TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 62890-1

SENIOR DEPUTY PRESIDENT HARRISON

AM2011/27

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Apache Energy Limited & Chevron Australia Pty Ltd and Others
(AM2011/27)
Hydrocarbons Industry (Upstream) Award 2010

(ODN AM2008/44)
[MA000062 Print PR988773]]




Sydney

11AM, WEDNESDAY, 14 SEPTEMBER 2011

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

Continued from 27/06/2011

PN55

THE SENIOR DEPUTY PRESIDENT: Good morning. I think the appearances remain the same, do they not? I have received some correspondence from AMMA and the AWU since we were last together and I have read that. And this matter has been relisted consistent with what I had earlier indicated, that after the exchange of documentation it would be; but also there was a request that I do so from the AWU. Now, Mr Bull, we might start with you. What do you propose we should do next?

PN56

MR BULL: Thank you, your Honour. As you recall, on the last occasion we were before you all the unions seemed to make it quite clear to us that they weren't going to consent to our application and there was a suggestion that you issue certain orders about more information and so forth, of which I advised that the application was as it stood. I think shortly thereafter that conference I forwarded a copy of a draft award that we had received from the AWU that had a provision that I'd quoted in our submission which at the time the AWU said that either didn't exist or they couldn't recall. Subsequent to that I did have a phone conversation with Mr De Carne who said that there was more to it than met the eye and I did ask him if he could tell me what all that was about because I wasn't initially involved in that process.

PN57

There are probably plenty of things I still don't know about in that modern award process, but he did send me an email with some information on it and I said I would go and research that, which I did. Unfortunately, the person involved from our office no longer works for us and was based in Adelaide, so between now and when we had our last video conference I've been acting in another role for one of our member companies, which has included spending about a month offshore in the Bass Strait, so I haven't been able to get onto this immediately. But when I eventually went to Adelaide to speak to our ex-employee he gave me some information and I subsequently filed that response which you have before you.

PN58

Then we have the response from the AWU that says that they've tried to contact us on numerous occasions. I'm not quite sure what the word "numerous" means. I did have one message from Mr De Carne when I was offshore in the Bass Strait. But in any event we're happy to continue to discuss anything with any union about how we can resolve this issue, but I'm just conscious of the fact the initial approach was that they weren't consenting to the application, and having investigated the additional material that the AWU say we weren't aware of - or I wasn't aware of, at least - you've seen our response, we don't think that that's relevant to our application.

PN59

There's a particular history to that which we say may be something that the AWU may want to take up in the review of the modern award but it's not relevant to the application that we make in terms of an ambiguity or an error in the wording. So I'm happy to continue to talk to the unions but at the end of the day we would want the matter to proceed as filed in the initial form; that is to change the word from "to" to "between". So that's my understanding of the progress to date, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: All right. Mr De Carne?

PN61

MR DE CARNE: Yes, your Honour. We again would propose to be given some directions and filing some written material. I understood that last we met here, that we were to discuss the matter with Mr Bull, and we haven't really been able to achieve much by discussing that matter with Mr Bull.

PN62

THE SENIOR DEPUTY PRESIDENT: But you haven't had any discussions, have you?

PN63

MR DE CARNE: We had one discussion and subsequently he asked if I could send an email outlining the discussions we'd had, and we were to discuss again at a later date, but I was unable to contact Mr Bull.

PN64

THE SENIOR DEPUTY PRESIDENT: Now you know the whole story - it's pretty close to the whole story, both what you've put on and what AMMA says - do you think it's useful to have a discussion in light of that?

PN65

MR DE CARNE: We would be happy to entertain any discussions. I don't know if the whole story has manifested at this stage, your Honour. There's quite a lot of material to go through that I think maybe would be best dealt with in written submissions. Perhaps that's an appropriate course; and if we could suggest to your Honour that course be taken?

PN66

THE SENIOR DEPUTY PRESIDENT: What material is there that hasn't been provided to me or may not be available to me on the award modernisation web site?

PN67

MR DE CARNE: In addition to that I think there are some minutes of meetings where the parties were conferring, but there is quite a lot of material that we could submit, too, on the web site as well, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: I can't immediately understand what might be the utility of minutes of meeting given that ultimately it was a matter for the full bench, of which I was a member, to make a modern award as it saw fit in the terms it saw appropriate. We know there's a particular issue that has arisen here because of the various drafts of the relevant clause and even a little more history in relation to when this all started out. From your point of view there might be an industry award, and from AMMA's point of view and the exposure draft, there wasn't going to be.

PN69

I'm aware of all of that, but is it not on those papers and what was before the full bench and what ended up in the modern award that this application to vary should proceed? I can't immediately imagine why it would proceed by reference to minutes of meetings that were never before me or the full bench.

PN70

MR DE CARNE: I totally agree, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: So I guess I'm saying that because I'm wondering how much more documentation needs to be put on. I can understand there might be some final submissions by reference to the Act and now knowing what largely seems to be the facts, I'm just wondering what else I mightn't be aware of yet.

PN72

MR DE CARNE: I didn't understand that the respondents had put any submissions on. The only written material that had been sent was an email to Mr Bull which found its way to the web site. Other than that I didn't think we'd file anything. We'd requested directions to file - - - 

PN73

THE SENIOR DEPUTY PRESIDENT: I see. You don't consider that anything is a submission bringing together - yes, that I understand. All right. So you would want an opportunity firstly to have a discussion with AMMA to see if the matter can be resolved; and if it can't, to file written submissions in opposition to the application?

PN74

MR DE CARNE: Yes, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: But as currently instructed you would not be filing any other - I'll use the term evidence, but what I mean by that is any other documentation in support.

PN76

MR DE CARNE: Perhaps industrial agreements that might relate to bargaining above that condition, if permitted to do so.

PN77

THE SENIOR DEPUTY PRESIDENT: Well, it's not a case of permitted. I just need to understand the relevance of them.

PN78

MR DE CARNE: There's been a couple of years of application of this award and subsequently I understand that that term has been bargained upon and above so perhaps they might be relevant in consideration of an application to vary an award term.

PN79

THE SENIOR DEPUTY PRESIDENT: All right. What sort of times are you looking at? How quickly could you meet with Mr Bull? Providing you're both available and preferably in the same place that could happen in the next couple of weeks, something like that?

PN80

MR DE CARNE: Yes. For my part, yes, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: And if that was unable to resolve the matter, what sort of time are you looking at at putting on some submissions?

PN82

MR DE CARNE: It wouldn’t be more than a fortnight subsequent to a meeting, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: All right. I might come back to you, then. Was there anything else, though, you wanted to say today?

PN84

MR DE CARNE: No.

PN85

THE SENIOR DEPUTY PRESIDENT: All right. Mr Kentish, anything you want to say?

PN86

MR KENTISH: No, thank you, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: And Mr Noble?

PN88

MR NOBLE: Your Honour, that seems like a sensible way to go forward.

PN89

THE SENIOR DEPUTY PRESIDENT: All right. Mr Kentish and Mr Noble, as your current position, do you think it's likely you'd want to put on written - firstly participate in the discussions - presumably yes - and put on written submissions if the discussions don't get anywhere?

PN90

MR NOBLE: That's correct, your Honour. And they would be very short and succinct.

PN91

THE SENIOR DEPUTY PRESIDENT: All right. And that sort of time limit that Mr De Carne has mentioned is in the ballpark for you?

PN92

MR NOBLE: Yes, certainly.

PN93

THE SENIOR DEPUTY PRESIDENT: Mr Kentish?

PN94

MR KENTISH: Yes, thank you, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Goodo.

PN96

MR KENTISH: We would imagine that we would be supporting the same issues as the AWU.

PN97

THE SENIOR DEPUTY PRESIDENT: Indeed. Well, Mr Bull, I think it's useful to have a discussion in light of the fact it seems to me that most of the documentary case is on. I think Mr De Carne might have to persuade you about the relevance of any other documents, for example minutes of meeting in relation to the various drafts and stages of award modernisation and/or these enterprise agreements, but I'm not in a position to make any ruling on the relevance of them yet. I'd need to be persuaded that either of those categories of documents might be relevant to this application to vary the modern award, but you can talk to him about that. Are you in a position, Mr Bull, to have a meeting sometime in the next couple of weeks with the unions?

PN98

MR BULL: I'm in Perth, as you understand, at the moment, your Honour. I'll be here for the rest of the week. I have a full bench matter on Thursday and again next week. But I'm happy to have a phone conversation, but my preference, like you said, would be to have a face to face meeting with Mr De Carne.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes.

PN100

MR BULL: But that won't be until at least not next week, the week after, when I'm back in Sydney.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes. It's probably preferable, but I can't really do more than put some sort of outer time limits on you. Is this a way to go, to indicate that that meeting should occur - well, I can say two or three weeks - and then my associate will be in contact with you about the need for any directions to issue in relation to the filing of submissions and should they need to be issued, it looks like then the period of time that would be allowed would only be in the vicinity of a couple of weeks after that date. Is that a way to go, Mr Bull?

PN102

MR BULL: Yes, I think so, your Honour. I think we need to have the time lines to work towards, otherwise it actually will drag out to the review of the modern award. So I don't have any difficulty with that at all.

PN103

THE SENIOR DEPUTY PRESIDENT: All right. Are you happy with that, Mr De Carne? Or anyone unhappy with that? By a date no later than three weeks from today the parties should meet, because now you, I think, largely know what the evidential basis is in support of and in opposition to the application. If there's some insurmountable hurdle that you can't meet in that time, let me know, but I will be asking my associate very shortly after that deadline of three weeks from today to contact each of you to find out if it looks likely that the application might be able to be the subject of some sort of resolution or consent.

PN104

In the event it isn't, it is likely I will issue directions for the filing of submissions. The sort of timetable I had in mind there would be only allowing a further two or three weeks to parties to really bring this to a head. Subject to there being any need for any other brief hearing - that's a possibility; I'd be able to accommodate that at very short notice - then presumably a ruling would issue. But hopefully that won't be necessary and hopefully the parties will be able to reach some agreement in relation to this application. Anything anyone in Sydney wants to say? Mr Bull?

PN105

MR BULL: No, thank you, your Honour.

PN106

THE SENIOR DEPUTY PRESIDENT: I'll adjourn on that basis, then.

<ADJOURNED INDEFINITELY [11.13AM]