C2005/4143, Transcript of Proceedings [2005] AIRCTrans 1955 (21 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12770-1

COMMISSIONER BLAIR

C2005/4143

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
D & R HENDERSON PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4143)

MELBOURNE

9.34AM, THURSDAY, 08 SEPTEMBER 2005

Continued from 11/8/2005
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [12.20PM]

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PN1

THE COMMISSIONER: I've got to say that the Commission has a difficulty, and it's this. It doesn't want to give the parties the impression that it doesn't or has not listened to the argument. I hope that the parties accept that the Commission read all the material that was provided to it prior to the beginning of these proceedings. It did so. And the parties may have observed as the proceedings have been going on the Commission has been taking extensive notes and reading the material that has been provided at the hearing today.

PN2

The difficulty that the Commission has got is this. That a number of employees, a large number of employees have been stood down since basically the end of the first quarter of this year, and they still continue to be stood down, and we are in the last month of the third quarter of this year. So there is some urgency, as the Commission views it, regarding dealing with this matter. Therefore in order to try and move things forward the Commission is inclined to give its decision now on the basis of jurisdiction, and that is this. It is the Commission's view that there is the ability to attract 170LW for the Commission to exercise jurisdiction in dealing with this matter on the basis that there is a discrepancy between clause 10.8 of the agreement and clause 18 of the award.

PN3

It's very clear in terms of the agreement that it says at clause 6.1:

PN4

This agreement shall be read and interpreted wholly in conjunction with the Forest and Building Products Manufacturing and Merchandising (General) Award 1966 (or as varied) provided to the extent that any inconsistency between the award and this agreement the latter shall prevail.

PN5

That inconsistency, the Commission would accept the argument put forward by the union, goes to the issue that clause 10.8 limits the time an employee can be stood down where clause 18 does not. Therefore in the Commission's view the agreement is the one which prevails over the award. The employer in this instance did not have the luxury of choosing which particular clause it relied upon to stand down the employees. It is clear in the Commission's view that clause 10.8 is the appropriate clause and therefore attracts the jurisdiction in terms of section 170LW to be able to deal with this matter.

PN6

Having determined that point it's now a question of - and I understand the arguments about the orders sought, whether they're judicial or whether they're arbitral. That's a matter that in the Commission's view needs to be dealt with as part of the substantive case. And it's now a question of timing as to how we deal with and in what time frame we deal with the substantive case. Mr White, I don't know whether you have any views about that?

PN7

MR WHITE: Other than as soon as possible, no views, except that I haven't brought a diary with me, and if the Commission was minded to set dates now if I could stand the matter down for a minutes so I could ring and get them. But first of all perhaps if we could get some indicative dates of your availability.

PN8

THE COMMISSIONER: Right. Mr McLaughlan, do you have the Y2K compliant diary?

PN9

MR McLAUGHLAN: No, I don't Commissioner. I really don't, and I don't have any instructions from the company in relation to availability and those sorts of things. And I must say, Commissioner, I think clearly the company may wish to consider the decision that's been issued today and its position in relation to it.

PN10

THE COMMISSIONER: No, I understand that, yes. I must say that I don't get punch drunk, and I would have suspected that either way there would be a view as to whether or not an appeal should be lodged. Given the commitments of the Commission, and it may provide for some time to put your arguments together and so forth, and I'm not sure how long it would take, whether it would take a day, two days, whatever. The earliest I could do it would be Wednesday, 5, 6 and 7 October. Do you want to get some clarity on your diary Mr White?

PN11

MR WHITE: Yes. I'll go outside and do that.

PN12

THE COMMISSIONER: That's all right Can I just put this to you. Rather than me hang around, if any one of those days, and my associate has just indicated that on Tuesday the 4th we're in Oberon, which is in New South Wales, and that requires basically a four hour inspection from 11 o'clock, and Oberon is about a two and a half, three hour drive from Sydney as I understand it. So it's a question of then getting back to Sydney, and whether or not - - -

PN13

MR WHITE: The 5th may be a little bit in doubt anyway.

PN14

THE COMMISSIONER: Right, okay. Well, the 6th and 7th.

PN15

MR WHITE: If I would be able to get some alternative dates because I think it would take more than a day. We've got a number of witnesses. Although it may well be that a large number of the facts aren't in serious dispute anyway and it may well be that in large part the time taken up with submissions, but I would have thought that it would take at least two days given that there are a number of witness. One other problem is that the employer has said that its submissions that it filed and its statements were directed to what the union had filed. The union had filed it both as a matter of substance and merit.

PN16

Now, Mr McLaughlan told the Commission today that that's what the company did. Now, we assume that they would therefore not want any further time to file any further or additional material given that they already have, even though it wasn't strictly in compliance with your direction, filed a full reply in relation to the matters of substance.

PN17

MR McLAUGHLAN: I think there's a bit of confusion there. I think what we filed was in compliance with the amended directions, which was to restrict our material purely to jurisdictional arguments.

PN18

THE COMMISSIONER: That's right.

PN19

MR McLAUGHLAN: So we haven't addressed any of the merit argument that was put in the outline.

PN20

THE COMMISSIONER: Could I say to you that I think that's right Mr McLaughlan. What the Commission doesn't want to do is - and I know it may go to the issue of costs for the respective parties - but it would in my view seem to be appropriate that if the parties wished to re-file material over and above - if they want to rely on what they've already filed that's fine, but if they wish to provide additional outline of argument and additional material then that should be allowed to occur. Now, Mr McLaughlan has only filed, as I understand it, in relation to the jurisdictional point because that was the directions. So in terms of the substantive argument that has been filed.

PN21

MR WHITE: I must admit I misunderstood, because when you look at the respondent's submissions they obviously address all sorts of matters. But in any event we can't obviously - - -

PN22

THE COMMISSIONER: Yes, okay.

PN23

MR WHITE: That may have an impact. I've raised that because it may have an impact on - if that is to be done could the Commission keep a tight reign on the time frame that it could be done?

PN24

THE COMMISSIONER: Sure.

PN25

MR WHITE: Or depending on what that time frame, is the Commission able to provide any alternative dates to those three?

PN26

THE COMMISSIONER: All right.

PN27

MR McLAUGHLAN: Can I just throw a penny's worth in. We have a difficulty with the 5th, 6th and 7th, in that Kristy, the HR manager is overseas or is away, or perhaps on annual leave. So if there are other dates other than that. I expect that she would be a witness.

PN28

THE COMMISSIONER: Is she going overseas?

PN29

MR McLAUGHLAN: No, going interstate.

PN30

THE COMMISSIONER: When is she back?

PN31

MR McLAUGHLAN: The second week of October, definitely back then.

PN32

THE COMMISSIONER: That's the week beginning the 10th, is that right?

PN33

MR McLAUGHLAN: Yes.

PN34

THE COMMISSIONER: We have 10 October, we have the morning of the 11th. The afternoon is no good. And then we then have to go into the week after, which would be the 17th, 18th and 19th, and then the week after that would be the 25th, 26th, 27th, 28th. Now, if you could check with your diaries and simply confer with my instructor then I'll fall into line.

PN35

MR McLAUGHLAN: Commissioner, in terms of filing material we have no objection if the union was given an opportunity to review the material that's filed in relation to merit and give them time if it needs to file amended or additional material, and then we'd be given appropriate time after receipt of that to file our material addressing merit.

PN36

THE COMMISSIONER: Once we have dates set for the substantive hearing then we can determine what time frame for further directions can be issued. Is that all right?

PN37

MR McLAUGHLAN: Yes. And one other thing, Commissioner. Your decision today, would that be reduced to writing?

PN38

THE COMMISSIONER: Yes, as soon as I can. The Commission will stand adjourned, thanks.

<ADJOURNED ACCORDINGLY [12.34PM]