C2001/2250, Transcript of Proceedings [2001] AIRCTrans 1121 (6 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7518

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/2250

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Baulderstone Hornibrook Pty Ltd for
an order to stop or prevent industrial
action

MELBOURNE

1.00 AM, MONDAY, 21 MAY 2001

PN1

MR V. GOSTENCNIK: I seek leave to appear for Baulderstone Hornibrook Pty Ltd.

PN2

MR D. NOONAN: I appear for the Construction, Forestry, Mining and Energy Union, with MR W. OLIVER of the union.

PN3

THE COMMISSIONER: What do you say about leave, anything?

PN4

MR NOONAN: The Commission knows that I generally say about that, but I think I might save everybody some time today, I don't object to leave at this stage.

PN5

THE COMMISSIONER: Well I will make sure Mr Gostencnik doesn't discern too much in the legalities.

PN6

MR GOSTENCNIK: I am in debt to Mr Noonan and to yourself, Commissioner. Commissioner, what we do this afternoon is really a matter for the Commission. Mr Noonan and I have had some brief discussions about progressing the matter this afternoon, and we are certainly both of the view that conciliation might be of assistance, to try and bring the parties a bit closer together. Thereafter if conciliation doesn't resolve the matter this afternoon, or not likely to, my instructions are to - - -

PN7

THE COMMISSIONER: I thought I heard a phone go off. It is all right. It must have been my imagination. You haven't got a phone, have you? Go on.

PN8

PN9

MR GOSTENCNIK: It sounded like a beeper actually.

PN10

THE COMMISSIONER: Yes, a beeper.

PN11

MR GOSTENCNIK: If conciliation doesn't resolve the matter, then my instructions are to press forward with the application for orders under section 127 of the Act. And I understand Mr Noonan's instructions are to seek an adjournment of the matter, on the basis of obtaining some instructions about the statement provided to him. That is a debate we can have then. We needn't waste the Commission's time at the moment on that matter. We propose to simply enter into some conciliatory discussions chaired by yourself.

PN12

THE COMMISSIONER: What do you say about that, Mr Noonan?

PN13

MR NOONAN: Yes, Mr Gostencnik is correct about the conversation we had. We support the proposition of some conciliation to see if we can attempt to resolve the matters. Just to expand a little bit without taking too much of the Commission's time, we have received last week an application in relation to this matter, along with a section 99 application. We have received a copy of the draft orders that the company seeks at that time, but that was on the 11th of the 5th.

PN14

I received a call out of my office - this morning I received a call that we had now received a witness statement of Annie Schmidt, in relation to the company's application. Commissioner, I haven't had an opportunity to read that statement, or to get instructions on it yet. So if we are unsuccessful in conciliation today, or if the Commission decides that we need to press on with hearing the matter, I will be asking for an application for an adjournment to read that statement and get some instructions on it. If the Commission pleases.

PN15

THE COMMISSIONER: Yes, well we will try and settle the matter first by conciliation. If you wish, we will adjourn to conference.

SHORT ADJOURNMENT [1.05pm]

RESUMED [2.04pm]

PN16

THE COMMISSIONER: The parties have had some discussions and unfortunately the matter hasn't been resolved. The Commission is therefore bound, if conciliation failed, to move to a hearing of the application pursuant to section 127. Mr Gostencnik, do you want to make a brief submission?

PN17

MR GOSTENCNIK: Yes, your Honour. Commissioner, we are in a position to proceed now to determine the matter. I understand that my friend seeks an adjournment of the proceedings, on the basis that the witness statement of Annie Schmidt wasn't received until mid morning, this morning. The company's position is that the application should proceed now, however, we recognised that Mr Noonan may wish to take some instructions on some of the matters contained in the witness statement. But I just want to make some comments on the record about that. Firstly, the respondent union has had the application and the draft orders since 11 May. The matters about which evidence is going to be given up, are principally contained in the application, in any event.

PN18

So apart from conversations which occurred last Friday, most of the material upon which the applicant relies, is in the application, and the witness statement of Ms Schmidt merely serves to bolster that by the giving of sworn evidence. Thirdly, we could have come to the Commission today without a witness statement. It is only as a matter of courtesy that we provided the other side with a witness statement. We are not obliged to, there were no directions given to that effect. We could simply have put Ms Schmidt in the witness box and led her through the evidence that she is going to give. So that in my submission, if there is going to be an adjournment at all, the adjournment should be one for a short period. And we would request the Commission recommend in the interim, that the union lift the bans currently in place.

PN19

As to time, Commissioner, if the matter is adjourned, I don't envisage that we would require any more than an hour for the purposes of giving evidence and outlining the basis upon which we seek the orders. That, of course, is subject to any cross examination by Mr Noonan and any evidence that he may wish to call in opposition to our application. But our principal position is that we should proceed now.

PN20

THE COMMISSIONER: Yes, Mr Noonan.

PN21

MR NOONAN: Well in response to what Mr Gostencnik said, the fact that the company has sought to serve an application and draft orders on the union some time ago, and has seen fit not to provide a witness statement, shouldn't be construed, or in our submission, a reason as to why we should be prejudiced in how this matter proceeds. I think the authorities are clear, Commissioner, that the issuing of an order under section 127 is an extremely serious matter, and it is our submission that the respondent, in this case being the union, should have every opportunity to properly prepare its case. Commissioner - - -

PN22

THE COMMISSIONER: You don't have to push that point with me, Mr Noonan. I have made the point more than once on these matters, that the parties are to be given every opportunity to be able to not only prosecute but to defend. And defend properly and prosecute properly, so it goes both ways.

PN23

MR NOONAN: Yes, so we press our application for an adjournment, Commissioner. The adjournment will serve the purpose of - and whatever similarity - I am unaware of what similarities may exist between the witness statement and the application and the draft orders, because simply I hadn't - - -

PN24

THE COMMISSIONER: You haven't seen it?

PN25

MR NOONAN: - - - seen it until I literally got here.

PN26

THE COMMISSIONER: Haven't you seen it yet?

PN27

MR NOONAN: I have seen it. I have got the witness statement in front of me now, but I came straight here from the Federal Court and I had no opportunity to read it - - -

PN28

THE COMMISSIONER: Yes.

PN29

MR NOONAN: - - - before this matter started or to get instructions - - -

PN30

THE COMMISSIONER: Yes.

PN31

MR NOONAN: - - - or indeed to consider, Commissioner - - -

PN32

THE COMMISSIONER: Well you will need it.

PN33

MR NOONAN: - - - as to whether it might be appropriate for the union - - -

PN34

THE COMMISSIONER: Other representation?

PN35

MR NOONAN: - - - to be represented by counsel, exactly. As we are here understanding that, of course, we expected that the Commission might discharge it, so responsibility to attempt to resolve the matter by conciliation, and in those circumstances it is seldom if ever our practice to come along with counsel. Now I am not saying we will ask for counsel in this case, but it is certainly something we would consider given the seriousness of the matter.

PN36

In respect of any order under other provisions of the Act, we say that the fact that other provisions of the Act exist, doesn't mean that another order should be made in the absence of any sort of evidence or hearing. Prior to the existence of section 127, people were still expected to bring some evidence before the Commission in respect of the issuing of orders. So we are opposed to the issuing of an order until there has been some hearing.

PN37

Commissioner, it is not a matter that would take a lot of time for me to get instructions on. We would be ready to proceed in the next day or so, subject to me going through Ms Schmidt's statement and, of course, considering the issue about counsel. So we press our application for an adjournment, Commissioner.

PN38

THE COMMISSIONER: The Commission will hear the substantive argument and witnesses, and the arguments from the respondent at 1 o'clock on Thursday, 24 May. In the interim, allegations have been made about industrial action. If those allegations are correct, the Commission directs an order pursuant to section 111(1)(t), that that industrial action is to cease forthwith. And further, pursuant to section 111(e), that each day the action continues beyond today, that action will be considered to be new action, and a further breach of the direction to cease. If you can sort it out before Thursday 1 o'clock, good on you. Otherwise the matter will be heard to finality. The Commission is adjourned.

ADJOURNED UNTIL THURSDAY, 24 MAY 2001 [2.12pm]