rather than making assertions regarding the appropriate test. Would that be helpful?

PN1624

THE COMMISSIONER: Yes. I'm just thinking to cut down the length of time rather than get repetitive. Yes, please.

PN1625

MS BOOTH: Certainly, Commissioner. Then on that vain, Commissioner, we move on to claim 25. In regards to that claim, the AMWU make assertions in relation to the work and family balance for reasons previously provided and again the application of the appropriate test. In regards to claim 28- - -

PN1626

THE COMMISSIONER: Are you sure it's 26? Yes, 28, you are correct.

PN1627

MS BOOTH: 28, Commissioner. Paternity, parental and adoption leave. I refer the Commission to the recent work and family test case decision where there was some significant increases in entitlements including an entitlement to request up to 24 months unpaid parental leave. That certainly provides a very different industrial reality than was previously considered and certainly statements by Commissioner Bacon at paragraph 66 of Airly Coal change in their complexion in regards to those decisions. The work and family test case also provided for the capacity to request up to eight weeks unpaid simultaneous leave for a secondary care giver. In claim 29, Commissioner, I refer you to the decision in Australian Transport Network.

PN1628

THE COMMISSIONER: Commissioner Raffaelli in P9241.

PN1629

MS BOOTH: Yes, Commissioner, where he considered the issue of child care on my page 6.

PN1630

THE COMMISSIONER: On page 8 of my print.

PN1631

MS BOOTH: Yes. Thank you, Commissioner. In respect of the claim for child care, the Commissioner said:

PN1632

The provisions of child care for children of employees is an industrial reality in many instances. I do not consider that the demand is fanciful. I also note that a similar demand survived in Lamsoon .

PN1633

THE COMMISSIONER: That's special family leave, though. That's not for child care, is it?

PN1634

MS BOOTH: I'm referring to the comments of the Commissioner in regards to clause 57, child care. The Commissioner goes on to make comments in regards to clause 30 which is compassion leave. That may be the clause which you have before you, Commissioner.

PN1635

THE COMMISSIONER: Aren't you addressing claim 29, special family leave?

PN1636

MS BOOTH: Yes, I am, Commissioner.

PN1637

THE COMMISSIONER: Isn't that leave provision?

PN1638

MS BOOTH: Yes, it is, Commissioner. I apologise. Thank you for that clarification. The reason I drew attention to that particular provision is simply to put before the Commission that matters such as child care and family responsibilities - - -

PN1639

THE COMMISSIONER: But the claim isn't for child care though, is it?

PN1640

MS BOOTH: No. Not in this case, Commissioner.

PN1641

THE COMMISSIONER: So is that relevant? I mean, I don't have the - do I have the Commissioner's whole clause of it? I just took it to be child care.

PN1642

MS BOOTH: Yes. That particular clause is a reference to child care. The reason I had referred to it witness statement simply to emphasis that the care of children is an industrial matter as has been- - -

PN1643

THE COMMISSIONER: Yes, but the claim before Commissioner, the log before Commissioner was a claim to provide no cost to employees a child care service. Your claim is not a child care service, is it not? It's just special family leave.

PN1644

MS BOOTH: Yes. On that basis, Commissioner, I withdraw my comments in relation to Australian Transport Network and draw attention to the recent work and family test case decision where a number of agreements were drawn in terms of assisting employees to balance their work and family responsibilities, including the increasing provision of carer's leave, the extension of carer's leave to include unexpected emergencies and the provision of additional unpaid carer's leave.

PN1645

THE COMMISSIONER: I might add, Ms Booth, too you didn't particularly notify that you would be providing or relying upon that particular test case decision nor have you provided me with a copy of it.

PN1646

MS BOOTH: My apologies, Commissioner.

PN1647

THE COMMISSIONER: I just note it. I don't know that you draw any attention to specific section. I think you're talking about the overall decision, but just bear that in mind.

PN1648

MS BOOTH: Certainly, Commissioner. I'll ensure that doesn't happen again in the future. My comments there in regards to the industrial reality which exists in regards to special family leave, which is the matter of claim 29, and a recognition that there needs to be additional provision of leave to assist people in meeting their family responsibilities. Commissioner, I move next to clause 30, which is compassion leave. In regards to compassion leave there is a comment on point in the decision of Commissioner Raffaelli in Australian Transport Network where the Commissioner dealt with compassion leave and the Commissioner said:

PN1649

It may be that if the work location of an employee is distant from the place of a funeral, reimbursement of the costs may be sought. I do not consider the claim to be fanciful.

PN1650

I move on to claim 32, special leave. Commissioner, in regards to special leave I again draw attention to the work and family test case and the increasing recognition of the need for leave arrangements to be more extensive to allow people to meet their family responsibilities.

PN1651

THE COMMISSIONER: But the claim isn't necessarily for family purposes? It's for private purposes- - -

PN1652

MS BOOTH: No, Commissioner. It's not extensively for family leave, however in terms of identifying what the industrial reality is I draw attention to that decision as an example of how there is a recognition that employees have a range of responsibilities and do need flexible leave arrangements in order to accommodate them. Also in regards to claim 33, which is leave without pay, again I draw attention to the industrial reality which is the need for more extensive leave arrangements to allow people to meet their responsibilities, particularly leave without pay and certainly a number of the agreed variations in the work and family test case decision related to more extensive unpaid leave arrangements.

PN1653

I move now on to claim 34, which is conciliation and arbitration leave. In regards to that clause it was asserted that it was excessive in that it was not limited to a particular group of employees. Commissioner, on the basis of the reading of the words before us, the AMWU assert that the provision of leave for a employee to assist in the research, preparation and material that may be required under Federal or State Industrial Relations legislation is directly linked to the first part of that provision, which is that they shall be granted leave to attend proceedings. Commissioner, the claim is - as the title would suggest - for the provision of leave for conciliation and arbitration purposes. It's not the intention of the AMWU that this clause shall be to provide for leave for the purposes of any industrial issue.

PN1654

It is the intention of the AMWU that it should be leave for purposes of conciliation or arbitration which is directly linked to the functions of both Federal and State Industrial Relations Commissions. In regards to claim 35, Commissioner, I'd just make the observation in regards to the provision of training or unlimited training. The AMWU assert that this claim is, although ambitious, not extravagant in view of the current skills shortage that we have in Australia, the need for people to be focusing on the training and development of their skills, not just in respect of their current occupation but a variety of occupations, where there are not sufficient numbers of trained people. In view of this we assert that the claim is not so extravagant as to be fanciful.

PN1655

We move on to claim 38, which is the contract of employment. In regards to this the objection was that the provision of a retirement age of 40 was lacking industrial reality. The AMWU accept that there is currently a policy of encouraging people to remain in the workforce and that the inclusion of the age of 40 is an ambitious figure. However, we assert that it is not so ambitious as to be extravagant and lacking in industrial reality. In regards to clause 39, which is recognition of prior service, the AMWU assert that as was observed by Commissioner Bacon in Airly Coal, there is a history or portable long service leave in the coal industry as distinct from what exists in the aluminium industry. But as it's been previously noted, a clause is not lacking in genuineness simply because it is not currently available.

PN1656

The AMWU assert that the provision of arrangements such as portable long service leave are not so ambitious or lacking in industrial reality as to render this claim fanciful. Clause 41, reinstatement. Again, Commissioner, the AMWU acknowledge that this is an ambitious claim, however we assert that it is not a claim so ambitious or extravagant as to render it lacking in genuineness. Clause number 42. Similarly, Commissioner, we recognise this is an ambitious claim but again assert that it is not so ambitious as to be lacking in genuineness. Move on to clause 52, superannuation. Commissioner, in regards to the provision of superannuation, it is an increasing reality that people need to ensure that their superannuation is sufficient to allow them to retire comfortably.

PN1657

There is increasing recognition that people will need to be able to financially support their own retirement and the use of increased super contributions as part of a salary sacrifice package has already been recognised as a way of assisting with that. On that basis, we assert that the claim provided in 52 is ambitious but consistent with a increased recognition of the importance of accumulating a sufficiently large superannuation provision. Move on to claim 55, which is the provision of parking of vehicles. The AMWU note that for many workplaces, particularly those of an industrial nature, there are often very poor public transport arrangements. There is a need for staff to drive to their workplace and the provision of facilities such as secured parking is not unrealistic in that context.

PN1658

Accordingly, the AMWU assert that the claim, although ambitious in regards to there being paid time for the parking of those cars, it is not lacking in genuineness. And finally on the matter of fancifulness, Commissioner, I refer to claim 63. Again, Commissioner, this provision is consistent with comments made in regards to superannuation. There is an increasing recognition of the need to financially provide of your own retirement and this claim is consistent with that. accordingly, we assert that it is not lacking in genuineness and is a realistic claim for the purposes of providing a framework for negotiation, conciliation and arbitration. Commissioner, I understand that's addressing all of the objections on the basis of fancifulness provided by Tomago. I hope I have not left any out.

PN1659

Prior to leaving the matter of genuineness, Commissioner, I wish to draw attention to two other matters which were raised both in the Tomago submission and their outline of submissions in regards to the genuineness of the log. The first of those was in regards to the use by the AMWU of a standard log of claims. Commissioner, the use of a standard log of claims is certainly a practice which is, for want of a better word, a standard practice. The Senior Deputy President Harrison in the decision of A&A Contract Staff at paragraph 26 observed that the current log of claims is a standard log of claims and in fact it was a standard log of claims adopted subsequent to 1998. The Commissioner goes on to make observations relevant to- - -

PN1660

THE COMMISSIONER: Senior Deputy President.

PN1661

MS BOOTH: Sorry, Commissioner. Senior Deputy President goes further to make comments in regards to authorisation. Commissioner, the AMWU assert that the Senior Deputy President on this occasion, as has been the case in other occasions, was aware that this is a standard log of claims that is largely not varied when provided to each respondent. The Senior Deputy President raised no objections to that practice and subsequently found that the log of claims was capable of giving rise to industrial dispute. The second matter is in regards to wording provided on the internal memorandums within the AMWU. Those two memorandums are attached to the AMWU outline of submission and they're attached as Schedules B and C.

PN1662

In regards to Schedule B, the comment which seems to have attracted objection is the comment on the last line prior to the sign off, where it is said:

PN1663

It is intended that companies be roped into the drafting production plan of the Technical Workers Award 1998.

PN1664

I'm not aware, certainly, of an expressed objection raised in regards to the wording provided in the memorandum at Schedule C. The AMWU assert that the wording provided in these memorandums does not lead to an inescapable conclusion as was asserted by Tomago, but simply they demonstrate a genuine intention on the part of the AMWU to pursue the claims contained in the log of claims and it is indication of the desirability to genuinely seek resolution of the dispute. On that basis, Commissioner, the AMWU assert that the wording within the memorandum are not a bar to the genuineness of the claim.

PN1665

Commissioner, I now intend to move on to speak generally about matters pertaining. The submissions of the AMWU can be found at 4.1 of the AMWU outline of submission, where paragraph 47 of the Schefenacker decision is provided in full, the Schefenacker decision being a decision of the Full Bench print number PR956575. The AMWU assert that all of the claims within the AMWU log meet the requirements as provided or outlined in Schefenacker. It is my intention to go through and address those objections individually.

PN1666

THE COMMISSIONER: Sorry?

PN1667

MS BOOTH: Commissioner, it is my intention to now progress through, in a similar fashion under the issue of fancifulness, and address each of the objections raised by Tomago.

PN1668

THE COMMISSIONER: If you have like submissions for particular claims, could you just give me the claim number and give me the like submission of rall of them? If you can do that. We might break for a few minutes and you might have a look at that, Ms Booth, and we'll come back and we'll hear the remainder of the submissions.

PN1669

MS BOOTH: Certainly, Commissioner.

PN1670

THE COMMISSIONER: Yes, we'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [12.09PM]
<RESUMED [12.24PM]

PN1671

THE COMMISSIONER: Yes, when you're ready, Ms Booth, thank you.

PN1672

MS BOOTH: Thank you, Commissioner. Commissioner, in response to your request I have tried as best I can to group together my submissions in terms of dealing with the objections raised by Tomago. So I apologise for where I failed to do that, but I shall certainly endeavour to do that to assist the Commission in speeding up the proceedings. What I propose to do is to go through the Schedule C in chronological order, drawing parallels between arguments and cases as required in an attempt to make our progression through the objectable clauses as speedy as possible.

PN1673

In that way, Commissioner, I draw your attention first to claim number nine, which is in regards to travel. The objections raised there were two fold - one, on the basis that travel to and from work is considered to be a private and domestic matter in the area of taxation and the second objection is in regards to statements made by Commissioner Bacon at paragraph 79 to 80 of Airly Coal where it determined that payment of a benefit to an employees' family member is not a matter that pertained to the employment relationship. Commissioner, in regards to the first point which is the assertion that, as is the case in the taxation regime, that travel to and from the workplace should be considered a private and domestic matter.

PN1674

We wish to assert that the definition of travelling expenses in the context of taxation legislation is not necessarily relevant in regards to determining whether a matter or an expense relates to the employment relationship. In this case, we assert that travel to and from the workplace may still be considered a matter pertaining to the employee as an employee and the employer as an employer in a direct and real way. In regards to the second matter, which is the payment of benefits to an employee's family, this is a matter that's arisen in respect to a number of the claims. This has arisen in regards not only to claim nine but also claim 26, claim 30 and claim 42.

PN1675

Commissioner, the AMWU wish to distinguish the comments made by Commissioner Bacon in Airly Coal where he asserted that he payment of a benefit to an employee's family is not pertaining. By looking at the decision of Commissioner Raffaelli in Australian Transport Network- - -

PN1676

THE COMMISSIONER: The only difficulty with that is that decision was handed down in 1998. It's well before the High Court in Electrolux.

PN1677

MS BOOTH: I understand that, Commissioner.

PN1678

THE COMMISSIONER: I think we would guard with caution any member's decision prior to Electrolux or Schefenacker.

PN1679

MS BOOTH: Certainly, Commissioner. Certainly in regards to that decision, bearing in mind that it was made prior to the decision of Electrolux and Schefenacker, the Commissioner in that case actually relied on a previous decision. It actually relied on the decision of Stephen J in Manufacturing Grocers Employees Federation of Australia and Others and also the decision in Portus and Others.

PN1680

THE COMMISSIONER: Where on Commissioner's decision are you, Ms Booth?

PN1681

MS BOOTH: I am on page 7 of the Commissioner's decision.

PN1682

THE COMMISSIONER: Yes. That's page 8 on my print.

PN1683

MS BOOTH: Thank you, Commissioner.

PN1684

THE COMMISSIONER: Well, before you thank me it's the paragraph headed in italics:

PN1685

Pertaining of the relationship of employer and employee.

PN1686

MS BOOTH: Yes. That's correct, Commissioner. I don't intend to quote in full from that, simply to draw attention to the determination of the Commissioner in regards to clause nine, which is travelling fares and board. Under that heading the Commissioner found that the payment of benefits to an employee was considered ancillary to the employer employee relationship. It's the assertion of the AMWU that that is still the case under the decision of Electrolux and Schefenacker. This claim and similar claims that relate to the payment of an employee of a benefit to the family of employees arises because of the employer employee relationship.

PN1687

In this case where the payment is because an employee is required to attend for duty other than in his or her usual place of work and in that case the employee shall be paid the travel and accommodation in respect of the need to attend work at an alternative place. The AMWU assert that this is ancillary to a matter that pertained to the employee relationship. The next claim, Commissioner, is claim 10, motor vehicle allowance. This matter was objected to on the basis that by paying all of the annual standing costs and running costs of a vehicle an employer may, without intending to, be paying for the use of the car by a member of the employee's family. Commissioner, the AMWU assert that this is a very liberal reading of the claim provided in clause 9.

PN1688

To assume that an employee has a family and that family has the general practice of using the car that an employee also uses in their capacity as an employee is a very broad brush stroke. Accordingly, the AMWU assert that the clause is sufficiently connected with the employer employee relationship as it relates to the manner in which the employee will perform their work and the payment of costs for a motor vehicle that an employee uses in the course of their work. Commissioner, I'll turn now to claim 14. Commissioner, in claim 14 one of the principal objections to this claim is the claim includes a capacity for a union to determine, in this case, cyclone procedure.

PN1689

Commissioner, objections along the lines of this objection using for support the decision the Nurses and Midwives decision, which was provided by Tomago in their supplementary list of authorities at number four, it's a decision by Senior Deputy President O'Callaghan in September 2004.

PN1690

THE COMMISSIONER: Have you got a print number on that?

PN1691

MS BOOTH: Yes, 952226. Commissioner, in this decision Senior Deputy President rejected a clause that allowed the union the right to determine to it's satisfaction remuneration levels and then on that basis to terminate the agreement. On closer examination of the clause in this case, Commissioner, and I refer you to paragraph 25 of the decision where his Honour said:

PN1692

Considered in isolation, I cannot conclude that this clause is a matter pertaining to the employment ...(reads)... I am not prepared to accept that a reference to the ANF should be taken to be synonymous with the involvement of affected employees.

PN1693

I refer you then on to paragraph 30 of the decision where I quote:

PN1694

If clause 19.2 had a reference to employees as parties included or involved in the consideration of the adequacy of remuneration, there would be little doubt that the provisions pertain to the employment relationship or, that the clause was, at least, incidental.

PN1695

Commissioner, in the claim found here at 14 and in the claims found at 58, 65 and 70 there is a reference to the involvement of either employees or members of the union who are employed by the employer. On this basis, Commissioner, the AMWU seeks to distinguish the decision made by Senior Deputy President O'Callaghan and assert that the claim does pertain to the employment relationship or at least is incidental to the employment relationship. In regards to clause 14, Commissioner, there was also objections raised on the basis of paragraph three that the cyclone procedure referred to in that clause was unlimited in its nature.

PN1696

Commissioner, the AMWU assert that paragraph three of the claim should be read in the context of paragraph one and two, particularly paragraph one which refers to a right to determine that work should not proceed because of inclement weather. Commissioner, any procedure in regards to cyclones is connected to work and when work should be performed and therefore pertains to the employment relationship. And finally, Commissioner, objection was raised on the basis that the claim was academic, legal, social or managerial in nature. Commissioner, the claim is in regards to when work shall be performed in view of potentially inclement weather.

PN1697

Commissioner, this is the hours that an employee works is necessarily relevant to the employment relationship on the basis that claim 14 does pertain to the employment relationship or is incidental or ancillary to a matter that does pertain. I move on to claim 15. Again, Commissioner, objections appear to have arisen in regards to an interpretation of this clause. As was our submissions in regards to whether this claim was a fanciful one, the AMWU again assert that the words "in addition" which are found in sentence two of that claim should be read in the context of sentence one, being that an employee must provide all protective clothing and that they must provide further clothing on a six monthly basis.

PN1698

In that this clause relates to the provision of clothing for the purposes of work the AMWU assert that it does pertain to the employment relationship or is incidental or ancillary to a matter that does pertain. Commissioner, I move on to claim 25. it relates to public holidays, Saturdays and Sundays. Commissioner, the objections raised in regards to this matter are similar to the objections raised in regards to claim 42 in that on the basis of the case South Australia v CEPU which is an authority listed at number five in the supplementary list of authorities provided by Tomago being print number PR952221, again an unreported decision by Senior Deputy President O'Callaghan.

PN1699

THE COMMISSIONER: The submissions in regards to claim 25 will also be the submissions in regards to claim 42?

PN1700

MS BOOTH: Yes, Commissioner. They are in response to the objections which were the same in regards to those two claims.

PN1701

THE COMMISSIONER: Yes, thank you.

PN1702

MS BOOTH: Commissioner, in that decision Senior Deputy President O'Callaghan looked at, in paragraph 28, considered an income maintenance clause for re-deployees. The proposal was that that income maintenance for re-deployees was to continue indefinitely. At the second part of paragraph 28, and I quote, the Senior Deputy President indicated that the clause:

PN1703

Does not pertain to the employment relationship, insofar as it might be construed as being a claim for payments that would continue beyond the period of the employment relationship.

PN1704

At 29 his Honour goes on to say:

PN1705

In this respect I cannot agree. The claim seeks indefinite income maintenance payments to redeployees. Redeployees can only be described as employees. A person ceases to be a redeployee in the event of termination of employment. The claim does not extend beyond a matter pertaining to the employment relationship.

PN1706

Commissioner, Tomago seek to assert that the conclusion to be made from that particular two paragraphs is that where a person ceases their employment then it becomes a claim for a matter which it does not pertain to the employment relationship. The AMWU assert the Senior Deputy President did not determine in respect of that matter and was unrequired to do so because he determined that a re-deployee could be described to be an employee and therefore it is not a definite assertion or a definite authority for the assertion that where a claim pertains where an employee ceases employment the employment relationship is termination and the matter can not pertain.

PN1707

THE COMMISSIONER: The public holidays clause, that doesn't go to re-deployees though, does it?

PN1708

MS BOOTH: No, Commissioner. Commissioner, I'm just seeking to distinguish the place which is the basis for Tomago's assertion that once an employee ceases employment the employment relationship is terminated and such therefore the matter can not be pertaining to the employment relationship.

PN1709

THE COMMISSIONER: Well, what's your submission then? What do you say about the claims in the union's log?

PN1710

MS BOOTH: In regards to the claim at 25, it's the AMWU's assertion that it is a matter pertaining to the employment relationship, particularly in regards to paragraph two. It relates to the payment of monies upon the termination of the employment of an employee. Those monies will be calculated on the basis of public holidays which may fall into the future but will be paid on the termination of an employee and therefore pertained to the employment relationship.

PN1711

THE COMMISSIONER: Then the same claim for 42, redundancy and retrenchment?

PN1712

MS BOOTH: Yes, Commissioner.

PN1713

THE COMMISSIONER: Specifically, claim 42.5(b), I think, was Tomago's objection. Now, that claim is where an employee is transferred to other duties due to redundancy and then the claim is for the payment of relocation expenses for the employee and his or her dependents.

PN1714

MS BOOTH: Yes, Commissioner.

PN1715

THE COMMISSIONER: So is that the same submission that the claim is a payment on termination and therefore pertains?

PN1716

MS BOOTH: Commissioner, in regards to 42.5(b), that is in regards to the payment of a benefit to the employee's family and that was addressed in regards to our submissions for claim 9 where we addressed the issue of whether a payment of a benefit to an employee's family could be considered to be a matter pertaining to the employment relationship. The AMWU assert that it is a matter ancillary or incidental to a matter that does pertain to the employment relationship. Commissioner, I move on to claim 26 which is again addressed in terms of the submissions made for claim 9 in regards to a payment of a benefit to an employee's family. The same arguments apply in regards to claim 30.

PN1717

THE COMMISSIONER: The claim doesn't specify a family member.

PN1718

MS BOOTH: It does in claim 30, Commissioner.

PN1719

THE COMMISSIONER: Sorry, I'm still on 26.

PN1720

MS BOOTH: Okay, certainly.

PN1721

THE COMMISSIONER: Anyhow, that's fine. Claim 30 you're on now, are you?

PN1722

MS BOOTH: Commissioner, in regards to claim 26 it was the objection of Tomago that the clause could be read as extending to a family member on the basis of the final paragraph of claim 26. It is the assertion of the AMWU that on a proper reading of paragraph four, which reads:

PN1723

The employer shall meet all the hospital, medical and insurance costs for on behalf of the employees. That it is limited to those hospital, medical and insurance costs incurred by the employee and should not be interpreted as also extending to the hospital, medical and insurance costs of an employee's family.

PN1724

Commissioner, a similar argument arises in regards to clause 30, which is compassionate leave. Again, Tomago raised objections in regards to paragraph two of that claim, which reads:

PN1725

The employer shall reimburse the employee for travel, expenses and accommodation costs associated with the taking of such leave.

PN1726

Again, it is the AMWU's assertion that on a proper reading of that paragraph that the reimbursement for travel, expenses and accommodation costs is in respect of those expenses and costs incurred by the employee and should not be read as extending to the costs and expenses of others who may be travelling with the employee. Accordingly, the AMWU assert that it is a matter pertaining to the employment relationship or is ancillary or incidental to a matter that does pertain. Commissioner, the next claim is claim 34, which is conciliation and arbitration leave. It has been settled in the decision of Schefenacker at paragraph 89.

PN1727

THE COMMISSIONER: 89 was it?

PN1728

MS BOOTH: Yes, Commissioner.

PN1729

THE COMMISSIONER: Yes. I do have that, thank you.

PN1730

MS BOOTH: Just regarding the first sentence of that paragraph:

PN1731

It provides for paid leave of absence for a specific purpose. There is no basis for a distinction between a provision of paid leave for absence for that purpose or any other of the many purposes for which paid leave may be provided.

PN1732

In this case there is a provision for conciliation and arbitration leave. It is asserted by Tomago that this clause is not genuinely about leave and has cited a number of authorities in support of that assertion. The AMWU in response assert that on a proper reading of the claim it is a matter pertaining to leave, it is a matter pertaining to paid leave for the purposes of attending proceedings and for the purposes of assisting in the research and preparation of materials that relate to those proceedings as required under Federal and State Industrial Relations legislation. Commissioner, in support of that we go further in the decision of Schefenacker and refer to paragraph 90 where there was reference made from the decision in Wesfarmers, and for ease I will, rather than referring to the decision, use the quote provided here and to read the quote there which is by French J in that Wesfarmers' decision:

PN1733

The hours of an employee's availability for work and the conditions under which an employee may be absent from that work or whether or not he or she can be paid during that absence in my opinion lie at the heart of the of the employer employee relationship. They affect employer and employee in their capacity as such.

PN1734

Accordingly, Commissioner, the AMWU assert that the leave provided both in claim 32 and subsequently in claim 35 are a matter pertaining to the employment relationship on the basis they are a claim for leave and they are a claim for leave for a specific purpose. Commissioner, I move on to claim 36 which is a claim for English classes. It has been asserted that the provision of such classes bears no connection with employment or the employment relationship. Commissioner, the ..... to communicate in English is relevant to your capacity to perform your work and certainly in Australia, which is such a multi-cultural country with so many people for whom English is not their first language the provision of English classes to ensure that they are able to appropriately understand and perform their work is a relevant matter in their capacity as an employee.

PN1735

Accordingly, the AMWU assert that the claim in claim 36 is a matter pertaining to the employment relationship. Commissioner, in regards to claim 37 it was asserted by Tomago that again this claim bears no relationship or is too remote from the employment relationship. The AMWU assert that the national skills shortage makes training within any industry relevant to each employer within that industry and therefore the AMWU assert this is a matter pertaining to the employment relationship or incidental or ancillary to a matter that pertains. Commissioner, we move now on to clause 39. Clause 39 bears resemblance to arguments that are relevant in respect of claim 39 but also claim 42, 59 and 65.

PN1736

Commissioner, in respect of all of these claims the AMWU assert that each of the claims deal in some way with their remuneration process or the remuneration that will be provided to an employee by their employer and therefore they relate or pertain to the employment relationship. In the case of claim 39 the claim relates to the remuneration that will be appropriate in recognition of prior service. In respect of claim 42, Commissioner, again the claim relates in some part to the remuneration that will be provided upon redundancy or retrenchment. Equally, arguments that have been provided in regards to the payment of benefits to an employee's family were outlined in respect of claim 9 are also relevant in respect of claim 42.

PN1737

Commissioner, we move on to claim 44. Objection was made to paragraph one which provides for all information considered by the union and employees to be necessary to provide it so as to allow the union to improve and maintain employees welfare should be provided by the employer. Commissioner, the information sought under claim 44 is information directly related to the welfare of employees and will specifically, in the case of unions, in relation to members. The unions have a stated role of protecting and advancing the industrial interests of members and therefore a reference to an employee's welfare in clause 44 should be properly read as relating to an employee's welfare at work or, more importantly, their industrial conditions.

PN1738

As was provided in the summary at clause 47 of the Schefenacker decision, Commissioner, at (f):

PN1739

The mere fact that a clause confers some rights on a union does not of itself lead to the conclusion the clause does not pertain.

PN1740

It's been recognised by the Commission in the Ballantyne decision, which is a decision by Vice President Ross in October 2004 PR952659,

PN1741

THE COMMISSIONER: Was I notified of that reliance?

PN1742

MS BOOTH: The Ballantyne decision was provided by Tomago.

PN1743

THE COMMISSIONER: All right, then. Better that I take that copy and not my own.

PN1744

MS BOOTH: It is at number 14 in the supplementary list of authorities provided.

PN1745

THE COMMISSIONER: What paragraph of his Honour's decision, Ms Booth?

PN1746

MS BOOTH: Commissioner, I refer to paragraph 146 where his Honour looks at a clause providing a notice board or the provision for a notice board for the use of delegates and I refer specifically to paragraph 148 where I quote:

PN1747

I am satisfied that sub clause 41.3 is incidental or ancillary to matters that pertain to the requisite relationship. Delegates and other representatives of the union have a direct role in ensuring that there is compliance with the terms of the agreement. Provisions directed to the maintenance of an effective settlement and the prevention of further disputes may be included in the certified agreement.

PN1748

And further on at paragraph 149:

PN1749

Further, delegates and union representatives play an important role in the procedures in the agreement for the avoidance of industrial disputes (see clause 11) and in relation to the introduction of change (see clause 10).

PN1750

Commissioner, the AMWU assert that the claim at claim 44 is directly related to the responsibility or the role that the union plays in ensuring compliance with an award or an agreement and on that basis pertains to the employment relationship or is ancillary or incidental to matters that pertain.

PN1751

THE COMMISSIONER: You say it's ancillary?

PN1752

MS BOOTH: Yes, Commissioner.

PN1753

THE COMMISSIONER: That's all right. I just didn't catch the last bit of your submission.

PN1754

MS BOOTH: I refer further to the decision of Transport Workers Union of Australia, a full bench decision by Senior Deputy President Harrison, Senior Deputy President Hamberger and Commissioner Smith in June 2005 PR959284 and I refer specifically to paragraph 51:

PN1755

Relevant to this issue is the decision of Vice President Ross in Ballantyne. The Vice President there considered a clause in the agreement which required the employer to provide a lockable glass fronted notice board for use of the union delegate.

PN1756

THE COMMISSIONER: You're quoting?

PN1757

MS BOOTH: Yes, Commissioner.

PN1758

THE COMMISSIONER: Indicate that you're quoting from the decision.

PN1759

MS BOOTH: Certainly, Commissioner.

PN1760

THE COMMISSIONER: Best start again. Paragraph 51 of the Full Bench decision.

PN1761

MS BOOTH: Quoting from 51 of that decision:

PN1762

Relevant to this issue is the decision of Vice President Ross in K L Ballantyne and National Union of Workers (Laverton Site) Agreement ...(reads)... clause was supported by the judgment at first instance of Justice Merkel in Electrolux Home Products Pty Ltd and Australian Workers Union.

PN1763

I draw that quote to an end and move on to paragraph 55 where I quote:

PN1764

In our opinion, the proper construction to be given to this clause is similar to the approach of Vice President Ross ...(reads)... relevant information. Similarly in the dispute settlement procedure the accredited union representative's role is acknowledged at various steps.

PN1765

Commissioner, consistent with this approach it has been adopted in this decision. The AMWU assert that the union does have a role to play in various parts within the log of claims and accordingly claim 44, pertaining to information, is ancillary or incidental to the employment relationship. Commissioner, we now move on to clause 49. As has been previously noted, arguments in regards to the capacity of the union- - -

PN1766

THE COMMISSIONER: Ms Booth, before you start on 49 I think it might be appropriate if we go for lunch. We'll adjourn until 2.15 pm. Thank you.

<LUNCHEON ADJOURNMENT [1.07PM]
<RESUMED [2.24PM]

PN1767

THE COMMISSIONER: Yes, Ms Booth, whenever you're ready.

PN1768

MS BOOTH: Thank you, Commissioner. Prior to the break we were just up to considering clause 49. Commissioner, the intention of this clause is to regulate the use of contractors so as to protect the job security of employees. Objection was raised to paragraph 1, sentence 1, of the claim in addition to clause (c). The AMWU assert that the parts of the subsets of the claim as identified may constitute partial prohibition but these prohibitions are designed to protect the job security of workers by having a direct - by allowing unions and workers to have a direct impact on the basis under which contractors, sub contractors or labour hire staff may be initially and subsequently employed.

PN1769

I turn to paragraph 79 of the Schefenaker decision and in particular to the final sentence provided in the paragraph that reads:

PN1770

While it is true that clause 1.7.2 and clause 1.7.4 may be construed as a partial prohibition on the use of a labour hire employees they are also designed to increase permanent employment by placing obligations upon the employee to engage more permanent employees in the circumstances specified.

PN1771

The AMWU assert that consistent with the principle outlined in the Schefenaker decision that the partial prohibitions identified in claim 49 are not so great as to render the claim not to pertain to the employment relationship.

PN1772

THE COMMISSIONER: How are those two clauses aligned with the union's log, Ms Booth?

PN1773

MS BOOTH: The analogy is in terms, Commissioner, is that the two clauses identified in that clause place caps on the - a number of staff that may be employment from a labour hire agency. In the case of 17.2 the cap or the agreed maximum level employees of labour hire agency would be 20 per cent of the total weekly paid employees and it is agreed where that is in excess of 20 per cent - where the employee agrees to consult and talks to you is when employment is in excess of 20 per cent. The other relevant clause is 17.4 where is reads:

PN1774

That an employee of a labour hire agency will not be considered for permanent employment until the total percentage of labour hire agency employees exceeds 20 per cent in total weekly paid employees.

PN1775

So, Commissioner, we are drawing the analogy between the recognition that a claim or a clause that may be a partial prohibition yet still satisfy the requirements in terms of pertaining to the employment relationship.

PN1776

THE COMMISSIONER: So you say the union log at 49 is a partial prohibition?

PN1777

MS BOOTH: Yes, Commissioner, and it is partial prohibition for the purposes of protecting the job security of employees. Further within claim 49 objection has been raised to paragraph (b) and also - or subset B and paragraph 4. Commissioner, the AMWU - - -

PN1778

THE COMMISSIONER: I see. It is not numbered on the log.

PN1779

MS BOOTH: Yes. Unhelpfully.

PN1780

THE COMMISSIONER: You're just saying the fourth paragraph.

PN1781

MS BOOTH: Yes, the fourth paragraph. Commissioner, the AMWU assert that both of these parts of the claim relate to the role of the union in ensuring compliance with the agreement or the claim in regards to the part of the claim under subset B there is no requirement for the employer to actually ensure that a contractor joins the union but if an employee does or a contractor, consultant or employee does join the union, as a member of the union, the union is in a position to ensure compliance with the agreement or the award.

PN1782

THE COMMISSIONER: It doesn't say that - the logs not saying you must join the union though is it?

PN1783

MS BOOTH: No, Commissioner. It says that they shall join the union under B.

PN1784

THE COMMISSIONER: I'm sorry, I thought you were addressing the third and fourth paragraph of the claim.

PN1785

MS BOOTH: My apologies, Commissioner.

PN1786

THE COMMISSIONER: No that's all right, I can see where you are.

PN1787

MS BOOTH: I am addressing B and paragraph 4.

PN1788

THE COMMISSIONER: B as well, okay, thank you.

PN1789

MS BOOTH: Yes. Again in regards to paragraph 4, the information that is sought is that information that relates to ensuring compliance with the requirements of the award or agreement particularly compliance with paragraph 3 where it indicates:

PN1790

That the employer shall ensure that the contractor and or contractor and or any other persons engaged by the employer and were covered by this log of claims shall pay to the employee of the contractor or sub contractor or other person the wages and conditions contained in this log of claims.

PN1791

On this basis Commissioner, the AMWU assert that claim 49 is a matter pertaining or is ancillary or incidental to a matter pertaining to the employment relationship. Commissioner, I take this opportunity to also address the two other objections made in regards to clause 49. The first of those is also that there be - purpose of this clause is that of preference and as a result, quality of decision in piece contractors. Such a demand cannot be made by the employer nor the Commission and thus cannot be a dispute for the purposes for the purposes of the Act. In response to that argument on part of Tomago the AMWU refer you to the decision in the CEPU of Monadelphous Engineering Association which is a decision by Commissioner Merriman in February 1999, print number R2170 and in that decision, Commissioner, I refer you to the last paragraph on page 2, which starts with, in considering the arguments, and I read:

PN1792

In considering the arguments as to freedom of association again the Commission adopts the decision of Vice President Ross in print N9221 insofar as the employers have adopted the narrow view which is set out in item 29 of the written submission. The union is not required to have its claim resolved immediately and this needs to be borne in mind.

PN1793

THE COMMISSIONER: But wasn't that to do with section 89A?

PN1794

MS BOOTH: Commissioner, in this decision there was also arguments brought in regards to preference and where the - and if you look above there is a series of dot points as to the objections to the finding of disputes on the basis of objections and dot point 5, the objection is:

PN1795

A number of demands cannot be the subject of a valid industrial disputes as they would require the employer to breach Part XA of the Act.

PN1796

THE COMMISSIONER: Yes I see but the Commissioner then goes on referring to Ludeke and he makes mention that an award - the Commission cannot make an award which contains preference.

PN1797

MS BOOTH: That's correct, Commissioner. So just in the final line, I quote:

PN1798

It is true that at this time the Commission cannot make an award which contains preference, however that does not mean that a dispute finding which involves a log of claims which includes a claim for preference cannot be found.

PN1799

Commissioner, the AMWU would seek to rely on the reasoning presented by Commissioner Merriman in that decision.

PN1800

THE COMMISSIONER: Where does Vice President Ross refer to it in the decision relied upon by Commissioner?

PN1801

MS BOOTH: The relevant quotation from the decision by Vice President Ross is actually repeated in the decision by Commissioner Merriman, just above the paragraph that I quoted to you.

PN1802

THE COMMISSIONER: No, but that goes to 89A.

PN1803

MS BOOTH: Commissioner, in the decision by Vice President Ross the issue of Part XA of the Act was not considered.

PN1804

THE COMMISSIONER: That's what I thought.

PN1805

MS BOOTH: That's correct, Commissioner, yes.

PN1806

THE COMMISSIONER: And I don't, know does Vice President Ross in his decision in print NR221, and forgive me if I have not read it correctly his Honour's decision, but I don't know that he says anywhere, does he, that the Commission can't make an award which contains preference clauses.

PN1807

MS BOOTH: He certainly - he does not - - -

PN1808

THE COMMISSIONER: Nor does he say you can't make an award. Yes, no he doesn't refer to awards. It is predominately 89A where he looks at a number of parts. It's a number of reasons for not accepting the argument but he does also refer to the fact that the Commission makes agreements.

PN1809

MS BOOTH: That's correct, Commissioner.

PN1810

THE COMMISSIONER: But I don't know that does he make specific reference to awards?

PN1811

MS BOOTH: I would need to - I certainly know the Commission did not have to consider the matter of whether there was a breach of XA of the Act. The concern of Vice President Lawler was - - -

PN1812

THE COMMISSIONER: Vice President Ross.

PN1813

MS BOOTH: My apologies, Vice President Ross, was particularly in regards to section 89A of the Act and the capacity of the Commission to find a dispute. Commissioner Merriman in this decision has adopted the same reasoning and applied it in respect of Part XA of the Act in terms of determining and deciding that a dispute finding may still be made in respect to the log of claims which includes a claim for preference. Commissioner, finally in regards to claim 49, arguments have been raised by Alcan in respect to whether the claim has a capacity to conflict with section 45E of the Trade Practices Act. The AMWU has made a number of submissions in respect of this at 5.3 and 5.6 of the AMWU outline of submissions. It is not my intention to repeat those at this time.

PN1814

THE COMMISSIONER: At what part in the AMWU?

PN1815

MS BOOTH: 5.3 to 5.6.

PN1816

THE COMMISSIONER: 5.3 and 5.6.

PN1817

MS BOOTH: At this time, Commissioner, I wish only to address the matters that have arisen in regards to the substantial purpose of claim 49. Section 4F(1)(b)(ii) subset (ii) of the Trade Practices Act as noted by the advocate for Alcan during the submissions indicates:

PN1818

That a purpose for the purposes of this Act is a purpose for a substantial purpose.

PN1819

The AMWU assert that the claim 49 does not have the substantial purpose of preventing or regulating the engagement of contractors. Pardon me, of preventing or hindering the engagement of contractors. The purpose of this clause of this claim as I previously noted is to regulate the use of contractors so as to protect the job security of workers. On the basis of arguments put in regards to whether this matter pertains the AMWU assert that claim 49 does not or have the capacity to conflict with section 45E of the Trade Practices Act as that it does not have substantial purpose of preventing and hindering the - - -

PN1820

MR BOYCE: Commissioner, sorry to interject, but section 4F of the Trade Practices Act - - -

PN1821

THE COMMISSIONER: Sorry, section?

PN1822

MR BOYCE: The section 4F of the Trade Practices Act as referred by the advocate for the AMWU specifically says it doesn't apply to section 45E so the substantial purpose doesn't apply to section 45E. That was put in our submissions but it's clearly on the face of the Act that the purpose test there is for purpose or purposes and there is no substantial purpose test. If we took you to that and you will find is, I mean, I will deal with it in a reply but it is incorrect to be submitting section 4F in their submissions when that section actually doesn't apply to section 45E.

PN1823

THE COMMISSIONER: Whereabouts in your submissions, Mr Boyce, was it and Ms Booth I don't say you took me to that? AMMA1 is it, where about are you Ms Booth, in that?

PN1824

MS BOOTH: Commissioner, the original submissions made in regards to this matter can be found in the outline of submissions.

PN1825

THE COMMISSIONER: Yes, which is it?

PN1826

MS BOOTH: At 5.3 to 5.6.

PN1827

THE COMMISSIONER: Your AMWU submissions you are talking about?

PN1828

MS BOOTH: Yes, Commissioner.

PN1829

THE COMMISSIONER: Sorry, I had that, but now you are referring to the Australian Mines and Metals submission, are you not?

PN1830

MS BOOTH: Yes, Commissioner. I think the advocate for Alcan for clarify that issue. I had misunderstood his submission in regards to - - -

PN1831

THE COMMISSIONER: Well, whereabouts in his submissions. I don't know where I am.

PN1832

MS BOOTH: My apologies, Commissioner, in regards to his verbal submissions.

PN1833

THE COMMISSIONER: All right so not the written submissions?

PN1834

MS BOOTH: No not in respect to his outlined submissions, Commissioner.

PN1835

THE COMMISSIONER: All right and Mr Boyce you are doubting, you're clarifying your submissions in that regard?

PN1836

MR BOYCE: Yes.

PN1837

MS BOOTH: Commissioner, I thank Mr Boyce for doing that. I was labouring under an incorrect conclusion in regards to the verbal submissions that he made and I withdraw all my comments in regards to 4F as he has quite rightly pointed out it doesn't actually apply in this case. Instead I shall direct myself specifically to the arguments as he has clarified with us today. And again, the AMWU assert that the purpose of clause 49 of the claim is to regulate to the use of contractors so as to predict the job security of employees. It is only a partial regulation and is not a significant hindrance to the capacity of the respondents to engage contractors.

PN1838

Commissioner, I turn to claim 51, a claim relating to environment. The AMWU recognise that this claim may not meet the requirements established under Electrolux and Schefenaker and it is found by this Commission that the claim does not apply or does not pertain. The AMWU assert that it should be severed. I move now to - - -

PN1839

THE COMMISSIONER: Well, so what are you doing, are you pushing claim 51 of the log?

PN1840

MS BOOTH: Commissioner, I have not been given instructions to severe the claim however I recognise that this may fall foul of the change of environment due to the Electrolux and Schefenaker decision. Commissioner, I move to claim 53 and has been done in previous submissions by Tomago I also group with that appendix 1 which provides a delegates charter. Provisions in regards to delegates time and facilities have been found pertaining both in Schefenaker and at clause, sorry at paragraph 128, where it was found, overall the provision contains the regulation of the role of the employee who is also a local union representative. It pertains to the relationship between the employer and on the one hand employees who are stewards and on the other hand the other employees at least insofar as they are union members.

PN1841

This conclusion is reinforced by terms of dispute settlement provision in the agreement which gives stewards a specific role in settlement of disputes arising at the workplace. As noted in the decision of Ballantyne, Vice President Ross also notes that a clause relating to shop stewards and the provision of facilities for shop stewards was also accepted by Merkel J in the Electrolux decision.

PN1842

THE COMMISSIONER: Whereabouts are you in - - -

PN1843

MS BOOTH: That is at paragraph 64 and 65 of that decision, of the Ballantyne decision. Further in the Full Bench decision of Transport Workers Union, Senior Deputy President Harrison and Commissioner Smith at paragraph 51 and 55 recognise that in …… clause was incidental or ancillary to matters that pertain to the requisite requirement on the basis of the role of the union and the union representatives in the introduction of significant change in the dispute resolution process and in the provision of information. On this basis, Commissioner, the AMWU assert that clause 53 and appendix 1 are ancillary and incident to matters pertaining to the employment relationship on the basis that they reflect the established roles of unions in ensuring requirements of the agreement and the award.

PN1844

Commissioner, I turn now to claims 55, 56, 57 and 58. The AMWU assert that each of these claims does pertain to the employment relationship as they each relate to the provision of facilities by the employer to the employees in their capacity as such. Clause 51, sorry claim 55, relates to the parking of vehicles. In regards to this clause I wish to provide particular attention to the interpretation previously provided by Tomago. The AMWU assert that on a proper reading of this clause, the insurance provided for employees' vehicles relates to when those employees have parked their motor vehicles in the protected parking facilities provided by the employer and don't relate to when that vehicle is parked elsewhere.

PN1845

Claim 56 relates to child care. Claim 57 relates to the provision of amenities. An objection was raised particularly to the provision found at the last dot point within that frame which is a claim for suitable lock up facilities and for an employer to bear the cost of replacing any items stolen, destroyed, damaged or lost. Again the AMWU assert that on a proper reading of this clause that the responsibility on the employer to replace items that are stolen, destroyed, damaged or lost occurs in relation to when it, that property is being put in the lock up facilities and doesn't relate to when that property is elsewhere.

PN1846

Finally in regards to claim 53, it's a claim for security. The AMWU assert that each of these claims - - -

PN1847

THE COMMISSIONER: Number 63 is it? What claim?

PN1848

MS BOOTH: 58 Commissioner. Site security. The AMWU asserts that claim 55, 56, 57 and 58 all relate to - - -

PN1849

THE COMMISSIONER: Just give those to me again?

PN1850

MS BOOTH: 55, 56, 57 and 58.

PN1851

THE COMMISSIONER: Yes.

PN1852

MS BOOTH: Each relate to the provision of facilities by the employer to its employees and therefore pertain to the employment relationship. Commissioner, in regards to claim 65, the AMWU assert that this claim relates to remuneration to be provided to the employee by employer. That remuneration to include the costs of health insurance and other insurance. The AMWU assert that this does pertain to the employment relationship and is part of their remuneration paid to employees.

PN1853

Finally, Commissioner, I address claim 70 which relates to home based work.

PN1854

THE COMMISSIONER: 67?

PN1855

MS BOOTH: Sorry, Commissioner, thank you for drawing that to my attention. Objections have been raised to this claim on the basis that the conventions to which Australia is party are wide reaching and indeed the AMWU accept that they are very wide reaching. However the AMWU assert that the clause should be read down to be limited to those conventions that relate to labour issues and examples of those can be found within the Workplace Relations Act. A number of conventions to which the Australian government is party which relate directly to employment.

PN1856

On that basis, on the basis that the clause be read down, the AMWU assert that does pertain to the employment relationship. Finally, Commissioner, in regards to claim 70, the AMWU assert that this claim relates to the nature of work, how it will be done and where it will be done and that this necessarily pertains to the employment relationship. In regards to objections raised on the basis of the case nurses and midwifes, the AMWU has distinguished that case in regards to a number of other claims so I won't repeat those submissions except to note that approval for home based arrangements include not only the union but employees and therefore the nurses and midwifes case can be distinguished.

PN1857

Commissioner, on the basis of my submissions today, the AMWU assert that the log of claims provided to the respondent is evidence of a real intention of the AMWU to negotiate with the respondents regarding the wages and conditions for employees. The AMWU assert that a paper dispute was created by the serving of a log of claims and the rejection of that log by the respondent. The AMWU log is a comprehensive list of 70 genuine demands that provide a framework for the negotiation of dispute and to the extent of the non resolution, conciliation and arbitration of that dispute. The AMWU note that this is the log of claims that was accepted by her Honour, Senior Deputy President Harrison, in the A&A Contract Staff decision and subsequently accepted by the Full Bench.

PN1858

The AMWU assert that the claims contained within the log do pertain to the employment relationship or are incidental or ancillary to matters pertains to the employment relationship. In addition the AMWU asserts that the standard log of claims is capable of giving rise to industrial dispute and on this basis the AMWU request that the Commission exercise its power under section 101 of the Act and find a dispute in this matter. Thank you Commissioner.

PN1859

THE COMMISSIONER: Thank you, Ms Booth. Mr Boatswain?

PN1860

MR BOATSWAIN: Just one moment. Do you want to go first?

PN1861

THE COMMISSIONER: Yes. I was going to actually ask whether Mr Boyce would like to go first but I thought you two would work that out.

PN1862

MR BOATSWAIN: Well I think we just did and he does.

PN1863

THE COMMISSIONER: Yes. Good. I don't object.

PN1864

MR BOYCE: Thank you, Commissioner. Our submissions in reply are limited to those submissions are limited to clause 49 which are advanced in our initial outline. Ms Booth's has submitted to the Commission today that the clause 49 relates to a partial prohibition, for use of words, of contractors and she submits that that partial prohibition is justified to protect or regulate the terms and conditions of employment of our employees. Commissioner, in terms of section 45E which are attached to our original outline of submissions, sub section 3 there refers to an acquisition situation and it talks about obtaining a provision included for the purpose or for the purposes including the purpose of preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person.

PN1865

Not notwithstanding the end submission as to its stated purpose if any other purpose well we would say, effect, is the preventing or hindering of the acquisition of goods and services or continuing to acquire those goods or services and they are adjunctive to preventing or hindering their partial prohibition, to use Ms Booth's submission, is something that would offend section 45E if given effect to by the Commission. We note, as we have already stated previously, that section 4F sub section (I) of the Trade Practices Act which was again advanced in our initial submissions, contains provision for a substantial purpose. Section 4 of sub section (2) specifically includes that substantial test for the purposes of section 45E.

PN1866

Commissioner, simply in reply we would say that clause 49 in our view is an absolute prohibition. Without the agreement the union the contractors simply cannot be engaged by the companies. We would say notwithstanding that though, even if the Commission was to accept that it was a partial prohibition, an absolute or a partial prohibition will prevent or hinder the acquisition of goods and services and therefore potentially breach section 45E of the Trade Practices Act. And we say that that is a matter advanced in this log of claims that can lead to an outcome that is contrary to law and contrary to the Trade Practices Act and therefore on that basis that clause should not be treated by the Commission in a dispute sense. If the Commission pleases.

PN1867

THE COMMISSIONER: Yes, thank you Mr Boyce for those submissions.
Mr Boatswain?

PN1868

MR BOATSWAIN: First by presenting my submissions in reply are somewhat out of order but relevant to the submissions that have just been made by
Mr Boyce. Tomago adopts the submissions made by Mr Boyce and do not repeat them on the issues we just addressed except one additional matter relating to the issue of unlawfulness. Two things arise from the submissions that were made by the union, Commissioner. Firstly, the fact is that the union in their submissions, as you are aware, relied on a decision of Commissioner Merriman. Just bear with me for one moment. In relying on Commissioner Merriman's decision they made reference to the decision of Vice President Ross as correctly addressed by the Commission dealing with section 89A.

PN1869

As indicated there is a decision we referred to earlier, Thiess Contractors Pty Ltd, that is a Full Bench decision of this Commission but did address the specific issue as to whether a claim that it contained preference, a demand for preference by the union, could give rise to an industrial dispute. To remind you, Commissioner, that is print P9291. It's dealt with again, it's an old decision, so there is no paragraphs on the computer extract that I have handed to you or tendered previously. The relevant passages are at pages 8 and 9 of that decision and the Full Bench in that matter expressed a finding that the Commission could not make a finding of dispute containing a preference clause. At the top of page 9 of the extract stated:

PN1870

We are also of the view that the assent or the assent of the employer to the claims is in this matter irrelevant. We arrive at this conclusion because for all practicable purposes assent will leave nowhere. The Commission cannot make an award on the claim (section 94) the Commission cannot certify an agreement which contains preference section 170LU(2)(a). An employer is prohibited from granting preference in its own right, sections 298K and 298L.

PN1871

Therefore the attempt by the union to rely on the decision of Commissioner Merriman both in their written submissions and in their oral submissions today, we respectfully submit is not open to it. There is a Full Bench decision of this Commission which provides to the contrary. Equally in reference to and the second matter I raise is in relation to the attempts by the union to describe it. In relation to job protection or job security it is significant that the union did not attempt to address in any way the Bundaberg decision which was tendered to you on the last occasion. It is significant that they fail to attempt to do that. Our respective submission is it's clear that they can't do that because on the basis of the analysis of the relevant decisions contained in that, it is clear that the underpinning principal here is one of preference.

PN1872

It is not one of job security and therefore it also falls foul based on the principals and of the ruling in the Full Bench decision of Theiss Contractors. With respect to substantive matters addressed by the union this morning, what I would propose to do obviously, Commissioner, I am not going to address every objection and the reply made by the union on the merits. Obviously we have addressed that in some detail before you so obviously I rely on those submissions. However there are some general observations that do arise and are of significance. The first general proposition relates to what the union has advanced as the, what they describe the test to apply in determining whether there is a genuine demand evidenced by the log of claims that is the subject of the proceedings.

PN1873

And in doing the union referred to the leading authorities on the issue and then referred to a number of decisions of the Commission that have considered the relevant High Court authorities. We respectfully submit that the union has misconstrued the relevant principals established by the High Court authorities and that has occurred as a result of their approach to the matter by assessing the relevant principals by analysis of various decisions of the Commission as opposed to the actual decisions of the High Court itself. As a result the union has misconstrued the Full Bench decisions and therefore misstated the relevant principals.

PN1874

It is our submission to properly understand the principals established by the High Court both in the SPSF decision and the Reardon decision requires a careful assessment of decision of both SPSF and the Reardon decision. The union did not do this but as indicated we are content to address the principals for assessing whether a claim gave rise to industrial dispute by reference to various decisions of the Commission. It is our submission that this can and has led the union into error and the submission on the relevant principals or the test as they have asked is flawed and incorrect. Contrary to the approach of the union we have taken the Commission into considerable detail to the statement of principals contained in both of the relevant High Court authorities.

PN1875

This was necessary given the varying formulations of effectively the same principals by the various members of the High Court in both decisions and the fact that the Judges in Riordan effectively cited with approval the judgments of the various members of the court in the SPSF decision. In other words, it is very difficult to understand the principals as they were formulated by referring to the Riordan decision without closely reading at the same time the decisions that are contained in the judgment of the High Court in SPSF. This is important as a failure to appreciate the relationship between the two judgments, that is the judgments in the Riordan decision and that in the SPSF can, we submit, has led the union to error. As an example we can indicate, Commissioner, that in the SPSF decision the fundamental ground upon which that decision was determined was what we have described as the bare claim proposition.

PN1876

That was a matter that each of the Judges in SPSF referred to but primarily was found in the joint decision of the Mason CJ, Deane and Gaudron, that is in the SPSF decision.. It is important to recall from the decisions, the extract of decisions that been put to you, that the joint judgment of Mason CJ, Deane J and Gaudron, once making the determination of bare claim deciding it was necessary to go further. What is significant is that McHugh J in SFSF did go further and that is where the formulation of achievement of or assessment of the genuineness of a demand by reference to what was achievable by conciliation and arbitration and negotiations, as in arbitration now in the foreseeable future was expressed.

PN1877

THE COMMISSIONER: Whereabouts in the decisions can I find that reference to - - -

PN1878

MR BOATSWAIN: If you would bear with me for one moment. The relevant passages of McHugh Js decision in SPSF are at pages 306. It starts at the bottom of 305, 306 and the passage in relation to changes even now in the foreseeable future are at the top of 307 of the SPSF decision. And that is significant, Commissioner, because when you look at the Riordan decision the various matters of the court, first of all confirm the decision or the joint judgment I should say of the Mason CJ, Deane and Gaudron in the SPSF decision as did and I would indicate Toohey J determined that the question in Riordan should be determined by the principals established in the SPSF and involve no more of the application of those principals and he does that at pages 21 and 22 of the Riordan decision.

PN1879

Significantly Gaudron and Gummow JJ in Riordan also adopt the joint judgment of Mason CJ, Deane and Gaudron JJ in SPSF at page 27. Significant they especially in terms of ambit adopt the judgment of the joint judgment Mason CJ, Deane and Gaudron JJ at page 268 and 269 of the SPSF decision but significantly they expressly adopt the decision of McHugh J in SPSF at pages 305 to 307. That includes the passages I just referred to you, Commissioner, in which McHugh J referred to:

PN1880

The demands are a reflection of a genuine

PN1881

I am quoting from the decisions:

PN1882

And provided that the demands are a reflection of a genuine decider ...(reads)... foreseeable future, a genuine dispute may be found notwithstanding extravagant nature of the claims when evaluated in the light of current conditions.

PN1883

So on an assessment of Riordan or the judgments in Riordan, Gaudron and Gummow JJ expressly adopt that proposition of McHugh J in SPSF. I should also indicate that Kirby J in Riordan also approves the joint judgment of Mason, Deane and Gaudron in SPSF but also adopts an aspect of McHugh J in the SPSF decision which I have previously referred to you when I was first formulating the relevant principals. We submit, Commissioner, that a full and proper analysis of the authorities of both the SPSF and Riordan decisions confirm that the relevant principals are that which have been advanced by Tomago and not that suggested by the union today. It is not proposed test as has been described by the union in paragraph 3.3 of their written submissions. Correctly there are statements of principals.

PN1884

It is interesting that today what the union has advanced as being the relevant test is in fact the formulation of the principals that we developed and advanced to you on the previous occasion. And that is I think I used the word, it's an amalgamation of the various expressed principals that took into account the summary of the relevant principals by Kirby J in the Riordan decision in which in an extract not advanced on behalf of the union but submitted on behalf of Tomago where it was shown that the judgment of Kirby J in summarising the principals, summary of principals in the Riordan decision incorporated and acknowledged that the - just excuse me for a moment.

PN1885

That the relevant question to be asked was whether, although exaggerated, in a way which the ambit document has encouraged, non less indicate a frame with the serious negotiation of dispute and to the extent that is unresolved conciliation arbitration by the Commission. Accordingly what the union advance as the relevant test is the amalgam that we have put forward absent of the other relevant aspect that we took you to in our submissions of the last occasion where Kirby J in his summary referred to a framework for a serious negotiation of a dispute, if unresolved, conciliation, arbitration by the Commission in due course.

PN1886

It is our respectful submission that the proposition by Kirby J that these matters be achieved either through negotiation, conciliation, arbitration by the Commission in due course is consist with and no different from the principals first addressed by McHugh J in the SPSF decision that of now and the foreseeable future. Adopted by and reformulated by McHugh J and Brennan in Riordan and adopted by Gummow and Gaudron JJ in Riordan. Accordingly, we submit the union has fallen into error in the approach that they have advanced and the nature of the error can be demonstrated by reference to paragraph 3.4 of the written submissions of the union. You will see on the second line, I will just read 3.4 of the union's submissions:

PN1887

Accordingly submitted the proper test to determine the genuineness of a log of claims is whether the log identifies a framework of claims within which the union may pursue the improvement of the terms and conditions of its members over time.

PN1888

That is a misstatement. What is clear from reading the appropriate decisions, the principal is whether the claims establish a framework whereby negotiation, conciliation, arbitration in due course can occur. It is not just a mere question of pedantics, Commissioner, that is an indication as to the misunderstanding of the relevant principals that have been advanced by the union. More significantly, however, is the fact that the union has apparently misconstrued the fundamental thrust of the decision in SPSF dealing with what has been described as the bare claim concept. That is a matter that was the subject of consideration and determination by Commissioner Bacon and which is a matter that we have advanced.

PN1889

We have in our written submissions which I believe are Tomago1, expressly referred to that passage and submitted that it applies to this matter. The union has not addressed that issue at all. In fact in their attempt to respond to our submissions have demonstrated a misunderstanding of the relevant test. If I just take you to Commissioner Bacon's decision. I wont take you in great detail just to remind you, Commissioner, that in his decision at paragraph 32 there is a number of passages extracted. Then at paragraph 33 of the decision the Commissioner notes it and I quote:

PN1890

The Commission must also have regard to the fact that it is not a general regulatory body. The Commission must not exceed the powers granted to it by the Act. Accordingly the Commission must take a cautious approach to ensure that the purpose of the log of claims is not to improperly provide the Commission with general regulatory powers rather than its proper function of preventing and settling genuine industrial disputes.

PN1891

I won't read further other than to note that the Commission then addresses the joint decision that I have referred you to, the joint judgment I should say of Mason CJ, Deane J and Gaudron from the SPSF decision. Significantly we submit that Commissioner Bacon then goes on to assess the award as to whether it is a bare claim. You will note at paragraph 38 the Commissioner commences by noting to nor to determine what is achievable in the foreseeable future is essential as a starting point to establish what level of benefits are currently being provided.

PN1892

Now, that is a statement of principal that is consistent with and in fact applies precisely the principals established by the High Court in SPSF. I draw your attention, Commissioner, to the judgment of Toohey J in SPSF at pages 290 and 291 and I quote the very last paragraph at page 290, Toohey J says:

PN1893

It is no answer to the contention that industrial dispute exists merely to show the demands made in a log of claims have little prospect of success and they do no more than set the ambit within which conditions of employment may be negotiated and if negotiations are unsuccessful determined by the Commission but a log may be so far fetched, so lacking in industrial reality, that cannot possibly be treated seriously. It may be asked then, where do you draw the line. The answer is that while it is not always possible to draw a line it may be possible nevertheless to say whether something in this case, a particular log, falls on one or other side of it. The minimum weekly allowance of 2500 contain the log lack wall industrial reality, they have no relationship with any prevailing wage rates or allowances paid under existing awards and cannot be within the contemplation of those whom the log seeks to embrace.

PN1894

I don't read further. I respectfully submit that that is the relevant test and that is where and why Tomago in its matter and its application before you has tendered both the clerks award, Tomago Clerks Award and the drafting award which is, as you now know from the memoranda that were attached to the union's submissions, the basis or what was the intention of the union, to rope Tomago employees into. It is equally significant, Commissioner, that each of the leading authorities the union refer to, to various decisions within the Commission. I must say I have only had a quick read over the luncheon break of the complete decision of the learned Harrison SDP and I thank you associate for providing that. But my quick read of that and the other authorities that have been advanced on behalf of the union do appear to indicate that the bare claim argument was not taken.

PN1895

THE COMMISSIONER: Have you got paragraph 54 of her Honour's decision where she distinguishes the AMWU's standard log and the log of the federation before the High Court in SPSF?

PN1896

MR BOATSWAIN: It does distinguish the nature of the log but it does not, in my respectful submission, that's not the end of the matter. In fact as I said, my reading of her Honour's decision summarises and addresses each of the challenges that were made by Mr Gallagher and I could not see where the bare claim objection was advanced. Now I can review that in more detail when I have had the opportunity to do so and if that's not correct I will obviously advise the Commission of that view and defer it, sorry, withdrawn the submission.

PN1897

THE COMMISSIONER: Mr Boatswain, sorry to interrupt you in your submissions, but your Honour from memory doesn't necessarily use the terminology bare claim but she starts off in paragraph 54 with AMWU log of claims and this matter bears little similarity to the one served by the State Pubic Service Federation and which was the subject of criticism by the High Court in SPSF. Is she not distinguishing the log before her to the one before the SPSF?

PN1898

MR BOATSWAIN: It appears she is but I don't, from my reading of the decision, it does not follow the principals not distinguished, and as I have indicated, I cannot see where the submission made that we have made and which I will refer to you shortly in the decision with Commissioner Bacon as to the nature of the log being such that it is intended to attract the Commission's powers or at the role of a general regulatory body rather than dealing with a genuine dispute.

PN1899

THE COMMISSIONER: Well, your submission to me really was that I should follow SPSF, it was a bare claim and what I have before me is a bare claim. All I am saying is that it would appear to me that her Honour, and her Honour's decision was upheld on appeal by the Full Bench, is clearly considering the AMWU's standard log against submissions that were evidently put to her that SPSF High Court decision is relevant, and she is distinguishing the log before her to the log before the High Court and she goes on to refer to the ETU log which was referred to in the judgment of Toohey J and she states that that log, the finding on that log was not disturbed.

PN1900

I draw it to your attention because I mean if you disagree with me in what that what her Honour has done then I will hear your submissions.

PN1901

MR BOATSWAIN: I don't disagree, her Honour has made that statement and I certainly do not disagree that there is a statement by her that on its face there appears to be a difference within the log that was considered in SPSF and the AMWU log that she was considering. However, as I indicated, I went back and looked at what points were actually taken by her or that she refers to as being taken by Mr Gallagher and that it does not appear from my quick reading through it that the objections taken by Mr Gallagher on behalf of one of the respondents address the bare claim aspect. It did address certain aspects of the claim were being fanciful and they were certainly addressed.

PN1902

THE COMMISSIONER: But that's the same concept, isn't it? Aren't you - - -

PN1903

MR BOATSWAIN: They are related but there is a distinction.

PN1904

THE COMMISSIONER: All right. Okay.

PN1905

MR BOATSWAIN: If I refer you to those submissions that we have tendered and also the consideration by Commission Bacon which I will take you back to, they are matters that place a different emphasis upon the consideration of the matters. It's relevant on the submissions made, for example, by the union as to aggregation, and it's not the first time that the union has asserted that the approach of Tomago was to aggregate the matter and therefore was invalid. As you may recall, Commissioner, we concluded our submissions to you on the previous occasion by saying that those criticisms could not be advanced against Tomago and in fact the distinction between the approach that was adopted by Commissioner Bacon where he made an assessment of both on an individual basis of the wages claims and the various allowances, but then his approach to regarding them as a bare claim and therefore to be considered together clearly demonstrated a different approach to aggregation.

PN1906

In fact, relevantly at paragraph 44 of Commissioner Bacon's decision, he makes the following findings:

PN1907

In addition to the above the log also demands the payment of a number of allowances and these claims are bare claims (that is an industry allowance of $400 per week. Payment appears to depend only on the fact of employment as each claim will be payable to every employee. Whilst each allowance and minimum bonus will be considered individually the fact that each is a bare claim that will payable to every employee and each is to be paid for all purposes it is open to conclude that each claim allows is in fact just part of the wages claim. The purpose of disaggregating the wages in the way of presenting the log may well be to endeavour to avoid an SPSF attack by the employees.

PN1908

But then it read further. He then addresses a table. He then addresses at paragraph 45 of his decision:

PN1909

The claim for $5000 per week as a minimum bonus is clearly fanciful. The claim is so extravagant and unrealistic that it is inconceivable as to when such claim might be achieved. The Commission has absolutely no doubt that even allowing for ambit such a claim is not achievable in the foreseeable future.

PN1910

He then proceeds in 46 to say:

PN1911

The Commission has the same view of the amounts claimed for each of the allowances of payments although each of the allowances characterise in some way industry or site et cetera as observed earlier the fact of employment would qualify an employee for all of the allowance and payments. Thus for each employee the claim is for allowances totalling $2100 per week to be made.

PN1912

And I don't read further. He then goes into paragraph 47 and he says:

PN1913

The Commission has also considered each and individual allowances for payments.

PN1914

I do not read the next two sentences. He then concludes paragraph 47 by saying:

PN1915

The High Court has made clear the test to be applied to determine the genuineness of demand that may give rise to industrial dispute, APESMA has not met that test.

PN1916

Significantly at paragraph 49 he says:

PN1917

Each of the claims is fanciful and unrealistic. Accordingly none of the claims can give rise to industrial dispute. In reaching this conclusion I have considered not only the money amount claimed but also the fact that each claim is a bare claim dependant only on the fact of employment. The way in which the claim is presented is relevant to a consideration of its genuineness.

PN1918

I do not read further. He then concludes in paragraph 54:

PN1919

It is the Commission's view that the minimal wages and allowance claims whether considered individually or collectively are fanciful and are not genuinely being demanded. Rather the claims are a means to enliven the jurisdiction of the Commission in order for the Commission to regulate wages and allowances rather than settle industrial dispute about such matters the claims therefore do not give rise to industrial dispute.

PN1920

Now that is the basis upon which we have referred to, the assessment of those various wages and bare allowances contained in schedule C which Ms Booth made submissions about this morning. It was quite clear that that is not aggregation. There is a distinction between a proper assessment and characterisation of a number of claim and it is significant that Commissioner Bacon was mindful to properly assess and characterise what he has concluded were bare wage claims to avoid disaggregation of wages in a way that might endeavour to avoid the SPSF criticisms.

PN1921

Now given the similarity between the two logs as we have submitted and also the relevance of the argument and principals that were addressed to Commissioner Bacon which manifest on the face of the judgment, we have made a similar submission objection. We have taken issue, not only based on the principal of consistency with Commissioner Bacon's decision but also the application of the principals by themselves. It is our respectful submission that that is the significance in many respects of the manner by which this claim or this demand has been advanced by the metal workers.

PN1922

The fact is, Commissioner, the authorities have asserted that each case must be judged on its own fact and there must be a latish to the terms and conditions of the employees, the subject of the demands that have been served. One of the problems that the union has with a one set or one type will fit all lis that there is no tailoring. There is no attempt at all evidenced on the face of the evidence that is before you that the union has turned his mind at all in relation to the demands that have served and that the wages and conditions of the actual employees at Tomago they seek to rope in.

PN1923

And it is significant that on the face of the document, Commissioner, that it is clear that the sole purpose of the demand was to rope in Tomago in circumstances where on the face it does not appear to be any intention of the union to seek compliance with the demands or that the non compliance with demands would create a real dispute. The submissions, and we say the incorrect submissions of the relevant law made by the union in my respectful submission confirms that approach. What they effectively done is indicated to the national secretary, we want to use, we want authority to use the usual log of claims and the usual award to commence a process where we can rope in. It's an administrative act.

PN1924

The effectively have rolled their arm over to get the ball in play so that this Commission can exercise a regulatory function to determine conditions of employment which are to apply and considered appropriate by this Commission to the workers that they seek to rope in. Now we say, Commissioner, that is not permitted. We say that on the principals established by the High Court predominately in SPSF but confirmed in Riordan that such an approach does not give rise to an industrial dispute. It is significant in your assessment of such an application, Commissioner, that the subjective intention of the union or of the officials is irrelevant and not to be taken into account in determining this issue. Just bear with me for one moment.

PN1925

Whether a dispute is real and genuine is a matter of fact and that's so referred to at SPSF at 304. In assessing the genuineness of a demand the Commission is to have regards to the terms of the log, measured objectively, against the evidence presented and against the Commission's knowledge and experience of general industrial standards and general patterns of industrial regulation and that is part of the joint judgment of Mason, Deane and Gaudron at page 268 of the Riordan decision.

PN1926

The High Court authorities also provide - just excuse me for one moment. I will just replace one of my judgments. Kirby J in the Riordan decision provides that or confirms the approach that has been previously established that it is not the subjective view of the union officials. He states at the middle of page 57 of the Riordan decision:

PN1927

Not much time should be spent in examining the subjective intentions, opinions and desires of individual union officials.

PN1928

The next sentence after that he says:

PN1929

Their evidence is likely either to be irrelevant to the objective question to be determined or an attempt to usurp the legal conclusion reserved in the first instance to the Commission and review to the courts.

PN1930

And I won't read further. It is relevant that there is no evidence effectively that has been called by the union as to their intention. The statements by Ms Booth from the bar table as to what the intention of the union really was particularly in circumstances where she impresses on the Commission to give a meaning to the terms of the demands which are different to their claim meaning, are not open to the Commission and should be rejected. The only evidence that we do have is that there is an internal memo sent to the national secretary asking for the usual standard log to be issued for the purpose of roping in.

PN1931

If I could on that point refer you to a decision that I only became aware of recently. Commissioner, it is a decision of Vice President Lawler, Finance Sector Union of Australia and ComsecTrading Limited and others of 20 July 2005 and I can hand up a copy to you. I would draw your attention paragraph 117 which is on page 38 of the judgment, Commissioner.

PN1932

THE COMMISSIONER: This is print PR960317?

PN1933

MR BOATSWAIN: Yes it is.

PN1934

THE COMMISSIONER: Thank you. What paragraph?

PN1935

MR BOATSWAIN: 117 at the bottom of page 38. You will see the heading, roping in. I don't read 117 only to - I would take you to, I won't read the entire extract, I will just take you to the next page at paragraph 39 and you will see that there is a direct quote of the High Court in AJ Swain & Co Ltd, the Australian Saddlery etc Employees Federation, September, 1936. There is a direct quote extracted. The next paragraph starts:

PN1936

These words appear to give more weight in the circumstances that the employer has no member of organisation in his employ and that his employees do not support the demands.

PN1937

Then the metal trades case in 1935, 54CLR 387 and decisions that have followed it would allow but the use of the word, merely, is important and I could then read and I note that it is emphasised:

PN1938

It is not inconsistent with the authority to say that the sole purpose of the demands was to rope in the employer and if the union did not really seek compliance with its demands the non compliance with the demands would not create a real dispute.

PN1939

And it noted emphasis added. The Vice President then deals in the next two paragraphs as to why on the evidence that proposition is not upheld and basically on the proposition that the evidence that was attempted to be relied upon by Comsec was by a junior official performing clerical functions. We say it's with the preparation necessary to undertake the service of the log. She was not demined of the union and her view of the FSU's purpose and certainly a log of claim cannot in the circumstances of this case be determinative, and it would be my respectful submission that that is not the case here where it is clear from the evidence that has been submitted on behalf of the notifier that the sole purpose of this log of claims in this demand was to rope this employer into, that is the employer I appear for, into this award.

PN1940

It is also interesting as has been demonstrated that the demands themselves are assessed individually, bear no resemblance to the prevailing wage rates or allowances paid under existing awards to borrow the principal as established by or stated by Toohey J in SPSF at page 291. The significance of the document is, that is the initiator of this and of this log of claims and the proper consideration of the relevant principals we would submit clearly demonstrate that what is being advanced by the union notifying this matter is to commence, it is virtually an administrative act to commence proceedings for the purpose of having this Commission act as a regulatory body to effectively if negotiation fails, make awards as to appropriate terms and conditions with no relevance at all to the excessive and beyond ambit claims that are within the log.

PN1941

Ms Booth seeks to overcome the difficulty and the excessive in the demands by a number of general propositions. One of them is to say they are ambitious. I suppose it always come down to what you mean by ambitious but the way it was used this morning it was used in the context of ambitious means neigh on impossible or improbable. It was interesting that the union also attempted to justify the excess and the lack of industrial reality in the individual demands by reference to the recent family test case and also where those two issues weren't available, reference to OH&S considerations in circumstances and in context where it would be an extremely huge stretch of principals to suggest that the particular claim being referred to would be save by OH&S considerations.

PN1942

Commissioner, you have already noted the fact that the union made reference to the test case without actually tendering it or without actually attempting to refer specifically to any standard contained in the test case to the actual matters contained or details contained in the log of claims. In fact it was significant the union in its submissions avoided throughout, I would respectfully submit, in an attempt to justify the excess of the claims to which objection had been taken and in fact glossed over them. That is not meant as a criticism of Ms Booth but simply I would submit an acknowledgment and recognition that that had to be done because they were unable to be justified otherwise.

PN1943

In circumstances where they were saying, for example, that there is for example a certified agreement that provides for 36 hours to distinguish a reduction from 38, that somehow supports a demand for 20 hours a week where at the same time only half of those hours need to be worked. It's our respectful submission such material as being put forward does not in any way salvage the complaint and the difficulty that the demand has in relation to its clear excess and the fact it's beyond ambit. In relation to the two certified agreements that have been tendered in support of the union's position today, I have only had a brief look at them, Commissioner. Interestingly they do not relate to the award that is the application attempts to rope Tomago into.

PN1944

They are not in the aluminium industry and a quick review of the various conditions and entitlements that are embodied in the agreement, in my respectful submission, does not support or do not support any of the attempts to suggest that these are the industrial reality that would salvage the log of claims. In fact if anything it demonstrates that the lack of industrial reality contained within the log when one looks at the various provisions contained within the two certified agreements. So I would submit that they are of very limited value given that they do not appear to in any way relate to the industry in question and they do not related to the awards they are attempting to rope us in but whatever value can be given to them. So it is my respectful submission that they do not assist the union in addressing those matters.

PN1945

THE COMMISSIONER: But the log is the union standard log that's required across a number of industry, Mr Boatswain. It's not just this aluminium industry.

PN1946

MR BOATSWAIN: Yes. That's correct but it goes back to the proposition that I make that that is one of the problems that the union has. The one size fits all. It may be convenient but it has with it a risk. The risk is that an employer as happened in this matter has raised objection based on the principals that have been established by the High Court in circumstances where those principals indicate that it is not open for the union to simply to rely on a document that does not reflect a genuine dispute in relation to the employees who are the subject of the log of claims. But it is essentially an administrative act to some how enliven the Commission's jurisdiction so that it can act as a regulatory body.

PN1947

Now that is the fundamental proposition of the SPSF case. It says you can't do that. In fact it is interesting that at the conclusion of the Riordan decision Kirby J at the bottom of page 57, after addressing and summarising the finding of industrial dispute and the like, following on from that passage I referred to you about not much time should be spent in examining the subjective intention. At the bottom of the page his Honour states that:

PN1948

An encouragement to greater reality by unions in the terms of logs of claim involved in such disputes is certainly desirable.

PN1949

He then goes on:

PN1950

The perils of unreality are illustrated by the SPSF case.

PN1951

The situation is, Commissioner, that the principals established by the High Court dictate that logs of demands must give rise to a genuine dispute and they must give rise to a genuine dispute within the constitutional and statutory parameters within which this Commission operates. Therefore they must give rise to a genuine dispute between the parties and administrative acts whereby a standard catchall is relied upon that does not bare any reality to the prevailing wage rates or allowances paid under the existing awards even taking into account the document ambit will result in the log of claims being invalid.

PN1952

In this case whether it is a standard log or not the constitution and the act require this that the union must turn its mind to the individual employees who are subject of dispute. It is just not good enough to throw out a general catchall that has no relationship with any prevailing wage rates or allowance paid under existing awards and as can be suggested not contemplated within or cannot be within the contemplation of those whom the log seeks to embrace. So there has to be a connection between the group of employees that the log seeks to embrace, noticeably principles established by the High Court. It is our respectful submission that the log of claims that is before you and that log of claims must be interpreted on their ordinary meaning not in the context of implication or reading down or whatever else is impressed by the union to try and bring it within ambit.

PN1953

Again, Commissioner, I would suggest that you are able to draw an inference from the fact that the union is saying, read it down, because plain words are being admitted to too far, they are beyond ambit and that in fact further supports the submission that we make that this is not a genuine dispute. That it is administrative exercise. There is no intention demonstrated in the material that has been submitted before you by the union that the union wants the demands that are contained in this log of claims. They just wish this matter be brought before you so if negotiation fails an award that is appropriate to them may have some correlation to the drafting award may be made. Again we submit that that's not enough.

PN1954

My final submission, Commission, is in relation to the concept of onus and again with respect the union has fallen into error in their written submission to you in relation to the issue of onus. Excuse me for one moment. Commissioner, the union addresses onus of proof in paragraph six of the written submissions they have tendered. They have speaked[sic] to that today. With respect the statement made by and the approach contained within the submissions by the union is a misstatement of law and confuses the concept of onus and evidentiary burden. It is our respectful submission as stated in our Tomago1 written submissions that the onus is on the notifier and remains with the notifier. As indicated Toohey J in SPSF makes that clear at page 288. The passage of Kirby J that the union refers to in fact confirms that but what it does refer to is the concept that you are no doubt familiar with, Commissioner, that the service of a paper dispute if established gives rise to a prima facie, can give rise to a prima facie case that can be displaced by the objector who provides evidence or through submissions or by reference to the Commissions own knowledge of the relevant industry, displaces that prima facie finding

PN1955

The fact is that is an evidentiary burden and that is clear from the extract from Kirby J that is contained within the union's submission, it is clear that as Toohey J indicates the onus does not shift to the respondent to demonstrate the absence of any dispute. It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists. We would submit, Commissioner, applying the appropriate principals, examining the evidence that has been led by Tomago as to the industrial reality and taking into account your own know how, knowledge and experience with this industry, you would be satisfied that the notifier has not discharged its onus and that jurisdiction has not been established.

PN1956

As we have indicated previously it is our submission that similar to the approach that was adopted by Commissioner Bacon in application of the bare claim if the bare claim concept is established it is open to you both to look at the individual aspects of the claim and in totality when you look at everything which has been struck out for being excessive if what is left is insignificant and would not lead, give rise to or lead to an award being made then the entire log should be struck out. But more significantly if the demand falls foul of the bare claim concept then it is invalid and it would be lacking jurisdiction because it is attempting to attract the jurisdiction of the Commission as a regulatory body rather than seeking to address an industrial dispute.

PN1957

In relation to the matters raised concerning matter pertaining, I do not seek to address those in any detail. I simply rely on the earlier submissions we have made and authorities referred to. It is our respectful submission none of the authorities or the submissions made in fact address the specific objections that we have raised and in fact in some respects avoided them by not addressing the particular authority we referred to on the last occasion. We say that the authorities in submissions we made on the last occasions, addressing matter pertaining, clearly demonstrate that the objections made in relation to those claims that objection be taken on that ground are sustained. Unless there is anything else, Commissioner, they are our submissions.

PN1958

THE COMMISSIONER: Thank you, Mr Boatswain. Ms Booth, anything at all?

PN1959

MS BOOTH: I don't wish to make any further submissions at this time, Commissioner.

PN1960

THE COMMISSIONER: Okay. Mr Boyce, nothing further at all?

PN1961

MR BOYCE: No.

PN1962

THE COMMISSIONER: No one else wants to add anything further? Everyone is silent. Ms Booth, Mr Boatswain and Mr Boyce thank you for your submissions. In relation to the matter before the Commission I will have regard to what has been put to me. Decision reserved. Commission is adjourned. Thank you.

<ADJOURNED INDEFINITELY [3.52PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU3 WRITTEN SUBMISSIONS OF THE AMWU FILED 21/06/2005 AND DOCUMENT DATED 22/06/2005 PN1364
EXHIBIT #AMWU4 ETRS PTY LTD NDT ENTERPRISE AGREEMENT VICTORIA 2003 PN1486
EXHIBIT #AMWU5 MAYFIELD ENGINEERING PTY LTD NEW SOUTH WALES NDT ENTERPRISE BARGAINING AGREEMENT 2005 PN1492
EXHIBIT #AMWU6 ALLOWANCES AND CLAUSES PN1508