C2005/5640, Transcript of Proceedings [2005] AIRCTrans 2608 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13774-1

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER MANSFIELD

C2005/5640

PILBARA IRON COMPANY (SERVICES) PTY LTD HAMMERSLEY IRON PTY LIMITED ROBE RIVER IRON ASSOCIATES
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.128 - State Authorities may be restrained
(C2005/5640)

MELBOURNE

4.02PM, THURSDAY, 15 DECEMBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

JUSTICE GIUDICE: I’ll take the appearances starting with Melbourne. There’s no need to stand Mr Parry if you don’t wish to, and the same applies to you Mr Schapper.

PN2

MR PARRY: Are they hearing us in Perth?

PN3

JUSTICE GIUDICE: Yes.

PN4

MR SCHAPPER: Yes, we can hear you, although we could not hear the associate calling the matter and the view here is of the associate and one member of the Commission and a recorder I think, it’s a bit askew. We’ve got two members of the Commission now, that’s it, that’s fine, yes, excellent.

PN5

JUSTICE GIUDICE: Well you are coming up very well Mr Schapper.

PN6

MR SCHAPPER: Thank you sir.

PN7

MR F PARRY: I seek leave to appear for the applicants and with me is
MR R ALLEN and MS E HARTLEY in Perth.

PN8

JUSTICE GIUDICE: Yes, thanks, Mr Parry. In Perth.

PN9

MR D SCHAPPER: I seek leave to appear for the CFMEU State registered organization.

PN10

JUSTICE GIUDICE: I see, you are not authorised to appear for the Federal body?

PN11

MR SCHAPPER: No, your Honour, the Federal body is not involved in the State proceedings, of which restrain is sought.

PN12

JUSTICE GIUDICE: Yes, very well, thank you. Mr Parry, have you had an opportunity to see an outline of submissions filed on behalf of the respondent this afternoon?

PN13

MR PARRY: Yes, I have your Honour.

PN14

JUSTICE GIUDICE: Could I ask you a couple of questions that might conceivably shorten things? A point is made in those submissions that the order sought by your clients would, if made in those terms, bind or have effect in relation to employers other than your clients. Do you press an order which would have that broader effect?

PN15

MR PARRY: No, your Honour. We have prepared an outline of submissions that I was proposing to hand up first thing. I assume that Mr Schapper has been handed that in Perth. That outline of submissions contains the formulation of the order that we would seek.

PN16

JUSTICE GIUDICE: Yes.

PN17

MR PARRY: So with the leave of the Commission I could deal with that matter now, or when your other questions are asked, your Honour.

PN18

JUSTICE GIUDICE: Yes, well we’ve looked at all the material we’ve been provided with so far and it appears to us that the submissions filed by Mr Schapper, indicate that his client does not seek an award in the State Commission which would bind your clients. Now whatever other arguments there may be in support of the issue of an order, that position would seem to indicate there is some basis for this application to be the subject of compromise in some way, since on the substantive issue, there doesn’t seem to be a great deal between you.

PN19

MR PARRY: Well, your Honour, the order that we would be seeking is that the, and I’m paraphrasing slightly, that in the Western Australian matter A5, the Western Australian Industrial Commission shall be restrained from dealing with the terms and conditions of locomotive drivers being employees of Pilbara Iron Company (Service) Pty Ltd, Hamersley Iron Proprietary Limited, Robe River Mining Company Limited and Robe River Iron Associates. So we seek a narrow order simply directed at the locomotive employees employed by our clients firstly.

PN20

Secondly, and obviously there’s a fair bit of material here, that I would want to take the Commission to at some stage. Mr Schapper’s clients have said that they don’t seek by this award to cover the terms and conditions of our employees. However, what we have, are some 140 locomotive employees that are employed by the applicants, that on one argument, on one view of the application provision sought by the union would be caught. Now, we say at the moment there’s two ways that could be put. Firstly, if one looks at the particular words of the application in the Western Australian Commission that is sought, and I’ve no doubt that the Commission has looked at that. But the particular clause in the application - - -

PN21

JUSTICE GIUDICE: Set out in paragraph 2 of the outline, is that the one?

PN22

MR PARRY: Yes.

PN23

JUSTICE GIUDICE: Scope clause 3?

PN24

MR PARRY: Yes, now it says:

PN25

The award shall apply throughout the state of Western Australia and it shall apply to all engine drivers working and the railroad and forms part of the iron ore production and processing operations carried on in and around Dampier, Pannawonica, Tom Price, Paraburdoo, Marandoo and associated places and are also employed by any labour hire, firm, company, enterprise or undertaking.

PN26

Now as the Commission would appreciate that, in its terms describes a common rule award to operate in Western Australia. Leave aside the title of the award which is that it’s the, it refers to the Skilled Rail services, that’s manifestly misleading. The scope of it is the common rule award number one. Number two, there’s a couple of ways of reading it. First is that the term labour hire is an adjective, which applies to the following words:

PN27

Firm, company, enterprise or undertaking

PN28

An alternative way of reading it is that it covers those engine drivers working and who are employed by any labour hire firm, employed by any company any enterprise or any undertaking. Now the construction of a document like this as the Commission well knows, awards are interpreted beneficially and generously and to be given broad effect. Now clearly the second construction would give this common rule award very broad effect. And if that was to be the construction that was ultimately adopted by a court, then that would catch our clients, and clearly catch them.

PN29

The third reason that we advance is that if the Commission has seen the affidavit of Mr Danks, the Commission will, and I’m not going through this in as perhaps as much detail as I normally would, but the Commission will see in the last paragraph of that, paragraph 26, one of the applicants:

PN30

Pilbara Iron Company is a company created for the purpose of employing employees to manage the assets owned by Robe and Hamersley. To this end, PIC employs labour of all types including locomotive drivers and then deploys those employees to operate the assets including the rail systems of Robe and Hamersley. The employing costs and overheads are then charged back to the asset owning companies.

PN31

Now the term labour hire, is one that probably does not have any settled meaning. I am now aware of the term labour hire having any particular meaning in the Western Australian pact. It may well be that the operations of PIC in that they do involve hiring labour to other entities that operate other ways, it may well be the case that PIC is caught by the description of labour hire firm, company, enterprise or undertaking. Now it’s all very well for the union to sort of rely on its poor drafting of this and turn up and say we won’t, we don’t intend to do x, y or z. We would want the matter clarified now as we have sought from the Western Australian Industrial Relations Commission.

PN32

The Western Australian Industrial Relations Commission has not dealt with this matter and is proceeding to make, firstly, there’s a motion on tomorrow to withdraw, or revoke our rights of intervention. On next Tuesday there’s an interim award being made. Arguably to be made and if this Commission’s familiar with the Western Australian act where there is not an award in existence, as is not the case with some of the labour hire companies, the Commission, the normal onus is reversed with regard to public interest. So one would say it’s rather likely that some interim award is going to be made.

PN33

Now if the interim award is made in the terms that is being sought by the union, that scope and area of application in effect, the horse will have bolted. You will have an award in place, which on one view, would cover our clients. By that stage this Commission would have no further role and a section 128 proceeding would be nugatory. So it’s all very well for the union to say what they say they mean, but what we want when they say what they say they mean, is that that be reflected in the actual document. We’ve raised this with them, we’ve raised this with the Commission, the reasons for not going down the track of varying the scope clause are unsustainable. The scope clause can be narrowed in the Western Australian proceedings, without the need for further advertising. The failure to do so really raises concerns about what is intended by the CFMEU and its State emanations.

PN34

JUSTICE GIUDICE: Yes. Mr Schapper, could I ask you a couple of questions. Mr Schapper, I take it from your submissions that your client doesn’t intend that any award made in the Western Australian Commission proceedings would bind the applicants in these proceedings?

PN35

MR SCHAPPER: That’s correct your Honour.

PN36

JUSTICE GIUDICE: Yes, and that you’ve told the Western Australian Commission that?

PN37

MR SCHAPPER: That’s correct your Honour.

PN38

JUSTICE GIUDICE: Yes, would you be able to give an undertaking that your client would submit in due course to the Western Australian Commission that the scope clause of any award made in those proceedings should specifically exclude the applicants?

PN39

MR SCHAPPER: Yes your Honour.

PN40

JUSTICE GIUDICE: Mr Parry, in light of those answers, would you like an adjournment to consider whether you want to have further discussions with Mr Schapper, or whether you want to make any other application to us?

PN41

MR PARRY: If the matter could be stood down briefly your Honour, we will consider that.

PN42

JUSTICE GIUDICE: We will adjourn for a few moments.

<SHORT ADJOURNMENT [4.16PM]
<RESUMED [4.38PM]

PN43

JUSTICE GIUDICE: Yes where are we Mr Parry?

PN44

MR PARRY: If the Commission pleases, we are not there unfortunately. We have had some discussions with Mr Schapper, it will be part of our submission and that the State CFMEU could amend its application to exclude the applicants, and we say that in a case where the scope provisions are narrowed there’s authority in Western Australia of a Commission in court session 1990, which says that one can amend a claim to narrow the application, so that one doesn’t need to re-advertise.

PN45

Now we understand the concern of Mr Schapper to be that there is no power to amend the application without re-advertising, which he doesn’t want to do. Now if there is no power, if this Full Bench authority has no force in effect, then the position of the union will be it might say what it says to the Commission, but ultimately it’s position seems to be that there’s no power in the Commission to vary the scope provision.

PN46

Therefore, we would be in a position where an undertaking to that effect, whilst given, would still involve proceeding on the same application and it would still leave a position where the Western Australian Industrial Commission could grant that application and indeed, it seems to be the position of the union that that’s all the Commission has power to do. Now we don’t agree with Mr Schapper’s view of the law, but his view appears to be that the undertakings aren’t really something that have any force and effect.

PN47

MR SCHAPPER: That is completely wrong, that is completely wrong.

PN48

JUSTICE GIUDICE: Mr Schapper, I’ve noted your objection. Perhaps we’ll let Mr Parry finish.

PN49

MR SCHAPPER: Yes, your Honour.

PN50

MR PARRY: Before, I suppose going into the formality of it all, we would, a draft undertaking as suggested by the Commission, would go much of the way, but it could go all the way quite simply by three amendments. That is by making sure that the award referred to was an interim award as well, because there are interim award proceedings coming up in the next three or four days. Second amendment would be in (c) where the draft we have says it will submit in due course, we would want that submission as soon as possible. The third amendment we would seek is in addition to (c) and that would b:

PN51

And will vary its application to that effect.

PN52

Now that last one is the one that we see as producing the difficulties in this matter and that’s where we don’t agree with Mr Schapper. Now our position is that the application can be amended, it can be amended without the need for
re-advertising. We’ve shown the authorities to that effect to Mr Schapper. He disagrees with the authorities and disagrees with the power of the Commission to vary scope clause. Now in those circumstances we are not sure that the undertaking has any real substance. And those are the concerns we have.

PN53

JUSTICE GIUDICE: Just to let me get it clear. In your submission if the undertaking that we formulated were given, and in particular if it was submitted to the State Commission that the scope clause of any award made in the proceeding should specifically exclude the applicants, you say because of the relevant law, the State Commission would not be able to accede to that submission?

PN54

MR PARRY: We say that we understand, sorry, our position is that the application can be amended and if the application was amended then there would be no doubt that the undertaking could be carried through. As it stands we are only dealing with submissions to be made to the Western Australian Industrial Relations Commission and as we understand it those submissions would be made in the context of the application as drafted, unamended.

PN55

DEPUTY PRESIDENT IVES: And what do you say Mr Parry in that respect? Do I understand you correctly in saying that in absence, any amendment to the current application, that the undertaking given is not sufficient to enable the Western Australian Industrial Commission to produce an award that has the specific exclusions that you seek?

PN56

MR PARRY: The Western Australian Commission may well say, well thank you for all that, we still propose to grant the application in the terms that it’s made.

PN57

DEPUTY PRESIDENT IVES: But the question that I’m asking is, do you say that it’s prevented, as I thought you said in previous submissions, or it might have been you said that Mr Schapper was of that view, I can’t recall. That in spite of the undertaking the Western Australian Commission was in some way prevented from amending the application in effect. In other words, producing an award that had the specific exclusion in accordance with the undertakings given by the union, even if the union doesn’t provide an amended draft application?

PN58

MR PARRY: There seems to be some view that we don’t agree with that if you amend the claim, then that claim needs to be re-advertised in accordance with the Act again. Now, in those circumstances the view is that we don’t agree with, that you can’t amend the claim. You have to present the claim as advertised to the Western Australian Industrial Relations Commission.

PN59

COMMISSIONER MANSFIELD: What are the consequences Mr Parry, if the claim does have to be re-advertised? What’s the time scale of that and - - -

PN60

MR PARRY: 30 days.

PN61

COMMISSIONER MANSFIELD: Is the union prepared to undertake that if the Western Australian Commission does require re-advertising that it will abide by that and proceed along those lines?

PN62

MR PARRY: I don’t know the answer to whether they would undertake that.

PN63

COMMISSIONER MANSFIELD: You say your view is that it doesn’t need to be re-advertised. Whereas Mr Schapper says his view is that it may have to be re-advertised. If the Western Australian Commission does require it to be
re-advertised in order to vary it is the union prepared to give an undertaking that it will then take steps to vary the application and not proceed with the current application?

PN64

MR PARRY: I think there would be one step before asking the union that Commissioner, that is to make the application to the Western Australian Commission to amend the claim. Then the Western Australian Commission would do one of two things. They would say, yes we can amend the claim and we so amend the claim to delete the applicants. That could be done very quickly because it doesn’t affect us. Well it affects us but we would obviously not oppose. Mr Schapper has said that’s the union’s position. Now the Commission would do one of two things. It would say I don’t have power to do that, you must re-advertise or, I amend the claim. Now that would be - - -

PN65

COMMISSIONER MANSFIELD: And if it’s said the former, Mr Parry.

PN66

MR PARRY: I’m sorry?

PN67

COMMISSIONER MANSFIELD: If it’s said the former, I don’t have power to do that, you need to amend the claim. What is the union’s position if that is the response of the Western Australian Commission, isn’t that something we need to know.

PN68

MR PARRY: That is what we would need to know, yes Commissioner.

PN69

JUSTICE GIUDICE: Anything else at this stage Mr Parry?

PN70

MR PARRY: No, your Honour.

PN71

JUSTICE GIUDICE: Mr Schapper, anything you want to say at this stage?

PN72

MR SCHAPPER: If I may, can I just go through it in order. Of course we can amend our claim. It is quite clear in my view, that it’s likely if we amend our claim it must be re-advertised before it can be heard. Now we advertise in, it is not just 30 days, the gazette is only published monthly and it is published at the end of the month and I believe the close off date is the 10th of each month. That means it will not be advertised again until the end of January and the Commission could not hear the matter until February, which is far too late.

PN73

So now while I know that Mr Parry says there’s this authority that says that you don’t have to re-advertise if you amend, it was Ms Hartley’s position in the hearing before Commissioner Kenner that if we amended we would have to re-advertise and certainly that was scope’s position and authority was cited, although I can’t remember what it was because I haven’t read it. So there was a view held by the applicants before Commissioner Kenner and certainly Skilled, that if we amended, we would have to re-advertise, and that would put us into February before we could have a hearing.

PN74

So we are saying we don’t want to amend because it’s quite clear on the scope clause we’ve put in that it doesn’t apply to the applicants anyway. If per chance you read it in a very strained way so that it does apply to the applicants, in a literalistic sense you can always refer to the transcript and the undertakings that we give to clarify that ambiguity about whether it applies or not to come to the conclusion that it doesn’t. In any event the Commission, and it’s certainly been my submissions throughout, that the Commission can cut down the scope clause under the powers of the Act, without any need to re-advertise.

PN75

I cited the provisions of the Act in my submissions, namely section 26(2) of the Act which means the Commission can cut down the scope clause to exclude the applicants, without causing the need to amend. And as I indicated we will undertake to make a submission to the Commission, that that’s what it should do. It is difficult to think that if that submission is made as it would be made in accordance with that undertaking and if that’s what the applicants were also saying to the Commission, it is difficult to believe that the Commission could legitimately say, well we are not going to do that and leave the thing as it is, so that on one argument may apply to the applicants. There would be no rhyme or reason why the Commission would do that. But I don’t want it to be thought that by refusing to say we will amend our application we are seeking to somehow buy a trick in an award that will apply to the applicants.

PN76

It is not our intention, our position is that if we could amend without the need to re-advertise we would. There is a need to re-advertise, or at least a very strong view to that effect. We are not prepared to do that because of the delays that will result. We also put to the Commission that the Commission can ensure that the Commission can cut down the scope to exclude the applicants that in my respectful submission is more than enough to dispense with this application.

PN77

JUSTICE GIUDICE: Having heard that Mr Parry, what’s your submission in relation to the application? Do you wish to proceed with it now?

PN78

MR PARRY: Yes, we don’t have much alternative. Our concern is an order in respect of the Western Australian Industrial Relations Commission.

PN79

JUSTICE GIUDICE: Yes, well I’m not asking you to justify what the position. I’m just trying to understand what your position is. If you wish to press the application, then we will hear your submissions, bearing in mind what we’ve heard so far, but anything else that you want to put to us.

PN80

MR PARRY: Perhaps I’ll return to the question of amendment at an appropriate time.

PN81

JUSTICE GIUDICE: Yes.

PN82

MR PARRY: Because we say that will ultimately be a discretionary matter, part of the discretionary mix for this Commission. If the Full Bench pleases, there are about 140 locomotive drivers employed in total by the applicants. They are regulated by Federal instruments. Firstly, being the Rio Tinto Iron Ore Award, the section 170LK agreement regarding Rob River and various AWAs. There are also in Western Australia locomotive drivers employed by BHP Billiton and for various reasons both the applicants and the BHP are also using locomotive drivers from other companies generally, called labour hire companies to supplement their existing work force. One of those companies is Skilled Rail Services another is the Integrated Group.

PN83

Now this application is made in respect of an application to the Western Australian Industrial Relations Commission for a new award. Now the Commission has seen that. It is ostensibly called the Skilled Rail Services Award. It has a scope clause going beyond skilled. It is worded as the Commission has seen, and there is real issue about whether the second parts of that scope clause are words that are read distributively or in some other way such that they would catch the labour, the locomotive drivers employed by my clients. The second question is, is Pilbara Iron Company a labour hire operation. In the circumstances, we will say that there’s jurisdiction in the Commission and it’s appropriate that there be a discretion exercise. Now the Commission has seen the evidence in support of the applications. There hopefully is three folders. Does the Commission have an affidavit of Peter Danks?

PN84

JUSTICE GIUDICE: Yes, we do, thank you.

PN85

MR PARRY: Whilst I will take the Commission to that shortly, I don’t think that should be controversial. It essentially contains the detail of the movement to a federal award and federal proceedings. There are also State proceedings which I’ll also - there should also be documents with regard to the state proceedings and a volume of authorities.

PN86

JUSTICE GIUDICE: Yes.

PN87

MR PARRY: Now I did indicate that we had an outline of submissions which narrowed the scope of what we were seeking. If I could hand a copy of those up to the Full Bench. The actual restraint sought is in paragraph 16. Now the affidavit of Mr Danks is I’ll just take the Commission fairly quickly to some main parts of that. The Commission will note that in 2002 there were various logs served in respect of iron ore operations in Western Australia. I’m sorry, there were Federal Commission proceedings and there was a decision handed down by the Full Bench. That decision in print PR947647 is hopefully in our folder of authorities and tab 11 and this decision deals fairly comprehensively with the regulation of these employees of the applicants, being the locomotive drivers being regulated with some history in the State system, but there being a movement to the Federal system.

PN88

The Commission will note and I think this is in paragraph 10 of that decision, that it gives some background to Robe River Iron Associates, but it also does explain the creation of Pilbara Rail Company. That was the sharing rail transport structures. The Commission will also note in paragraph 13 the reference to the Robe section 170LK agreement and I’m not going to take the Commission to the rest of that, there is a large debate and the Full Bench ultimately decided that an award, federal award should be made and they then, and the Commission will note in paragraph 135 there were proceedings before Senior Deputy President Harrison for the purpose of there being argument about the content of the award. The CFMEU who were one of the intervening unions did not get, or did not make any submissions about the content of the award.

PN89

In the final paragraph of the decision the Full Bench said if the unions want to become respondent to the award, they should ensure an adequate jurisdictional basis exists. What happened thereafter, as set out in Mr Danks affidavit, is that there were various logs served and there were disputes found between the CFMEU and the applicants and other disputes found involving other unions. There was as per Mr Danks affidavit in paragraph 14 a demarcation agreement that was advanced by the ACTU and the various unions, which made clear that the CFMEU when bound would seek to cover locomotive drivers.

PN90

There was then proceedings regarding the CFMEU and other unions seeking to become respondent to the award and that went on in paragraph 15 up until 14 April and there’s a transcript before the Commission of those proceedings on 14 April. The Commission will note that there was debate that day about the terms of the demarcation provisions. The union sought a conciliation conference and the Commission then adjourned for the conciliation conference which took place on 12 May. That conference took place, there was debate about the scope clause of the RTIO award.

PN91

At the conclusion of that conference, there was no agreement reached about the CFMEU becoming respondent to the Federal Award, but what happened thereafter there were requests made and the company agreed to provide all attendees, and this is in paragraph 17, information about workers in the business. Attached to Mr Danks affidavit is a copy of the email about that information provided to the CFMEU and others. Then in August the CFMEU sent a request back for further information. That information is in the process of being collated, and Mr Danks anticipates that when that material is provided, there is going to be ongoing proceedings before the Commission.

PN92

So the position reached there, is that there is an ongoing matter, as we would say, concerning the terms and conditions of locomotive drivers in Western Australia. Now the state proceedings, obviously have a much later genesis. They commenced on 9 September 2005, when the application was made. The application that was made by the CFMEUs state covers identical matters for that in the RTIO award. It covers wages, it covers various allowances, it covers redundancy provisions almost identical set of matters covered. It does however, have higher wage rates and greater conditions in some respects.

PN93

This application was made on 9 September 2005 as, and the Commission will have in the State material before it an appeal by Skilled and as is clear from that from 9 September through until November, nothing happened. Nothing happened in September, nothing happened in October. In November the CFMEU seek to agitate their state application and they organize a conference, a conciliation conference on 15 November. In those proceedings of 15 November as I understand the position the CFMEU didn’t attend the initial conciliation conference on 15 November and then that conference was convened to 30 November 2005.

PN94

So this application had for three months almost, it had nothing going on. Then it was reconvened to two weeks ago. At that time things started popping up and indeed, the affidavit of Ms Hartley then takes up the story. There was this conciliation proceeding on 30 November, obviously unsuccessful and then the application was mentioned on 7 December 2005. The applicants in these proceedings being the Rio Tinto Companies sought leave to intervene because they were concerned about the coverage of the proposed State award. Mr Schapper said to the Commission at that time that it wasn’t the intention, as he said today, to covert the applicant’s employees, but he refused to vary the application to reflect that.

PN95

Now Commission Kenner then handed down a decision on 9 December, last Friday allowing the applicants to intervene in the proceedings and also ordering the hearing of the proceedings be expedited. That decision in respect of intervention is attached to the affidavit of Ms Hartley and says that in respect of the argument that the companies have an interest. He seemed to see that there was some force in the argument that the scope clause would apply to the companies who employ engine drivers. So the Commissioner of the Western Australia Commission has accepted, or seems to accept from his decision, that there was sufficient in that ground to say that we have a legitimate interest on this basis.

PN96

We are now faced with a position where the Western Australian Commission seems to think that certainly we have a legitimate interest because of the terms of the scope clause.

PN97

JUSTICE GIUDICE: That was your submission.

PN98

MR PARRY: The submission made to the Western Australian Commission in support of intervention was that on one argument the terms of the scope clause was sufficient to catch us.

PN99

JUSTICE GIUDICE: Yes.

PN100

MR PARRY: And we sought the amendment, and your Honours have heard that again today. So obviously this was - - -

PN101

JUSTICE GIUDICE: Mr Parry, I don’t know whether you are coming to it, but you mentioned earlier that there was something on tomorrow?

PN102

MR PARRY: Yes. I’ll probably come to that, but I think it’s probably better that I keep it in order, or we’ll all get lost. There was this decision handed down on 9 December which is last Friday and there were orders given and the normal course is that these orders are spoken to. It is a peculiar system of the Western Australian Commission. There was a hearing set down on Monday for speaking to these orders, and this was, the scope provision was something that certainly my clients proposed agitating on the Monday in the speaking to the proposed orders. Because the proposed orders placed obligations on my clients as intervenors to provide particulars of rates of pay, that were paid to employees who may be bound by any award.

PN103

So we were caught up in the proceedings. There were obligations placed on us to be providing rates of pay, because we might be bound. That speaking to the orders on Monday night, was cancelled for reasons that are now the subject of appeal, and debate, in the Western Australian Commission. We sent letters on 12 December, which was on Tuesday, and that’s attached to Ms Hartley’s affidavit. Raising again, and this is attachment EGH5, raising these issues. We sent it to the Commissioner and making reference to this cancellation of the speaking to the minutes. Commissioner Kenner had said he was going to consider on 21 December whether an interim order should be made.

PN104

An interim order in the legislative scheme in Western Australia comes under section 36A:

PN105

The Commission has power to make interim orders, as with the Federal Commission and where that award extends to employees to whom no award currently extends, the onus is on any party opposing the making the new award to show that it would not be in the public interest.

PN106

Now it is not a matter of contention that Skilled Rail Services are not covered by an award of the Federal Commission or the State Commission to our knowledge. There are other labour hire companies who in all probability fall into the same boat. Therefore, where there are employees where no award applies, then 36A operates and the onus is on any party opposing, which would include ourselves, to show the new award would not be in the public interest. So when one comes to interim awards and the making of new awards, one would suspect that it would be rather likely that the State Commission would act consistently with the legislative scheme and in all probability make an interim award.

PN107

So this matter was the subject of writing by my clients solicitors and that’s EG5 outlining these various concerns and raising in this letter on 12 December, the operation of section 128. Saying that it appears that the matter is going to proceed and then we are going to make an application for an order restraining the State Commission from dealing with this application and we respectfully ask that the Commission deal with these matters prior to carrying out the steps in the order.

PN108

Now that takes us up to Tuesday and then the further events are as per the other folder that the Commission has. What then happened and the folder of the other matters contains other documents. There is just to run through of the other documents. There is various answers and counter proposals. The first one is a process of the Western Australian Commission, a counter proposal by Hammer who were acting for Skilled. There was then correspondence of 6 December advising of the concerns about the scope clause which showed that we raised the issue early. There is then submissions concerning the expedited hearing and directions, then Skilled’s notification of minutes to be dealt with at speaking to the minutes of the decision. There’s then further and better particulars of the basis of the applicant’s claims. Then a letter of 14 December 2005 dealing with the particulars requested in the order of Commission Kenner, that is in tab 6.

PN109

Then there’s an email from the Western Australian Commission advising of the listing of the substantive matter in A5 of the 19 and 20 January or 31 January or
1 February. Then also on 14 December, and remembering that this comes at around the time that the State Commission has been advised of a proposed section 128 proceeding. We then receive a document in tab 8 which is headed “Show cause why intervention should not be revoked” and there’s reference to the CFMEU and that matter is listed tomorrow at 2.15 in Perth. It is really a matter of speculation as to why we should have our intervention revoked, but it may well result in the position where our intervention is revoked for reasons that are known only to the Commissioner and then we can play no further part in the proceedings in the Western Australian Commission.

PN110

JUSTICE GIUDICE: One possibility is that if Mr Schapper gives the indications that he’s undertaken to do, that might leave the State Commission in a position where it could indicate that it didn’t intend to make any award which would have any effect on your clients, which would then cease to have an interest in the matter.

PN111

MR PARRY: The Commission has so indicated that that may well.

PN112

JUSTICE GIUDICE: It is one possibility.

PN113

MR PARRY: Our problem is that we don’t know what the Commission is going to do. We might well end up in a position where we have our application, our intervention revoked, the application stays as it is, the Western Australian Commission can be told all sorts of things and ultimately, we don’t have any control or involvement in those proceedings.

PN114

JUSTICE GIUDICE: We wouldn’t with your respect Mr Parry, expect that the Western Australian Commission in such a way as to set a prior view of your right to deal with an arbitration which might affect you. You don’t have any information as to why this matter is on tomorrow?

PN115

MR PARRY: What we were, and it’s not overly satisfactory, but there was a phone call from the associate of Commissioner Kenner and the telephone call advised us that – we rang the Commission and said we don’t know why is there a listing on Friday, and this is speaking not to the Commissioner, but to the associate. We were told it is a show cause here and to show why the intervention rights shouldn’t be revoked. We said well that’s what it says, if anything more, he said it is something about the Federal award and that’s all I know. So that’s all we know at this stage. It may well be that the Federal Commission is correct. The State Commission gives some clear indication that we won’t be covered and the scope clause will be amended to reflect that.

PN116

However, our concern is that it might not and one can sit on one’s hands and hopes the Commission acts rationally and reasonably as Commission’s are meant to. If one operates on that assumption one can be disappointed on occasions and these applications under section 128, are let’s be practical, the stop proceedings in a State Commission and they’re generally taken stop proceedings, in a State Commission where a State Commission is taking proceedings in full knowledge of developments or steps in the Federal tribunal. So it is not unusual in that sense in the nature of section 128 proceedings.

PN117

Now to bring the Commission fully up to date, Skilled have appealed the orders of Commissioner Kenner. They have made an application for a stay. That was to be heard at 5.15 today in the Western Australian Industrial Relations Commission. Clearly if the stay is granted, then that will complicate things even further.

PN118

DEPUTY PRESIDENT IVES: That’s 5.15 their time?

PN119

MR PARRY: Perth time, no, no sorry, as I understand it is on now, on at 5.15.

PN120

COMMISSIONER MANSFIELD: It must be eastern standard summer time, then?

PN121

JUSTICE GIUDICE: Mr Schapper, are you able to assist us on this issue?

PN122

MR SCHAPPER: It is listed at 2.15 and it’s presently 2.30 here. I take it that the hearing is then still continuing.

PN123

MR PARRY: The concerns we have are really arising from the continuation of the proceedings in Western Australia that we don’t want to be involved in and see no need for ourselves to be involved in, but the Commission will see that there are orders being made compelling us to disclose certain information to the Commission and the CFMEU. We are subject orders, which we’ve sought to comply with as best we can, but beyond going – obviously the Commission in Western Australia has seen our interest as sufficient to make us subject to various directions.

PN124

Now the employer, I’m sorry, the Commissioner, Mr Danks has outlined the concerns that he has about these matters.

PN125

JUSTICE GIUDICE: Just before you leave the history of the proceedings. Am I right in saying your clients have filed material in relation to the directions issued on 9th? We have that I think don’t we?

PN126

MR PARRY: Yes, it is tab, I think it is tab 6 of the material in the folder headed documents and correspondents.

PN127

JUSTICE GIUDICE: Yes, thank you.

PN128

MR PARRY: I do indicate that Mr Schapper has written to us advising us that he considers that not good enough and not detailed enough and there is a letter from Mr Schapper which says that that’s not good enough that doesn’t comply with the orders. Why Mr Schapper has a real concern about finding out the detail of our compliance with the orders, doesn’t sit very well with his protestations here that there is no interest in us, in our involvement in these proceedings. I have a letter from Mr Schapper if I could hand up to the Full Bench.

PN129

JUSTICE GIUDICE: Yes, thanks. Mr Parry, while I think of it, shortly when we call on Mr Schapper, perhaps you or your instructing solicitor might give some attention as to how we will mark all this material. I think we will need to ensure that anything that we are looking at is identified now. As to the documents provided in the folder, I think that folder can be simply marked as one document. I don’t want to interrupt your submissions by doing this now, but I think we will need to do it before we conclude.

PN130

MR PARRY: I would seek to tender each of these folders.

PN131

JUSTICE GIUDICE: You will have to do it individually I am afraid, so that we know what we are talking about.

PN132

MR PARRY: Well I’ll commence that, I know that it will interrupt, but if I don’t do it now, it will interrupt something else.

PN133

JUSTICE GIUDICE: All right, well you go ahead.

PN134

MR PARRY: The chronological order perhaps I would tender the affidavit of Mr Danks

EXHIBIT #P1 AFFIDAVIT OF PETER MICHAEL DANKS SWORN 15/12/2005

PN135

MR PARRY: I tender the affidavit of Erica Hartley.

EXHIBIT #P2 AFFIDAVIT OF ERICA HARTLEY SWORN 13/12/2005

PN136

MR PARRY: There is a folder of documents and correspondence being the Western Australian and other Commission proceedings.

PN137

JUSTICE GIUDICE: That has an index of 15 documents.

EXHIBIT #P3 DOCUMENTS AND CORRESPONDENCE OF WESTERN AUSTRALIAN AND OTHER COMMISSION PROCEEDINGS INDEX OF 15 DOCUMENTS

PN138

MR PARRY: I’ve handed up a letter from Mr Schapper dated 14 December 2005 I would tender that.

PN139

JUSTICE GIUDICE: Any objection to that Mr Schapper?

PN140

MR SCHAPPER: I don’t have a copy of my letter and I can’t specifically remember what it was. Ms Hartley has just given it to me now.

PN141

JUSTICE GIUDICE: We will reserve your rights in relation to that.

PN142

MR SCHAPPER: No objection your Honour.

EXHIBIT #P4 LETTER FROM MR SCHAPPER DATED 14/12/2005

PN143

MR PARRY: I’ve also handed up an outline of submissions which contains the minute of variation to the order sought.

EXHIBIT #P5 OUTLINE OF SUBMISSIONS OF PILBARA

PN144

MR PARRY: I think that’s about as far as I need to tender things at the moment your Honour. If I may continue with exhibit P4. It rather sits ill with the union’s position towards the applicants in these proceedings to be consistent and complaining about compliance with directions in respect of information we provide, when they are putting their hand on their heart and saying you really should be having nothing to do with these proceedings. It appears that Mr Schapper on the one hand is prepared to say that we shouldn’t be in the proceedings, but then to be requiring information and accusing us of not complying with particular directions.

PN145

The matter as it stands as of today is that there are a Federal award, there is proceedings in the Federal Commission dealing with the terms and conditions of locomotive employees in Western Australia. We say that the proceedings in Western Australia will inevitably cause confusion, will lead to uncertainty and will, we say, embarrass the Federal Commission in dealing with those proceedings. Now we have an outline of submission from the CFMEU and it is said that there are jurisdictional issues with this matter and we say that the jurisdiction of the Commission to deal with this matter, is clear. It rests perhaps on three bases.

PN146

Firstly, section 128(l)(c) refers to:

PN147

If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before a Commission

PN148

The matter in this case, is the wages and conditions of the locomotive employees in Western Australia. Now it might be said that there are different parties involved here. On the one hand you have certain parties in the State Commission and on the other you have different parties in the Federal Commission. Well there’s been a decision of the Industrial Relations Court of Australia called Attorney General and Queensland and Polites 1996 report in 138 ALR 310. We raise this authority because the assertion in the written outline of Mr Schapper, that there’s no jurisdiction.

PN149

I’m not sure that we have a copy of this in Western Australia because I only received his outline before I arrived. I have a copy for the Full Bench here and I hand that up to the Full Bench and perhaps for fairness to Mr Schapper, it is a decision of the Industrial Relations Court. It deals with a proceeding in a State Commission and an interstate industrial dispute found in the Federal Commission and the union made an application to restrain the Queensland Industrial Commission from dealing with the State application.

PN150

The Full Bench found that the matter, the Queensland Commission could be restrained and made orders restraining the Queensland Commission. There were then proceedings in the High Court, which were remitted to the Industrial Relations Commission. An order nisi was granted remitted to the Industrial Relations Court. The headnote reads:

PN151

Section 128(l)(c) of the Industrial Relations Act is not confined to cases where there is an identicality of parties as between the proceeding before the AIRC and the proceeding before the State Industrial Authority. The word matter in section 128(l)(c) does not refer to a dispute, proceeding, application or claim, but to the subject matter of a dispute, proceeding, application or claim.

PN152

The particular reasoning of the Full Court appears on page 319.

PN153

JUSTICE GIUDICE: What part of the Mr Schapper’s submissions is this directed at?

PN154

MR PARRY: Well I imagine it’s paragraph 12. There seems to be, paragraph 12 says:

PN155

In the premises the Commission does not have jurisdiction to restrain the WA AIRC because the proposed award if it issues will not apply to the applicants.

PN156

JUSTICE GIUDICE: Yes.

PN157

MR PARRY: And there Mr Schapper is making the assumption that there must be some commonality of the respondents, or the applicants in the Federal proceedings and the State proceedings, and that’s in error.

PN158

JUSTICE GIUDICE: But you are not seeking to restrain the State Commission in so far as it might conduct proceedings in relation to employers, other than the applicants, are you?

PN159

MR PARRY: No, we are much narrower than that.

PN160

JUSTICE GIUDICE: Yes, well I don’t quite see the point of this authority.

PN161

MR PARRY: The point of the authority is that there is jurisdiction in this Commission to deal with it because there is a proceeding in the Federal Commission dealing with the subject matter being the terms and conditions of locomotive drivers in Western Australia. The State Commission is dealing with the same matter. Now on page 319 it refers to the word matter in paragraphs 8 and onwards, commencing, line 8:

PN162

Once it is appreciated that matter refers to the subject of dispute, or proceeding rather than the dispute or proceeding itself the linguistic argument applying under section 128(l)(c) need for identicality of parties simply disappears.

PN163

To take Justice Murphy’s example, it is perfectly, well perhaps for Mr Schapper’s benefit I will read it:

PN164

It is perfectly possible for two unions, one State and one Federal to be in dispute with a particular employer, alone or with other employers, and/or employer organizations that appropriate pay rates for people holding particular qualifications. If the dispute involving the Federal union is the subject of a proceeding before the AIRC pay rates are a matter that is the subject of a proceeding before the Commission. If a dispute involving the State union is before a State Industrial Authority, that Authority will be dealing with or about to deal with the same matter, ie appropriate pay rates. The requirement of section 128(l)(c) satisfied.

PN165

The paragraph concludes:

PN166

Power on the AIRC to restrain the State Industrial Authority from dealing with pay rates.

PN167

I don’t go on but clearly we say here when one looks at the matter, there is a proceeding in the Federal Commission dealing with the matter, the terms and conditions of locomotive engine drivers in Western Australia that is the same or a similar matter being dealt with by the State Industrial Commission therefore there is jurisdiction. Now there are other bases for jurisdiction, we say that when the Commission has before it an ambiguous clause which on one construction could cover the work of the employees of the applicants themselves. Although we say that’s not necessary, we say that brings in 128(l)(a) and (b).

PN168

Now discretionary matters and perhaps Mr Schapper has given an outline of submission where he has said what he says the intention of the words are. We don’t have any particular or specific reason to say that he is not being forthright about that. But the best indication of the intention of parties is the words they actually use. Now here, for example, we’ve included in exhibit P3 an award application drafted by Mr Schapper at exactly the same time that he was filing the current application. Indeed it was filed on exactly the same day, drafted by Mr Schapper presumably, in respect of truck drivers. There Mr Schapper has said in his scope clause, and it’s in tab 10 of our exhibit:

PN169

This award applies through the State Western Australia applies to truck drivers and who are employed by any person or company other than BHP Billiton.

PN170

So when Mr Schapper wants to make clear that doesn’t apply to an employer he’s had no concerns about doing that. In fact, he’s done it in this case. The application in the present matter could so easily have had, save for Rio, save for the applicants in this matter, we wouldn’t be here. So we are faced with a position where there is a poorly drafted clause. Mr Schapper has quite happily drafted clauses better in other cases, but he leaves us in a position where we have on one view an ambiguous clause, on another view a clause which some judges might say is not ambiguous, but it does extend in a broader sense. Then we would be a debate about the use of extrinsic material. This Full Bench would be well aware that there’s great reluctance in some courts to look at transcript in Commission proceedings, the statements and intents of parties to contracts.

PN171

Now at the end of the day, it appears that we are the ones that are going to bearing the risk. It is not the union that are bearing the risk. The only risk that they bear, if they amend their application, the maximum is a 30 day adjournment. But they refuse to do that. They would prefer to put, we the applicants, at risk of having to prove the meaning of these clauses down the track. Bad drafting is not our fault, it is their fault. We say this bad drafting could be easily overcome by recourse to the Western Australian Commission. We are, we were referring earlier to the decision of the Commission in court session, CFMEU, being Mr Schapper’s union the offer is for, and the Master Builders Association of Western Australia, Commission in court session, if I could hand up a copy of that decision, which is I think reported in 72 WAIG 1302.

PN172

Now I understand that Mr Schapper appeared in this at first instance. Perhaps he would be more aware of that than I. It is not clear from the, perhaps it is clear, that he didn’t appear in the final proceedings, or the proceedings before the Commission in court session. But the Commission will see on the second page of this, page 2 of 10, top of the page will see there were arguments raised about the operation of section 29A of the Act. That is a section that Mr Schapper refers to in his outline in paragraph 10, where he doesn’t accept our invitation to amend the scope clause.

PN173

We have a Commission in court decision here, now on my instructions, it has never been overturned, or changed or challenged, which deals with the operation of section 29A of the Act. As the Commission will see at the top of the page:

PN174

Whether given that the claim now before the Commission is different from the claim as filed and advertised, the Commission is precluded from dealing with the matter in the absence of a further advertisement.

PN175

This is precisely the issue and there is set out what was advertised in respect of foreman eligible for the union and the matter had been altered in the exhibit to that which the Commission will see in the fourth paragraph. Without getting into the minutia of it clearly it was a more narrow scope clause, more limited because it was in respect of particular respondents. In paragraph 5 it is read:

PN176

It is apparent that the terms of section 29A have been complied with, the question becomes whether the scope clause now brought to the Commission is in its terms so significantly different from the application as filed and advertised such that that part of the proposed award that relates to area of operation of scope needs to be re-advertised.

PN177

And the Commission in court session went on and said:

PN178

The application advised seeks an award to apply interim connection with the building and construction industry, the amended claim seeks an award to apply to persons employed on site or in connection with the building construction industry as carried on by the respondent set out in the schedule attached to the award. The clause as amended seeks only to apply to workers employed on site and to that extent the range of the amended clause is narrower than the application as advertised. The application as advertised would have applied on site but also to the building construction industry generally. This point was conceded by the MBA and the Commission overruled the preliminary point stating that in the view of the Commission in court session, the scope clause as amended is a subset of the original clause and there is no prejudice to any person or organization from the decrease in the scope clause proposed.

PN179

And it goes on and the final part of the sentence reads:

PN180

The point is more of technicality than of substance.

PN181

With respect it is common sense and logical and I find it remarkable that Mr Schapper who is a highly experienced advocate in the Western Australian Commission is not aware, and that in itself is very surprising, given that it is a significant authority. It must have operation in Western Australia on a regular basis when awards are made. As this Commission is well aware, scope clauses are varied on a regular basis and it is really somewhere, somewhat difficult to contemplate that experienced advocates would not be familiar with an authoritative decision such as this.

PN182

Our position is this. We say this matter can be dealt with simply by narrowing the scope of the clause as the union seems to say can happen. We don’t want, nor insist that the Western Australian, that there needs to be a delay in the proceedings, so all these other really specious arguments of Mr Schapper can be put to one side. We are not seeking to delay the matter involving Skilled. That is a matter for Skilled to run its own arguments. The variation that would be made would not affect Skilled at all and would probably expedite the proceedings, because it would take us out of the picture. But for some reason Mr Schapper refuses to do that, the only prejudice, or the maximum prejudice that he could suffer is a 30 day delay.

PN183

So our position is that when one goes to our outline and the Commission comes to exercise a discretion in this matter, we say there is clearly jurisdiction. We’ve set out in our outline of submission, various authorities of this Commission and of the High Court and of the Industrial Court. We’ve set them out in paragraph 17 and 18 and in paragraph 17, we’ve set out a recent decision of Boral Masonry and the CFMEU reproducing a couple of quotes there about the purpose of section 66:

PN184

To avoid the making of inconsistent State and Federal awards and to avoid the embarrassment to the Arbitration Commission having a State Industrial Authority trespass upon its processes of conciliation and arbitration.

PN185

I’m not going to read those authorities to the Full Bench and there’s also the Attorney General and Polites. There is also a Full Bench in MEAA.

PN186

Now the other discretionary matters are as we say the parties have had the opportunity to clarify the issues of coverage and haven’t. We have at all times asked for clarification and have sought the amendments that would remove us from the picture. As it currently stands we are at risk, at serious risk of the Western Australian Commission proceeding and there being a position reached where there are proceedings we have to go on in. Being confronted by an interim award and ultimately, perhaps even not having a particular role to play as an intervenor.

PN187

This Commission has refused section 128 applications on occasions and there’s been a number, three or four, in respect of Western Australia. I’ve dealt with those in our outline. We say we can be simply distinguished from each of them. I think one of them was the West Farmers one, the most recent decision of a Full Bench handed down. These authorities are contained in our outline. The West Farmers one involved that it had long been in the State system, trying to get out of the State system. There are another couple of decisions. Select Industrial, which involved a broader award coverage which is not relevant here and Solar Hart where again the regulation had essentially under State tribunals. We have provided a narrow provision and in our respectful submission, it is appropriate to make in the present case. If the Commission pleases.

PN188

JUSTICE GIUDICE: Thanks Mr Parry. Mr Schapper, we’ll call on you now, but before you start, you’ve not seen until about half an hour ago, I take it, paragraph 16 of the outline, which incorporates the terms of the order that the applicants now seek. Do you object to an order in those terms?

PN189

MR SCHAPPER: Yes, your Honour, it’s simply unnecessary and the power, and it’s a significant power of this Commission, should not be exercised lightly in highly dubious circumstances. It should only be exercised if the Commission is well satisfied that there is a strong necessity for it to be exercised.

PN190

JUSTICE GIUDICE: Yes, I just want an indication of your position, but we’ll hear you generally on your submissions.

PN191

MR SCHAPPER: Thank you sir. Can I say I rather resent Mr Parry’s personalisation of his submissions and his rather snide references to me personally. I thought they reflect a fairly low level of professionalism and integrity on his path, but I will endeavour to resist in responding in kind.

PN192

Can I deal firstly with the question of the reason why the union has sought particulars of what it is that the applicant companies pay their locomotive drivers, and heavy reference was made by Mr Parry to exhibit P4. The substance of the submission that Mr Parry made was well, why do I want this information, if they had been honest when they say that they don’t want to reward, the award we seek to apply to the applicants. The clear inference being that the CFMEU is being dishonest when it says it is not our intention to secure an award against the applicant companies. We reject that, and made in an underhand way, and unprofessional way that implication.

PN193

The reason why that information as sought in exhibit P4, the award we seek to apply to the applicants. The clear inference being that the CFMEU is being dishonest when it says it is not our intention to secure an award against the applicant companies. We reject that, and made in an underhand way, and unprofessional way that implication.

PN194

The reason why that information as sought in exhibit P was requested and ordered to be provided by the State Commission, was this. The State Commission is considering whether to make an award that dealt with the terms and conditions, including the wages of locomotive drivers employed by Skilled Rail Services and deployed on the Hamersley Iron and Pilbara Iron Railroad. It is clearly a relevant consideration in determining if an award is to issue, what the wage levels of those employees should be to look at what it is that others who do the same work, but for a different employer receive.

PN195

So that’s the purpose of seeking that information, so that the Commission knows what it is that Pilbara Iron and Hamersley Iron and so on, are paying locomotive drivers to do the same work and the Commission can get an idea as to whether the claim we make is an appropriate claim and if not, what the level of wages should be. So the same goes for paragraph 26 of Mr Parry’s submissions, that were clearly thrown together at the last minute. He says here for example:

PN196

That the above issues could easily be addressed by the CFMEU by an appropriate amendment to the application or clause that propose to law.
The fact that they refuse to do this indicates that they seem a potential for conflict and dispute as to the -

PN197

We reject that unworthy implication. The reason we do not formally apply to amend the clause is not because we want to create confusion but because it will delay the hearing of the application, not by 30 days as Mr Parry repeatedly caustically claimed but because the thing cannot be gazetted until the end of January, it will delay the hearing of our claim until at least February. By then effectively we will have at least on one view, have lost our right to obtain an award that is meaningful, that is why the Commission is considering the matter on an interim basis.

PN198

So on that basis we say we do not seek to amend the clause simply for that purpose. Mr Parry made great play of the decision of the Commission in court session and the CFMEU and MBA and he implied, that I being an experienced practitioner would know about that, but the implication at least was that dishonestly I said nothing about it because I wanted to deceive this Commission into adopting a course that did not suit his client. But there is more recent Full Bench authority in this State which holds to the effect, that a cut down scope clause cannot be made in an award unless it is gazetted. The precise contrary of the submission based on the perceived CFMEU and MBA passage that Mr Parry relied upon.

PN199

It is referred to in the company’s own papers. If you look at tab 9 in exhibit P3. Tab 9 is a bulky set of documents which includes submissions by Skilled Rail, and unfortunately the pages are not tabulated, but it’s about I’d say a dozen pages in. There is a written submission, which is entitled Submission in Reply that evidence relies on - - -

PN200

JUSTICE GIUDICE: Mr Schapper is this the affidavit of Michael Borlase?

PN201

MR SCHAPPER: Yes, that’s right your Honour.

PN202

JUSTICE GIUDICE: I don’t think we have, I’m sure we don’t have the attachments to that, or the annexures?

PN203

MR SCHAPPER: Well they are in my file.

PN204

JUSTICE GIUDICE: Well I don’t know whether that makes you better off or worse off than us. But in any event, if you could just refer us to the document?

PN205

MR SCHAPPER: Paragraph 20 of the written submissions, and these are written submissions of Skilled Rail, there are a number and this is one of them. Paragraph 20 of that says this, it is headed Scope Clause Awards:

PN206

The authority to which Skilled referred in the course of the proceedings of 7 December 2005 in support of the proposition that any alteration to the scope clause must be advertised given the effect to narrow the scope is AMIEU and Stewart Butcher and Co Pty Ltd 73WA5G 1196 at 1200.

PN207

Now Ms Hartley, who is here today was present in court on 7 December when that submission was made by Skilled, she also made the submission that if we amended our application in the scope clause it would have to be re-advertised. Against that background, one really has to question Mr Parry’s honesty when he makes the submission that he knows of no authority which contradicts that the authority that the MBA faced in 1990 and his instructions are that there is none.

PN208

Now given that there is divide and conflict about whether if we amended our application it would have to be represented, we say we are not amending this because we want to get on with the hearing of our application and we want to have an interim award made. What we do say is the Commission can cut down on the scope clause of the award without the necessity for it to be re-advertised. I would like to take the Commission to the terms of the State Act if the Commission has it with them, to show the proper basis for the claims. Does the Commission have the State Act?

PN209

JUSTICE GIUDICE: We don’t, but you proceed. It appears we are being furnished with copies.

PN210

MR SCHAPPER: I am referring to section 29A.

PN211

JUSTICE GIUDICE: Just give us a moment, thank you. Yes, thank you.

PN212

MR SCHAPPER: Yes, section 29A(2) provides that:

PN213

Subject to any direction given under 2(a) is the reference of an industrial advocate submission seeks the issuance of an award.

PN214

I will omit the next few words:

PN215

The Commission shall not hear the claim or application until the area of the scope provisions of the proposed award has been published in the required manner.

PN216

You will see immediately a number of things. Firstly, the section is amended in its terms, the Commission shall not hear the claim until the area of the scope provisions of the proposed award have been published. Now subsection(2)(a) which is a premise for subsection (2) is not relevant to this issue, so you don’t need to refer to 2(a). So the argument goes like this. That certainly we make our application for a new award, it must be gazetted before the Commission can hear it and it was gazetted in September. Now one can readily see the requirement that a claim or application not be heard, until the area of scope provision has been published would apply equally to an amended claim or application. That is if the claim is amended in the course of a hearing, the 29A(2) would arguably apply and require re-gazettal before the Commission could hear that amended claim.

PN217

As I understand it, I don’t know, I haven’t read the AMIEU case that I referred to of 1993 but I understand that is what it says. So you can see that there is a very solid basis for our reluctance to amend our claim because of the delay that will ensue. If you look also at section 26 subsection (2) you will see that in the exercise of its jurisdiction under this Act the Commission, I’m sorry, subsection (2) says:

PN218

In granting relief or redress under this Act the Commission is not restricted to the specific claim made or the subject matter of the claim.

PN219

If on hearing a claim or application that has been presented the Commission is of the view that the scope clause is too wide and needs to be cut down, in terms of section 29A(a) do not in my submission require what the Commission proposes to do with the scope clause to be gazetted. Now and on that basis I am quite comfortable in renewing the undertaking that I made before, and that is, we will submit to the Industrial Commission, the State Commission that it can, if it sees a necessity to amend the scope clause in the State award, the proposed award, to remove any small doubt that might exist that the thing could apply to the applicants, but I hope I have explained adequately why it is we are not prepared to amend the claim with the consequent delay that that entails.

PN220

We reject completely the snide inference of Mr Parry made repeatedly that we seek to in fact obtain an award in the State Commission against the applicants, even though we are saying we do not. Mr Parry urged that the order they seek be made otherwise there will be confusion and there will be uncertainty. The power in section 128 is not conditioned upon the prospect that there may confusion or uncertainty. That is, the power in section 128 is not exercisable merely because what the State Commission proposes to do may cause confusion or uncertainty. The power in section 128 is exercisable if, and only if, the matter that is before the State Commission is in fact, being dealt with, or has been dealt with by way of an award in the Federal Commission.

PN221

The matter which leads me to this question of what is the matter, to which
Mr Parry referred, he said, the matter is the wages and conditions of locomotive drivers in Western Australia. That matter he says, been dealt with in the Rio award and is the subject of the various dispute findings to which he referred. Of course, that is a quite incomplete statement of what the matter, the subject of those proceedings was. The matter that was relevantly before the Commission in those matters, were certainly the wages and conditions of locomotive drivers in Western Australia, but only of those drivers employed by the applicant companies. The wages and conditions of locomotive drivers employed by Skilled Rail, or the Integrated Group, are not part of the matter that is before the Federal Commission or any of the matters to which Mr Parry referred.

PN222

He says there is no necessity to have an identity of parties and that’s quite true. It is not merely the Polites case that says that. Moore’s case which I have referred to in my outline of submissions, also makes it clear at least the judgment of his Honour Mr Justice Murphy makes it clear, it does not have to be an identity of parties, in order for the matter that is referred to in section 128, be the same as the matter that is before the State Commission.

PN223

I’m not aware of anyone other than Mr Parry today having ever suggested in any tribunal that circumstances such as this, that is, the wages and conditions of the engine drivers employed by Skilled, is the same as the matter that’s dealt with in the Federal proceedings that have been referred to being the wages and conditions of the locomotive drivers employed by Hamersley and the other applicants.
No-one has ever gone that far and indeed, it would be a remarkable thing, indeed, it would be so manifestly wrong that this Commission could not in good conscience or in compliance with the law, ever make such an order.

PN224

Your Honour asked me at the outset if I object to the order being made in the form in which it is being cut down. Yes, we do object because it is unnecessary. The matter is properly before the State Commission. The State Commission is properly appraised of the problem that the applicants said they have. There is no reason to think that the State Commission will not adequately deal with the matter by itself. Now Mr Parry says we don’t know. Well, it’s true we don’t know as a matter of certainty. But the exercise at 128 carries an exercise of a discretionary power and this Commission should be slow with respect, to intervene in the State proceedings having regard to what has been said in all of the circumstances.

PN225

It would be easy for me to say, well, if you make an order all that is going to do is be in accordance what we say we want to do anyway. It would be very easy. But that’s not a proper basis upon which my client, or any litigant before the Commission should concede to the exercise of the power by the Federal tribunal. The exercise of the power by the Federal tribunal, such as this, should with respect, only be made, not because the parties agree it be made, or it’s just easy and avoid an argument to say all right we will make that. It should only be exercised when there is a precious and serious necessity for it to be exercised. In the circumstances of this case, no such necessity has been demonstrated and the application should be dismissed.

PN226

JUSTICE GIUDICE: Thanks Mr Schapper. Anything else Mr Parry?

PN227

MR PARRY: No, your Honour.

PN228

JUSTICE GIUDICE: Mr Schapper, I don’t suppose you or for that matter, anybody else, has any information about what might have transpired with the stay application in the Western Australian Commission this afternoon?

PN229

MR SCHAPPER: No, your Honour, it may well still be going. It is in the same building, we could find out pretty easily.

PN230

JUSTICE GIUDICE: No, we can probably make some inquiries through the registry. Gentlemen thank you for your submissions, we intend to reserve our decision, but we can indicate we will give it in the morning, Victorian time, whatever that is, eastern standard or something, eastern summer time. But we will consider what’s been put and we’ll make our decision available as soon as we can.

PN231

MR SCHAPPER: Your Honour, can I ask if your delivery of the decision, will require an appearance?

PN232

JUSTICE GIUDICE: I would hope not Mr Schapper, but I can’t guarantee it, because we still need to consider what we are going to do.

PN233

MR SCHAPPER: Considering the time, I just ask you to have regard to the time difference is three hours.

PN234

JUSTICE GIUDICE: We won’t make it too early. What time do you get to work in the morning.

PN235

MR SCHAPPER: I wouldn’t be prepared to say your Honour.

PN236

JUSTICE GIUDICE: All right, we will adjourn that in mind Mr Schapper.

<ADJOURNED INDEFINITELY [6.14PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 AFFIDAVIT OF PETER MICHAEL DANKS SWORN 15/12/2005 PN134
EXHIBIT #P2 AFFIDAVIT OF ERICA HARTLEY SWORN 13/12/2005 PN135
EXHIBIT #P3 DOCUMENTS AND CORRESPONDENCE OF WESTERN AUSTRALIAN AND OTHER COMMISSION PROCEEDINGS INDEX OF 15 DOCUMENTS PN137
EXHIBIT #P4 LETTER FROM MR SCHAPPER DATED 14/12/2005 PN142
EXHIBIT #P5 OUTLINE OF SUBMISSIONS OF PILBARA PN143