C2007/3313, Transcript of Proceedings [2007] AIRCTrans 478 (24 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17406-1

SENIOR DEPUTY PRESIDENT HARRISON

C2007/3313

cl.4 Schedule 10 - Orders re rep’n rights of trans. reg’d ass’ns of employees
Mount Isa Mines Pty Ltd
and
The Australian Workers’ Union of Employees, Queensland Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
(C2007/3313)

SYDNEY

11.19AM, WEDNESDAY, 12 SEPTEMBER 2007

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

Hearing continuing

PN1

MR JE MURDOCH: I seek leave to appear as counsel for the applicant, Mt Isa Mines Limited.

PN2

MR A HERBERT: I seek leave to appear as counsel on behalf of the Australian Workers’ Union of Employees Queensland.

PN3

MR A DALLAS: I appear for the Construction, Forestry, Mining and Energy Union. And in addition, your honour, I appear as agent for the Construction, forestry, Mining and Energy Union Queensland and in addition I represent the Federated Engine Drivers and Firemen’s Association of Queensland.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will now take appearances here in Sydney.

PN5

MR A KENTISH: I appear on behalf of the federally registered Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. I also seek leave to appear as an agent for our state counter-union, the transitionally registered Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland.

PN6

MR B FELL: I appear on behalf of the Communications, Electrical and Plumbing Union.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Mr Fell. Any objection to leave being granted to counsel to appear? Leave is granted Mr Murdoch and
Mr Herbert. I have received a letter from the ACTU dated 11 September. If anyone requires a copy of it perhaps they could let my associate know. It indicates that the ACTU has been made aware of this application. It refers to a previous matter, a similar matter before the Commission and cross references that to a full bench presided over by the President and indicates that ..... it makes comment about the most desirable way to deal with this matter, about possible adjournments and about sufficient time being given to allow certain discussions to occur. Have you received a copy of that, Mr Murdoch?

PN8

MR MURDOCH: Thank you, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: You have.

PN10

MR MURDOCH: Your Honour, the matter today of course is set for programming and directions. The company has no role in the process that’s referred to in the ACTU letter. We note the course that’s proposed by the ACTU and really their suggestion is a matter for the union parties that are represented. For our part we request that the matter be listed for one day’s hearing some time in October on a date convenient to the Commission and we’d see it if that were to be four or five weeks’ time, that would provide sufficient time for the ACTU and the union as to take whatever steps they wish to take.

PN11

So that in terms of programming we have a fairly simplistic view of the matter and that is that the only programming required is for the matter to be set for hearing. The application is one which seeks to bring the state Industrial Relations Commission representation order into the jurisdiction of this Commission pursuant to the provisions of section 4 of schedule 10 of the Workplace Relations Act and regulation 2.4 part 2 of chapter 6 of the Regulations. It is borne about by reason of the fact that the key participants, particularly the Australian Workers’ Union of Employees Queensland as well as the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland, have obtained transitional registration under the Act and they are also now parties to collective agreements under the Workplace Relations Act which have applications and applies employees at Mt Isa.

PN12

So that the transition from the state jurisdiction to the federal is substantially complete in terms of collective coverage and in terms of state organisations having obtained transitional registration. And consequently it is now pressing that the representation order be mirrored in this Commission’s jurisdiction. So that, your Honour, to sum up my request is that your Honour, if it’s convenient, list the matter some time in the middle of October for hearing.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Now, unless you’ve reached some agreement as to how I should hear what you all wish to say this morning I thought I’d hear you Mr Herbert and probably you Mr Kentish because you’re the two that are mentioned in the order and then revert back maybe to you Mr Dallas and then you Mr Fell. Shall I tackle it that way? Mr Herbert?

PN14

MR HERBERT: Yes, your Honour. Your Honour, we agree with everything that my learned friend Mr Murdoch has said. We ask that the Commission program the matter for hearing as soon as convenient. The time frame suggested by my learned friend, Mr Murdoch, should be sufficient to allow any ACTU’s discussions to occur. We think that probably the discussions would be fairly short in light of the recent decision of the Full Bench to the applicable principles in relation to these matters, but the AWU is very happy to have them, but we don’t want the occurrence of those discussions to forestall the matter being set to hearing. Because either way there is going to need to be an order at the end of this process and whether it’s by consent or it’s contested, the programming’s for that hearing should be undertaken today.

PN15

Other than that I have nothing to add than what my learned friend Mr Murdoch has said.

PN16

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Kentish.

PN17

MR KENTISH: Thank you, your Honour. Your Honour, I have instructions today to seek an adjournment which is broadly in line with the letter which the ACTU has sent to your Honour. The purpose of the adjournment would be to allow the union parties to have discussions and in that context I note that in the other matter which was dealt with by the Full Bench the AMWU and a number of other unions, although certainly not all, were able to come to an agreed position prior to the matter going before arbitration. Your Honour, if the Commission wasn’t minded to grant an adjournment and the AMWU would be seeking an adjournment of approximately one month and then a report back, we would support that the programming of this matter to allow for the discussions to take place.

PN18

I would have thought that mid October was probably too soon to allow that process to run its course and I would have thought early November was a more realistic time frame. If it pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Are you in a position at the moment,
Mr Kentish, to say anything about the position of your union, and when I say that obviously I’m referring to the organisations referred to in the order, as to whether at least that aspect of it is something that you’d be supporting and what is behind your submission is in fact the question about the status that might be assigned to organisations other than, say, your union and Mr Herbert’s?

PN20

MR KENTISH: Your Honour, I regret to add obviously I come late to this matter and I don’t have instructions on what the position is.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thanks. Now, what did I say earlier? I think I said I’d come back to you, Mr Dallas.

PN22

MR DALLAS: Thank you, your Honour. The position of the CFMEU is the following. I’m instructed by John Sutton, the national secretary, to seek an adjournment for approximately one month for report back in order to allow the discussions as signalled in the letter of the ACTU to occur. Insofar as the submissions of the AMWU are concerned we support those and we would say in the alternative, your Honour, that if you’re against us in terms of the adjournment we would believe that mid October was too soon and we would say mid to late November would probably be a better time frame in terms of to allow discussions to occur, certainly from the position of those CFMEU.

PN23

The constituent parts thereof, we actually haven’t arrived at a position either way and for the purposes of today’s hearing we simply reserve our position. We’d like to rather discuss it and then to decide to discuss it further with other interested parties, including the AMWU, the AWU and the CEPU.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Fell.

PN25

MR FELL: Thank you, your Honour. We support the submissions made by both the AMWU and the CFMEU in that there needs to be discussions at the ACTU and experience has shown that sometimes the ACTU can’t convene meetings quickly and we would support a slightly longer adjournment than proposed by
Mr Murdoch.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, it just seems to me that the issues before me as to whether I now adjourn this matter to a further report back date or whether I now identify a time that a hearing will proceed and in that respect whether I need to identify a further date which will be the date by which persons who wish to, for example, oppose the order and/or seek evidence are to let me know because that, presumably if that was to occur, will have some impact on whether one day that you foreshadowed, Mr Murdoch, is appropriate. So Mr Murdoch, do you want to say anything further about that before I perhaps indicate the - well, I will need to make a ruling on those matters. But in reply,
Mr Murdoch, anything further you want to say?

PN27

MR MURDOCH: Your Honour, just to emphasise that insofar as my clients are concerned we don’t have a role in the process of the unions. We are aware of the pragmatic considerations, however if the matter is of importance there is much to be done in the space of a month and our concern is if the matter drifts too late in the year the matter then may not be resolved and might be delayed for some months. I press your Honour to set the matter for hearing around the middle of October with an allowance of a full day and that would, in my submission, enable any party that ultimately wishes to take a position of opposition to have adequate time to put that opposition forward.

PN28

For our part we would see that this is not a case that would turn on evidence. It is, as we see it, largely a matter that would be dealt with on papers because it is predominantly a matter of looking at what has been in place considering the historical documents and then looking at the appropriate means of translation of a state order into the federal system. Now, albeit there may be some drafting issues that arise where former state unions have amalgamated, but they are matters of drafting and submissions in my contention. They are not matters that would require evidence.

PN29

So this, as we see it, is not a case that requires a program that would be associated with a case that will turn on factual matters. So we’d urge that you not simply set the matter down for programming and ask that you set the matter down for hearing. And frankly, if the unions are going to reach a position of consensus our view would be that the consensus can be reached in a relatively short period of time. If there is no consensus reached then there is opposition and then the date will be there for those in opposition to put their case.

PN30

THE SENIOR DEPUTY PRESIDENT: As currently instructed, Mr Murdoch, would you envisage that you might be filing something, be it submissions or some relevant documents that relate to the existing representation order in the state Commission, that sort of thing, prior to the hearing?

PN31

MR MURDOCH: Your Honour, if there is to be a contest we would be filing comprehensive submissions. We endeavoured in the application itself to fully traverse the essential elements of the history, but if there is to be a contest we would flesh that out and would file a submission in advance of the hearing.

PN32

THE SENIOR DEPUTY PRESIDENT: All right, thanks. I’m persuaded it’s appropriate that I identify a date for hearing in this matter and it will give sufficient time for the organisations that are mentioned in the order, or in particular those who have an interest in the matter and have been served, to consider the matter and to consider whether they wish to be heard. Now, to that end I am going to start to discuss with you all dates in October, one day in Brisbane, and I can see no particular reason why all of this discussion should now be on transcript. So we will go off transcript.

<OFF THE RECORD

PN33

THE SENIOR DEPUTY PRESIDENT: This matter is listed for hearing in Brisbane at 10 am on Friday, 19 October 2007. A notice of listing to that effect will be forwarded in the next few days and it is likely to also contain a direction to any parties who intend to be heard in opposition to the order being made. That will be contained in that notice of listing. The Commission now adjourns.

<ADJOURNED UNTIL FRIDAY 19 OCTOBER 2007 [11.41AM]