C2001/5472, Transcript of Proceedings [2001] AIRCTrans 3077 (14 November 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 1021

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/5472
C2001/5473

WALTON CONSTRUCTION PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the Act
of a dispute re allowances

WALTON CONSTRUCTION PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Application under section 127(2) of the Act
to stop or prevent industrial action

MELBOURNE

10.08 AM, TUESDAY, 30 OCTOBER 2001

Continued from 26.10.01

PN30

THE COMMISSIONER: I notice there are no changes in the appearances. Mr Shaw.

PN31

MR SHAW: If the Commission pleases, I firstly apologise for holding the Commission up from the starting time, but I did have some discussions with my client first as to the way this matter might be progressed, short of heading down the legal path and I have had some discussions with Mr Noonan. The suggestion from the applicant is that before we proceed to deal with the section 127, pursuant to that section of the Act, that in fact a further effort be made to utilise the Commission with its various powers that it has under the Act and other powers for which it can be granted by the parties.

PN32

It is certainly my client's wish that the matter be progressed as quickly as possible and that we get back to completing the works on the project. The suggestion is, Commissioner, that the Commission proceed to have inspections on the job and make a recommendation after obviously hearing argument pursuant to section 111AA of the Act. Now, I have put that to Mr Noonan and I won't put his response. He can do that himself.

PN33

He, for reasons which he will explain, needs some time to consider that, although he has suggested that perhaps it might be possible for inspections to take place either today or first thing tomorrow morning, if it suits the Commission better and then depending on the position of the union, the rest of the process could continue. Failing that, of course, we could await the union's position and then have inspections after that, or if the union does not agree ultimately with the suggestion, then we would be in a position I guess of having almost no alternative but to proceed with the 127 application. As the Commission pleases.

PN34

THE COMMISSIONER: Yes, Mr Noonan.

PN35

MR NOONAN: Commissioner, everything Mr Shaw said is correct. It is the position - well, in the sense of the discussions that we have had. It is the position of the union that in terms of the suggestion of having the matter arbitrated privately, we would want to consider that and we would want to consider it at the highest level of the State branch of the union. Mr Oliver and Mr Kingham are both absent, ill, today, although I know that Mr Oliver will be back on deck tomorrow morning.

PN36

He is having a minor surgical procedure today and for reasons of concern about precedent and the circumstances of the St Kilda Road precinct, we would wish to make a fairly considered decision about having the matter arbitrated and that is not to say we are against that. It is simply to say that we need to give it proper consideration, so in terms of the suggestion about a section 111AA arbitration, we would be able to indicate our position about that tomorrow morning.

PN37

In terms of the suggestion about the inspection of the job, the union's view is that that is a good idea, subject to the Commission's wish to do so and availability. The reason we think it is a good idea is that whether or not the union concedes to the matter being privately arbitrated or, in fact, the 127 application proceeds, the Commission, as is well known, is entitled to inform itself of the circumstances around the site and we think that a first hand inspection of the site, (1) wouldn't take a long time, could probably be carried out in an hour or less I would think and, secondly, it would provide the Commission with a better basis for assessing the circumstances surrounding the issue that is in front of the Commission than would otherwise exist.

PN38

We think there is nothing like a first hand look at the job, so whatever course of action happens, we think there is some benefit in that, subject, of course, to the Commission's availability and the Commission forming the view that it is appropriate for the Commission to have a look at the job, so that is where we are at, Commissioner.

PN39

THE COMMISSIONER: Well, you say to me, Mr Noonan, that, (1) you need to have discussions with the secretary and assistant secretary. I understand that. Is that right?

PN40

MR NOONAN: Well, not both of them, one or the other.

PN41

THE COMMISSIONER: At least one or the other.

PN42

MR NOONAN: At least one or the other, Commissioner.

PN43

THE COMMISSIONER: Okay, (2) that irrespective of what their decision is, I should still inspect the site.

PN44

MR NOONAN: That is right.

PN45

THE COMMISSIONER: To what end?

PN46

MR NOONAN: Well, firstly if the matter is to proceed by way of private arbitration, it provides - - -

PN47

THE COMMISSIONER: Well, let's put that aside. My question is what if the senior officers of the union decide the matter will not proceed?

PN48

MR NOONAN: We say that in any event, in fact, the Commission is then in a position to make assessments about the state of play on the job, all of the circumstances surrounding the job and in terms of a further proceeding on the section 127(2), that you would be able to make a judgment about issues, (1) of industrial action obviously.

PN49

THE COMMISSIONER: Well, there is a simple issue about industrial action. If there is no work happening, there is no work happening. There's no pros and cons.

PN50

MR NOONAN: Well, we would reserve our rights to have some argument about that, Commissioner, without wanting to do so at this stage.

PN51

THE COMMISSIONER: I am sure you would, but I will make the point very clearly to both sides that the Act is very clear. All this waffle that people give from the bar table from both sides about discretion is just that, waffle, because at the end of the day it is not for the Commission to decide. It is for the Federal Court.

PN52

MR NOONAN: Well, I would simply say this, Commissioner. There is discretion granted to the Commission under the relevant section and under the authorities.

PN53

THE COMMISSIONER: It is about that thick, Mr Noonan.

PN54

MR NOONAN: Yes, well, nevertheless there is discretion, Commissioner, and, of course, it is a proceeding under section 127, not 166A as the Commission is well aware and I am painfully aware from decisions of the Commission, including the Commission as presently constituted, there are some differences between the two sections of the Act. One has discretion, one has almost none.

PN55

THE COMMISSIONER: One has none.

PN56

MR NOONAN: One has none and we think there can be no damage done to the processes of the Commission by the Commission being informed of all of the circumstances.

PN57

THE COMMISSIONER: The Commission is prepared to inspect the site at 11 am tomorrow morning. The Commission would expect by then, Mr Noonan, that either Mr Oliver or Mr Kingham would have turned their mind to this issue and made a decision. In the event that the Commission is not aware of the position of the union in respect to section 111AA by that time tomorrow, the matter will proceed.

PN58

MR NOONAN: If the Commission pleases.

PN59

THE COMMISSIONER: Mr Shaw, do you have anything to add?

PN60

MR SHAW: No, Commissioner. I am not sure there is anything I would usefully add to it, in any event. The Commission seems to have made its position clear.

PN61

THE COMMISSIONER: I will see you tomorrow morning, gentlemen, at 11 am at the site. The Commission is adjourned. Good morning.

ADJOURNED ACCORDINGLY [10.17am]