C2001/234, Transcript of Proceedings [2001] AIRCTrans 204 (14 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2001/234

AUSTRALIAN WORKERS' UNION

AND

EXOSTEEL HOLDINGS PTY LIMITED

APPLICATION UNDER SECTION 127 OF THE ACT
BY AUSTRALIAN WORKERS' UNION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL ACTION BY
EXOSTEEL HOLDINGS PTY LIMITED

ADELAIDE

2.10 PM, TUESDAY, 20 FEBRUARY 2001

PN1

THE COMMISSIONER: I guess even though this matter has been before the Commission - not this matter, but a related matter, of course has been before the Commission in terms of a section 99 application. It is appropriate of course that we take appearances?

PN2

MR J. WEATHERILL: I appear on behalf of the Union and a list of named members who are applicants in these proceedings.

PN3

THE COMMISSIONER: Thank you Mr Weatherill.

PN4

MR R. MANUAL: I seek leave to appear as counsel for Exosteel.

PN5

THE COMMISSIONER: Mr Manual, thank you. Now, this is your application, Mr Weatherill, but in view of our chambers discussion the other day I understand that there are, shall we say preliminary points to be raised. Have we decided who is going to lead off in the batting?

PN6

MR MANUAL: Well, I thought we had discussed in chambers, I should say I'm interposing but I am quite for my friend to lead off if he wishes but I though we had discussed that I would lead off on the jurisdictional point. We didn't actually discuss what we would do with the discovery argument. You may recall that - - -

PN7

THE COMMISSIONER: My recollection was that we would certainly be arguing the preliminary point today and therefore I assumed actually Mr Manual, that you would probably lead off.

PN8

MR MANUAL: I'm happy to do so.

PN9

THE COMMISSIONER: But I mean, I am happy either way on that

PN10

MR WEATHERILL: Yes, I can't recall who was suggested would go first but what I do recall though is that it was agreed that we would address three issues, one, the judicial power point, the second, the power to make orders for discovery, and thirdly, precisely the form of those orders.

PN11

THE COMMISSIONER: The nature of that.

PN12

MR WEATHERILL: And all of those points would be addressed and obviously because there are consequences depending on your findings you would consider all of those matters and reserve your decision.

PN13

THE COMMISSIONER: Yes. In that order.

PN14

MR WEATHERILL: Yes.

PN15

THE COMMISSIONER: Yes, that was my understanding as well.

PN16

MR MANUAL: I must admit, that is my recollection of the matter as well.

PN17

THE COMMISSIONER: Well, it is over to you then, Mr Manual.

PN18

MR MANUAL: Yes, the only - perhaps if we could just one piece of housekeeping. In terms of the discovery I'm assuming that what you would like us to do, please tell me if I'm wrong, is to argue the jurisdictional point first, with me addressing and then my learned friend. Then me reply if that is necessary. Then we will move on to the discovery issue from there.

PN19

THE COMMISSIONER: Yes, in the event that I find against you on that, and I would be reserving my decision on that, but in the event that I find against you on that then you would then tackle the discovery issue.

PN20

MR MANUAL: Sorry, perhaps I should clarify. I had understood that what we would do is argue all three issues, I have sort of put them as two, but my learned friend has split them up one more, you would reserve on the jurisdictional point if you found against us on the jurisdictional point you would then consider the submissions that have been made to you on the discovery and make a decision on that as well. Whereas if you found for us on the jurisdictional point then further discovery never takes any further.

PN21

THE COMMISSIONER: No. I was actually trying to say the same thing but perhaps I didn't, Mr Manual, it is rather hot and it is early in the afternoon but that is what I understand, yes.

PN22

MR MANUAL: Thank you, Commissioner. Commissioner, there is an issue of onus of proof here in this jurisdictional issue. Onus of proof can be a little misleading as a term when you are dealing with jurisdiction because you either have it or you don't. However, there are two points I would like to make on the onus of proof. Firstly, merely because we are going first does not mean that we bear the onus of proof. The general rule is that the person who seeks to invoke the jurisdiction has the onus of proving that the jurisdiction exists.

PN23

Likewise that is the approach taken by the full Commission in Coal and Allied Operations Proprietary Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others, which is a decision in respect of section 127. That is reported at (1997) 73 IR 311. There is a somewhat lengthy extract at page 317 of that report which at about .5, sorry, there is under the heading, 2.3 Primary Jurisdictional Facts and Onus of Proof, there is the first paragraph, then the Commission has some discussions as to the strict practicability of applying the notion of onus of proof to such matters. But then about half way through that paragraph the Commission says:

PN24

Even if that view be accepted there are ingredients of the principles associated with the notion of onus of proof that have a useful role ...(reads)... prerequisites to the discretion at section 127 being exercised.

PN25

Then the Commission sets out in that particular case what those jurisdictional prerequisites were. Now, there is no secret as to our position. It is very simply that when you have regard to the application that has been made, what is being sought of the Commission is that it exercise the powers of a Court, that is that it exercise judicial power. Of course, as a matter of jurisdiction not being a Court, it is unable to do so. I intend to refer to a decision of the full Commission in Qantas Airways Limited v ASU. It has a number of references to a High Court decisions and the like, but I propose not to refer to them separately but rather just under the print of the Qantas decision.

PN26

The statement of what is judicial power is comparatively straight forward. I think this is where some care needs to be taken, because it is a technical conceptual area it can be muddied very easily and so there can be all sorts of esoterical argument brought in but the actual statement of what it is is pretty simple. Judicial power is exercised where what is sought is the ascertainment, declaration and enforcement of the rights and liabilities for the parties as they exist at the moment the proceedings are instituted.

PN27

Now, in the Qantas decision, which is Print R2578, and it is a decision handed down on 5 March 1999, and it is a somewhat august full Commission in the sense that the President, Giudice J headed it up, and Duncan DP, now Duncan SDP, Commissioner Wilkes also sat. Now, if I can take you to what is page 13 on my print. I have actually obtained this over the internet and so I am not sure that my print follows yours but the paragraphs are numbered.

PN28

THE COMMISSIONER: It is about paragraph 36, is it?

PN29

MR MANUAL: Back to 31, if you could please sir. Now, at paragraph 31, the full Commission refers to the decision of R v Portus, ex parte Teiss Brothers, which is [1969] HCA 15; (1969) 121 CLR 406. The Commission says:

PN30

It is convenient to deal first of all with the submission made by Qantas that the Commissioner's determination constitutes an attempt ...(reads)... enforcement being an incident of judicial power.

PN31

Then at paragraph 32, the full Commission referred to the decision of the High Court in the Waterside Workers Federation v J. W. Alexander Limited which is at [1918] HCA 56; (1918) 25 CLR 434, and quoting from 463 of that judgment, the noted that the High Court said as follows:

PN32

But the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities ...(reads)... parties in relation to each other.

PN33

The full Commission went on to say:

PN34

It can be seen that the nub of the distinction is the difference between on the one hand and the ascertainment of existing rights, and the other hand value judgments in assigning what rights ought to exist but not to enforce such rights.

PN35

Now, if we can just interpose, here what is sought is in effect a declaration that the employer remains bound by a particular certified agreement. That is clearly dealing with existing rights. It is seeking to ascertain existing rights. Then over on the following page quoting from Range Uranium Mines Proprietary Limited and Ors ex parte Federated Miscellaneous Workers Union which is reported at (1987) 162 CLR 656, they quote the High Court.

PN36

Thus inquiry into and determination of matters in issue is a judicial function if its object is the ...(reads)... function when performed by a body charged with a resolution of disputes by arbitration.

PN37

Just interpose there. There is nothing in this application which indicates that the object is to ascertain what rights and obligations should exist. There is an assertion that there is a current right at the time of the application which they seek to enforce by section 127, and that is not permitted.

PN38

THE COMMISSIONER: My understanding is in so many of these, it all really depends on context.

PN39

MR MANUAL: Correct.

PN40

THE COMMISSIONER: That is my reading of cases that it is not a simple application of a simple definition in isolation one has got to look at the context of the whole thing. Indeed, what might be considered judicial power in one context might not be in another context and sometimes it can even take its character from the Tribunal that it is before.

PN41

MR MANUAL: To some - and the nature of the application as well. To some extent that is true. There certainly do get to be blurs between judicial and arbitral power depending on the purpose, but if you look at that quotation the real distinction is that a Commission is entitled to consider what is the appropriate industrial instrument and the like, it does that on a fairly regular basis. It can't do it on a binding basis because of course it can be overridden by a Court, but it is doing that in order to carry out its arbitral function. That is not what the Commission is being asked here and that is the distinction.

PN42

I think that is probably as good a time as any if I can take you to the application itself, filed by the Australian Workers Union, dated 25 January 2001. This is really the starting point because this application sets out the parameters of the matter. I should also note, it is somewhat more than the starting point because this is all that is before the Commission in a practical sense, this is it. So this is the evidence you have before you as to what this is about. This is all there is. If you look down at point 1, it introduces that:

PN43

The respondent refrain from and or cease industrial action -

PN44

that is an introduction which you would expect at some sort of 127 application -

PN45

by complying in all respects with the Cowell Steel Enterprise Agreement (2000).

PN46

Now, the Cowell Steel Enterprise Agreement (2000) I think is not in dispute was in existence at the time of this application. People were either entitled to is benefits or they were not entitled to its benefits depending on whether they fell within its scope on application. In this case what that first order seeks and I will expand on this. What that first orders seeks is an order that you employer comply with this agreement. Now, that is clearly a matter of enforcement. It can be nothing else. Likewise, the respondent refrain and or cease industrial action by complying in all respects with the applicants contracts of employment. Well, the fact is the applicants contracts of employment were in existence at the time of this application so again, an application to seek to enforce those contracts of employment, which is what this is, is an exercise of judicial power.

PN47

In both those scenarios, because they are two separate things, the Commission is being asked to enforce pre-existing rights. It is being asked to enforce a contractual right which had been created when the contract was entered into, however long before the application was made. It is being asked to enforce rights under a certified agreement which has been certified before this application has been made. That is the fundamentally - although you were quite right to note that there are those ebbs and flows and distinctions, not in this case. It is absolutely clear cut we say, that this is an act of judicial power.

PN48

I should go to the grounds briefly. They don't tell you an awful lot, with respect but they really do just reinforce what the applicant is seeking. Point 1 refers to the respondent's assertion that the enterprise agreement ceases to apply to the applicants at the time of their transfer to sites other than 51 Cavan Road. Well, again, that is an event that has occurred, and again, what is asking for is the ascertainment of whether the respondent is right or not. Then it also makes a similar allegation in respect to the unilateral, or the alleged unilateral, alteration of the applicants contracts of employment. In fact quote something from transcript prior to Christmas with Mr Moir, making a statement to that effect. Then at 3 - - -

PN49

THE COMMISSIONER: One and 2 are really just statements of fact are they not?

PN50

MR MANUAL: Well, a mixture of fact and law in the sense that the respondent asserts that Cowell Steel Enterprise Agreement ceases to apply, that is - - -

PN51

THE COMMISSIONER: The respondent does assert that?

PN52

MR MANUAL: Yes, don't deny that. But it is an assertion of law really rather than an assertion of fact.

PN53

THE COMMISSIONER: Well, okay, but the statement itself, the statement that the respondent asserts is a correct statement, the respondent does assert that.

PN54

MR MANUAL: Sorry, I see the point you are making. Yes, it does.

PN55

THE COMMISSIONER: And the same with the second one, the respondent - - -

PN56

MR MANUAL: Yes.

PN57

THE COMMISSIONER: - - - is clearly asserting that.

PN58

MR MANUAL: Yes. Then there is the assertion from the applicants in point 3, which really sets out their claim.

PN59

The enterprise agreement continues -

PN60

and focus on the word, continues, because it is a pre-existing right, it is recognised as a pre-existing right -

PN61

continues to apply to the applicants.

PN62

Then:

PN63

The respondents cannot unilaterally alter the applicants contracts of employment.

PN64

Again, assertions as to what the respondent can or cannot do as a matter of law. Now, what we say, and if I may just split these into what I will call the first order and the second order. The first order is what relates to the Enterprise Agreement. What they are actually seeking is the ascertainment by the Commission of an alleged obligation on the respondent to continue to apply that particular certified agreement. Secondly, they are in effect seeking a declaration as to what the rights of a certified agreement are. Thirdly, they are seeking the enforcement of the certified agreement by order under section 127, because that is its practical effect.

PN65

In respect of the second order, the applicant seek the ascertainment of the terms of the contract of employment between the respondent and the employees. That is the practical implication because you can't work out whether they have been unilaterally varied if you don't know what their terms are because there might be a specific provision in the in the contract which says you can vary this or you can't. They seek a declaration as to what the rights under the contract are. In other words, you can't unilaterally vary this contract. That is a declaration. They seek the enforcement of the contractual rights under section 127. Those are the three headings which define judicial power.

PN66

It is also important or at least useful to look at what else could they do, because this tells you where it is properly. These alleged rights, if they existed, and of course the respondent denies that they do but if the alleged rights existed they were enforced at the time of the making of the application. So all that is really sought is the enforcement of contractual rights in regards to the second group. Now, that is the specific role of Common Law Courts, like the District Court or the Supreme Court, that is where you enforce contractual rights. Or alternatively, and I'm not quite as comfortable with this submission but I will make it anyway, perhaps in the Industrial Relations Court of South Australia, you can enforce those rights in the sense of an underpayment claim, you probably can't enforce them in the sense of an injunction that there be ongoing compliance with the contract. Likewise the interpretation of a certified agreement is directly within the jurisdiction of the Federal Court of Australia under section 413A. It makes specific provision:

PN67

The Court may give an interpretation of a certified agreement upon application.

PN68

Then it lifts it out. Then notes under 2:

PN69

The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the agreement and the employees who employment is subject to the agreement have been given an opportunity of being heard.

PN70

So in order words, the Federal Court could interpret this certified agreement and decide it conclusively yet there is no similar power given to the Commission. It is only given to the Federal Court of Australia.

PN71

THE COMMISSIONER: Mr Manual, the difference between interpretation and application. I mean, the Commission regularly has to certainly at least make implicit assumptions about the application of certain things. I mean, does not the application of an award provision or a certified agreement always involve to some extent an interpretation?

PN72

MR MANUAL: Absolutely.

PN73

THE COMMISSIONER: Even if it is an implicit interpretation?

PN74

MR MANUAL: But there are two issues. One is that the Commission can't do it conclusively. It can certainly as part of its function make assessments but it is always open to either challenge on prerogative or on appeal to the full Commission. But secondly, the Commission does that in performance of its function. So if it is in an industrial dispute, a wide ranging industrial dispute it may well be necessary for the Commission to decide what industrial instrument applies. In fact it is probably almost essential. But what the Commission can't do and more to the point what the Commission can't be asked to do is just interpret the agreement. So someone can't come before you and say, "here is a certified agreement, we reckon it applies, they don't, you tell us - can you please tell us the answer." That is what the Commission can't do.

PN75

THE COMMISSIONER: Or can't - the Commission can't, you are saying just apply it either, it has got to make that judgment in pursuit of something else.

PN76

MR MANUAL: Correct.

PN77

THE COMMISSIONER: That is what you are saying?

PN78

MR MANUAL: It has got to be tied to its arbitral, it has got to be an ancillary activity tied to its arbitral power. I this case, there is no arbitral power to tie it to. If I could also point out another area where the Federal Court and other Courts have jurisdiction but the Commission does not is in the enforcement of certified agreements under section, well, it is under part 8, division 1, it starts 177A which the definition of a competent Court, or a Court of competent jurisdiction. But under 178, there are specific provisions entitling the Federal Court of Australia or another Court of competent jurisdiction to enforce, specifically to enforce breaches of certified agreements. Now, it can impose penalties but it can also make orders for unpaid amounts and the like. That is a classic enforcement and that is really what the Commission is being asked to do here.

PN79

The other thing to keep in mind is the nature of section 127. If the orders are made then the respondent must comply with them. So if this Commission made an order, the respondent will comply with the terms and conditions of the enterprise agreement in respect of all employees employed at its Cavan site, or wherever - previous employer's Cavan site. Under 127(5) it provides:

PN80

A person or organisation to whom an order under sub-section 1 is express to apply must comply with the order.

PN81

So in effect, if you make that order you are requiring the employer to comply with the Certified Agreement. That is enforcement. That is a - that is not part of your arbitral function. Now, the argument might be: well, hold on, that is section 127, that is the nature of section 127. If orders are made, whether it is against employers or unions, the effect of those orders are that they must comply. The difference is that section 127 is specifically limited to issues of stopping industrial action and at the discretion of the Commission. It is not intended to be used as a de facto enforcement provision for certified agreements or contracts of employment.

PN82

That is not its purpose and you only need to look through the raft of authority and see that it is just clearly assumed - and Coal and Allied, of course, which requires those preliminary things to be proved. Now, I might add, on the current state of what is before you, there is no proof of any industrial dispute, there is - all there is is a proof of a dispute about what agreement applies and a dispute about terms of a contract of employment. That is all there is before you and on that basis there can be no powers in the Commission to deal with the matter because it is purely judicial power.

PN83

My learned friend mentioned on one occasion: well, it might be able to be changed. Well, that could well be true but let us wait and see if it ever is changed. On its current state it does not meet the jurisdictional requirements of this Commission. May it please the Commission, those are our submissions on the topic.

PN84

THE COMMISSIONER: Mr Weatherill?

PN85

MR WEATHERILL: If it pleases the Commission, the contention that the orders sought contravene a prohibition against this Commission exercising judicial power and misconceived, if I can take the Court to one of the authorities in our list of authorities - I have a copy if the Court does not have it, it is re Cramm ex parte the Newcastle/Walls End Co-op Company.

PN86

THE COMMISSIONER: Yes, I've got a copy here, Mr Weatherill, thank you. I do have a copy.

PN87

MR WEATHERILL: Can I begin by just making some observations generally about the distinction between judicial power and exercise of arbitral authority and can I begin by taking the Court to paragraph 26 of the judgment of - or the majority judgment which includes Mason CJ. Paragraph 26 at about half-way down that paragraph.

PN88

MR MANUAL: 26?

PN89

THE COMMISSIONER: Yes.

PN90

MR WEATHERILL: "Here the dispute notified by the unions?"

PN91

THE COMMISSIONER: Yes.

PN92

MR WEATHERILL:

PN93

Here the dispute notified by the unions involved no element of future conduct. Moreover, it ...(reads)... the claim for payment was based on matters of industrial policy as distinct from matters of legal entitlement.

PN94

So that is the first point we make, is that the orders sought must be orders which are about legal entitlement and not matters which include matters of industrial policy. In due course I will be taking you to the orders sought here and they - one of the essential pre-conditions to the exercise of discretion under section 127 is being able to satisfy the Commission that it should make an order in its general discretion and it is not a limited discretion. Can I take you also to paragraph 16 of that - sorry, no, I won't take you to that passage. Sorry, paragraph 9 of that - the judgment I referred to earlier and in particular the comments made about the words used by Kitto J in Aberdeen Colleries. The description is:

PN95

The making of a binding declaration of right is an instance of the exercise of judicial power. It ...(reads)... in arbitral proceedings does not in itself amount to the usurpation of judicial power.

PN96

Then it goes on:

PN97

Indeed, a Tribunal may find it necessary to form an opinion as to the existing legal rights of the ...(reads)... does not bind the parties and cannot operate as a binding declaration of rights.

PN98

So the importance of that passage, sir, is that it may be an essential part of the function to arrive at a view such as the view that needs to be arrived at here about the application of the Certified Agreement but that does not bind Mr Manual's client in any later proceedings, it does not have any consequences in terms of enforcement. It is a necessary step along the way, though, for you to arrive at that view before you can then make the next step and that is to determine whether you make the order under section 127. A more detailed analysis of the question of judicial power is contained in the authority of Precision Data Holdings Limited and if I could just - I just refer you generally to paragraphs 21 through to 25 of that decision and I won't take you through all of those matters. That is in the judgment of, once again, I think it is - appears to be a majority judgment led by Mason CJ, beginning at paragraph 21.

PN99

THE COMMISSIONER: Yes, I've got the CAR reference which does not have paragraphs - numbers, but - - -

PN100

MR WEATHERILL: Sorry, sir, perhaps if I could help you, it begins with the paragraph:

PN101

True it is that the making of binding declarationer's rights by way of adjudication of disputes -

PN102

and it refers to re Cramm.

PN103

THE COMMISSIONER: How far into the judgment is it?

PN104

MR WEATHERILL: About page 7 of 9.

PN105

THE COMMISSIONER: I've got it, I've got it, yes.

PN106

MR WEATHERILL: Yes.

PN107

THE COMMISSIONER: Page 188 of the CAR.

PN108

MR WEATHERILL: Yes.

PN109

THE COMMISSIONER: Yes?

PN110

MR WEATHERILL: Perhaps if I could take you to a further four paragraphs down, when it begins with the words:

PN111

When the function to be performed -

PN112

THE COMMISSIONER: Yes?

PN113

MR WEATHERILL: That paragraph:

PN114

When the function to be performed by the panel under section 733 is examined in the light of the ...(reads)... the function is one in which the panel is bound to take account of the considerations of commercial policy mentioned in section 731.

PN115

Now, the reason I referred to that specific application of the principle to that case is that highlights the sort of policy considerations that the Commission will take into account. Here the Commission, in due course, if it is satisfied that the necessary jurisdictional pre-conditions exist will be making a decision about whether or not it should make an order and when it arrives at making that decision it will take into account not just things that have happened in the past but things that are happening now, things that should happen in the future. When the order is made it will be an order which comes into existence on a particular day.

PN116

It can - it will begin on a certain day and it will regulate conduct from that day. It will regulate the existing rights and liabilities between the parties. Now, the fact that another law, or the Certified Agreement might have alternative means of enforcing it and there may be consequences for the non-enforcement, does not deprive the Commission of its jurisdiction under section 127 to make its own orders, which are about the hurly-burly of the here and now, not about what may happen in the fullness of time when a Court gets round to working out what it is going to do.

PN117

It is probably useful to return now to the question of what precisely is the nature of the orders that are capable of being made under section 127 and to distinguish that from the way in which my friend seeks to characterise what is being done here. Section 127 of the Act is a relatively new provision and involves the regulation of conduct between the industrial parties that can be characterised as industrial action and there's - as we've suggested in our application, we are seeking to characterise an employer's conduct in two relevant respects as industrial action within the meaning of the Act.

PN118

First, we say that the non-offering of work in accordance with the Certified Agreement offends one aspect of the definition of industrial action and we are saying that the performance of work in a manner different from that which is customarily performed also meets the test of industrial action within the meaning of the Act, so we say that there's industrial action and that that - and that there are other good reasons which we will, in due course, have to persuade you of to make the order. The orders under section 127 are - cap the force of law and they are, in effect, mandating a certain form of action to cease, so they are in the nature of an injunction, a negative injunction to prohibit a certain form of conduct.

PN119

They are to be exercised expeditiously and they provide an additional remedy that exists over and atop of all of the other remedies that exist in the Act for preventing conduct from occurring. Now, when the Full Industrial Commission considered this whole question of this relatively new remedy in the quite extensive judgment in Coal and Allied it had to, amongst other things, meet an argument that was raised - or a question that was raised about what should be the role of the Commission in making orders prohibiting industrial action taken by employees and in the course of working out what principles should apply to that particular circumstance - that is, ceasing industrial action taken by employees - it was proffered by the unions that - well, and, in fact, by the employer, that one should consider whether or not an order should be made under section 127 in circumstances where the conduct was already unlawful at common law, so that was an issue that the Commission had to grapple with. If I could just take the Commission to page 324 of the judgment?

PN120

THE COMMISSIONER: Yes.

PN121

MR WEATHERILL: You see the question that was framed by the Full Commission is making a section 127 order a serious step if industrial action is inherently unlawful at common law. No doubt that question arose in the context of the employers seeking to suggest that the orders should issue at perhaps more easily than they might otherwise issue. In the course of - this submission was directed at discretionary matters about whether the order should issue, but in the course of analysing that whole question the Commission went about discussing the present state of the law in relation to industrial action taken by employees and whether that amounts to a breach of the contract of employment.

PN122

The general conclusion that was reached is that the law really hadn't moved on very much in a number of years and that is that almost all industrial action taken by employees was - could be characterised as unlawful in some form or another and as a matter of strict common law. In the course - they then went onto consider what that should mean for the purposes of exercising the discretion under section 127 and on page 327 at - on the second to bottom paragraph, they conclude - the Full Commission concludes:

PN123

Viewed in perspective with the provisions of the Act generally and the common law the power in section 127 ...(reads)... that which remains after the controls and potential controls imposed by common law and statute.

PN124

Now, there seems to be no restriction on the capacity of the Industrial Commission if it is so satisfied to make orders prohibiting conduct of employees which may well be unlawful at common law and which may give employers the right to head off the Supreme Court or wherever else it feels appropriate to intervene and make the orders that exist under section 127. Section 127 is a special remedy, it is a speedy remedy to make orders now about something which could grind its way through the common law Courts for the next 2 years. So it is something new we ask for, it is a new right, it is exercised - it is an order that we are seeking and we have to satisfy you we are entitled to the order.

PN125

It is not a declaration of something that is past, it is asking for something new and in satisfying you that you should make the order - sure, we have to along the way persuade you that there's been the non-offering of work in accordance with the Certified Agreement that applies, but that is only part of the job. We also then would need to satisfy you that to exercise the discretion that resides in section 127 for you to make the order. Now, the fact that that discretion exists and it is not a limited discretion is confirmed on page 320 of the decision, the Coal and Allied decision, paragraph 2.5.1:

PN126

A direction under section 127(1) is not expressed by the statute to be automatic upon jurisdiction being established. A tired or conditioned discretion is illustrated by section 170LT(1). The discretion under section 127(1) is manifestly at large.

PN127

It goes on to point out that the effect of an order made in exercise of the discretion to make a certain industrial action unlawful is to arm the Federal Court with jurisdiction and then one can go to the Federal Court and seek to enforce an order of the sort that is being made. Now, that would be an exercise of judicial power, but not this step in the process. Just to comment briefly on some of the submissions that have been put to you. In relation to onus, we accept that we must satisfy you that you have jurisdiction to make the orders, but that obligation should be put no higher than I just expressed it.

PN128

It was contended that we are seeking the enforcement of past rights and liabilities, where in other words we are seeking to ascertain past rights and liabilities as at a particular date. Well, that is wrong, we are seeking to create a new right for ourselves that is an order that we are seeking from this Commission. It is suggested that what we are seeking, in effect, is a declaration under section 413A of the Workplace Relations Act 1996. Well, we are not, we are seeking an order under section 127. We are not seeking a declaration. If you, in the course of reaching your conclusions, make certain findings about the applicability of the Certified Agreement, they won't be binding on either party but they will be a necessary part of you moving towards the exercise of your jurisdiction under section 127.

PN129

THE COMMISSIONER: Mr Weatherill, you are saying that if you had taken the course of going to the Federal Court, for example, on this matter, then the Federal Court in determining which agreement applied would, in effect, be exercising judicial power, but by the very nature of section 127 itself the Commission would not be exercising judicial power because it would be creating a new right?

PN130

MR WEATHERILL: Yes.

PN131

THE COMMISSIONER: A right that currently does not exist?

PN132

MR WEATHERILL: Yes. I mean, it happened - it may be coterminous to a certain extent. I mean, it may - it may oppose certain obligations which are similar to obligations that already exist on the parties but the answer to that is: well, so what? Any orders made under section 127, in most cases where an employee is taking strike action, implies obligations which are coterminous of their obligations under their contract of employment. This is a new jurisdiction to speedily ascertain rights and have binding orders made which are immediately enforceable in the Federal Court. It is an expeditious remedy that exists and is available to the parties.

PN133

THE COMMISSIONER: A new right in relation to the same set of facts and circumstances.

PN134

MR WEATHERILL: Well, it is a different right in the sense that it requires something to happen right now. I mean, this is bounded by a time, these notions, and while you might be able to chug along and get a remedy that involves a penalty, perhaps, and some underpayments orders in the future, this is an order that will apply from the day that it is made, presumably, and affect circumstances as at that date, so that is the sense in which it is new and different. It obviously arises in a context where there are a whole range of other rights and options, but just because somebody chooses to exercise one right or option does not mean that they are deprived of jurisdiction to pursue another, absent a provision which says that.

PN135

Provisions of that sort aren't unknown to the Act. For instance, if one chooses to seek certain remedies by way of dismissal, they may be - you might have elected to have proceeded to have chosen those remedies to the exclusion of others, there's no suggestion that such a provision exists in this - in this area of the law. Now, the suggestion was made, what else could they do and that might be useful to look at that while that may be but we've chosen this course. There could be a range of reasons why this course was chosen including the reasons for which the legislation was put into place and that was to give security access to employers and employees to get the other party to stop taking industrial action where it was outside the norms of the system, where it was illegitimate.

PN136

The Commission was persuaded to intervene and the Commission may be persuaded in circumstances not to intervene but, I mean, just because we can satisfy you that they are not offering work in accordance with the industrial agreement or their work is being performed in a manner different than it usually is and therefore enlivening you with jurisdiction does not mean that you will make the orders. We will be trying to persuade you to make them but that you could choose not to. That is the element of discretion. It was contended - - -

PN137

THE COMMISSIONER: The respondent was really - Mr Manual was really saying that it is six of one, half a dozen of the other, you could have easily gone to the Federal Court and achieved the same thing. That was as I understood it - - -

PN138

MR WEATHERILL: We can't.

PN139

THE COMMISSIONER: - - - but you are saying, no, this is a new right, a different right by the very nature of section 127, it is a new and different right to what you might have had in force in the Federal Court. So it is not six of one and half a dozen of the other?

PN140

MR WEATHERILL: No, it is a right to - if you are so persuaded and you had all the material before you, you could be making an order ceasing this industrial action today and the employer would have a decision to make about whether it complied with that order on pain of a Federal Court enforcement proceeding. It has got an obvious application in terms of the speed of the remedy and the way in which it is to apply and it may be that the people that were framing it had in mind that this would more commonly be used against unions taking industrial action.

PN141

It might more obviously - the imperatives might seem more obvious for industrial action that is being taken by employees where damages is accruing to an employer and they are seeking a quick remedy and that want to come before the Commission and satisfy you that the preconditions have been met and orders should be made. So, I mean, when we are considering the section and consider how it could be applied generally and it seems obvious that this is a new remedy for expeditious orders to try and get the parties to change their industrial conduct.

PN142

The fact they may have other remedies that may lumbar through the Courts for some period of time is neither here nor there. I don't think there's anything I need to act about judicial powers, sir. Those are my submissions.

PN143

THE COMMISSIONER: Well, is there anything arising from that, Mr Manual?

PN144

MR MANUAL: Yes, there is, Commissioner. Perhaps if I take you to re Cramm, we accept re Cramm as good authority. The first point I would make is that on my reading of re Cramm, it was in fact found to be judicial power. Of course that turns on its own particular facts but what the Court said at paragraph 7 is:

PN145

A claim for the payment of wages due and payable by an employer to an employee is a claim ...(reads)... of existing legal rights necessarily invoke the exercise of judicial power.

PN146

Now, in this case what is being claimed is the enforcement of a certified agreement and contract of employment. The other point I would make under paragraph 9, which my learned friend quoted so I don't propose to do so myself is exactly the point that, Commissioner, you were making and that is the Court is saying as part of the exercise of its Arbitral power, the Commission has to form views and opinions and that is absolutely right. We accept that.

PN147

What we are saying is that here there is no function of Arbitral power. My learned friend referred to precision data. The only thing I would comment is that great care should be taken with such cases which are not directly on the jurisdiction in question. We would say that the authorities are such as re Cramm and the Qantas case are far more appropriate. My friend said from the Coal and Allied case, and we accept this, that section 127 is not a limited discretion. That is true but that is only after jurisdiction has been found to exist.

PN148

It most certainly is limited by jurisdiction and there's some sort of new age idea that this is a new remedy and therefore has some special significance, with respect, is wrong. Section 127 is part of the Workplace Relations Act. It is subject to the constitution of Australia and section 71 most certainly applies to it. If they are asking you to exercise judicial power, then no jurisdiction occurs and in this case they clearly are asking you to do that.

PN149

A minor point, my learned friend talked about 127 orders arming the Federal Court. I should note that they only arm them to a limited extent. There's only power to grant injunction. There's not a damages power or penalty power as such. It goes - that goes back to the other provisions.

PN150

THE COMMISSIONER: Mr Manual, does 127 create a new right because that is what - - -

PN151

MR MANUAL: Well, it is certainly a new power. I don't think - - -

PN152

THE COMMISSIONER: Is it a new right?

PN153

MR MANUAL: Sorry, I see what you are saying, sir. Well, I mean, it is certainly new to the Act, well, in '96 and it certainly - - -

PN154

THE COMMISSIONER: Well, but a new right as far as the employees are concerned?

PN155

MR MANUAL: It can. I mean, the answer is, it can.

PN156

THE COMMISSIONER: Is it an old right dressed up in new clothes, that is the issue, isn't it?

PN157

MR MANUAL: That is what has happened in this case. In a proper section 127 case where there is truly industrial action and where there's jurisdiction, an order of the Commission does create a new right under section 127(2). This case it does not and you only need to sort of do this mental exercise. Well, compare the new right, so called, with the old right and what a surprise, they are exactly the same. The fact is what they seek is an order to comply with the certified agreement. They already have the right to compliance with the certified agreement if they are entitled to it.

PN158

What they seek is compliance with the contract of employment. They already had a right to compliance with the contract for employment to whatever extend they are entitled to. So the alleged new right in this case is exactly the same as the old right. It is an enforcement judicial power. It is an enforcement of judicial function, as simple as that.

PN159

THE COMMISSIONER: So you are saying what they are asking for is an adoption of a right that already exists somewhere else and are dressing it up in new clothes?

PN160

MR MANUAL: Yes, it is the - dressing it up is exactly right. I mean, you have got to look at what the substance of the application is and the substance of the application is the enforcement of a pre-existing right being the certified agreement and the contracts of employment. I'm not sure how much my learned friend made of this but he was saying that this is a convenient remedy. The fact that the proper remedy is not as convenient and sometimes when Courts get busy, that can turn out to be the case, it does not actually effect jurisdiction.

PN161

It is a merit issue as to forum selection and we have no objection to the applicant's choosing the forum or taking the forum of choice but it has got to be a forum in which there is jurisdiction for them to do so. Could you excuse me for one moment. May it please the Commission, they are our submissions.

PN162

THE COMMISSIONER: Right. Now, gentlemen, the issue of discovery then, my understanding - well, you are not intending to address me now on that?

PN163

MR MANUAL: I thought we were.

PN164

MR WEATHERILL: Yes.

PN165

MR MANUAL: I thought that was the plan.

PN166

THE COMMISSIONER: But on that issue, Mr Weatherill was going to kick it off.

PN167

MR WEATHERILL: That is right, sorry. You meant even now.

PN168

THE COMMISSIONER: Yes.

PN169

MR MANUAL: Sorry, yes, I've misunderstood.

PN170

MR WEATHERILL: On the question of discovery, it was contended on the last occasions we were in chambers that somehow you don't have the power to make an order for discovery. I don't know whether that still persisted with but to the extent that it is, it was suggested - - -

PN171

MR MANUAL: Well, sorry, I was thinking about something else for a moment. I think perhaps I intend to confine my arguments to the discretion that you have and whether you should exercise it and then the nature of the claims being made. I don't think we will pursue the jurisdiction - well, apart from the jurisdictional point that we've already put to you, Commissioner, we won't pursue the other.

PN172

THE COMMISSIONER: Right. So what you are saying is if I found in Mr Weatherill's favour here, you are saying that I would have jurisdiction to make the discovery orders that he has asked for?

PN173

MR MANUAL: Correct.

PN174

MR WEATHERILL: So I won't address you on that, sir. The second aspect is what are the nature of the orders that should be sought? We press our application to have - for discovery to be made concerning the classes of documents contained in the application for directions, 13 February 2001 and perhaps if I just briefly summarise again how we say how these documents become relevant, it might first be worth noting that we've taken, as I understand it, the course of regarding this question that the determination of the application of the certified agreement is a crucial aspect of the determination matter and we are assuming you do have jurisdiction and it does not involve an exercise of judicial power.

PN175

If you come to that view, as I understand it, the parties have chosen to want a finding made about that point at an early stage because a lot flows from it in terms of whether orders were issued and it would be crucial in determining whether the certified agreement applied to consider what part of the business or business the certified agreement applied to and I think on the last occasion, I took you through, in chambers, I attempted to explain that the Workplace Relations Act 1996 authorises the making of certified agreements in only this respect with businesses or part of the business.

PN176

It does not authorise an unlimited array of entities with whom the certified agreements can be entered into and it does that for good reason. It does not, for instance, authorise certified agreements to be made with individuals. It may authorise certified agreements to be with part of a business as broadly defined in the Act but it does not authorise certified agreements to be made for particular named employees for instance. We say it does not authorise certified agreements to be made for a particular site.

PN177

It does authorise certified agreements to be made with part of a business. It may be located at a particular site but the fundamental definition at all times is that the agreement was made with the business or the part of the business. So the scope of any agreement that is made with part of a business, even if that business happened to located at a particular site at the time when it was made, is to ascertain the true nature and quality of that business and it is - that is important for a number of reasons.

PN178

If it is sold, we know that the transmission provisions come into play and that that obligation would transmit to the person it was sold to and it also important that if the business moves to know whether the business is still the same business as was the certified agreement was originally entered into. That is a critical aspect of the matter. In this case, we have a certified agreement that we understand is being asserted it was a site specific certified agreement and we resist that contention.

PN179

We say that it was never such a thing and that in any event, to the extent that the business has moved that the issue becomes, is it the same business and if it is the same business then the obligation set out in the certified agreement apply. So many of the documents we seek are about identifying the business. Now, that whole nation of business and what it means has been given some judicial attention and there are a number of authorities.

PN180

Probably the simplest way of dealing with them altogether is a paper that was prepared by the then Minister for Employment Workplace Relations and Small Business, Mr Reith for the purposes of vandalising with the law, the law in relation to transmission of business should change. I have a copy of that. I think one of those copies was provided to the Commission, sir, and if I could take you to - it provides a useful summary of the definition of business.

PN181

MR MANUAL: Despite my deep respect for Mr Reith, Commissioner, I'm not sure this is evidence as such.

PN182

MR WEATHERILL: It is not meant to be evidence. It is meant to be a summary of the authorities but - - -

PN183

THE COMMISSIONER: It is just a reference.

PN184

MR WEATHERILL: They contain a shorthand description, sir, of the relevant legal principles and I'm happy to take you to the authorities, if you are offended by me saying - - -

PN185

THE COMMISSIONER: No, I'm happy to - in the same way one might look at - dare I say - a textbook although I'm sure this isn't quite in the same category as that either but if it is a convenient summary of the cases, I'm happy to accept it on that basis.

PN186

MR WEATHERILL: Perhaps at page 9 of that discussion paper - and this is the context of a transmission of business but there is a discussion of the notion of business which we say is relevant and important. There at paragraph 27, it says:

PN187

While the decisions did not establish a clear and exhaustive jurisprudence on the transmission provision ...(reads)... to the running of the transmittees business.

PN188

So those are the general principles, substantial identity of the work activities in the fundamental test and the documents that we seek by way of discovery are directed to the activities and the identity of the business. If I could just take you through the classes of documents that are sought, paragraph 1.1 in the application for directions:

PN189

Documents relating to work performed by and roles of all employees and executive directors of the respondent at the Cavan Road site in their roles or proposed roles subsequent to the vacation of the Cavan Road site.

PN190

Some of these events have caught up with these things, sir, and subject to that, that is obviously directed at what work was done before and what work was done after by the particular people involved, which is obviously a critical issue. The second - and that is for all employees because where not just necessarily just the named applicants but everybody that is involved in the business so that we can know what it is they have done then and what they do now.

PN191

The second set of documents is documents relating to the decision to cease operations. I don't know whether operations have precisely ceased, sir, but certainly the decision in relation to the transfer perhaps of operations from Cavan Road is probably a better way of putting it. They are obviously - one could imagine they would shed light on these matters. There could be memos about setting up the business, one could conceive of a memorandum saying: we want to ensure that there's no disruption to the business and that it is a seamless occurs between one site and the other, there could be documents of that sort floating around and we - and they would assist the Commission in forming a view.

PN192

1.3, documents relating to the transfer of plant and equipment, how it was described, well, that is obvious. If there is plant and equipment that moved from Cavan Road to the other site, then that is fairly fundamental to the activities that are being performed. Documents relating to customer and supply relationships, well, obviously the business is about who the customers are and if it is the same sort of customers and they are doing the same sort of ordering, then the activities are likely to be substantially similar.

PN193

Documents relating to debts owed to or by a business previously operated Cavan Road site prior to it subsequent disassociation of activities.

PN194

THE COMMISSIONER: You say all of these documents are, in your submission, or they go to the substantial identity of the business?

PN195

MR WEATHERILL: Yes, whether it is the same business which - I'm not suggesting that is the only - - -

PN196

THE COMMISSIONER: Because a certified agreement can only apply to a business or a part of a business, not to a site as such?

PN197

MR WEATHERILL: Yes. We say in its terms, it never was intended to just apply to the site. The fact there was an address there, I mean, every certified agreement that named an employer puts an address in. It was never intended as a matter of construction to apply to a site but assuming - - -

PN198

THE COMMISSIONER: I understand your argument.

PN199

MR WEATHERILL: If there's some argument about that, well, it can't apply just to a site. So you have really got to ask yourself whether it is the same business because that determines - it is the Act that determines the scope of certified agreement, not some idea about what the parties may have about what they want it to apply to. So, yes, all these documents really go to the substantial identity. There are a number of documents as you identified between 1.6 and 1.12 that fall into a category which could be described as the present structure.

PN200

They go to the questions of identity, transfer of employees, trading names, application for trading names, stationary, clothing, signage and other material and advice to other entities about changes to trading names. For instance, we have a COW certified agreement, sir, and if you haven't noticed, COW is emblazoned on people's shirts. Now, presumably that is something that is consistent across the whole business that that demonstrates, we would say that is a piece of material that tends to point towards substantial identity and that is something that would assist you in reaching that conclusion.

PN201

Any material of that sort would be important as steps taken to retain that name because that would then imply the notion of goodwill. Names tend to have attached to them in the business context, the notion of goodwill and if one had a similar goodwill - the goodwill of a business is part of the identity of a business. So that would be useful to know. Management structures, substantial identity once again, documents given to media, trade organisations, customer networks are also - they main contain admissions or concessions about the identity of the business.

PN202

For instance, if there was a media report saying: well, COW is still here, it just happens to have shifted, we are still open for business, you know, nothing has changed. You can imagine from propaganda about that going out in a media release or something so that things of that sort may be useful. Documents making representations to employees - - -

PN203

THE COMMISSIONER: That is documents given to the media, not necessarily documents emanating from the media?

PN204

MR WEATHERILL: Yes, well, that is right. They can be two entirely separate things, I can tell you from sad experience. Documents relating to the negotiation of the certified agreement, we do say those are relevant, sir, because while there are some limitations on the documents that can used to shed light on an agreement and the best evidence is obviously the material themselves. The Courts have also said that in interpreting any instrument, especially industrial instruments, the whole of the context is really available to be considered.

PN205

Now, it may be that ultimately these documents are not admissible but that is not the test of discovery, discovery is a broader concept and one only needs to know whether they may shed light on the matter and perhaps lead to a train of inquiry to know whether they are properly documents that ought to be discovered.

PN206

THE COMMISSIONER: There is quite a - potentially a massive number of documents here and you are right, they all may shed light. Perhaps you are right in saying they all may shed light on it but they may not as well. We might end up having 500 documents and finding that six of those shed light on it and the other 494 don't.,

PN207

MR WEATHERILL: Yes.

PN208

THE COMMISSIONER: Now, is that still an appropriate way to go with discovery? And where do you draw the line between that and a simple fishing exercise?

PN209

MR WEATHERILL: Well, it is certainly not fishing. I mean, a fishing exercise as known to the law is an entirely different matter from an onerous discovery. A fishing exercise is when you don't know what you are looking for a you just, you are hoping that there might be something there. These are extremely specific requests for discovery. The sorts of things that are criticised are when one just calls for every internal memorandum for the period 1998 to 2000 hoping to sort of find something that you might be able to make some use of. That is not what is being sought here. We have a legal principle and we have documents that the cases have always regarded as relevant in these matters and we are just seeking to identify them.

PN210

Now, it is one of the burdens of litigation that when you are involved in it that you may have to comply with onerous discovery records. It is one of the sad facts of being involved in litigation. But that does not mean that the Commission shouldn't not insist on being informed about the whole picture, subject to limits. I mean, this is a jurisdiction that has to be exercised expeditiously and the Commission needs to take steps to ensure that the exercise does not blow out into a silly exercise but we have attempted to be very specific. This isn't a general order for discovery that is sought here, it is a very specific request for discovery. We say these documents are relevant.

PN211

It may be that there are steps that can be taken to protect the confidentiality of some of this material and perhaps the provision of this material in the first instance to the Commission, with it being released on a counsel to counsel basis, may provide a safeguard. We accept that some of this material may be commercially sensitive but if it assists you in determining this issue which I don't think is being contended is irrelevant, it is not suggested that this isn't an issue in the proceeding, then you really should be assisted by it and should insist that you are provided with the material.

PN212

Sir, only one thing I would say is that documents relating to the negotiation of the certified agreement of the Cowells Steel Enterprise Agreement, possibly document that more properly go to the exercise of discretion by the Commission should you be minded that the agreement applies.

PN213

THE COMMISSIONER: That is 1.11?

PN214

MR WEATHERILL: Yes, that is 1.11. Depending on how the Commission is minded to conduct these proceedings, it may be that that can be dealt with at a stage beyond the determination of the application of the agreement. But it would need to be dealt with at some point we would submit. I think - as I understand the matter, sir, our if you like alternative contention about whether there is an industrial action which is that the work is being performed in a manner from that customarily performed, is not a matter that initially you are proposing to deal with and so to the extent that 1.12 deals with those matters that is perhaps a matter that could also be deferred.

PN215

THE COMMISSIONER: Yes, I will note that.

PN216

MR WEATHERILL: Those are my submissions.

PN217

THE COMMISSIONER: Thank you. Mr Manual?

PN218

MR MANUAL: Commissioner. I don't think you need to have any fear that there will be 500 documents. My wild guess would be about 5000, there might be a few more than that but this is one of the most extraordinary attempts at fishing that I have seen for a while. It is not the best, there are worse but this is pretty wild. I think there are two things, two initial points to make. The first is that the current trend in respect of discovery is not to grant these all encompassing discovery orders. The Federal Court for instance, which of course is the Court which is under, well, part of the Workplace Relations Act is quite strict on discovery and if I could, and my apologies for not having a copy for you, refer you to Practice Note 14 of the Federal Court Rules. You will see that Black CJ has made it quite clear as to his views for these wide ranging discovery exercises.

PN219

Likewise, there is a decision of the Federal Court of Australia, in Finn J in Pasini, P-a-s-i-n-i v Vanstone, at (1999) FCA 1271, and that again at paragraph 30 discusses - - -

PN220

THE COMMISSIONER: What was the page again, sorry?

PN221

MR MANUAL: Sorry, 1272, sorry, page 15, 1271 is the reference, like the file reference and it is page 15 of 21, at least on my copy, but it is paragraph 30. Finn J discusses the role of Practice Note 14 and some of the limitation that it imposes. The second thing is that of course any order for discovery is discretionary and you need to look at the circumstances of the matter to determine whether a discovery order is appropriate. Now, in this case, you need to look, in our respectful submission at section 127 itself. I think my friend referred to it as a speedy remedy and we agree it is meant to be done quickly.

PN222

It is not typical litigation with all the formal processes. The way the matter is proceeding and this is no criticism of the Commission, is we might start with formal pleadings and then work our way through because we have got a notice to admit, we have got an extremely broad request for discovery and it is starting to make all the hallmarks of being in the Supreme Court or the Federal Court rather than the speedy remedy that is meant to be before this Commission, a section 127.

PN223

The fact is that it would be very rare to have a 127 matter that requires discovery. In most cases the parties turn up able to prove their case by the overt conduct of the other side. Now, in this case to prove its case apparently we have to go through this incredible discovery exercise. It is just, with respect, it is not appropriate. The applicants are unnecessarily complicating this matter. Surely, if they have made the application they would not have made it without being able to prove their case because that is what they have to do when they make an application, they have to be an approved jurisdiction whether there is industrial disputation, certified agreement, those three things. They have got to be able to prove there is industrial action and that is the basis of their application. If they can't prove it without discovery why are we here, why have they made the application in the first place. That is a question that I think should weigh somewhat heavily on your mind.

PN224

If I can deal with the specific requests I would note firstly that the transmission of business cases, the fundamental problem with using those for anything is they involve transmission from company A to company B. There is no such transmission in this matter. It is company A to company A. It is moving site. So a lot of those identity of the business are comparing A with B, not comparing A with A. So there would have to be great care. I suspect however that is probably more like an argument that we need to have if we get before you on the merits of the matter rather than the detail here.

PN225

If I could look at the request 1, and this is probably not a bad example of the problem. Documents relating to he work performed by and roles of all employees and executive directors at the Cavan Road site, and their roles or proposed roles subsequent to the vacation of the Cavan Road site. Firstly, there is not temporal limit. So this is basically the whole history of the work being done at the Cavan Road site. Secondly, it probably includes all training manuals, job orders, time sheets, I mean, it would not take much effort for someone who was actually familiar with the process, and I'm not, to come up with dozens of documents just under the heading alone. That just shows how wide it is but also it has nothing to do with the application.

PN226

What the role of the executive directors have to do with the application as it is before you is very difficult to see. Likewise, 1.2:

PN227

Documents relating to the decision to cease operations.

PN228

Firstly, I would note that they are more than likely there would be a number of documents which would be highly confidential. I accept what my learned friend says that appropriate orders could be made by the Commission to deal with those confidentiality issues so that is not a huge problem other than that I flag that it does need to be dealt with. But the point is there is no dispute that the operation ceased at that site, so why are we asking, or why are being asked to provide documents in respect of it. It does not make any sense. It has got nothing - these are all peripheral little things, what they are is the classic example of fishing. They might be of assistance, I think, was a phrase that my learned friend used. Of course they might, they might no either. There has got to be some more specificity about a request.

PN229

Documents relating to the transfer of plant and equipment howsoever described

PN230

and I must interpose there. I don't actually know what that means. This is another problem of the request, it is very difficult to comply with something which is difficult to interpret -

PN231

from the Cavan Road site.

PN232

Does that mean that all the documents in respect of the hiring of any trucks that were used, the engagement of any people to come and help move the trucks, perhaps the cost of any cranes that might have come in. I mean, that is an excessive request. It is far too broad. I might add that with the exception of 1.6, we say all of these are irrelevant to the application as it currently stands. It has got nothing to do with it. Now, 1.4:

PN233

Documents relating to customer and supply relationships, including customer lists, transfers -

PN234

I'm not sure what transfers of orders means -

PN235

order lists, invoicing arrangements and order documentation prior to and subsequent to the cessation of the activities at Cavan Road.

PN236

Firstly, that would be highly confidential, but again, that can be dealt with. Secondly, there are no temporal limits so for the whole of the operation of the business all the documents so letters to and from suppliers, invoices, order forms, transport documents, in terms of the transfer of things, perhaps even if the customer has been taken out for a bite to eat, on this request we would have to discover the invoice from the local restaurant. I mean, that just shows the nonsense of this request.

PN237

Documents relating to debts owed to or by the business -

PN238

I might note that that is a term that is not used anywhere else, so I am not sure what the business, is actually meant to mean -

PN239

previously operated at the Cavan Road site prior to and subsequent to the cessation of activities.

PN240

The fact that the business had debtors does not answer any question that is before this Commission. It is again irrelevant.

PN241

The documents relating to the transfer of the employees.

PN242

That may well be relevant on the basis of what is being asked but our understanding is there is no actual dispute on the point and in any event, the employees should have the documentation. But yes, that may be a matter that if it is more succinctly stated might be able to be dealt with. 1.7:

PN243

Documents relating to the trading names of the respondent, including applications for trading names, orders for the production of stationery, clothing, signage or other materials and any advice as to other entities about changes to trading names.

PN244

Again, the relevance issues reasonably important point in fact, very important, but where is the temporal limit. How long is this meant to be going back for. To be blunt, the fact that I can produce a piece of letterhead or some - a note to a stationer to say, please change our letterhead and here is the plates and here is the proofs and we have settled those. I mean, all those would have to be discovered, but the fact that I can prove a piece of letterhead, so what. It begs the question, what is its relevance.

PN245

Documents relating to the management and management structures of the Cavan Road site, the Mile End site, and the Regency site.

PN246

Again, no temporal limitation as to when they are actually talking about. Is it at the time of the move, after the move, before the move. It draws the distinction between management and management structures so does that mean that all management's personnel files have to be discovered, because there is no distinction drawn. Well, there is no explanation of the difference between management and management structures. If they are looking for an org chart, well, that is probably not so difficult to provide, even though it is probably not strictly relevant but because it is not a hard task, well, one would expect it is not a hard task, that could be done, but I don't understand the distinction there.

PN247

We have already talked about the Media Trade Association customer networks, clearly relevance is in issue and also the phrase which appears in 1.10 as well:

PN248

And any relationship that may have to the Mile End and Regency site.

PN249

Firstly, that is not actually a sentence so it is impossible to interpret accurately, but what does it mean, "relationship to Mile End" what relationship? You can't comply with a request which is unable to be understood. The same applies to 1.10, although at least with 1.10 you can see the point that is being made in respect of the representations, putting aside the jurisdictional issue, you can see the point that is being made about the representations. The only response we would say to that is, well, that should already be in the possession of the employees. 1.11, well, we don't accept what my learned friend says in regards to the interpretation of the legal document, but in any event, those documents should be in the possession of the union, one would have thought.

PN250

1.12 I think, I am not quite sure why, my learned friend perhaps has interpreted the matter slightly differently to me, but 1.12 I think he said that he had put that away for once for a time. I'm quite happy to do the same but again, there is a clear question of relevance there. What we say about this application is have regard to the nature of 127 which is meant to be a speedy resolution of the matter and noting that this was filed back in January. Having regard to the fact that when they came here making their application they should have been in a position to prove their case as it there is no basis for making a discovery order.

PN251

You should decline to make a discovery order. The nature of the request is so broad that we will be here for weeks if not months trying to sort through these documents. Really, we should be getting on with this matter subject to your decision on the judicial power issue. If you find that there is jurisdiction then we should be getting on perhaps next week for the hearing, or the week after, not bogging us down for, you know, weeks and weeks, waiting for something that we would say is an utterly futile exercise of discovery, may it please the Commission.

PN252

MR WEATHERILL: Well, taking the last point first, we are happy to have the matter called on as quickly as possible. All due haste should be made to deal with this issue, we accept that. As for the point about whether we should be in position to prove our case, I don't quite understand the point that is being made. This is a discovery process which is about just elucidating all the material that may assist the Commission in making a decision. We can prove our case. We are happy to run our case. If these documents are produced we will be making a submission under Jones v Dunkel that these are documents within the possession, power and control of the employer and their failure to produce them means that they must show something adverse to their case.

PN253

MR MANUAL: That is not what Jones v Dunkel said.

PN254

MR WEATHERILL: We will be making that point against the party that refuses or fails to produce material which seeks to rebut the evidence that we will be given. The workers will be giving evidence about productive processes and what is happening at the site. But this is material that would assist the Commission in deciding these questions. But the employer needs to be on notice that we will be saying the failure to produce this material should lead to an adverse inference being drawn against them. Be that as it may we are content for the matter to be called on quickly.

PN255

We are happy of course to limit these requests temporarily to times which are clearly relevant, that is shortly before the transfer, and since the transfer. That is only sensible. To the extent that there is any language which is unclear those are matters that could be settled but we really would like to get on with these and documents could be produced. If there is any doubt about what needs to be produced they could be withheld or sent to the Commission or further discussion in correspondence could occur. I mean, a practical approach should be taken to these matters. So those are our responses.

PN256

THE COMMISSIONER: Thanks, Mr Weatherill. I think both parties, that concludes the submissions in what we needed to cover today. I want to thank both parties for their very clear submissions. Obviously in all section 127 matters there is a provision in the Act which says that we must deal with them speedily. I can assure the parties I will be giving my urgent consideration to what are very important matters and be getting back to the parties just as soon as I possibly can. I will be ordering a copy of the transcript tomorrow for parties who, if you were wanting to have a copy of that as well. I think until then we have got some consideration to do.

ADJOURNED INDEFINITELY [3.46pm]