C2001/4450, Transcript of Proceedings [2001] AIRCTrans 2818 (19 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 0550
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER HOLMES

C2001/4450

APPEAL UNDER SECTION 45 OF THE ACT
BY AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION AGAINST
THE FINDING AND ORDER OF COMMISSIONER FOGGO AT
MELBOURNE ON 16 AUGUST 2001 IN C NUMBER 2001/4156
RE APPLICATION TO STOP OR PREVENT INDUSTRIAL ACTION

MELBOURNE

10.06 AM, WEDNESDAY, 3 OCTOBER 2001

PN1

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union together with M. SOLLY.

PN2

MR G. PELS: I appear for the Australian Industry Group on behalf of our member, Pivot Limited. Appearing with me on behalf of the company is MR D. O'SHEA and MR W. ELMER.

PN3

VICE PRESIDENT ROSS: Thank you, Mr Pels. Mr Addison, can I just - just before we get under way, I had a couple of things I wanted to raise with you to test my understanding of what took place below and, in fact, what has taken place since. As I understand it, your case below was this, that industrial action by the company was threatened and probable and the industrial action was said to be the company's stated intention of making one of three fitters in the maintenance area redundant.

PN4

MR ADDISON: That is correct.

PN5

VICE PRESIDENT ROSS: I think it is Messrs Brown, Eastwick and Aitchison.

PN6

MR ADDISON: Yes, that is correct.

PN7

VICE PRESIDENT ROSS: And you argued the company's action was in breach of the Pivot agreement. As I understand what was put, it was in breach in two senses, on your submissions, that there was no agreement before the change was introduced, so it was in contravention of clause 9(d) and there was no redundancy within the meaning of appendix A to the agreement.

PN8

MR ADDISON: Well, I think - in terms of that there are basically two limbs to that. First of all - may be even three - first of all there is clearly a redundancy agreement.

PN9

VICE PRESIDENT ROSS: Yes.

PN10

MR ADDISON: It is attached to the certified agreement now and it was effective from 1 April. So in my submission, it - - -

PN11

VICE PRESIDENT ROSS: Well, I will come back to that issue.

PN12

MR ADDISON: Yes, I understand there were some complications with regard to that matter and there has certainly been some attempts at investigation this morning with regard to that matter as well. But it is a certified agreement. It displaces the redundancies provisions of the Metal Industry Award, in my view, because it is comprehensive.

PN13

VICE PRESIDENT ROSS: Yes.

PN14

MR ADDISON: So it displays the provisions that exist in the parent award. Therefore, that is the instrument for any redundancies that may occur. Secondly, there is no provision within the redundancy agreement for compulsory retrenchments in any event. No provision at all. The redundancy agreement, in terms of appendix A, deals only with voluntary redundancies. The body of the enterprise agreement on the question of redundancy refers to appendix E. Therefore, the only instrument available for redundancies is the redundancy agreement, that is, agreements in the appeal book and it is the first document behind the last tab.

PN15

VICE PRESIDENT ROSS: Okay, so it is both, there was no redundancy within the meaning of the appendix and in any event there was no power to compulsorily make someone redundant.

PN16

MR ADDISON: Retrenched. Yes. And we say, and we said at point - - -

PN17

VICE PRESIDENT ROSS: Did you argue that point below, the compulsory - no compulsory redundancies?

PN18

MR ADDISON: Yes, we did. I think it is reflected in the transcript, but certainly the focus of our argument was the context of the document itself and the focus of our argument was that the definition page, if you like, had to be read in its entirety. The definition governed the next paragraph - it is talking about the governing factor being the ..... required. We said that was governed by the paragraph above the definition, which said the agreement shall have effect only when it is agreed between the parties. That circumstances of the termination made are such that the redundancy situation exists within the terms of the definition.

PN19

VICE PRESIDENT ROSS: Yes. No, no, I have read the transcript and I certainly recall the argument about no redundancy, because the work was being required to be done by somebody. And in support of that contention, you relied on exhibit A1, Mr Brown's diary, and the evidence of - or the existence of what you say are significant amounts of overtime.

PN20

MR ADDISON: Yes.

PN21

VICE PRESIDENT ROSS: What I cannot recall is an argument that there was no power to make someone compulsorily redundant.

PN22

MR ADDISON: I think it is there, your Honour. I would need to check.

PN23

VICE PRESIDENT ROSS: Look, I do not doubt it.

PN24

MR ADDISON: Mr Pels certainly made reference to consultation, etcetera, and I think we - - -

PN25

VICE PRESIDENT ROSS: Yes, he did.

PN26

MR ADDISON: - - - refuted that argument and said, well, that is not - - -

PN27

VICE PRESIDENT ROSS: Yes. Consultations - no, I acknowledge you ran an argument on that point. That was in relation to 9(d). What I am trying to focus in on is an argument that was put about - well, the Pivot agreement does not provide or, in fact, proscribes compulsory redundancies.

PN28

MR ADDISON: I do not know that was put in that clear a sense, but I think certainly that was - that was the proposition we were putting. May be I was not clear in terms of the words I used with regard to that proposition, but I think it is certainly inherent within the terms of the argument put that the agreement itself does not allow for compulsory retrenchments. The only instrument is the instrument referred to, the redundancy agreement, and that is clearly voluntary only. In terms of the reference to the flight engineers, I guess that is probably the best way to explain it. In terms of the flight engineers, if you recall the decision of Commissioner Nolan with regard to that matter, there were certainly assurances and guarantees given to people.

PN29

VICE PRESIDENT ROSS: In fact, they were in an award - well, it was deemed to be an award previously as an agreement of the flight officers - - -

PN30

MR ADDISON: Yes, that is right and in my submission, an agreement is as binding on the company as an award in any event.

PN31

VICE PRESIDENT ROSS: Yes.

PN32

MR ADDISON: So it is an order of the Commission. In that sense, what we were saying was, if you look at the context of the enterprise bargaining agreement and its appendix, including the redundancy agreement, then implied from that, assurances have been given to people. Those assurances have now been broken and I relied on Commissioner Whelan's decision with regard to the flight attendants to re-enforce - to shore up that point, if you like.

PN33

VICE PRESIDENT ROSS: Can I go to two other matters. What has happened since the Commissioner's decision or perhaps I should direct this at Mr Pels?

PN34

MR ADDISON: Well, that really does take us to a critical point, your Honour. The company did make a person redundant. That person happened to be the shop steward and happened to be Mr Brown, who was present at the hearing below. Mr Brown is back on the site as a contractor, but he has been made redundant from Pivot.

PN35

VICE PRESIDENT ROSS: Okay. That brings me to - I mean, I understand you might want to put some merit submissions in relation to that, but one thing that has been troubling me about the appeal is if we found that you were - or we found there was force in your submissions, that there was an error, we quash the Commissioner's decision. Let us assume that for the moment. I am not suggesting that is a view that myself or anyone else would form, but where does one go then?

PN36

MR ADDISON: Well, your Honour, we did try every mechanism in armoury, if you like, to keep Mr Brown employed until we got to this point.

PN37

VICE PRESIDENT ROSS: Yes.

PN38

MR ADDISON: Certain actions were put into place. We launched a section 99. We went through various consultative processes with the company to try and convince the company that the status quo should be maintained until this appeal was heard. That was unsuccessful. Mr Brown has gone. My argument would be, however, that the bench, as currently constituted, has the power to quash the decision and has the power to substitute another decision in its place.

PN39

VICE PRESIDENT ROSS: And what would that be, to issue a 127 order?

PN40

MR ADDISON: To issue a 127. Clearly, the work that Mr Brown was doing - - -

PN41

VICE PRESIDENT ROSS: No, let us - I do not want to go into the merit of why we would do that. Let us just look at doing that.

PN42

MR ADDISON: I think you are looking at remedy, are not you?

PN43

VICE PRESIDENT ROSS: Yes, yes. The concern - and that is really what has prompted me to raise it with you, the concern that gives rise to is this that, in effect, the only way - it would not necessarily bring about Mr Brown's reinstatement. It would expose the company retrospectively to a penalty, in circumstances where they were operating on the belief that there was no 127 order against them. Let us just turn the tables for a moment. If your organisation was on the other side of the bar table and the company had below sought a 127 against the Metal Workers Union for conduct it was taking or alleged to have been taking, the appeal bench found that the member was in error, then you would continue to take or your members would continue to take the same action it had been taking.

PN44

Perhaps a member below felt that the action did not attract the illegitimacy that might warrant a 127 and the Full Bench took a different view, and they made an order retrospectively, thereby exposing your organisation and its members to a penalty in circumstances where you were acting consistent with the Commission decision in a way that you believed was lawful. It just - look, I appreciate that it does - that problem creates an issue about - and perhaps it is something we learned from this or you may persuade us - that is, of course, if we found that you were correct on the appeal, that we should go down any way, but it seems to me that it might have some unforeseen consequences for your organisation, but on the face of it it seems manifestly unfair.

PN45

And in circumstances like this one where it is not going to - it may mean the company is exposed to a penalty, but it is not necessarily going to do anything directly for Mr Brown. There are other options that are available or were available, I guess, and that would be to seek injunctive relief in the Federal Court, but, you know, we are here and that is - that, I guess, is one of the issues that is concerning me. The other is this question of the certified agreement and I might put that to you and then you can deal with both. I apprehend from what you said earlier that, well, look, I understand the position to be that - well, we certainly - our inquiries have not revealed any certificate certifying the 2000 agreement.

PN46

In fact - indeed, we cannot even find a record of an application. I understand the parties position is that they have no documentary material that they are able to put forward, suggesting it has been certified.

PN47

MR ADDISON: That is correct.

PN48

VICE PRESIDENT ROSS: As I apprehend, your argument, Mr Addison, is that, well, leaving that aside for a moment, there was an agreement that was in force at the time. A difficulty with that is that, if you like, it imputes knowledge to the Commissioner. It was certainly put to her that there was the 2001 agreement, which was in essentially the same terms and it was due to be certified shortly.

PN49

MR ADDISON: That is correct. We proceeded initially and I think it was common ground between the parties, we proceeded on the belief, genuinely held belief, I think, by Mr Pels and yourself that the 2000 agreement had, in fact, been certified.

PN50

VICE PRESIDENT ROSS: Yes, I think the difficulty that arises is is 127(1)(c), I think it is, talks about it is a breach of an award or a certified agreement.

PN51

MR ADDISON: Yes, that is right.

PN52

VICE PRESIDENT ROSS: And in those circumstances, on its face, the Commissioner would have had no jurisdiction to deal - to grant your order because there is no certified - accepting the rest of your arguments, if they were all correct and there was, indeed, a breach of the agreement, there still would have been no jurisdiction to issue the 127, because the agreement had not been certified. I appreciate that is - I am not seeking to suggest that you are at fault or in error or anything like that. As you say, everyone seemed to be proceeding on the basis that it was certified and in the normal course that would not be an unusual circumstance. Your organisation certainly is party to many agreements and given that the most recent one was coming up for certification, it would not be unnatural to assume that the previous one had been certified.

PN53

But it seems to me that on the material before the Commissioner, at that time, even if we accept that she made an error in relation to the characterisation of the agreement, the nature of the redundancy, the consultation, assume all that is right, there still would not have been power.

PN54

MR ADDISON: Well, I understand the point you make, but there was an agreement between the parties. It may not have been certified. There was an agreement between the parties and there was quite clearly a regime in place between the parties and understood between the parties, for dealing with the question of redundancy.

PN55

VICE PRESIDENT ROSS: That may go to the issue of whether any other orders might have been available or it may go to a moral obligation or, indeed, an industrial one. But in terms of 127, 127(1)(c) is quite specific and you were arguing that it was 1(c) that was activated and that it was that the industrial action was threatened, pending and probable in relation to work that is regulated by a certified agreement.

PN56

MR ADDISON: Or an award.

PN57

VICE PRESIDENT ROSS: Yes, that is true.

PN58

MR ADDISON: Now, the Metal Industry Award is still an award that is binding on the parties. The parties are respondent to the Metal Industry Award. The work is regulated by the award.

PN59

VICE PRESIDENT ROSS: Yes.

PN60

MR ADDISON: The award does contain at 4.4, I believe it is - yes, 4.4, a prescription for redundancy. Admittedly, that prescription allows compulsory retrenchments, as well it allows voluntary retrenchments. But the understanding on the ground between the parties, if you like, and the clear position between the parties, was that the only redundancies available at the plant were voluntary redundancies. And that was done by agreement between the parties to the extent that in the hearing, my instruction from the organiser, and I have got the organiser with me this morning as well, my instruction from the organiser was, yes, the agreement was certified.

PN61

The organiser was of the view that it was certified. Mr Pels had management from the plant, where I am sure Mr Pels was acting under instructions, too, and there was certainly no contest as to whether the agreement was certified or not. We both proceeded on the basis it was.

PN62

VICE PRESIDENT ROSS: Look, I suppose in once sense, given that the paragraphs 127(1)(1), (b) and (c) are in the alternative, it probably was not a question of jurisdiction, because an argument could have been mounted there was an industrial dispute between the parties. But the - it still would have been relevant.

PN63

MR ADDISON: But I do not see that as a jurisdictional hurdle, your Honour, because the metal industry award is an award of the Commission, therefore, the jurisdiction. It would still be there.

PN64

VICE PRESIDENT ROSS: No. Well, in one sense, it would not matter whether they were bound by the Metal Industry Award, provided there was an industrial dispute.

PN65

MR ADDISON: Turning to the other question that you pose.

PN66

VICE PRESIDENT ROSS: Yes, the remedy.

PN67

MR ADDISON: In terms of injunctive relief in the Federal Court, I guess there are a couple of problems with regard to that. One is obviously a resource problem for organisations like mine with limited resources. Running off to the Federal Court is something that is carefully considered, given the cost implications, etcetera, with regard to that course of action. So that is one issue. The other issue is, of course, that in terms of the normal process, we would apply to the Commission for the order. We have been critical of e-mail metering recently, where they applied for a 127. We argued it was not appropriate. Commissioner Hingley found in our favour. They then ran off to the Federal Court.

PN68

We were critical in front of Kenny J a couple of weeks ago with regard to that and argued, well, hang on, that is really an abuse of process. The appropriate process is, in fact, to appeal the decision at first instance within the same Tribunal. Now, while Kenny J did not make any formal findings with regard to that, she certainly questioned the company carefully with regard to that matter. From my point of view, I think the correct process is, in fact, to appeal at first instance.

PN69

VICE PRESIDENT ROSS: I was not suggesting that you necessarily leap off for injunctive relief after you have been unsuccessful in the 127. I am suggesting as an alternative to the 127.

PN70

MR ADDISON: As an alternative, we could have certainly gone down that track, your Honour, but given the circumstances - - -

PN71

VICE PRESIDENT ROSS: Given it - to enforce the 127, you have to go to the Federal Court any way.

PN72

MR ADDISON: Well, that is true. That is true. But usually once a 127 is issued from this place, the parties certainly are under a great deal of pressure to sit down and reach a resolution, and I guess that was our hope with regard to a 127, that that would force the parties to sit down and come to some resolution. As I say, the work that was currently being done by Mr Brown is still, in fact, being done by Mr Brown. He is doing exactly the same work, only he is working as a contractor instead of an employee. In those circumstances, we presume that with the pressure of a 127 order, there would be an impetus to reach an agreement. And we were certainly confident that that would be the case, had the order issued. Unfortunately, it did not.

[10.27am]

PN73

And I think that is an important issue that - I understand that the company would be subject to a penalty. I am reluctant to put anything on that question, only on the basis that I think it would be appropriate for Mr Pels and I to have a discussion with regard to that before I respond to that.

PN74

VICE PRESIDENT ROSS: Certainly.

PN75

MR ADDISON: Because I think it is a seriously important question.

PN76

VICE PRESIDENT ROSS: Yes, because - well, it occurs to me, what is good for the goose - - -

PN77

MR ADDISON: Exactly.

PN78

VICE PRESIDENT ROSS: Well, I wonder with that - would it be appropriate we adjourn for 15 minutes?

PN79

MR ADDISON: 15 minutes or so. I think that would be - - -

PN80

VICE PRESIDENT ROSS: You may wish to discuss - given the other sort of elements that have come to light, if you like, one being the fact that it appears that the 2000 agreement was not certified, that may cast a shadow over the issue as well and whilst I understand what you say now about the question of now power to make or provide for compulsory redundancies, it is still not apparent to me that that was put in at least those terms. It may be an inference you could draw from it, but certainly when I read it, I did not get - I understood clearly what you said about the breach of 9(d) and what was said about the genuine redundancy question.

PN81

And there was a reference there to contractors, to the overtime that was being worked and all those circumstances. It could not be said that no-one was required to do the work. But I did not pick up the other issue.

PN82

MR ADDISON: I will have a look at the transcript, your Honour, and try and point you to where I think I said what I think I said.

PN83

VICE PRESIDENT ROSS: Well, we will adjourn until a quarter to.

SHORT ADJOURNMENT [10.30am]

RESUMED [10.56am]

PN84

MR ADDISON: Your Honour, turning first of all to the question you have posed with regard to remedy. I agree with what you put, that a retrospective order in these circumstances would be manifestly unfair and it would be manifestly unfair in both the situation we face today and in a hypothetical that you pose with regard to a group of workers who might be taking industrial action and think they are doing that according to the book, if you like. And it would be manifestly unfair. I had a discussion with Mr Pels and I put a proposition to Mr Pels.

PN85

The proposition I put was this. At the end of the ..... he is happy. Should the bench find in our favour to give an undertaking not to pursue any penalty retrospectively, and that the parties industrially look at a remedy, ie, reinstating Mr Brown, who is working on the site as a contractor currently. Mr Pels has rejected that. I put to you this, that if in the hypothetical you pose a group of AMWU members have taken industrial action, the employer applies for a 127 and is unsuccessful. The employer is then overturned - sorry, the union is then overturned at appeal, the normal course of action would be that a prospective order would issue.

PN86

You would not see the work as you have been in breach for the last three weeks while you have been waiting for the appeal, you would see the work as you have got 24 hour to stop what you are doing. This order will come into force tomorrow. In exactly the same way, I would suggest that the remedy - that remedy would be appropriate in these circumstances. If the bench was to find in favour of the AMWU in this particular instance, a prospective order could issue to the company, but says the to the company you will be in breach of this 127 order, should you continue to treat Mr Brown as redundant.

PN87

Now, obviously that would have to be a somewhat more lengthy brief than 24 hours. In the case of industrial action, it is a question of convening mass meetings and convincing people that they have been in breach of the provisions of the Act and workers all generally respond as they respond within that period of time. In these particular circumstances we are looking at effectively a reinstatement of a person and there would be obvious administrative functions that need to be done with regard to complying with a prospective order. So a prospective order might if he is not reinstated next week or within a fortnight or whatever is a reasonable period of time, the bench as currently constituted believes and subject, of course, to any submissions that Mr Pels may want to put with regard to that proposition.

PN88

So in terms of remedy we think that gets over that manifestly unfair situation that you put. We think that is a fair and reasonable and industrially practical way forward. With regard to the second question, your Honour, and that is the question of whether the argument was raised about the terms of the redundancy agreement, I would refer the Commission to paragraph number 52 and I have got to say, your Honour, it is inferred rather than put. The second reference I will take you to might explain that a bit, but the first reference is paragraph number 52, where I said:

PN89

Certain guarantees have been given to employees by the enterprise bargaining agreement and via the redundancy agreement in terms of job security.

PN90

And, clearly, there I was referring to the redundancy agreement on its provisions. With regard to the next reference, it would be paragraph number 126. I went through the issues of clause 9 in that paragraph. I was then moving on and I said at the last sentence of paragraph number 126:

PN91

The workers there, once again, their redundancy agreement - - -

PN92

Then I got chopped off. That is where the argument should have been put. Finally, paragraph number 2 or 3, in the middle of paragraph number 2 or 3. It is on the fifth line, after the comma:

PN93

The redundancy agreement, which quite clearly and specifically sets out the criteria for redundancy is a reference to the agreement generally.

PN94

And finally, the penultimate line:

PN95

The redundancy agreement under definition on the first page in the preamble is.

PN96

So I was referring to the agreement in a broad sense, rather than just a definition. I was trying to refer to it in a broad sense, rather than just a definition. As I say, it is inferred rather than put. It certainly was intended to be put and may be it was not as clearly as it should have been.

PN97

VICE PRESIDENT ROSS: If we all had the benefit of hindsight, Mr Addison.

PN98

MR ADDISON: Sorry?

PN99

VICE PRESIDENT ROSS: If we all had the benefit of hindsight, I am sure there would be plenty of things we - - -

PN100

MR ADDISON: Absolutely, absolutely.

PN101

VICE PRESIDENT ROSS: So what do I - do I understand that the remedy you would seek would be a prospective 127 order?

PN102

MR ADDISON: Yes.

PN103

VICE PRESIDENT ROSS: And what industrial action do you say is taking place at the moment?

PN104

MR ADDISON: Well, there is none and - of the TMP decision of Senior Deputy President Williams with regard to that matter, but this is an appeal bench and it is looked in - - -

PN105

VICE PRESIDENT ROSS: I think we are still bound by the Act.

PN106

MR ADDISON: I accept that, but it is looking to review the decision made below, which was a decision taken when the jurisdictional pre-requisites we say were quite clearly in place. Quite clearly. We, as I said earlier, have sought - and Mr Brown was reinstated for a period. It was only three full weeks after the decision.

PN107

VICE PRESIDENT ROSS: So the argument is that the jurisdictional prerequisites for the 127, whilst not in place now, were in place when the matter was before Commissioner Foggo.

PN108

MR ADDISON: Yes.

PN109

VICE PRESIDENT ROSS: And on that basis the order should be issued now prospectively, the effect of which would be if the company continued to treat Mr Brown as redundant, then they would be in breach of the order.

PN110

MR ADDISON: Yes, that would be our proposition.

PN111

VICE PRESIDENT ROSS: Okay. Has Mr Brown sought relief under 170CE?

PN112

MR ADDISON: Application has been made under 170CE, yes, and that was an exercise to make sure that his options were not limited and that was done after.

PN113

VICE PRESIDENT ROSS: No, no, I do not raise it as a criticism. It was more trying to ascertain where the matter was up to at the moment.

PN114

MR ADDISON: Yes. With that said, your Honour - - -

PN115

VICE PRESIDENT ROSS: I think your grounds set out what you are alleging the error was below and it is essentially the findings and the conclusion. You say that the Commissioner was in error in characterising this redundancy or proposed redundancy, together with the previous 14.

PN116

MR ADDISON: Yes and we say they were on the basis of the agreement itself, your Honour.

PN117

VICE PRESIDENT ROSS: Yes, erred in finding that the redundancy agreement - well, her observations at paragraph 215 and I guess more generally that she erred in finding the company not breached the terms of the EBA. And those are the matters I referred to earlier. Not breached in terms of - I think you have advanced three limbs. The no agreement for change was introduced system with 9(d). No redundancy and no power to provide for - - -

PN118

MR ADDISON: To compulsorily retrench. Again, in terms of the jurisdictional prerequisites, I think relying on the decision of Commissioner Merriman and Commissioner Whelan.

PN119

VICE PRESIDENT ROSS: Yes.

PN120

MR ADDISON: I think - and I can hand those up if that assists.

PN121

VICE PRESIDENT ROSS: I have that, but if you have - - -

PN122

MR ADDISON: I know Mr Pels has got copies, because I gave them to him, but I am happy to hand up a copy of each, if that assists.

PN123

VICE PRESIDENT ROSS: Certainly, thank you. Can never have enough Commission decisions.

PN124

MR ADDISON: It saves me carrying them all the way back to Elizabeth Street, your Honour. I do not intend to go through them. I presume the bench is pretty familiar with the decisions and with their contents and it is pretty much described in transcript in any event, your Honour. Relying on those authorities, we say the jurisdictional prerequisites are clearly there. Commissioner Foggo did refer to a decision of yours, your Honour, in her ex tempore decision and that is the Patrick Stevedores number 1. I do not know whether - and that basically deals with the jurisdictional issues first, obviously, and then there is discussion at page 247 with regard to the issues to be taken into consideration with regard to the exercise of the discretion.

PN125

On 247 you say, your Honour, the conduct of the parties is an issue that ought to be considered. Now, whilst this was not advanced at first instance and, your Honour, I would say there is good reason why that was not advanced at first instance. Your Honour is obviously familiar with the transcript. There was nothing more than basically submissions from the bar table by myself and Mr Pels. There was a proposition put by Mr Pels that the matter should be put onto a more formal footing. We were happy to comply with that. In fact, I think both Mr Pels and I suggested that evidence ought to be given with regard to the matter, but that did not happen.

PN126

And, once again, this is an assertion from the bar table, I guess, but in terms of what the Commission as currently constituted does have in front of it, it is clear that there were negotiations for a new enterprise bargaining agreement only a couple of months prior to this event occurring. The agreement negotiations occurred in June/July with regard to a new enterprise agreement for Pivot. It would be our submission that if Pivot is contemplating a restructuring, it would not have done it in a week. It would not have done it in a day. These sorts of things take time and there would have at least been a contemplation in the mind of the employer, at the time of negotiating the new enterprise agreement, that there was at least a good chance of some sort of a restructure, a very short period down the track.

PN127

That matter was never raised during the course of those negotiations. The new enterprise bargaining agreement, which is dated 28 June, 2001 and which was certified, I believe, in September is in exactly the same terms as the previous agreement. 9(d) still exists in the new agreement. The redundancy agreement as displayed in the appeal book is exactly the same. Not a single word has changed. In fact, the same typographical error in the redundancy agreement exists in the new certified agreement. So these issues were not raised in any sense with the employees or with the union at a time when there clearly must have been in the contemplation of the employer.

PN128

We say that is conduct which ought to have led the Commission to a conclusion that the action was illegitimate. The second issue is the issue of the dispute settling procedure and once again that is another issue that you raise with regard to the Patrick's issue. And you say that compliance with a dispute settling procedure is a critical issue that needs to be dealt with. Now, the Commission found, as a matter of fact, that the dispute settling procedure had been complied with. We say even on the submissions put from the bar table without an evidentiary base, it was not open to the Commission to find that or what was put.

PN129

It was clearly put to the Commission from both myself and Mr Pels that this was a plan by the company to change its work force. It was a plan by the company pursuant to clause 9 of the enterprise agreement. I will just turn to that, your Honour. And it was pursuant to clause 9(b) of the agreement. It was clearly a change to the human resource allocation, which is referred to in clause 9(b). With regard to 9(c) that governs any matter related to workplace change generated by either the company or the union and then at 9(d) is the key issue of consultation and agreement prior to implementation of the change.

PN130

Commissioner Foggo referred then to 9(f) of the agreement, which talks about failure to agree or failure to reach agreement and the matter shall be dealt with through the dispute settling procedure. Now, we say on the assertions put, it was not possible or should not have been possible for the Commission to come to a decision if the dispute settling procedure had been followed in the context of the enterprise agreement, because the dispute resolution procedure requires, first of all, discussion between the parties to try and resolve the matter. And in the absence of resolution at sub (d) of the dispute settling procedure, which is clause 16 of the agreement, it says:

PN131

Emphasis shall be place under negotiation settlement, however, if the negotiation process is exhausted ...(reads)... in resolution of the dispute.

PN132

Now, on what was put, it is clear that that did not occur. What occurred was that there was a proposal by the company. The union said, no, we do not agree. There was some discussion. The company then unilaterally imposed its decision to terminate. It went ahead and sought a process of selection and it then told the union it was going to terminate. Now, we say that is a complete contradiction of the dispute settling procedure at that subclause I have just referred you. And if the boot was on the other foot, if the boot was on the other foot, the employer would be in here screaming that the AMWU or the NUW or the CFMEU or whoever it might be, is not complying with the dispute settling procedure.

PN133

They have put a proposal. We do not agree. They are taking action. That is wrong, they would say, and we say in exactly the same circumstances in this case, the employer took the action without following the dispute settling procedure. With regard to your comments - with regard to that matter following on at page 248, you talk about the objects of the Act supporting that approach and you refer specifically to object 3(e). Of course, 3(e) is that the parties comply with agreements that they have reached between themselves. And we say in terms of the agreements between us, the AMWU did comply with the agreement in absolute terms.

PN134

It is the employer that has walked away from; one, the redundancy agreement provisions; two, the definition in the redundancy agreement provisions; three, the facilitation of chance provisions in the EBA and; four, the dispute settling procedure at clause 16. So we say in all of the circumstances, the Commissioner should have exercised her discretion and a 127 should have issued in line with the authorities, the three authorities, I guess, that are put forward this morning. I do now know there is anything more that I need to put, unless the bench has got any questions with regard to that.

PN135

VICE PRESIDENT ROSS: Thank you, Mr Addison.

PN136

MR ADDISON: If the Commission pleases.

PN137

VICE PRESIDENT ROSS: Mr Pels.

PN138

MR PELS: Yes, thank you, your Honour. The company certainly supports the decision of Commissioner Foggo and I note with interest at point 3 of her decision, she indicated that this was issues which arise from the application or matters that are more appropriately dealt with through a section 99 application. In fact, the company did follow the disputes procedure. In fact, it did bring the matter before Commissioner Foggo. The company did adjourn for further discussions, so we strongly refute that any assertion that the company unilaterally terminated Mr Brown's employment, in actual fact, Commissioner Foggo implied that that is the path or process the company should follow.

PN139

It did not proceed with the redundancies. He brought the matter before the Commission. The matter was adjourned for further discussions. A skills matrix and procedure and process was advised to the union. They certainly were not happy with the decision, but it was done strictly in accordance and, in fact, Commissioner Foggo at point 3 said that the person who was selected to be made redundant could pursue an unfair dismissal claim pursuant to section 170CE. So Mr Addison is agreeing with Commissioner Foggo. That is exactly what they did. They pursued an application under section 170CE, however, we say the 127 application, really, is a de facto unfair dismissal claim.

PN140

In fact, they are seeking to have two bites of the cherry. Now, that is manifestly unfair in its application. What Mr Addison is attempting to do here is to say, well, the use of the Commission's powers under section 127 to reinstate him, if we do not win there, it is okay, we will apply under 170CE. We will have two bites of the cherry. So we say that is manifestly unfair and inconsistent with the Act and the objects of the Act. Now, we believe that Commissioner Foggo will support her reasons and her decision in point 4 of her decision and the principles in regard to Coal and Allied operations, that is, she used the principles in regard to determining a section 127 and those principles were used and we agreed.

PN141

And the union sought to rely on clause 9. I am talking about introduction of change. And where there was an agreement, the disputes procedure was to be invoked and that is exactly what happened. And Commissioner Foggo then made that decision and said that - well, it can rely on section or clause 9 of your EBA or agreement, then the matter is quite rightly brought before me.

PN142

COMMISSIONER HOLMES: Mr Pels, did the section 99 notification occur after this decision by Commissioner Foggo in relation to the 127 application. I suppose what I am putting is did the company consider this to be - this decision to be a recommendation and it followed the steps that were contained in it?

[11.20am]

PN143

MR PELS: If I could just have a moment, Commissioner. Yes, Commissioner, it was made after the application of the 127.

PN144

COMMISSIONER HOLMES: After the decision of the Commissioner?

PN145

MR PELS: No, no, it was after the application. It was brought forward. Now, the redundancy agreement which currently applies, the company disagrees with the interpretation of the AMWU and that the intention was never that if there was any forced redundancies, then there would have to be agreement between the parties. Now, that is one interpretation that Mr Addison has put on it, but that is not the intention of the company when putting together the agreement, because that simply would mean that unless the union agrees, whether there is a genuine redundancy there or not, unless the union agrees, there never would be a forced redundancy and the company's submission is that it was never the intention for that to be the interpretation placed in the agreement.

PN146

More appropriately, if that was in dispute and the union could quite appropriately take that to the Federal Court for an interpretation. It is the appropriate jurisdiction for that. So the company asserts quite strongly that that was - that is not the intention of the appendix or redundancy agreement. Notwithstanding that, the company in line with the definition, has quite rightly said that they now want the work being done previously with three fitters requires is now being done by two. And that is what is currently applying. And that Mr Brown is doing some work for contractors, but only during the shut down period. So that will only apply for a couple of weeks.

PN147

So the reality is that the maintenance work done by the AMWU members is now being done by two, not three as previously done. Now, Mr Brown was terminated on 10 September and, interestingly, the hearing to hear his unfair dismissal claim was on the following Tuesday the td, the next day on the 11th, heard before conciliator, Mr Hastings, in Warrnambool, and - - -

PN148

VICE PRESIDENT ROSS: That is a pretty quick response time.

PN149

MR PELS: Well, in actual fact it was - yes, the application, the union was sort of seeking to have 50 cents each way. Whilst the appeal, as your Honour would be aware, that the appeal was lodged, but the union sought to delay it for a month and I think the reason for that was so the unfair dismissal claim could be then heard. The union sought to delay the appeal. Their 127 appeal would have been heard some time in September. My understanding - - -

PN150

VICE PRESIDENT ROSS: When was the appeal lodged? I am just not aware of any application to delay the appeal.

PN151

MR ADDISON: Your Honour, the appeal was lodged on 27 or 28 August. It stated the 27th. It was lodged either on that day or the following day.

PN152

MR PELS: Yes, August. And the telephone conversation I had with someone at the Commission was that the union sought to have this hearing delayed for a month and that was - with due respect, I think it came from your office, your Honour.

PN153

VICE PRESIDENT ROSS: Yes. You mean today's hearing delayed for a further month?

PN154

MR PELS: Well, the intention was to have it heard as quickly as possible, but my understanding was that at the request of the AMWU, the appeal would not want to be brought on until October. In fact, the matter was going to be brought on in September.

PN155

VICE PRESIDENT ROSS: I think there may have been a miscommunication in as much as the reason for it being listed today, as we are now operating our bench roster system. And this would have been the first available day for that purpose I think. I think the question might have been - may have been put to the union - probably not much turns on this any way, but may have been put to the union that - were they content for the matter to be dealt with in the next available bench roster and if that was put, then this is the next available bench roster day. In fact, the only other day I think we had was 15 October.

PN156

MR PELS: But notwithstanding that is that the union had lodged the unfair dismissal claim before the termination of Mr Brown, before the termination, because - - -

PN157

VICE PRESIDENT ROSS: Before the termination. So he had been, what, notified but had not taken effect or - - -

PN158

MR PELS: When the matter came before Commissioner Foggo, the company had done the skills matrix and decided that Mr Brown had not been advised at that stage.

PN159

VICE PRESIDENT ROSS: Yes.

PN160

MR PELS: They then had discussions with the union and it was indicated that he was selected. They challenged that selection process. The company went back and reviewed on the skills basis the matrix and when they did another reassessment of the three fitters, they then advised Mr Brown that he was the one to be selected. There was threats of possible stoppages at Geelong and/or at Portland and the company delayed the decision to terminate. And until - and at that stage prior to Mr Brown formally being terminated, the AMWU or Mr Brown - the AMWU on behalf of Mr Brown lodged an unfair dismissal claim and that was then listed for Tuesday the 11th and the company actually terminated his employment on the 10th, on Monday the 10th.

PN161

So what we say, your Honour, is - to the Commission is, that really this is a two pronged attack dealing with an unfair dismissal claim and that is all it is. It would be manifestly unfair to make a decision which is retrospective, because the reality is that Mr Brown could simply - if the application is unsuccessful today, Mr Brown can simply pursue his unfair dismissal claim and then can have two bites of the cherry. I am not sure there is much more we can add there, your Honour, except for the fact that the company did not unilaterally terminate Mr Brown's employment. In fact, it was a result of Commissioner Foggo's decision.

PN162

It simply indicated that the process the company had followed in accordance with the EBA, clause 9 and the appendix and redundancy, the company was entitled to take the action it did and Commissioner Foggo indicated that the company should, on an operational basis, go ahead and make or decide which of the three fitters would be terminated on the basis of the skills matrix and in consultation with the union and on that basis, that is what the company. So we support the decision of Commissioner Foggo on that basis and we believe that obviously the appeal should not be upheld and that Commissioner Foggo was quite correct at point 3. The most appropriate course of action is to follow section 170CE application, if the Commission pleases.

PN163

VICE PRESIDENT ROSS: Mr Addison.

PN164

MR ADDISON: Yes, thank you very much. Your Honour, there are a number of things that Mr Pels has raised there and I am ..... position to say he is wrong on a number of them. With regard to the company bringing a section 99 prior to maintenance decision, that is just plain wrong. The first application with regard to the matter following the company's decision to terminate a person was the 127 application. Following that, there was some discussions which are indicated earlier. There was, in fact, the stoppage of some contractors after the company had made its determination that Mr Brown was leaving.

PN165

A section 99 issued from the company. Not with regard to the termination, but with regard to the stoppage of the contractors and that matter came in front of Commissioner Hingley, some weeks, I believe - do not tie me to that time frame, but some time after the decision of Commissioner Foggo.

PN166

COMMISSIONER LACY: But was this prior to the termination of Mr Brown's employment?

PN167

MR ADDISON: It was, I believe, prior to the termination of Mr Brown's - I think the company made their intention very clear. He was going, he was the one. A number of contract members decided that under those circumstances, given the fact he was the steward, etcetera, did not want to be on the site and then a 99 issued. There was some discussion with regard to that matter and that matter was resolved. But we say, we say even today the company is in breach of the dispute resolution procedures. The company knows there is an appeal on foot. The company knew an appeal was lodged on the 24th - sorry, 27 August.

PN168

The company in its dispute settling procedure has a very clear commitment with regard to the processes. And that is at point 8. Now, whilst the matter is being resolved, the status quo shall continue. Now, the matter was not resolved, we say, with the decision of Commissioner Foggo. There was an appeal lodged immediately after. The company were well aware the appeal was lodged immediately after. The matter is not finally determined until this bench, the Commission as currently constituted, makes a decision, we say, in terms of the proper process of dealing with these matters.

PN169

The company is, today, in breach of this dispute settling procedure because the status quo ought to have been followed until the matter was finally determined. So we say they are in breach with regard to the dispute settling procedure even today and were certainly in breach by not referring the matter to the Commission for determination, but by taking unilateral action. We say that constitutes a breach as per the observations of Vice President Ross in the Patrick's matter. With regard to Mr Pels submission about what the redundancy agreement means, Mr Pels puts a proposition to the bench that the bench ought not read the document on its face. Mr Pels says to the bench, yes, the document says this, but that is not what we meant.

PN170

It means something different and Mr Pels says the union can take it to the Federal Court for an interpretation. Well, with respect, the union does not need to take it to the Federal Court for an interpretation. There is mountains of authority, mountains of authority, including the Acts Interpretation Act. Various decisions out of this Tribunal and every other Tribunal that documents ought to be read on their face and the document on its face clearly puts in place a regime for redundancy. It does not matter what Mr Pels says, this is what it means. What the document that is important, in my submission, and the document is clear, unambiguous, it does not need to be interpreted.

PN171

If Mr Pels wants to vary the document, well, that is a different matter. But we say and we submit that the document is clear and what it says is what it means. With regard to Mr Pels's submission that the company's restructure to a point where two maintenance are now doing the work of three maintenance fitters. Well, let me tell the bench that the production workers have also been issued with tools in the last few weeks and production workers are doing maintenance work as well. Now, it just so happens that the person that got retrenched was the shop steward. So there is no shop steward on the site for the AMWU any more and the company are now moving to do maintenance work by production workers.

PN172

Now, that might be a cynical view on my part, but that is the reality of life and that is what has occurred on the job, that the maintenance work is now being down by two fitters supported by and supplemented by contractors and also supplemented by, now, production workers who have been issued tools. With regard to seeking a delay, the AMWU, in fact, and I think, your Honour, your associate might confirm this at some point, the AMWU chased the date quite vigorously. I think there was a number of telephone conversations between Mr Solly and your associate and also between me and your associate, trying to get this matter on as quickly as possible. So I just refute that.

PN173

There is one matter that needs to be dealt with and that is the CE application. It is my submission that the AMWU would have been remiss in its duty towards its member if we had not taken all the steps necessary to give the member options which he is legally entitled to, and we did that. And we did that and make no apology for doing that. It certainly was my advice to Mr Solly to ensure that Mr Brown did fill out an application pursuant to 170CE. Now, it depends on the decision of the bench as currently constituted, whether that become academic. Clearly, if a decision is that this matter is determined in favour of the AMWU, then that becomes a purely academic exercise.

PN174

It is not an attempt to have two bites of the cherry. It is simply an attempt to ensure that our member has the full access to his legal rights under the system. If the Commission pleases.

PN175

VICE PRESIDENT ROSS: We are in position to proceed to decision now. We will provide short reasons for our decision subsequently. We have decided to refuse leave to appeal pursuant to section 45(2). We are not satisfied that the matter is of such importance that in the public interest leave should be granted, nor are there any other considerations which persuade that leave should be granted in this case. We have reached this conclusion having regard to a number of unusual features of this case and of the proceedings at first instance. Three matters are particularly relevant in this regard. The first is that the parties presented their cases to Commissioner Foggo on the assumption that the 2000 Pivot agreement had been certified by the Commission.

PN176

In fact, it appears that this was not the case. Hence, the proceedings below proceeded on the basis of a misapprehension as to the parties legal obligations. Secondly, a number of the arguments advanced on appeal were not put in terms in the proceedings before Commissioner Foggo. In particular, we are not satisfied that there was - that it was submitted below that the 2000 Pivot agreement did not allow the company to compulsorily retrench an employee. The third point relates to the remedy sought. What is sought is a prospective section 127 order, it being conceded properly, in our view, that it would be manifestly unfair to make a retrospective order. It is also conceded that the jurisdictional basis for such an order does not exist at present, but it is argued that such a basis did exist when the matter was before Commissioner Foggo and on that basis we should issue the order now.

PN177

In these circumstances, even if we concluded that Commissioner Foggo was in error, we are not persuaded that there would have been power to make the orders sought. In our view, the jurisdictional basis for a section 127 order must exist at the time the order is made. We note that since Commissioner Foggo's decision, Pivot has made one of the fitters in the maintenance area redundant, a Mr Brown. And Mr Brown has since made a section 127 application for relief in respect of the - sorry, a 170CE application for relief in respect of the termination of his employment. In our view, those proceedings would allow many of the matters raised before us to be properly ventilated. As I have indicated, we will issue reasons for our decision shortly. Being nothing further, we adjourn.

ADJOURNED INDEFINITELY [11.40am]