AG2002/1695, Transcript of Proceedings [2002] AIRCTrans 1060 (2 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/1695

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Westgate Logistics Pty Limited for variation
of certified agreement to remove ambiguity

SYDNEY

2.12 PM, FRIDAY, 15 MARCH 2002

Hearing continuing

PN1

MR B. MULLER: If the Commission please, I seek leave to appear on behalf of the applicant in that matter.

PN2

MS J. TISDALE: If the Commission pleases I appear for the Transport Workers Union who are a party to the agreement the subject of the application.

PN3

MR T. LYONS: If the Commission pleases I appear for the National Union of Workers and we seek leave to intervene pursuant to section 43 of the application.

PN4

THE COMMISSIONER: Do I have an objection to Mr Mueller's application for leave to appear?

PN5

MR LYONS: No, Commissioner.

PN6

MS TISDALE: No.

PN7

THE COMMISSIONER: Leave to appear is granted, Mr Mueller.

PN8

MR MUELLER: If the Commission pleases.

PN9

THE COMMISSIONER: Do I have any objection to Mr Lyons' application for leave to intervene?

PN10

MR MUELLER: No, Commissioner, we have taken the view that the NUW would be, as it were, the natural contradictor in these proceedings and in consequence we serve the relevant papers on the union in that respect and consistently with that position we do not object to the union's intervention in the proceeding.

PN11

THE COMMISSIONER: Thank you, Mr Mueller. Ms Tisdale?

PN12

MS TISDALE: Leave granted, Mr Lyons. Just excuse me for a moment? It's unfortunate with a video hearing it tends to be a tad awkward and I'm afraid the position of this television in front of me I can barely see anyone with the lights shining through a beautiful sunny Sydney day as normal so I've just asked my associate to take a moment and close the blinds for me so I can see who I am speaking to. The section 170MD(6) application was allocated to me. On that occasion I asked my associate to make inquiries as to availability. I think I advised the applicant Westgate Logistics that I would be in Melbourne next Tuesday and I was prepared to list the matter on Tuesday afternoon for hearing. Solicitors on behalf of Westgate, on my understanding, contacted my associate and requested that I call the matter on for mention hence me listing it today for mention. So while I am prepared to hear the matter next Tuesday I have not forwarded a notice of listing because a mention is in a sense quite often a programming procedural matter and people may have had a concern with dates or filing of affidavits; I'm unsure. So, Mr Mueller, I would ask you to explain to me please or advise me why I have the matter on for mention?

PN13

MR MUELLER: Commissioner, it was our view that the application is, of course, a matter of substance. We anticipate, I think quite realistically, that the NUW will wish to resist, or to oppose I should say, the making of the orders that we seek in the application. We are anxious to have the application heard and determined as soon as practicable but in that context, again approaching the matter realistically, we took the view that the NUW would wish to have the opportunity to digest the application and consider what position it should take on it and if it were to participate in the way that I have anticipated that it may wish to put on material to support any submissions that it sought to make opposing the making of the order sought.

PN14

Of course, this matter has a direct relationship to the application that is listed at 2.45 today before the Commission as presently constituted. We are anxious to have this application heard and determined as soon as possible. The degree of urgency it has depends somewhat upon the existence and continuation of the industrial action which is being taken by the NUW and its members on the premise that the agreement which is the subject of the application doesn't cover employees in the distribution centre.

PN15

So overall what we had in mind was that, having regard to those considerations and having regard to questions of natural justice and efficiency, the Commission may wish to make directions that provided for the filing and service of any witness statements which the parties would seek to rely upon on the hearing of the application. We are, of course, anxious to grasp the earliest opportunity that we can for the hearing of the matter but it may be that the union says Tuesday is too early.

PN16

Now, if that is the position that they have then they can say so and directions can be made consistent with the overall urgency of the matter that takes that into account but the further away the hearing and determination of the application is the greater the urgency and weight behind the application at 2.45 for orders in relation to the industrial action that's happening. So, in summary, we are suggesting that the Commission might wish to make a direction that the applicant and the TWU if it's taking a position on the application, as we understand it is, file and serve any material upon any witness statement upon which they wish to rely on the NUW by a particular date and the NUW likewise file and serve the witness statement that it proposes to rely upon and that the Commission fix the most approximate date it can, having regard to those directions, for a hearing of the matter.

PN17

THE COMMISSIONER: Yes, is that all, Mr Mueller?

PN18

MR MUELLER: Yes, it is on the score.

PN19

THE COMMISSIONER: Thank you. Ms Tisdale?

PN20

MS TISDALE: We've got no real submissions to make in relation to that, Commissioner. We support the need for this situation to be resolved as expeditiously as possible and I concede that the filing and service of witness statements and so on would be a convenient way of having the matter resolved expeditiously.

PN21

THE COMMISSIONER: Thank you. Mr Lyons?

PN22

MR LYONS: Thank you, Commissioner. I note what my learned friend says there about - - -

PN23

THE COMMISSIONER: Sorry to interrupt you. I'm finding it hard to see you actually.

PN24

MR LYONS: We're rather cramped in this small court, Commissioner. Is that better?

PN25

THE COMMISSIONER: Yes. I'm sorry. Continue, Mr Lyons.

PN26

MR LYONS: Thank you. I note that the application we understand was made to the Commission on the 8th. It was served on our solicitors on the 13th, some 5 days later so the NUW has had a very limited time to consider this matter. It was foreshadowed in proceedings before the Federal Court to which I propose to take the Commission shortly but our preliminary view is that certainly we oppose the application and we would seek to do so strenuously and that would involve at an appropriate time consideration by both the evidence that might be led from the employer as well as the filing of our material but before I get to what our view would be on that I'd indicate that we would seek that you hear and determine two applications from us in relation to this matter or, more correctly, a first and then a secondary application.

PN27

The first would be an application pursuant to section 111(1)(g) of the Act that you dismiss the matter and we would do so on a number of grounds which go to the fact that the matter has been agitated in another place and also the conduct of the applicant. In the alternative, albeit on similar grounds that we'd seek that you dismiss the matter, we would seek that you adjourn the matter indefinitely pending the outcome of the trial in Federal Court matter V137 of 2002 which is the applicant's matter in the Federal Court of Australia and, secondly, in relation to a matter which the NUW has filed in the Federal Court which goes to a similar set of issues.

PN28

Commissioner, I am instructed that's been filed with the Registry of the court and served on solicitors for the applicant in this matter but until the arrival of Mr Thow I'm unable to give you a reference number for that application but I'm instructed that that matter is returnable before the court on Tuesday at 10.00 am. So bearing in mind what my friend has said I think what we would propose is that given that the other side have not had notice that we intended to make those two applications that if you are available on Tuesday that that be set down for hearing the ..... of those two applications by the NUW.

PN29

THE COMMISSIONER: I'm sorry, somebody moved papers over the microphone down there. Just be very careful in a video hearing because it just completely blocks out anyone that's speaking. You said something about next Tuesday?

PN30

MR LYONS: Yes, Commissioner, we'd propose that the opportunity that your diary presents on Tuesday be used for you to hear and determine those two applications the NUW would make, the procedural applications. We'd suggest then that obviously while we hope to be successful in one or the other of those applications in the event that you were minded not to entertain them that we could then set down a program for the hearing and determination of the substantive application.

PN31

Commissioner, I might give you our preliminary view and I might say this, given the shortness of time this was our preliminary view of what would be involved in hearing and determination of the substantive matter, our view is that the appropriate course would be that the applicant should serve an outline of contentions and witness evidence on the other parties within an appropriate period. Our suggestion is that a period of some two weeks is appropriate for that for reasons I'll come to.

PN32

Secondly, that the NUW acting as respondent I suppose file and serve in response. We would require a further period of two weeks given that it's not clear from the application, at least to us, the clear grounds on which the application is sought and on what basis the company contends that the agreement is ambiguous or uncertain. Following the review of that we think that it may be appropriate, although this isn't a finalised position, for the Commission to conduct a site inspection of the work that occurs at the Westgate premises and potentially also to compare that work directly with that which is performed at the Coles-Myer distribution centre at Hampton Park which is, if you like, the other Coles-Myer DC in the state of Victoria and possibly even a further comparison to the equivalent Safeway distribution facility also located in Melbourne and we say that based on our continuing contention that the original agreement and the new application either deliberately or otherwise misrepresents the work performed by the employees in question.

PN33

We say that there's a lot to the application. I might say that 170MD(6) application in our submission is not what would be regarded as a quick fix solution. These sort of applications are relatively unusual and would require a careful consideration by the Commission of all aspects of the matter and that would involve some very significant witness evidence. The final matter I should place on record in respect of that is that the union would also be seeking to lead evidence about irregularities in the making of the original agreement, specifically that a variety of the employees including employees to whom the application goes, were deliberately or otherwise excluded from voting on the agreement as well as some other irregularities which we'd provide the other side with appropriate notice of. We say that that would go to evidence of what the original intention of the parties was. So that would be our proposal about how the matter will proceed.

PN34

THE COMMISSIONER: Mr Mueller?

PN35

MR MUELLER: Commissioner, you would be entitled to be very sceptical about the purposes for which those submissions that you have just heard were made. May I make a couple of points about them? The first is to say that there is nothing unusual about the type and nature of the application which is made in this case. It is a usual type of application. There have even been recent decisions of this Commission of a very similar type in which the Commission has made orders with respect to removing ambiguities in relation to the coverage of certified agreements. At the end of the day there are two questions in such proceedings; is there an ambiguity or uncertainty in the agreement concerned and that is a question which is answered according to quite well known and well received principles which have been adopted and articulated in the Commission's proceedings, and secondly, if such an ambiguity or uncertainty be found what order is appropriate in terms of removing that ambiguity or uncertainty.

PN36

The exercise in that respect involves the Commission, in essence, although not solely, determining what the actual and intended operation of the provision or provisions concerned was to be. The proposition that that should involve inspection of other work places is passing absurd and it is for that reason that I suggest that the Commission should be quite sceptical of the purposes for which those submissions were put forward. My friend knows as well as anyone that the reason why the current industrial action is happening at Westgate and the reason why this application is brought on in the interests of everybody in order to resolve the core question is because the core question concerns the construction of the agreement and what my friend has said suggests that the union is determined on a course of action directed at ensuring that that core issue is not addressed for a very long period of time and every obstacle which can be raised is put in its path.

PN37

That is reinforced by the fact that applications are purportedly made under section 111(1)(g) to seek to restrain the hearing of the application which would address the core issue in this matter. In those circumstances, I submit that the Commission should make directions of the type which I have outlined and on the basis that I've outlined. If the union wished seriously to pursue an application made under section 111(1)(g) then let them do it in the way in which it is ordinarily done on a proper application on proper materials and let them articulate a serious argument in that respect. If they want to put a serious argument, then let them come along to the Commission and put a serious argument about that and an argument about which we have notice and which is properly informed.

PN38

I may foreshadow that I will rely when the application for section 127 orders comes on, on the inference which the Commission can draw from what my friend has said, that the union is determined at all costs to avoid confronting the construction issue that is involved in this matter so that they can continue their campaign of industrial action.

PN39

THE COMMISSIONER: Is there anything further you wish to say, Mr Lyons?

PN40

MR LYONS: Just two matters very quickly, Commissioner. The first is we do not intend to unnecessarily delay this matter. In terms of the applications that have been foreshadowed today, it's entirely for the reasons my friend has outlined that we propose that they be heard on Tuesday so that the parties have due notice of that, rather than have them heard and determined this afternoon. In respect of this suggestion that the union won't meet the construction of the agreement head on, we have. That matter was dealt with absolutely by the Federal Court in the applicant's quest for interlocutory relief.

PN41

MR MUELLER: Don't mislead her.

PN42

MR LYONS: When the central issue or one of the central issues was the construction of the enterprise agreement and the applicant's contention here and in the court and before you in the proceeding 127 and the new 127 and the former 170MW application, that the agreement covers the persons taking protected industrial action. We met that argument head on and the applicant failed in the interlocutory relief that it sought. What it seeks to do now is to come back here, having failed in the court, and have another go for what amounts to another attempt at interlocutory relief or equivalent or quick relief at least, when it's failed to get that out of the court.

PN43

I might add, Commissioner, that its own application is - I'm not sure whether it's been set down for trial, but it's certainly on foot, so the matter of the proper construction in the agreement is currently before the Federal Court and the Federal Court will determine what the proper construction of the agreement is and as we go to it in appropriate time we say it's not appropriate that this Commission entertain an application which is made essentially in bad faith because the applicant didn't like the answer it got in the Federal Court last week.

PN44

MR MUELLER: Commissioner, I am obliged to respond to that.

PN45

THE COMMISSIONER: The matter before the Federal Court on my understanding the issue raised was whether the work being performed is work performed under the Transport Workers Award 1999 or the possibility of whether it's performed under another TWU award, being the Distribution Centre Award, that's my understanding of what the matter was.

PN46

MR MUELLER: That's certainly the terms in which my learned friend, Mr Borrenstein, was pleased to put the argument to his Honour and it was in a sense on that footing that his Honour, or it was by reason of acceptance of that submission together with others, that his Honour, on an interlocutory basis, expressed his provisional view in respect to the serious question to be tried. As the Commissioner will appreciate, it was no more than a provisional view and could not be anything more than a provisional view, which is what led me to suggest to my friend that he should not represent to this Commission that there has been any conclusive consideration or conclusion or finding expressed by any Tribunal in respect of that matter.

PN47

MR LYONS: Well, Commissioner, I didn't intend to suggest that at all, but the proper construction of the matter before the court, and as you'd be aware, the enterprise agreement itself, adopts the scope of the Transport Workers Award as its own scope. So the proper construction of the scope of the Transport Workers Award 1988 and the proper construction of the scope of the Westgate Logistics Enterprise Agreement 2000 are, in effect, one in the same, which raises an interesting question because given that the enterprise agreement simply adopts the award scope clause and the application contends that the scope is unclear or ambiguous, that amounts to a suggestion that the scope of the Transport Workers Award is unclear because the agreement itself doesn't contain a scope clause of the sort they seek to insert.

PN48

THE COMMISSIONER: This issue has been before me on what would be about the third occasion. I've had this issue in two other files. It's virtually the same issue. There is a problem, there is an issue. Now, I can only presume that the parties want the issue fixed. I can only presume that the parties want the issue fixed as quickly as possible in a fair, just and equitable manner. Mr Lyons' prima facie, I'm not persuaded by your applications, one reason being - - -

PN49

MR LYONS: Does that mean you won't even entertain those applications?

PN50

THE COMMISSIONER: May I finish, Mr Lyons? One reason being is that I have regard to a statement made by North J in an AMWU v Qantas matter and I can give you the citation later, when he was dealing with an issue under 170MD6A and from my memory he made comments to the fact that it's the Commission that would more than likely provide a constructive resolution to the problem of ambiguity. The file I have before you is an application under 170MD6. It is put to me there is an ambiguity or an uncertainty.

PN51

At this stage, I have not heard any argument on it, but if I have regard to what North J said, is that while the court may be able to identify an ambiguity, they can't remove it. Now if the parties want this matter fixed, then we seriously should be considering what we are going to do about fixing it and having it determined. In relation to what you say you want to put to me, 111(1)(G).

PN52

MR LYONS: And in the alternative an adjournment.

PN53

THE COMMISSIONER: Or the alternative an adjournment because you say that the matter is already - or the matter is better to be determined in the Federal Court as opposed before this commission. The commission's powers under 111 are discretionary. Under 111(1)(G) it is for the commission to determine whether it appears that it is trivial or better dealt with by a state industrial authority whether it is desirable in the public interest, whether a parties engaging in conduct which is hindering settlement of the dispute and whether parties have breached orders for award or directions or recommendations.

PN54

My prima facie view would be Mr Lyons that it would take a great deal of persuasive power for me to dismiss the section 170(M)(D)(6) application that I have here before me. I cannot see for the life of me that what I have before me sits anywhere underneath any of those paragraphs. Now I am prepared to hear this matter and I am prepared to allow the parties an opportunity to put to me relevant material to the question that I am being asked by the applicant to decide.

PN55

Now Mr Mueller your suggested timetable appears, no that was the NUWs suggested timetable it would appear to be that a final hearing would be in approximately five weeks time, six weeks time, do you envisage that, leaving aside the issue of whether site inspections are relevant to the question?

PN56

MR MUELLER: I must say that having regard to what we say is the urgency of the matter, we would have thought that the matter the steps that we had contemplated could have easily taken place within a fortnight and then it was a matter of convenience of the commission as to when it might be fixed by having regard to the fact that the object of the exercise was to urgently resolve what has become an abiding issue between the parties. So we would have contemplated - we took this view because we would have thought that given the stance that the NUW has taken about this matter they know what their argument are.

PN57

They assert that the agreement does not cover the relevant employee and they have taken that view as far as taking industrial, they say, protected industrial action on that basis. Well we assume that they have a very well developed and informed view and that all it is is a matter of putting it into a form so far as it needs or lends itself to a witness statement and putting that witness statement in. We are happy to put in our witness statement within a matter of days in the respect and we would have thought that there is no reason to suppose that the union, the NUW at least is not a position to respond in the same time frame.

PN58

So we would have been thinking of seven day intervals between the service of our material and the service of theirs. My friend mentions an outline of submissions, certainly we would think that that is an appropriate think in the circumstances of the case.

PN59

THE COMMISSIONER: With a hearing in three weeks time?

PN60

MR MUELLER: Yes.

PN61

THE COMMISSIONER: What do you envisage to be the length of the hearing Mr Mueller?

PN62

MR MUELLER: I think that it would be a, being realistic, it would be a three day to four day matter, particularly having regard to - I do not accept the legitimacy of all the matters that my friend mentioned as I have already said that amongst other things I noted that he foreshadowed some sort of collateral challenge to the making of the agreement itself, so I am taking that into account.

PN63

THE COMMISSIONER: Mr Lyons, do you see the hearing along those lines as outlined by Mr Mueller?

PN64

MR LYONS: In respect of the length of the hearing, I can go the balance of caution I would agree with that. Obviously we had suggested a longer period between filing and serving but other than that I think we are on common ground. We do however suggest that whatever is said about our suggestion that visits to other equivalent premises or we say equivalent premises are necessary, there would undoubtedly be some value in the commission visiting the premises directly affected by the agreement.

PN65

The alternative is I think Commissioner, that witness are all placed in a somewhat difficult position of trying to paint a verbal picture for you about the nature of the suing and the work performed and I think it is in the union's experience beneficial as a member of the commission can view these matters first hand. It can I think have the effect of cutting down, if not there the number of witnesses then certainly the amount of time they spend under examination and cross-examination.

PN66

THE COMMISSIONER: Look that may possibly become clearer when the material is filed and served. While you are on opposite ends to this issue I think it is beneficial if you can at least agree upon what the - or on how the process should proceed. Of course if there is disagreement, well I will determine it but I think it is far more beneficial and it is far more efficient if the parties can at least agree upon what is required and what is not required. All right, I am inclined to issue directions along those lines. If the NUW still wishes to raise 111(1)(G) with me in their outline then I have regard to it. In regard to adjourning the matter, no, I am not persuaded to adjourn. I don't think it's going to assist any of the parties that are in front of me and I know that from my experience over the last few weeks in regard to this matter.

PN67

MR LYONS: Commissioner, we had a range of matters we sought to put to you in respect of the adjournment which we haven't gone to at this point and I was conscious of what my friend would say when we attempted to run that argument this afternoon, that they had no notice which is why I suggested we availed ourselves of the opportunity on Tuesday. I would be disappointed if the Commission dismissed our foreshadowed application for an adjournment without hearing the union on that matter.

PN68

If the position to take on 111(1)(g) is that it won't be determined as a threshold matter then the union will, of course, abide by those directions. However, in respect of the adjournment we say there are serious matters which we seek to bring to your attention which we want heard and determined as a preliminary. That is not to say we are attempting to unnecessarily delay, merely that obviously before the parties go to the time and expense of preparing witness statements and other material.

PN69

I might add, Commissioner, as you have become aware, this matter, another Commission application, two pieces of Federal Court litigation are bouncing around here and without wanting to put it in a trite manner I think we've all got enough to do without preparing for matters which the Commission may be persuaded to adjourn pending the outcome of one of the other matters.

PN70

So I would renew our request that at an appropriate time at your convenience you hear our application, both the 101(g) and the adjournment bearing in mind your preliminary view that a high bar exists for us on that question.

PN71

MR MUELLER: May I respond to that, Commissioner?

PN72

THE COMMISSIONER: Yes, Mr Mueller.

PN73

MR MUELLER: It's a bit difficult to grasp exactly what the NUW are suggesting here. As I understand it, the Commission is on the brink of issuing procedural directions that will provide for the hearing of this matter, all being well, in several weeks time. In that sense there is nothing to adjourn. The hearing will be fixed at a particular date. If there be an application, a serious application for adjournment then it can be made at the appropriate time. It could not be seriously suggested that there is such an inconvenience to any party involved in simply complying with the foreshadowed directions.

PN74

After all, those directions are directed at progressing a resolution of the core issue and to suggest that those directions be, as it were, suspended seems to be an unusual suggestion to make in the circumstances and hardly even amenable to an application for adjournment. Does my friend suggest that directions be adjourned or be suspended or stayed? So I simply wish to point that out, Commissioner. I can't help thinking if the union wishes to make an application of substance in this regard they should go away and think about it and come back on proper material.

PN75

MR LYONS: And we will do that, Commissioner, but we were served with this application yesterday so our lack of preparation doesn't reflect on us, it reflects on the application, for an application made on the 8th. In a technical sense what I would propose would be this: the Commission has issued a preliminary view, I suppose, about the directions it would be minded to issue. You have also indicated that you would prefer the parties to agree on the detail rather than have yourself rule on some of those matters.

PN76

So, rather than issue directions today, that the Commission hear our adjournment application on Tuesday. In the interim the parties seek to agree on the directions that would be issued in the event you don't entertain that application and at the conclusion of the adjournment proceedings, if there are remaining issues between the parties as to directions they could be determined at that time.

PN77

Given that it's Friday afternoon, that's two days away, I don't think that that suggestion can be regarded as filibustering or time wasting. It also have the benefit of potentially not requiring the Commission to rule on matters on which the parties can agree amongst themselves. We say there are some serious issues to be made in respect of both 111(1)(g) and the adjournment and we simply seek a time at your convenience to put those to you. We do have I think, given the volume of work necessary to meet the application in general, that those matters should be heard first.

PN78

THE COMMISSIONER: So you seek to put in depth material to me on both those applications, Mr Lyons, do you on Tuesday?

PN79

MR LYONS: Yes, Commissioner.

PN80

THE COMMISSIONER: And if you are not successful the parties would have a draft directions in regard to the filing and serving of the material?

PN81

MR LYONS: We are certainly happy to talk to the other side about that and I don't think we're very far apart. There are some issues of timing, etcetera, and maybe my friend can seek some instructions about a site inspection but beyond that I think I would be relatively confident that an accommodation could be reached in the event the matter was to proceed.

PN82

THE COMMISSIONER: All right. We've gone ten minutes over our time at the moment anyway. I have another matter which is to be called on. I will consider what you put, Mr Lyons. I think I have outlined earlier what my prima facie view and position is but I will think about what you've put and I will let the parties know this afternoon whether I will hear you on those two matters on Tuesday or whether I direct you to put that material in writing in accordance with the directions of the substantive application before me.

PN83

If there's nothing further on this particular matter I plan to adjourn it and the parties will be advised later on this afternoon of the outcome. If there's nothing further, ladies and gentlemen.

PN84

MR LYONS: No, Commissioner.

PN85

THE COMMISSIONER: Ms Tisdale, I wasn't ignoring you. I presumed that if you wished to say something you would have raised your hand, so I take it that there is nothing further that the TWU would wish to add?

PN86

MS TISDALE; Not in this matter, Commissioner.

PN87

THE COMMISSIONER: All right, the Commission is adjourned. The parties will be contacted. Thank you.

ADJOURNED UNTIL TUESDAY, 19 MARCH 2002 [3.00pm]