C2004/5781, Transcript of Proceedings [2005] AIRCTrans 427 (21 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10428

SENIOR DEPUTY PRESIDENT HARRISON

C2004/5781

s.99 - notification of an industrial dispute

The Australian Workers' Union
and
Santos Ltd
(C2004/5781)
Santos Petroleum Management Award 2001

ADELAIDE

9.38AM, WEDNESDAY, 09 FEBRUARY 2005

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

PN1

THE SENIOR DEPUTY PRESIDENT: There are no appearances here in Sydney. I will take appearances in Adelaide.

PN2

MR J KEEN: I appear on behalf of the union, together with MR N LLEWELLYN-JONES.

PN3

MR S BAKEWELL: I seek leave to appear as agent for Santos, and MR M COLLINS appearing on behalf of Santos.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Any difficulty with leave being granted to Mr Bakewell to appear?

PN5

MR KEEN: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, it is granted. I have listed this matter this morning for mention and programming. I have the file. I have also had an opportunity to peruse the documents on it and the transcript before Commissioner Dangerfield. Obviously, I do not know what matters might have been discussed or, indeed, agreed in conference, but at least I have read all the documents on the public record, on the file. I have received just prior to coming in to Court the relevant enterprise bargaining agreement.

PN7

I haven't had an opportunity to do other than peruse that very quickly. I had previously noted the relevant award that it is based on. I thought it best that the matter be called on for mention so you could both let me know what has occurred since it was last before Commissioner Dangerfield and if the matter is to proceed further in the Commission, what the nature of the matter or the hearing will be and what relief the notifier would be seeking. I will start with you, Mr Keen.

PN8

MR KEEN: Well, I understand nothing much substantial has happened in the way of agreement between the parties since it was last before the Commission. What has happened last night is that the particular employees have had notice of termination of their employment served on them and their union effective as at 11March. We therefore would like this hearing to take place two weeks before then so we can have possibly a termination of the Commission by then. The central issue of the dispute is are the redundancies bona fide? I think that will incorporate all the relevant questions of who the employer is or are and we are seeking a hearing date in the week beginning 28 March for two days - 28 February.

PN9

THE SENIOR DEPUTY PRESIDENT: All right. So the notices that you received last night identified 11 March as being the last day of service?

PN10

MR KEEN: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: I see. Yes, continue.

PN12

MR KEEN: So, yes, we are just seeking a hearing date for two days and we will be calling witnesses, in some time in the week beginning 28 February. We would also seek some orders of discovery today, possibly that each party discover all relevant documents by 23 February and in particular we would be seeking that the employer provide all documents, contractual relationships between them and Eurest, who are going to take over the contract, take over the relevant work.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I will return to each of those matters shortly. On this file there is a letter from the union to Mr Collins back in December of last year, setting out a number of matters that the AWU wish to pursue and they were set out in three paragraphs. They are the sorts of things that are not uncommonly discussed when there are redundancies or what are said to be pending redundancies, alternative employment opportunities within the company, facilitating employment with the new contractor and negotiations about a relevant package. Can I assume from your point of view that those discussions have both been had and exhausted?

PN14

MR KEEN: Yes, that is right.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, all right, so again it is only mention at the moment. What number of employees are potentially affected, or how many employees received the letter that you referred to?

PN16

MR KEEN: Six or seven.

PN17

THE SENIOR DEPUTY PRESIDENT: I see, and is that the whole of the relevant crew, or have some been accommodated in other ways and don't pursue any relief here?

PN18

MR KEEN: I think it is the whole of the crew.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. All right, now, back to your Honour proposal as to what we should do with this matter. It is a section 99 notification. I noted in the transcript before the Commissioner that reference was made to section 170LW, but at that stage it wasn't considered necessary to address further any procedural issues that relate to the relevance of that section, but I think we are getting pretty close to a time now that I need to know the provisions or procedure that is being relied upon by the union that will take it the whole way it seeks to go and get the relief that it seeks.

PN20

For the time being, I am making certain assumptions about what that relief is, but that is another matter. I will be coming back to you as to whether the relief is going to be expressed in something like an order and if so, what its terms are, but, you see, until just immediately prior to coming into the Commission, I wasn't aware of the terms of the enterprise bargaining agreement. I knew it would have a dispute settlement procedure, because they all have to and, indeed, this one does. This one is an interesting one because its dispute settlement procedure calls up the award.

PN21

MR KEEN: Yes, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: So as you would appreciate, going down the section 99 route might take us somewhere and might provide me with certain powers and certain limits on my jurisdiction and taking me down a section 170LW route goes another way and, of course, they are not the only provisions in the Act that will allow the Commission to entertain a dispute of this nature. Have you had a discussion about these sorts of things with Mr Bakewell?

PN23

MR KEEN: No.

PN24

THE SENIOR DEPUTY PRESIDENT: I am not critical of anyone not having done that, but it is pretty important for me to know what powers I am being asked to exercise, so, Mr Bakewell, without yet calling on you to address any of these matters, I am just wondering whether it might be useful for us to have at least a short break so that maybe the parties can agree at least on one thing, what vehicle, route or powers I can use to entertain this application, even though I rather expect you will be opposing the relief that is sought, but at least if the parties can agree the procedure that is going to be adopted and the sections under which this matter which is still, as I say, a section 99 dispute, will proceed.

PN25

I can indicate to you that subject to talking a bit about some dates, I would be available to accommodate hearing dates within the sort of time frame that has been requested by Mr Keen, so that I can do. I just want to know what sections of the Act I am reading in the plane before I come over to Adelaide. Actually, I will adjourn for a quarter of an hour. If you are still having some useful discussions and need a little bit longer, let my Associate know, but otherwise this hearing will resume in quarter of an hour from now. The Commission now adjourns.

<SHORT ADJOURNMENT [9.48AM]
<RESUMED [10.06AM]

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Keen.

PN27

MR KEEN: I have discussed it with my learned friend and we have come to the view that we should proceed under section 170LW and that question really relates to clause 10 of the certified agreement and in particular is the forced retrenchment or the redundancies necessary and incorporated in that question will be the application of the Workplace Relations Act, 170CB and article 4 of the convention and that has been agreed between the parties as really the issue to be resolved.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR KEEN: We believe that that will give you jurisdiction and the full powers to arbitrate on the dispute and provide the necessary orders.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, that was the next matter I was coming to. At some time shortly after we adjourn here, you would be able to reduce to writing the procedure the parties believe or ask the Commission to undertake and you being able to reduce to writing the relief in the form of orders, well, it may be orders or it might be a decision.

PN31

MR KEEN: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: It will depend on what the outcome of a section 170 dispute settlement procedure hearing is. Sometimes the procedure is expressed in the form of a decision, but that is a matter for you and Mr Bakewell to discuss, but whatever it is, you would be able to reduce it to writing?

PN33

MR KEEN: Yes, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: All right. Well, then, assuming all of that is done, you seek a hearing in Adelaide for two days some time in the week commencing 28 February?

PN35

MR KEEN: Yes. We would prefer Tuesday, the 1st or Wednesday, the 2nd. That is up to your Honour's diary, really.

PN36

THE SENIOR DEPUTY PRESIDENT: All right. Mr Bakewell.

PN37

MR BAKEWELL: Yes, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: What do you want to say?

PN39

MR BAKEWELL: I can agree with what Mr Keen has put to you insofar as first of all it seems to us that the matter can proceed under section 170LW in the terms that Mr Keen has referred to. I would also note that for the matter to proceed to you by way of arbitration under the dispute settlement procedure of the Santos agreement, it does require the parties' consent and as we have previously indicated to Commissioner Dangerfield, we provide that consent and that arises from the award.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, I might just ask you to pause for a short time there because I do see that, as I mentioned earlier, your DSP calls up part 3, clause 10 of the award. It calls up the 1999 award. Is the 2001 award a simplified award? Is that the simplified award version of the '99 award?

PN41

MR BAKEWELL: I believe so.

PN42

THE SENIOR DEPUTY PRESIDENT: So hopefully the terms of part 3,
clause 10 are the same as they were in the 1999 award. Do you know the answer to that?

PN43

MR BAKEWELL: We understand that it most likely is, but we can't give you an unequivocal answer. The clause that we are relying on, if I could refer to it, would be clause 10.4.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR BAKEWELL: Which provides:

PN46

The parties may agree to submit the dispute to arbitration and if so agreed, the decision must be accepted by the parties subject to any appeal available.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. All right, well, I think we will be able in our chambers to ascertain whether clause 10 of the simplified award is in the same terms or at least relevantly the same terms as the award that is called up in the enterprise bargaining agreement.

PN48

MR BAKEWELL: Hopefully, therefore, that will be the least of any problems or any issues that arise. I alert you both to the consideration that I will need to be giving to the fact that this enterprise bargaining agreement does not contain its own dispute settlement procedure in which the parties have considered specifically the role in the contents of that agreement the Commission will have.

PN49

What is has done is called up the award and I have not yet looked closely enough at the award clause, but, of course, dispute settlement procedures drafted in awards were drafted without an eye to section 170LW or EBAs and without an eye to the restraints on the powers of the Commission when exercising a private arbitration power which is how the High Court has described section 170LW arbitrations, rather than the powers under a dispute settlement or dispute resolution procedure in an award. Just take that on board, both of you, would you?

PN50

MR BAKEWELL: Yes, we will.

PN51

THE SENIOR DEPUTY PRESIDENT: Now, Mr Bakewell, do you want to say something about the proposed timing of the hearing and the desirability of there being an exchange of documents by way of an order or perhaps even agreement to discover relevant documents prior to that date?

PN52

MR BAKEWELL: Yes, certainly, Senior Deputy President. I can say that first of all the timing of the hearing as proposed is acceptable to Santos and, indeed, desirable if we are to have a decision hopefully by 11 March. Insofar as the issue of a mutual discovery order is required, we would consent to that at a date and timing that is appropriate to that trial date and I think the date that was put forward is probably acceptable to us.

PN53

THE SENIOR DEPUTY PRESIDENT: 23 February.

PN54

MR BAKEWELL: Yes. We would also be seeking in addition to that that the parties both provide witness statements so as to limit the amount of time that needs to be spent on examination in chief and that we also both provide an outline effectively of our case, a written outline.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR BAKEWELL: And I would be happy to be in your hands and listen to what Mr Keen has to say about that in terms of timing.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, all right, I will come back to all of that, then, in a minute. Should Eurest be put on notice about these proceedings and provided with advice as to the relief that is sought? I should perhaps direct that first to you, Mr Keen.

PN58

MR KEEN: Well, I suppose that is possible. It may affect them.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, without seeing the relief, but thinking about us not having the luxury of having an adjournment, for example, if issues arise and then I on reflection think they should have been notified, we are just not going to have that. I just wonder. I take it, Mr Bakewell, you don't - well, you haven't announced an appearance for anyone other than Santos.

PN60

MR BAKEWELL: Yes, that is correct, Senior Deputy President. At this stage it is a little difficult for us to address that issue. As far as Eurest is concerned, it was not our intention to call them, because in terms of any contractual issues, etcetera, that need to be discussed, that can be adequately handled by the appropriate Santos contract manager, but insofar as potential orders would affect them, then no doubt they would need to be notified of those orders and at this stage we don't know what type of relief will be sought.

PN61

THE SENIOR DEPUTY PRESIDENT: That is right. Well, then I think I will just alert you to the fact that when I see the orders and maybe an outline, there is a possibility that I will put Eurest on notice. I don't think I can say much more than that at this stage. I don't think I will say anything more, but it really will depend on the reach of the relief sought, but you might help me with this. Mr Bakewell, you might be in a good position to answer this or maybe Mr Keen.

PN62

To the extent that Eurest have been involved in negotiations with Santos and presumably a date has been identified where they are to take over the activities previously undertaken by the AWU employees, have there been local representatives engaged or have they been not from Adelaide?

PN63

MR BAKEWELL: Are you referring to Eurest representatives?

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR BAKEWELL: The answer is we don't know exactly where they are from, other than to say we understand that the contract itself is a national contract and it is an existing contract and the new work is a variation, an extension to what is an existing national contract.

PN66

THE SENIOR DEPUTY PRESIDENT: I see. Mr Keen, can you cast any light on that?

PN67

MR KEEN: No, we don't know anything about that.

PN68

THE SENIOR DEPUTY PRESIDENT: Okay. Well, then I think, Mr Keen, an outline of your position accompanied by the relief you seek, expressed either in terms of a decision or determination or order, however you choose to title it, would be useful and might be the starting point and then I will let you know what I had in mind after that. Hopefully that could be filed sooner rather than later, but then give you a little extra time for the filing of any witness statements.

PN69

MR KEEN: Yes. I would prefer to distinguish between the identification of the dispute and the relief we have sought in one document and we can do that early next week. That will be a short document.

PN70

THE SENIOR DEPUTY PRESIDENT: Good, yes.

PN71

MR KEEN: My outline I would prefer only to file the week of the arbitration, because then I will know what evidence I have and have a chance to fully research all the cases.

PN72

THE SENIOR DEPUTY PRESIDENT: Right. Well, then we are cutting it fairly fine, so then if we do it that way, both the outline and your witness statements will probably all be filed by the same deadline.

PN73

MR KEEN: I might vary that, your Honour. What I was proposing is that by next Tuesday, the 15th, we provide the identification of the dispute and the relief we seek, by the 23rd each party make discovery and we provide by the 25th our statement, or each party provide their statements, then on the 28th we provide our outline and start the arbitration on Wednesday, the 2nd.

PN74

THE SENIOR DEPUTY PRESIDENT: All right, well, this is on the basis that the statements will be designed to limit any need for examination in chief, but, of course, will give you both an opportunity to cross-examine the deponent's - - -

PN75

MR KEEN: Yes, I would like the opportunity to supplement those statements as well. Because we are doing this on the run, I think each party would most probably like that up their sleeve. We would like to supplement those statements if necessary.

PN76

THE SENIOR DEPUTY PRESIDENT: I certainly think the important words then are if necessary, so everything that you think is relevant that you are at that stage instructed about would need to go in the statement, but I understand the comment you make. Well, how does that sort of timetable suit you, Mr Bakewell? I am happy with it?

PN77

MR BAKEWELL: We are happy with it as well, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: All right, by close of business, Tuesday, 15 February, the union will file details of the relief that it seeks in this section 170LW matter. Perhaps what you might do by the same time, Mr Keen, is just record the agreement that you have reached with Mr Bakewell and referred to earlier in the transcript about what the nature of the proceeding you have both agreed is. That might be useful.

PN79

MR KEEN: We definitely will.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, by no later than close of business 23 February, each party is to provide to the other a list of documents upon which it will rely relevant to the matters in issue. I make an aside. If the exchange can go further than a list and the provision of actual hard copies of documents might be useful, given the short time limits we are operating within and I might also make a further aside at this stage that if you both agree about the relevance of the document, or at least if you both agree that the documents could be tendered, you could have a disagreement about the weight and relevance, you might at that stage also reach some consideration about providing me with a bundle of documents that I can commence to read.

PN81

By no later than 25 February, each party is to file statements of any witnesses it intends to call and to rely upon. I should indicate that they should be both filed and served on the Commission, those statements and by no later than close of business on 28 February each party is to file an outline of submissions. Now, I think then we should consider maybe a listing either on the 2nd and 3rd or 3rd and 4th. I am wondering whether the 3rd and 4th might be better. It just gives a little extra time. Mr Keen.

PN82

MR KEEN: Yes, that doesn't worry me, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: All right. Mr Bakewell.

PN84

MR BAKEWELL: That is suitable, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: All right, 3rd and 4th in Adelaide. I will nominate 10 am as the starting time for each day, but that might be able to be revisited particularly in relation to the second day, if we need to sit a little earlier to ensure the matter is finished, but at this stage the notice of listing will nominate 10 am on both days. I will have the transcript of this mention made up, madam reporter, as a matter of urgency.

PN86

I will now adjourn to that date in Adelaide, the 3rd, but give both parties liberty to apply should there be any matter that needs to be addressed that has not been addressed this morning and, of course, I also will not overlook the fact that upon receiving details of the relief sought by the AWU, I might consider it appropriate Eurest be put on notice. I would not do that without alerting both of you what I intend to do and if for some reason then you have some objection to what I intend to do, I would give you an opportunity to be heard on that. The Commission how adjourns to 3 March in Adelaide.

<ADJOURNED UNTIL WEDNESDAY 3 MARCH 2004 [10.24AM]