C2006/2984, Transcript of Proceedings [2006] AIRCTrans 1210 (13 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16035-1

SENIOR DEPUTY PRESIDENT HARRISON

C2006/2984

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, THE
AND
RAILCORP RAIL INFRASTRUCTURE CORPORATION STATE RAIL AUTHORITY OF NSW
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2984)

SYDNEY

9.36AM, MONDAY, 30 OCTOBER 2006

Continued from 12/10/2006

PN1

THE SENIOR DEPUTY PRESIDENT: I think one of these we have not yet called on so I'll take appearances.

PN2

MR J NOLAN: I seek leave to appear in the matter of the RTBU. With me at the bar table are MR HOWELL and MR PANIGIRIS.

PN3

MR P KITE: I seek leave to appear in that matter and continue my appearance in the other matters and with me at the bar table is MR CANN.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Kite. Leave is granted in each case. Now, let me tell you what I think I am here for. I have had called on two section 170LWs. One of them was listed on a previous occasion with the appeal, the other one came in subsequently together with another one, 3229. Agreement has been reached at least on this that 2984 the one that was on before, 3228 the one that’s been called on this morning, to proceed. What exactly that means I can get assistance from you in a moment. 3229 will be put to one side and I'll assume I'll call that on separately and the union can let me know what they wish to happen with that.

PN5

In the first of the section 170LWs before me this morning there has been some documents filed. On the last occasion I identified them. In the one that was filed subsequently that has been called on for the first time this morning I don’t think anything’s been filed, although an email suggested that some documents might be late last week. There was also an email exchange between my chambers, the union and RailCorp concerning what happened to a foreshadowed application to vary that. As at close of business Friday we had not received, but I understand were still being considered by RailCorp and I had understood even further there was still an intention to file. I thought additionally in relation to the section 170LWs the parties were still working on an agreed list of facts, but I don’t think I’ve seen anything of that description. Mr Kite?

PN6

MR KITE: Your Honour, in summary that’s accurate. In the second 170LW I understand the union’s in a position to file the statement this morning and we say that ..... We should be in a position to file a statement some time later today. I’ve just got to get the statement down to sign it. We haven’t yet finalised an agreed statement of facts. As to RailCorp’s position on the application to vary I now have firm instructions to proceed on that, but I don’t know whether we intended to do that and in our view it’s appropriate that that matter be heard together with the 170LWs.

PN7

THE SENIOR DEPUTY PRESIDENT: That was your position on the last occasion, Mr Kite.

PN8

MR KITE: Yes. The difficulty, your Honour, is where there’s been, you may recall, identifying all the little exceptions that exist that impact upon, or may impact upon, the wording of any application to vary. We’re working through all of those now trying to identify them, make sure we take them into account and if necessary put evidence on about them in the application to vary. So the effect, your Honour, is the parties will be ready to proceed with the existing 170LWs this week, but if they be heard with the application to vary then we’re not ready to have that matter heard. Obviously there is also an issue of us serving other unions.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR KITE: I’ve had some discussions with Mr Nolan and those instructing him this morning. They have indicated that they will certainly make the other unions aware of the application, that it’s imminent and we should be in a position to finalise the terms of it by the end of this week and therefore serve it early next week on all interested parties. With that in mind without presuming upon what your Honour may wish to do with the hearing dates this week we had some discussions about alternative ..... . If we were to file that application in accordance with that timetable, that is by Monday of next week, we would then be in a position to put on any additional evidence by Wednesday the 15th. The RTBU would need some time to respond to that. I'll let Mr Nolan address you on that.

PN11

We had in mind, that is the parties at the bar table, that if any other union wish to participate in the proceedings having been served they should put on any evidence they wished by the same time as the RTBU and of course if they thought a directions hearing was necessary they should have leave to reply to your Honour otherwise they would be expected to put on their evidence at the same time as the RTBU and we would of course serve them with ours including the evidence in the other 170LW matters. I should say to your Honour I don’t think this has been recorded before, but in the appeal matter where there was additional evidence filed there’s been agreement about some of that material being filed at least notionally but relied upon in the 170LWs.

PN12

There is a good deal of general background which is relevant. If your Honour requires it to be refiled in the other matters we will.

PN13

THE SENIOR DEPUTY PRESIDENT: No, I won’t require that. At some stage when the matter proceeds I want to know what it is that I should re-read and what I can not concern myself about for this round of the exercise.

PN14

MR KITE: Yes. So the net effect is, your Honour, once the union’s had some time to put on some evidence in response and the other unions had their opportunity to put on evidence and determine whether they wish to participate the matter can then be listed for hearing. At the present moment I would have thought there’s still very likely to be no cross examination of witnesses, although of course the RTBU hasn’t seen the statement and the second 170LW yet. I’ve had a chance to look briefly at the RTBU’s statement and we don’t think that we require Mr Vargar. And there may be an issue that arises out of the additional evidence which will obviously have to be considered when it’s filed. It’s likely I think, your Honour, that we can still deal with the matter within two days.

PN15

THE SENIOR DEPUTY PRESIDENT: What’s that last submission?

PN16

MR KITE: It’s likely that the case is still a two day case and not more than.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, I understand, yes. On the two section 170LWs I know they’re both initiated by the union. What do you understand the parties were going to do in terms of letting you know what the relief is? I'll give you an example. In this later one, 3228, it’s an issue that concerns the hours of employees in payroll services. In the notification I was informed that RailCorp intended advertising a number of positions for 76 hours and the union asserted the workplace and the positions have traditionally worked 70 hours. So I can read into that. Probably the relief is that I would find that a proper application of the EBA to the facts for those employees is 76, 70 or some permutation because of the attributes of some person or persons.

PN18

Well that’s fine, but at some stage I’d like to know that, have on a piece of paper, the relief that one or the other says is what is sought and relief is probably not even the correct term I don’t think, although I am determining a dispute. But it has all the hallmarks of firstly finding out what we think the EBA says and then there might be a second round depending on that. So I don’t know if in the other one, 2984, there’s a suggestion too as to what the union - yes, probably the same sort of permutations, 70 or 76 or something in between depending on the peculiar attributes of the employees. But some time I need to know that otherwise you just say to me they’re our submissions, you determine the dispute and I don’t want to go any further than what you think the confines are. When were you going to tell me that?

PN19

MR KITE: I suppose we were formulating the concept in terms of the variation order which is what we’re seeking and of course your Honour finding in our favour from dismissing the matters otherwise. I don’t know whether Mr Nolan was going to tell you that .....

PN20

THE SENIOR DEPUTY PRESIDENT: But proceeding this week presumably I am going to be asking it at some stage on one of the two days?

PN21

MR KITE: Well, if your Honour proceeds this week.

PN22

THE SENIOR DEPUTY PRESIDENT: Have you put to me an agreed position, have you? I had rather thought it wasn’t an agreed position.

PN23

MR KITE: I don’t want to go as high as saying as it’s agreed, but a discussion.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. I’m still with the emails of Friday. There might have been some discussions since then.

PN25

MR KITE: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN27

MR KITE: I had some discussions with my learned friends this morning.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, good.

PN29

MR KITE: I can’t say it’s agreed other than at least in the alternative.

PN30

THE SENIOR DEPUTY PRESIDENT: Well, even in light of what I’ve just said then if either of you need any time to talk about that, but I really want to be focused on what the - - -

PN31

MR KITE: What the relief is.

PN32

THE SENIOR DEPUTY PRESIDENT: What the relief is.

PN33

MR KITE: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: I should have the EBA before me, but assuming it says something like refer to the Commission for determination, what that determination is. All right, I might come back to you Mr Kite. Mr Nolan?

PN35

MR NOLAN: Thank you, your Honour. Just on that last point we can certainly crystallise a form of determination that we would see as being appropriate. There shouldn’t be any difficulty about that and we’ll do that and factor that into the mix of things.

PN36

THE SENIOR DEPUTY PRESIDENT: I’m sorry, I’ve asked you to start and now I’m going to ask you just to pause for a minute. I’d like to remind myself what the EBA says just in case there should be something else I raise in that context. I’m empowered to arbitrate over a matter provided the arbitration limited the disputes involved, interpretation, application or process of implementation. Yes, proceed.

PN37

MR NOLAN: So that can be done and will be done. We could crystallise it we hope in a satisfactory way. As to the general time table we’d rather approach the matter some weeks ago on the assumption that that application that had been foreshadowed would have been filed by now and that would have been dealt with. So we weren’t all that to hear as late as late last week that the application still hadn’t been filed. We thought it would have been filed. But having said that it seemed to us that probably making a virtue of necessity so long as there was no series of the hearing dates it made sense it seemed to us, subject to what your Honour said, that we anticipated your Honour would take the view that it would make sense to have the matters heard at the one time so that we wouldn’t be going backwards and forwards as it were between hearing dates.

PN38

So having reached that reluctant conclusion as I say our main anxiety was whether or not the hearing dates would slip too far and it seemed to me what Mr Kite said that if we take that kind of timetable into account that would allow us to have a hearing in the second week of December if I’m not wrong. So I suppose our initial query would be are those dates in that week available to all the parties and if the answer to that is yes, well then that would, I suppose, go a long way to alleviating our concerns about the matter slipping too much.

PN39

THE SENIOR DEPUTY PRESIDENT: Do you want to go off transcript to just attend to that matter before you go further?

PN40

MR NOLAN: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: We’ll go off transcript for a short time.

<OFF THE RECORD

PN42

THE SENIOR DEPUTY PRESIDENT: I have had discussions with the parties in conference and an agreed position has been reached between them and it entails an adjournment of the hearing set this week to a date in December which I can accommodate. I intend to issue directions in the next few days, but I should indicate that they will reflect that the two 170LWs before me and the application to vary?

PN43

MR KITE: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Which will be filed shortly. If there’s any further evidence that the RailCorp intends to file in relation to them that will be attended to by close of business Wednesday, 15 November and in response the union proposes to file or be attended to by close of business Friday, 24 November. If any other unions who will be served with the application to vary the enterprise bargaining agreement wish to participate in that exercise they too will need to file any written documentation by the same date as the union, namely Friday,
24 November. I will however indicate that they have liberty to apply to call the matter on at short notice if that timetabling presents any difficulty to them. That directions hearing they can expect will come on very quickly.

PN45

The matter will be listed for hearing in Sydney on the 5th and 6 December at
10 am. The hearing dates this week will be cancelled. Anything further I need to say on transcript, Mr Kite, Mr Nolan?

PN46

MR KITE: No, I don’t think so.

PN47

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

<ADJOURNED UNTIL TUESDAY 5 DECEMBER 2006 [9.58AM]