C2005/1035, Transcript of Proceedings [2005] AIRCTrans 678 (17 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10819

DEPUTY PRESIDENT MCCARTHY

C2005/1035

s.127(2) - appln to stop or prevent industrial action

Collex Pty Ltd
and
The Australian Workers' Union
(C2005/1035)
Collex Pty Ltd Western Australian Alumina Refinery Maintenance Agreement 2001-2004

C2005/2027

s.127(2) - appln to stop or prevent industrial action

Total Corrosion Control Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/2027)

Total Corrosion Control P/L South West Projects Certified Agreement 2004-2007C2005/2028

s.127(2) - appln to stop or prevent industrial action

Downer Engineering Power Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/2028)
Downer RML Pty Ltd Maintenance Modification Work Certified Agreement 2004

PERTH

2.14PM, TUESDAY, 8 MARCH 2005

PN1

MR M C BORLASE: I appear on behalf of Downer Engineering Pty Ltd in matter C2005/2028 and also in respect of Total Corrosion Control. There is a third matter which I thought was listed today which I didn't hear notified then, being Collex Pty Ltd, being C2005/1035.

PN2

THE DEPUTY PRESIDENT: That's part of these proceedings. That's correct. You're appearing for Collex?

PN3

MR BORLASE: Yes, I am, your Honour.

PN4

MR EDMONDS: I appear for the Australian Manufacturing Workers' Union, that is the federal union, and on behalf of Mr Tony Lovatt in relation to matters C2005/2027 and C2005/2028.

PN5

MR L GANDINI: I seek leave pursuant to section 42(3) of the Act to appear for the AWU federal, AWUWA and Mr Michael Baker at this point in time.

PN6

THE DEPUTY PRESIDENT: Leave is granted, Mr Gandini. These matters were each filed and lodged about a week ago. Together with the lodgement was a request that the matters not be listed until today by the applicants. I have complied with that request. In the interim there were, at my instigation, two conferences that were held, one yesterday and one last week. Those conferences were held in confidence. There is nothing that would alert the parties that either was canvassed during those conferences or by conduct by anyone in those conferences that will have any implication for these proceedings. If any parties attempt to stray from that I'd entertain any objections from other parties about that or rebringing my attention to it.

PN7

These matters are new matters that have not been part heard at this stage, although there were other matters that were dealt with by me a month ago, and as a result of those matters orders were issued. However these matters, as I see them anyway, are new matters.

PN8

MR BORLASE: Your Honour, there are a couple of administrative issues that I need to deal with. I have been instructed by Total Corrosion Control that they wish to have proceedings in respect to themselves adjourned for 24 hours so they can see what may or may not develop in respect of the dispute down on the site at the Worsley Alumina Refinery, and they would undertake to advise the respondents and the Commission by tomorrow afternoon if they wish to proceed further with that. In respect of that, I would note that there are a number of employees who have been served with copies of the application and notice of hearing. I observe that none of those individual employees are present in court today, so there would be no inconvenience caused to them by the matter not proceeding today in respect of those individuals.

PN9

There is no prejudice or inconvenience caused to the Automotive, Food, Engineering, Printing and Kindred Industries Union. They are here in respect of another matter in any event, and on that basis we would seek an adjournment for that particular company.

PN10

THE DEPUTY PRESIDENT: Mr Edmonds, I turn to you. Do you have any comments with respect to that request? Were you aware that it was going to be made?

PN11

MR EDMONDS: Sorry?

PN12

THE DEPUTY PRESIDENT: Were you aware that request was going to be made?

PN13

MR EDMONDS: I was aware that it might be made, sir. I suppose it doesn't cause us any substantial difficulties at this point in time, sir. We would be concerned, however, if that adjournment was to stretch out for any substantial period of time. At this point it's just 24 hours. I don't believe it will cause any difficulties.

PN14

THE DEPUTY PRESIDENT: Mr Gandini, does this have any implication for you?

PN15

MR GANDINI: Your Honour, I was just trying to get some - - -

PN16

THE DEPUTY PRESIDENT: Were you aware this was likely to occur?

PN17

MR GANDINI: Not from Mr Borlase, no.

PN18

THE DEPUTY PRESIDENT: Do you want an opportunity to canvass that?

PN19

MR GANDINI: If you don't mind, if we stand it down for a few minutes to try and get some new instructions.

PN20

THE DEPUTY PRESIDENT: Yes, I'll do that.

<SHORT ADJOURNMENT [2.20PM]
<RESUMED [2.28PM]

PN21

MR EDMONDS: Sir, I've had an opportunity to seek some clarifications on the instructions in relation to the issue of TCC, sir, and the clarification - - -

PN22

THE DEPUTY PRESIDENT: You didn't want an opportunity, I didn't think.

PN23

MR EDMONDS: Sorry?

PN24

THE DEPUTY PRESIDENT: I thought your position was one of not objecting. That's changed, has it?

PN25

MR EDMONDS: I'm backing away from that position at this point in time, sir, to say that at this point we're still seeking further advice as to whether the matter should be adjourned or dismissed. If I could defer that particular issue at this point in time, sir, until we've had an opportunity to clarify those issues and then we'll put them to you perhaps at a later point, sir.

PN26

THE DEPUTY PRESIDENT: Yes, certainly. Mr Gandini?

PN27

MR GANDINI: Your Honour, my instructions are because of the potential relationship between the matters and the comments and the way it was phrased by Mr Borlase that the Collex matter be similarly adjourned, so I'm instructed to make an application that they effectively will be adjourned and if they're back on tomorrow and they proceed tomorrow.

PN28

THE DEPUTY PRESIDENT: What's the basis of that? They're all interlinked, are they?

PN29

MR GANDINI: As I understand, the applicant argues that the three are linked, and I understood the phrase used by Mr Borlase was "to see what happened" in relation to the dispute on site. That's my words perhaps. So if there is some prospect of the matter resolving as far as TCC is concerned then we would suggest that it may also flow to this matter, because as I understand it, the applications are all interlinked or interconnected. That's the basis of the request for an adjournment to tomorrow afternoon.

PN30

THE DEPUTY PRESIDENT: That was my understanding of the previous matters I dealt with, arising out of those matters, of which I issued orders. They were jointly heard, jointly dealt with because there was issues common across the various employers and applications.

PN31

MR GANDINI: From my understanding that's the same on these. If it is right then we would say that, as I say, to use his phrase or perhaps me paraphrasing his phrase, some prosects of resolving at the site level, then there would be no need for this matter to proceed until that 24 hours elapse.

PN32

THE DEPUTY PRESIDENT: Yes, thank you. Mr Borlase, do you have any comment on that?

PN33

MR BORLASE: Your Honour, there was one of the points which arose out of those private discussions which you raised yesterday. Through an oversight many of those matters weren't completed until sometime after 9 o'clock last night and so nobody got back to your associate. Bearing in mind the comments that you made at the start about keeping those issues completely separate from these proceedings, I'm a little bit loathe to raise them on record and also this is a public forum and we have members of the press here, so I'm a little bit loathe to raise the response about what that issue was in that public forum, given the private nature of those discussions.

PN34

In terms of Mr Gandini's proposal of the matter being adjourned for 24 hours, then I would need to seek instructions on that, but if we do adjourn I'd also seek your indulgence if we could also just adjourn briefly in private so I can give you that response back which we undertook to do.

PN35

THE DEPUTY PRESIDENT: That's not necessary, Mr Borlase. Those discussions and any issues that were canvassed during them and any responses or outcomes or lack of outcomes from those discussions are not something that are appropriate for me to consider in these proceedings.

PN36

MR BORLASE: Certainly, your Honour.

PN37

THE DEPUTY PRESIDENT: In that manner or any other manner. If I were to now adjourn into conference then I would be inclined to take into account any - in the formation of any view should there be jurisdiction upon which I could issue orders as to whether I should issue orders, I would be of a mind, inclined to take into account what occurred in those conferences - off the record and in those conferences if there were to be any that occurred now. I'm not inclined to accede to your request that we go into conference or off the record.

PN38

MR BORLASE: Yes, certainly, your Honour. On that basis that's certainly withdrawn, that request as well, so thank you, but I would seek an adjournment just to receive instructions about whether or not the matters being adjourned for 24 hours for those other two parties, if you would grant that indulgence.

PN39

THE DEPUTY PRESIDENT: I would say this, Mr Borlase and Mr Gandindi and Mr Edmonds. If there are discussions occurring between the parties addressing the underlying issues that the parties are concerned about and if there are discussions occurring it might be to everyone's advantage for those discussions to reach a conclusion, if that is imminent, regardless of what that conclusion is or may be, before these matters proceed. But that's something that - I think Mr Gandini's position is clear. Mr Edmonds is ascertaining his position and you are seeking instructions, so I will adjourn for that to occur.

<SHORT ADJOURNMENT [2.20PM]
<RESUMED [2.28PM]

PN40

Thank you for the adjournment your Honour. I've managed to receive some instructions from both Downer and also Collex in respect of this matter and also had an opportunity to have discussions with Mr Gandini and also with
Mr Edmonds in respect of the matter. The two parties are also prepared to have the matter adjourned off for 24 hours on the understanding that there is no prejudice to their position in doing so. They still consider the matter to be urgent but there may be opportunity for further discussion to occur.

PN41

The other issue of course, being that the parties are not required to renotify individual employees of the hearing and proceedings that continue tomorrow to be a continuation of these proceedings, which if the matter does proceed tomorrow, we'll present evidence to the effect that all of those individual employees were served both with a copy of the notification of hearing as well as a copy of the application and any proceedings which might occur subsequent to this being a continuation of those proceedings. As I said, I've discussed the matter with
Mr Gandini and also Mr Edmonds. They've indicated to me that if they receive instructions from those people that they would raise no objection in terms of the rules as pertain to 72.5.

PN42

If need be we would obviously seek pursuant to rule 6, for at least being provided from the rules, with respect to that and that being on the basis we would satisfy your Honour, tomorrow, that people were appropriately served with copies of both the application and the notice of hearing and any further proceedings would simply be a continuation of these matters and today there's been no individual employees who have given any appearances today, nor to date has there been any leave sought to represent any of those individual employees by either
Mr Edmonds or Mr Gandini.

PN43

THE DEPUTY PRESIDENT: Thank you Mr Borlase. Mr Edmonds, do you wish to comment?

PN44

MR EDMONDS: Yes sir, it seems that's a proper way to proceed.

PN45

THE DEPUTY PRESIDENT: Mr Gandini, you accept that?

PN46

MR GANDINI: Indeed, just to clarify the Commission as to service, simply that those who the applicant can agree tomorrow be served for today be taken an issue of - - -

PN47

THE DEPUTY PRESIDENT: And you may contest whether there was service, is that what you are saying?

PN48

MR GANDINI: Well, subject to the rules being satisfied. We don't take .the technical point .... happen to refer again.

PN49

THE DEPUTY PRESIDENT: Thank you Mr Gandini. I have other matters listed for tomorrow. I'll attempt to accommodate the parties for further proceedings tomorrow Mr Borlase. I should have alluded to that before. I'm sorry that I, if I am unable to change those;other matters, both of which have been listed for quite some time. It might either be late afternoon hearing or it may be the following day, so my associate will be contact with you in that regard. Yes
Mr Borlase.

PN50

MR BORLASE: Thank you, your Honour. I think we would probably be in a position by around about 9.30 tomorrow morning to give you - no we probably wouldn't be in a position to notify you until closer to midday.

PN51

THE DEPUTY PRESIDENT: The earliest I would be able to list any matters in that respect - thank you for informing me of that - would be 3.30 tomorrow afternoon. If not, the following day. What's that? Thursday? I'm not sure what my listings are for Thursday, but there will be contact between my associates and various parties.

PN52

MR BORLASE: We'll make ourselves available.

PN53

THE DEPUTY PRESIDENT: Thank you , this matter's adjourned on that basis.

<ADJOURNED INDEFINITELY [3.09PM]