C2001/1448, Transcript of Proceedings [2001] AIRCTrans 1156 (18 June 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2001/1448

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

ABT WILDERNESS RAILWAY
PTY LIMITED

Notification pursuant to section 99 of the
Act of a dispute re wages and conditions

SYDNEY

4.04 PM, THURSDAY, 24 MAY 2001

Continued from 8.5.01

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN41

THE COMMISSIONER: Can I take appearances please.

PN42

MR A. THOMAS: If the Commission please, I appear on behalf of the Rail, Tram and Bus Union and appearing with me is MR R. PEARSALL.

PN43

MR E. SEDDON: I appear on behalf of ABT Wilderness Railway.

PN44

THE COMMISSIONER: Yes, thank you, Mr Seddon. Mr Seddon, the matter has been called on this morning. You would have received correspondence that I forwarded to you on 8 May acknowledging your correspondence where you have raised objection to the finding of dispute with your organisation and the ARTBU. You would have also received a copy of the transcript of proceedings on the day that I heard the application originally?

PN45

MR SEDDON: Yes, I have and I forwarded them to my barrister/solicitor who we've now appointed. Unfortunately, he couldn't be here with me today he has a prior appearance in court.

PN46

THE COMMISSIONER: So, how do you see I take it then that you wish to inform me of how you see the matter progressing.

PN47

MR SEDDON: Yes, I do. I have been asked by my solicitor to inform you that my company rejects the log of claims in its entirety and I've also been instructed to inform you that we object to the jurisdiction of the Commission to entertain the entire log of claims because it contains matters beyond the scope of allowable award matters as defined by section 89A(2) of the Workplace Relations Act 1996. If our arguments about jurisdiction are automatically found to be incorrect, we still will not accept log of claims and I believe this will need to be determined first by consideration and if not by arbitration. Is that our correct understanding of the matter?

PN48

THE COMMISSIONER: I've listed the matter to hear the arbitration today but I presume what you're saying to me is that your legal representative is not available so I would presume you're seeking an adjournment.

PN49

MR SEDDON: If that is at all possible, yes, please. It's also my solicitor has suggested that if there is a jurisdiction point can be set down for a separate hearing or the submission of written submissions and he'd have no objection to setting a timetable for those submissions to be exchanged and lodged with yourself.

PN50

THE COMMISSIONER: From your perspective you feel that your argument can be adequately covered by written submissions, Mr Seddon?

PN51

MR SEDDON: Yes, I believe so.

PN52

THE COMMISSIONER: Mr Thomas?

PN53

MR THOMAS: Thank you, Commissioner. Commissioner, the log of claims and letter of demand has been served on ABT Wilderness Railway and others in the usual way and given the rejection of that log of claims, we have sought to notify the Commission of a dispute with initially at least the intention of the Commission finding an existence of an industrial dispute between ourselves, the ABT Wilderness Railway and the other parties to the notification of dispute.

PN54

In the normal way, Commissioner, that would then result in the Commission finding a dispute and referring the parties to further discussions on pursuing the matter. The issue was initially before you on 8 May. It was adjourned because the Commission felt it desirable to hear what the representatives of ABT Wilderness Railway had to say, particularly in light of a letter that was sent to the Commission on 3 May. As the transcript at PN21 and 22 states, there were at that point two issues. Firstly, the company raising the view that it was not in the public transport industry and secondly, the point that they wanted a hearing in Tasmania.

PN55

Now, I think the second issue has been covered by the proceedings today. On the basis of what we have heard thus far, it appears that the first issue that was raised in that letter may well have fallen away because we have not heard it mentioned today but in its place an issue of jurisdiction going to the allowability or otherwise of certain issues within the log of claims has been raised. Further, the ABT Wilderness Railway may wish to seek an adjournment to allow those matters and I take it it's about that the jurisdictional point goes to the allowability of items within the log of claims which has been raised here today for the first time.

PN56

Commissioner, the RTBU in their usual way has logged the organisation and has filed a dispute with the Commission. The matter was set down some two weeks ago and was relisted for today. On our viewpoint, we think that the company has been given an adequate opportunity by the Commission in the intervening period to be prepared to go further today than merely seek an adjournment. The RTBU would oppose an adjournment.

PN57

The RTBU would seek that given that the union is not in the public transport industry per se but rather is in the railway industry and secondly, that there are clear decisions of this Commission which I can refer to if necessary which have determined that allowability has nothing to do with the finding of a dispute that relying on those decisions, which interestingly enough have come up in the context of this dispute notification relating to one of the other employees, that jurisdictional point has no validity whatsoever.

PN58

We would seek as is our right that the Commission proceed to find an industrial dispute between the RTBU and ABT Wilderness Railway. In the event that ABT Wilderness Railway believe that they have a valid claim that the log of claims suffer from some jurisdictional problem, they always have the right to seek to have it revoked or varied at some later point.

PN59

Commissioner, we don't believe it's satisfactory that, having gone through the normal channels to notify the dispute, the matter having been adjourned once, we are now faced with another adjournment for reasons that, we are of the view, have no validity. So we would urge the Commission to proceed with the matter. If the Commission pleases.

PN60

THE COMMISSIONER: Thank you, Mr Thomas. Yes, Mr Seddon? Do you have anything to add?

PN61

MR SEDDON: No, I don't, other than that because of my inexperience with Australian industrial law, having only been in the country 15 months, I thought I would leave all the matters to my barrister and solicitor to deal with in future. I have his contact address here.

PN62

THE COMMISSIONER: You see, Mr Thomas has raised a very valid point. The previous proceedings were adjourned and listed for today to hear your argument. I believe that listing would have gone out about two weeks ago and yet I've not received any advice that adjournment would be sought.

PN63

MR SEDDON: The listing that I received from yourself by fax I immediately then took down and engaged a solicitor and he himself has faxed to me today the points that he wishes to make to you as he himself couldn't be present.

PN64

THE COMMISSIONER: Yes, but why didn't someone seek an adjournment to another day so that your legal representative could have been available?

PN65

MR SEDDON: I don't know, ma'am. All I know is that he was supposed to be here instead of myself today and I received a fax three day ago saying he didn't think he would be able to make it as he was already in court on that day; and I received a fax dated 24 May with regard to the points that he wished me to make to yourself.

PN66

THE COMMISSIONER: I would like some clarity. You say that you would seek to have a jurisdictional argument in relation to the allowability of items on the log to be determined first.

PN67

MR SEDDON: That is my understanding of the instructions from my solicitor, yes.

PN68

THE COMMISSIONER: Determined first before what?

PN69

MR SEDDON: Before a full hearing, I would have supposed.

PN70

THE COMMISSIONER: Are there other points that you wish to raise to object to me finding a dispute?

PN71

MR SEDDON: Not at this stage, ma'am, no - other than we reject the log of claims.

PN72

THE COMMISSIONER: You're rejecting the log of claims based on your legal advice going to the allowability of particular items in the log?

PN73

MR SEDDON: Yes, ma'am; and, further, alternatively our jurisdiction was that if our argument about our objection was found to be incorrect we would still reject the log of claims.

PN74

THE COMMISSIONER: You don't know on what basis you would raise an objection to the log apart from the allowability aspect?

PN75

MR SEDDON: No. My solicitor suggested that the jurisdiction be set down in a separate area for written submissions to yourself.

PN76

THE COMMISSIONER: All right. I'm not going to accept that. Mr Seddon. I have a certain amount of sympathy with Mr Thomas' points put to me. However, I will adjourn the proceedings today.

PN77

MR SEDDON: Thank you, ma'am.

PN78

THE COMMISSIONER: I will have written submissions but those written submissions are to address the whole matter, Mr Seddon. I will not part-hear any matters. I have heard submissions from the union, which are in transcript, which was forwarded to your organisation, and that is their application to me. If you seek to raise an objection then you can raise that objection in written submissions but you will cover every point you choose to raise and then the unions will have an opportunity to file written submissions in reply on any points that you raise. Then I will determine the matter. There will be no other hearing and there will be no other opportunity to raise objection. Is that clear?

PN79

MR SEDDON: Yes, ma'am.

PN80

THE COMMISSIONER: Now, a this matter has been on now for some considerable time and your organisation has had notice of this particular matter for quite a few weeks, I will expect written submissions filed in this Commission and served on the ARTBU by no later than close of business, 4 June. The ARTBU, if they choose to file and serve written submissions, are to be file and serve them by 11 June.

PN81

Now, the reason that I am setting a tight time-frame is that ABT have been on notice for at least two weeks anyway, but on notice prior to that. The matter was to be heard today and that wa the expectation of the parties. I see no reason why it should be delayed any further past those dates I've actually set. After receiving those written submissions and submissions in reply then I will issue my decision. Is there anything further at all?

PN82

MR THOMAS: Commissioner, could I just seek one point of clarification? When we come to our submissions, given that it's a bit vague as to what we will have to respond to, when it comes to those submissions - - -

PN83

THE COMMISSIONER: In reply.

PN84

MR THOMAS: Well, in that sense my understanding is that that will allow us to refer to points of law, cases, material of that nature.

PN85

THE COMMISSIONER: Yes, because at the moment you have put your submissions to me for an application for a dispute finding. ABT have a copy of the transcript. They know what the submissions are. They have raised an objection. They can put their submissions to me and you're going to place a rebuttal.

PN86

MR THOMAS: Yes. As we understand it - this is my point, Commissioner - the objection of ABT goes to the issue of allowability.

PN87

THE COMMISSIONER: That appears to be the case.

PN88

MR THOMAS: Yes. now, in the event that they raise other objections then we would not want to be hamstrung by some of the principles of rebuttal by saying, "You're introducing new evidence", or something of that nature.

PN89

THE COMMISSIONER: How can you? You're replying to their submissions.

PN90

MR THOMAS: Yes. I'm just a bit guarded on this because I don't want to receive a submission come Friday week and find half a dozen matters - if that was the case I would get up before you, Commissioner, and put great long submissions going to the dispute finding which go beyond and substantiate in detail each of the issues that the Commission generally considers.

PN91

THE COMMISSIONER: All right. Well, why don't we see how we go. At the moment I don't have written submissions before me.

PN92

MR THOMAS: If there is an issue we can raise it. I don't want to chop my opportunities or wouldn't want to prejudice our position by this.

PN93

THE COMMISSIONER: Yes. Well, the Commission is obligated to operate in accordance with natural justice, procedural fairness and I see no reason why I would depart from those principles. Is there nothing further that requires a discussion at the moment at all, gentlemen? All right, if there's nothing further, Mr Seddon, I will not accept submissions filed later than the day I have specified.

PN94

MR SEDDON: That's very clear, ma'am, thank you.

PN95

THE COMMISSIONER: Advise your legal representative of that point and by close of business, I do not mean after 5 o'clock. It will be 5 o'clock on the date specified and I will not entertain submissions filed in this Commission in Sydney later than that date.

PN96

MR SEDDON: That's fully understood.

PN97

THE COMMISSIONER: All right? As long as we don't have any doubt on that point and Mr Thomas, the same would apply with the union in regards to submissions in reply. On that basis the Commission is adjourned.

ADJOURNED ACCORDINGLY [4.26pm]