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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT03212
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
AG2002/1615
APPLICATION FOR CERTIFICATION
OF GREENFIELDS AGREEMENT
Application under section 170LL of the
Act by Maintenance Resource Engineering
Pty Ltd and Another for certification
of Maintenance Resource Engineering Pty Ltd
Shell Geelong Refinery Enterprise Agreement
2002-2005
MELBOURNE
10.35 AM, WEDNESDAY, 27 MARCH 2002
PN1
MR R. HINKLEY: I seek leave to appear as counsel for the Australian Workers' Union party to the agreement.
PN2
MR P. BURCHARDT: I seek leave to appear as counsel on behalf of Maintenance Resource Engineering Proprietary Limited likewise a party to the agreement.
PN3
MR M. IRVING: I seek leave to appear as counsel for the CFMEU.
PN4
MR G. GLOVER: I appear for the CEPU Electrical Division and seek leave to intervene in the matter on the grounds our members are potentially bound by this agreement.
PN5
THE DEPUTY PRESIDENT: I am sorry, Mr Glover, you appear for?
PN6
MR GLOVER: The CEPU Electrical Division.
PN7
THE DEPUTY PRESIDENT: Thank you. Before we start I received a facsimile from Slater and Gordon. This matter has had something of an involved history involving Federal Court proceedings. I also received a facsimile from Slater and Gordon requesting two things essentially firstly the opportunity to put a submission as to whether the CFMEU would be given the opportunity to put a submission as to whether they have a right to be heard in this matter. And my response was essentially this, that that opportunity would be provided subject to any submissions the parties today might make on that issue.
PN8
It is not my habit to respond to correspondence in these matters but given the circumstances I did on this one occasion. That is the only correspondence. I hope the parties to the agreement have seen that correspondence. If they haven't I am sure the CFMEU can make it available.
PN9
MR BURCHARDT: If your Honour was referring to a letter from Slater and Gordon dated 20 March we have certainly seen that. If it is anything else I think the answer is no, we haven't.
PN10
THE DEPUTY PRESIDENT: All right. Well, to the extent that it is relevant it simply sought the opportunity to put submissions and I indicated that that would be granted subject to - that the opportunity to seek leave to put submissions - I would provide that opportunity subject to whatever submissions the parties wish to make on that. Now, Mr Hinkley, you are the applicant.
PN11
MR HINKLEY: Sorry, your Honour, I am getting rather jumpy here.
PN12
THE DEPUTY PRESIDENT: No,no.
PN13
MR HINKLEY: Sir, the parties have had some discussion about the way it might proceed today. If it is convenient I could outline that.
PN14
THE DEPUTY PRESIDENT: Right. Please do, please do.
PN15
MR HINKLEY: But before doing that, sir, could I draw attention to the fact that the agreement which the employer and union party AWU wishes to have certified - - -
PN16
THE DEPUTY PRESIDENT: Has changed.
PN17
MR HINKLEY: Yes, sir. And that the Commission has that changed agreement and that these proceedings are in relation to that changed agreement.
PN18
THE DEPUTY PRESIDENT: Yes, I think I have that. Just bear with me for a moment, Mr Hinkley. Yes, I have that new agreement.
PN19
MR HINKLEY: I am not going to take you to it, sir. Happily Mr Burchardt is undertaking that task. My role at the moment is simply to draw attention to the arrangements we have made at the bar table. We are all agreed that Mr Burchardt will explain to your Honour the content of the new agreement in relation to the old one and what the CFMEU tried to agitate in the Federal Court. I understand that the CFMEU's position is that they will reserve their argument as to the right to be heard until they have heard about the changes to the agreement. So Mr Burchardt would proceed, I would say something and then the CFMEU would say something.
PN20
So far as the CEPU is concerned, sir, there have been some very helpful discussions before the Commission commenced this morning and the union and the employer have agreed to certain arrangements for prospective - not yet done - changes to the agreement seeking a variation by consent in the future.
PN21
THE DEPUTY PRESIDENT: I see. Once it is certified you mean?
PN22
MR HINKLEY: Yes, sir. And I will be able to tell you what they are and indeed our arrangements with the CEPU is to read into transcript what the agreed changes are and we would expect that be done within two weeks or a month.
PN23
THE DEPUTY PRESIDENT: Right. That is not strictly relevant to the issue of certification though is it?
PN24
MR HINKLEY: No it isn't, sir, but it does helpfully settle the issue between the parties.
PN25
THE DEPUTY PRESIDENT: No, I understand. Thank you.
PN26
MR HINKLEY: Yes. And I have the pleasure of sitting down.
PN27
THE DEPUTY PRESIDENT: Thank you, Mr Hinkley. Mr Burchardt?
PN28
MR BURCHARDT: And I have the pleasure of standing up, if your Honour please.
PN29
THE DEPUTY PRESIDENT: You have the pleasure of standing up, yes.
PN30
MR BURCHARDT: We thought it might assist if we just put formally on the record as it were what is before your Honour today and some very brief, a it were, background as to how we got here. As you will doubtless be aware, sir, on 5 March a sort of antecedent version of the document before you was filed and that was listed for hearing on 15 March before your Honour. On that day and by an application filed that day the CFMEU sought injunctive relief effectively to prevent the agreement being certified and in the way that these things work the ultimate outcome was that the application posited before your Honour was adjourned to today and the application before the Federal Court therefore sort of went away also.
PN31
It is fair to say - and the reason I am not going to take your Honour to the details of the Federal Court proceeding in any detail itself is that I am aware from the correspondence from Slater and Gordon to which I referred that you have actually got the transcript and you have probably had an opportunity - I don't know if your Honour has had an opportunity to read that in any detail.
PN32
THE DEPUTY PRESIDENT: I have read some of it.
PN33
MR BURCHARDT: Proceedings before Weinberg J.
PN34
THE DEPUTY PRESIDENT: Yes, I have read some of it.
PN35
MR BURCHARDT: Yes. Well, your Honour would have noted that the gravamen of the complaint there made was that the agreement infracted the freedom of association provisions in the legislation. The matter that is now before you - and, of course, Slater and Gordon also foreshadowed on behalf of the CFMEU that they seek to intervene before your Honour today and foreshadowed the basis on which they would seek to circumvent section 43(2)(p). The matter that is before you today is an agreement which I can explain best the relevant changes by taking you to the old one because things have been deleted and it is not possible to show something there when it has been deleted. So could I ask your Honour to turn to the document that was filed I believe on 5 March and signed on that date.
PN36
THE DEPUTY PRESIDENT: Yes, I have it.
PN37
MR BURCHARDT: Would your Honour turn to paragraph 1(c) which should be on page four. The numeration is down the bottom right hand corner I think on my copy.
PN38
THE DEPUTY PRESIDENT: Yes.
PN39
MR BURCHARDT: Does your Honour have 1(c)?
PN40
THE DEPUTY PRESIDENT: I do.
PN41
MR BURCHARDT: Your Honour will see that in paragraph 1(c)(i) in the last line the first word is "Agreement".
PN42
THE DEPUTY PRESIDENT: Yes.
PN43
MR BURCHARDT: And then there is a phrase "who are members of the union which is a signatory to this agreement".
PN44
THE DEPUTY PRESIDENT: Yes.
PN45
MR BURCHARDT: In the agreement we are now seeking to certify that latter part of the phrase all the words after the word "agreement" in that line have been deleted.
PN46
THE DEPUTY PRESIDENT: Yes.
PN47
MR BURCHARDT: Sub-clause (iii) which reads:
PN48
In this agreement the union that represents the employees defined in this clause is the Australian Workers' Union -
PN49
has been deleted. And there has obviously been a re-numeration of the paragraphs - sub-paragraphs to reflect that. There are one or two very minor grammatical matters of syntax which aren't relevant which have been changed in the new document. If you the go on to paragraph 1(e) but over the page on page five your Honour will see there are two paragraphs numbered (ii) and (iii). Those have been deleted. Now, if I could take you to the agreement we now seek to certify and to the same page, page four.
PN50
THE DEPUTY PRESIDENT: Sorry, page four?
PN51
MR BURCHARDT: Page four again, your Honour, yes. That pagination hasn't changed in the new document.
PN52
THE DEPUTY PRESIDENT: Yes,
PN53
MR BURCHARDT: If your Honour has paragraph 1(b) - area and scope at about point three.
PN54
THE DEPUTY PRESIDENT: I have it.
PN55
MR BURCHARDT: Your Honour will see in the second line towards the end of it there are some words in brackets which are "including apprentices and trainees". Your Honour, in the third - - -
PN56
THE DEPUTY PRESIDENT: Yes, I see it "including apprentices".
PN57
MR BURCHARDT: Those have been added and effectively replace the 1(e)(ii) and (iii) paragraphs that I took you to in the old agreement if I can so describe it.
PN58
THE DEPUTY PRESIDENT: Yes.
PN59
MR BURCHARDT: And then your Honour will also note that at the beginning of the next sub-paragraph within paragraph 1(b) there are the words - that sub-paragraph begins "the company will require".
PN60
THE DEPUTY PRESIDENT: Yes.
PN61
MR BURCHARDT: Those are new words, your Honour. There has been no change to the existing verbiage but those words were added. An the paragraph 1(c) as you will note reflects the changes in terms of deletions that I described.
PN62
THE DEPUTY PRESIDENT: Yes.
PN63
MR BURCHARDT: So those are the relevant changes as we apprehend them. As I say there is a "the" has become a "that" I think and a "the" has become a "this" but those don't change the meaning of the words in - that is in sub-paragraph (1)(c)(iii) but those are not of any moment.
PN64
THE DEPUTY PRESIDENT: Are those the only changes?
PN65
MR BURCHARDT: There are a few others but they are not relevant to this aspect of the proceeding, your Honour.
PN66
THE DEPUTY PRESIDENT: No, but they may be relevant to later aspects.
PN67
MR BURCHARDT: Well, we - yes, it - - -
PN68
THE DEPUTY PRESIDENT: I think there are changes to rest breaks clause, clause 5, and smoking clause 8 as I understand it.
PN69
MR BURCHARDT: Yes.
PN70
THE DEPUTY PRESIDENT: I could be wrong.
PN71
MR BURCHARDT: Well, if your Honour turns - if I could take your Honour through what I have and if I have missed any Mr Hinkley will correct me. If you turn to page five you will see under paragraph 1(h) - does your Honour have that?
PN72
THE DEPUTY PRESIDENT: I do.
PN73
MR BURCHARDT: The company will allow the "appropriate" union party. That word "appropriate" is an addition.
PN74
THE DEPUTY PRESIDENT: Yes.
PN75
MR BURCHARDT: The next one - if your Honour were to turn to page 16.
PN76
THE DEPUTY PRESIDENT: Page 16?
PN77
MR BURCHARDT: Yes, paragraph 7(h).
PN78
THE DEPUTY PRESIDENT: Yes.
PN79
MR BURCHARDT: Does your Honour see in (i) the phrase:
PN80
An employee employed as a delegate in line with the rules of the appropriate union party to this agreement -
PN81
are new. In (iii) - 7(h)(iii) "employees appointed as such union delegates" the words "as such" are an addition.
PN82
THE DEPUTY PRESIDENT: Yes.
PN83
MR BURCHARDT: In the next phrase 7(i)(i) - which will give the transcribers some difficulty I fear - you will see:
PN84
Every effort will be made by either the organiser or the delegate or -
PN85
and then the words:
PN86
- official of a union part to this agreement.
PN87
That is once again an alteration. In clause 15 in attachment 1 -
PN88
THE DEPUTY PRESIDENT: Clause 15, attachment - - -
PN89
MR BURCHARDT: 15 in attachment 1. I don't think there is a 15 in attachment - - -
PN90
'
PN91
MR BURCHARDT: Could you please bear with me. I was passed a document which has led me into error.
PN92
THE DEPUTY PRESIDENT: Just let me explain the reason for my question, Mr Burchardt.
PN93
MR BURCHARDT: Yes of course, your Honour.
PN94
THE DEPUTY PRESIDENT: I would be interested to know if there has been a change to the agreement such that the approval of employees to that agreement by ballot is negated or no longer sufficient to enable me to certify the agreement. That is why I ask the question.
PN95
MR BURCHARDT: Could I take that question on notice, your Honour?
PN96
THE DEPUTY PRESIDENT: Of course. And at some stage could we deal with that?
PN97
MR BURCHARDT: Yes, we will deal with that in due course. I think the short answer will prove to be that it is section 170LL agreement. It is a Greenfields agreement which doesn't quite - but we will come back to that if it is still troublesome when we get to the substance.
PN98
THE DEPUTY PRESIDENT: No, fine. Well, if that is the answer that is the answer.
PN99
MR BURCHARDT: I think that is the answer, your Honour.
PN100
THE DEPUTY PRESIDENT: All right.
PN101
MR BURCHARDT: Yes. If your Honour could turn to attachment 1 - the dispute settlement procedure.
PN102
THE DEPUTY PRESIDENT: I am sorry?
PN103
MR BURCHARDT: Sorry, your Honour. I tried to take you to attachment 1 in a rather misleading way earlier. But there is an attachment 1.
PN104
THE DEPUTY PRESIDENT: Yes, I have it.
PN105
MR BURCHARDT: And if you could turn to clause - which I think is sub-clause (1)(i) which reads:
PN106
Discussions between the employee/s concerned and at their request the appropriate union -
PN107
then the words "party to the agreement" are added.
PN108
THE DEPUTY PRESIDENT: is that the lot?
PN109
MR BURCHARDT: As I am instructed, your Honour.
PN110
THE DEPUTY PRESIDENT: I thought there were changes to clause 5(b)(v) - rest breaks - and clauses - changes to clause 8(f) - smoking. Correct me if I am wrong but that is - - -
PN111
MR BURCHARDT: No, I am not in a position to either correct you or not correct you, your Honour.
PN112
THE DEPUTY PRESIDENT: Okay.
PN113
MR BURCHARDT: If that is so then it is so but they were not matters to which my attention has been drawn, your Honour.
PN114
THE DEPUTY PRESIDENT: All right. Well, perhaps that could be checked during the course of proceedings and if you could - - -
PN115
MR BURCHARDT: Yes. We will take that on notice if we may, your Honour.
PN116
THE DEPUTY PRESIDENT: - - - provide us with a submission on that issue.
PN117
MR BURCHARDT: Yes. Yes, of course.
PN118
THE DEPUTY PRESIDENT: Clause 5(b)(v) rest breaks and clause 8(f) smoking.
PN119
MR BURCHARDT: We will take those on notice if we may, your Honour.
PN120
THE DEPUTY PRESIDENT: All right. Thank you.
PN121
MR BURCHARDT: Now, that is what is before you today and, of course, what we say in broad outline is that to the extent that any of the concerns that were ventilated before his Honour, Weinberg J, might have been said or not said to have any validity those concerns have been well and truly extirpated by the terms of the agreement as it now stands. And as I say this is a new agreement, as you will appreciate. Now the - - -
PN122
THE DEPUTY PRESIDENT: What is the substance of the changes you have outlined to me, Mr Burchardt? What is the effect of them in total?
PN123
MR BURCHARDT: The effect is to remove any suggestion that you are required by the terms of the agreement to be a member of the AWU and not a member of any other union if you wish to seek work.
PN124
THE DEPUTY PRESIDENT: I see.
PN125
MR BURCHARDT: That was the complaint that was made in essence.
PN126
THE DEPUTY PRESIDENT: Or wished to receive wages or - - -
PN127
MR BURCHARDT: That is right. I mean it was put in a variety of different ways but boiled down that was the essence of what was put and we say - well, without making any concessions about that the problem simply isn't there.
PN128
THE DEPUTY PRESIDENT: I understand.
PN129
MR BURCHARDT: Now, could I also just - I will pass the bal back, so to speak, to Mr Hinkley to deal with the CEPU aspect of the matter in a moment but could I just foreshadow in a very brief outline the position we take in relation to the application for intervention by my learned friend Mr Irving on behalf of the CFMEU. Put shortly we say there is simply no entitlement to intervene on the part of the CFMEU in these circumstances because it concerns a section 43(2)(e). I will do no more than outline three relevant matters at the moment. First - - -
PN130
THE DEPUTY PRESIDENT: Well, first of all let us turn that section up, Mr Burchardt, to enable me to follow your submissions.
PN131
MR BURCHARDT: Certainly. Yes. This is the outline of course, your Honour.
PN132
THE DEPUTY PRESIDENT: Sorry, you are providing an outline at this stage are you?
PN133
MR BURCHARDT: I wasn't minded to take you to al the authorities at this stage, your Honour.
PN134
THE DEPUTY PRESIDENT: No, all right. Well, it may not be necessary in other words?
PN135
MR BURCHARDT: Yes.
PN136
THE DEPUTY PRESIDENT: Yes, okay.
PN137
MR BURCHARDT: 43(2)(b) is simply the section that says that leave can't be granted save to an organisation save one that is proposed to be bound by the agreement, which the CFMEU plainly isn't. And the terms of sub-section (a) which are the only exception to that are not relevant because, of course, there are no employees who have got a Greenfields section LL agreement.
PN138
THE DEPUTY PRESIDENT: All right. So just let me understand. So what you are putting, Mr Burchardt, is that section 43(2) relates to intervention where there is an application for certification agreement?
PN139
MR BURCHARDT: That is right.
PN140
THE DEPUTY PRESIDENT: Secondly, that the CFMEU doesn't propose to be bound by the agreement and therefore by 43(2)(b) I am required not to grant leave to intervene. Is that the - - -
PN141
MR BURCHARDT: Yes. It is not that they - what they propose is - may not be - whatever they propose. The fact is they are not bound by the agreement because we have already executed it and they are not party to it, they are not bound by the agreement.
PN142
THE DEPUTY PRESIDENT: I see, other than one that is proposed to be bound by the agreement.
PN143
MR BURCHARDT: Yes, proposed in the - - -
PN144
THE DEPUTY PRESIDENT: And there is no such proposal?
PN145
MR BURCHARDT: That is right.
PN146
THE DEPUTY PRESIDENT: Right.
PN147
MR BURCHARDT: Yes, that is right. Now, the agreement has been concluded. It is a Greenfields agreement and we say that when you look at the authorities, which we will get to in due course no doubt, that precludes your granting leave to intervene to CFMEU. That is just an outline just so that your Honour has the position we as one of the parties take in that regard. Now, that is my introductory matters concluded, your Honour, and it may be convenient to now deal with the CEPU aspect of the matter because it is discrete and can be dealt with perhaps conveniently now.
PN148
THE DEPUTY PRESIDENT: All right.
PN149
MR BURCHARDT: The ground has been moving as I have been speaking, your Honour. It is appropriate Mr Hinkley brings you up to date.
PN150
MR HINKLEY: It is the earthquake, your Honour. Can I adopt for the part of my client all that has been said by Mr Burchardt in relation to the changes to the agreement to which he drew attention and the submissions he made in relation to intervention by the CFMEU for application to be heard. There has been some discussion at the bar table, your Honour, arising out of your eagle eye picking up some changes that I must confess I had no knowledge of. i think Mr Burchardt is in the same position. In order for us to just examine the issue and the consequences of it, your Honour, to give Mr Irving a chance to have a look at the effect we say of the changes in relation to the case his client had in the Federal Court and to tidy up a few other little things that as usual start cropping up could we seek another indulgence from you, sir, to have a - - -
PN151
THE DEPUTY PRESIDENT: A brief adjournment. Yes.
PN152
MR HINKLEY: - - - standing down for say - would half an hour be inconvenient to the Commission or can we say 15 minutes with the opportunity to send a message to you if we still need more.
PN153
THE DEPUTY PRESIDENT: All right. I would be happy to do that subject only to concern that we deal with this matter to finality before the luncheon adjournment. Would we be able to do that?
PN154
MR HINKLEY: We strongly support that, sir. If it went any further would the Commission be in a position to go beyond the beginning of the luncheon adjournment if that did turn out to be the case.
PN155
THE DEPUTY PRESIDENT: I have another matter at 2.15 I believe and I have a matter at 4.
PN156
MR HINKLEY: Yes. One of those days.
PN157
THE DEPUTY PRESIDENT: One of those days, Mr Hinkley, so I prefer to deal with it today rather than adjourn it till - - -
PN158
MR HINKLEY: No, we want it dealt with today, sir, yes. We will push eagerly ahead to try and tidy up these matters and get back to you in 15 minutes if we may.
PN159
THE DEPUTY PRESIDENT: Okay. Well, we will adjourn then until 11.15.
SHORT ADJOURNMENT [10.59am]
RESUMED [11.22am]
PN160
THE DEPUTY PRESIDENT: Right, where were we? We had had an adjournment to deal with some matters.
PN161
MR HINKLEY: And we have taken good advantage of it and we are grateful for the time your Honour has given us. Can I, sir, in relation to the CEPU's presence here today and the application to be an intervener in the proceedings tell the Commission that leaving aside any issue as to whether or not such an application could be validly made the employer, the AWU nd the CEPU have reached an agreement about changes that will be made in the future as I suggested to you to begin with. Can I just read those into transcript if the Commission pleases.
PN162
The scope and application of the agreement will be changed within a short time,like a week or two at the most to read as follows:
PN163
The agreement does not apply to members or eligible members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union in its Electrical Division ("ETU") engaged in the classifications (clause 3(a)) and/or within the scope (clause 6) as described in the National Electrical Electronic and Communications Contracting Industry Award 1998 ("Electrical Contracting Industry Award").
PN164
Can I also say, sir, separately from that that the parties will be making appropriate applications to the Commission to change the contents of clause 3(a) which is the classifications in the agreement as it presently stands and that will be in 3(a) wages in the table that appears with a heading "Wage Group Indicative Functions" and in particular in the line which is identified under "Wage Group D". I think this is at page five at the bottom of the pagination, your Honour. In capital D the Wages Group there is a reference presently to electrical unrestricted in the third last line in the indicative functions column. I don't know whether I have got you to the right document or not, your Honour. I have.
PN165
THE DEPUTY PRESIDENT: I think I have. I think I have it, yes.
PN166
MR HINKLEY: Yes.
PN167
THE DEPUTY PRESIDENT: Thank you.
PN168
MR HINKLEY: That will be removed by the arrangements that the parties will enter into and come back to the Commission about. And then under Wage Group line F the reference CEPU - Award defined special class will be dealt with in the same way. Now we understand, sir, that on the basis of that the CEPU does not wish to press its participation in these proceedings.
PN169
THE DEPUTY PRESIDENT: Thank you very much, Mr Hinkley.
PN170
MR GLOVER: Yes, your Honour, we withdraw our application to intervene.
PN171
THE DEPUTY PRESIDENT: Thank you very much, Mr Glover, you are excused.
PN172
MR HINKLEY: Your Honour, can I go to your eagle eye observations about clause 5(b) and 8(f).
PN173
THE DEPUTY PRESIDENT: Yes.
PN174
MR HINKLEY: The change to 5(b) I am instructed - nd I understand my learned friend Mr Burchardt is similarly instructed - was made deliberately with the intention of changing it from its original content to its current content.
PN175
THE DEPUTY PRESIDENT: Yes.
PN176
MR HINKLEY: I must say we are grateful for having our attention drawn to that, your Honour.
PN177
THE DEPUTY PRESIDENT: Well, that is a relief that it is intentional,Mr Hinkley.
PN178
MR HINKLEY: Yes, it certainly is. It is also a relief that what is in 8(f) in that second sentence there about workers compensation - that is at page 17 pagination at the bottom.
PN179
THE DEPUTY PRESIDENT: Page 17?
PN180
MR HINKLEY: 17, your Honour, yes. I clause 8(f) which is headed "smoking".
PN181
THE DEPUTY PRESIDENT: Yes.
[11.27am]
PN182
MR HINKLEY: It has that second grammatical paragraph:
PN183
The company will extend workers compensation payments -
PN184
etcetera. That reference to Workers' Compensation provides a benefit which the parties did intend would be provided.
PN185
THE DEPUTY PRESIDENT: Yes.
PN186
MR HINKLEY: And is caught, as I am now instructed, within 3(c) already of the agreement that we have placed before the Commission today. I just - I withdraw that, your Honour, it is not. More importantly, under 8(f) - that new sentence about Workers' Compensation - it is intended by the parties there will be such a provision.
PN187
THE DEPUTY PRESIDENT: Right.
PN188
MR HINKLEY: The parties submit to you that on a proper construction of the document that provision provides the benefit which it identifies, albeit under the heading smoking.
PN189
THE DEPUTY PRESIDENT: Yes.
PN190
MR HINKLEY: But similarly to the other changes the parties will bring about, they will arrange for an appropriate process before the Commission to characterise that in a different place so that it is more readily identifiable as simply a Workers' Compensation entitlement.
PN191
THE DEPUTY PRESIDENT: Right. So there will be another variation at a later stage; is that what you are saying.
PN192
MR HINKLEY: Yes.
PN193
THE DEPUTY PRESIDENT: Yes.
PN194
MR HINKLEY: We will go through the appropriate process under the Act to bring the changes I have talked about into formal documentation for certification.
PN195
THE DEPUTY PRESIDENT: Yes, all right.
PN196
MR HINKLEY: If the Commission pleases.
PN197
THE DEPUTY PRESIDENT: But the key issue, Mr Hinkley, is none of those changes are any barrier to certification in your submission; is that correct?
PN198
MR HINKLEY: Not at all, your Honour, no.
PN199
THE DEPUTY PRESIDENT: Right.
PN200
MR HINKLEY: The intention of the parties to bring about further arrangements before the Commission does not diminish the integrity of this document.
PN201
THE DEPUTY PRESIDENT: No. Thank you. All right, so where have we got to? Is it now the turn of Mr Irving to deal with your changes, Mr Burchardt?
PN202
MR BURCHARDT: I think subject to something - - -
PN203
THE DEPUTY PRESIDENT: Is that where we have got to?
PN204
MR BURCHARDT: - - - something Mr Hinkley wishes to address you about we are then up to Mr Irving.
PN205
THE DEPUTY PRESIDENT: So there is an additional issue?
PN206
MR BURCHARDT: Yes, it is dealing with the issue of Mr Irving's attempt to participate in the proceedings.
PN207
THE DEPUTY PRESIDENT: Yes.
PN208
MR BURCHARDT: Your Honour, we understand the position to have been before the Court that there are a number of propositions being put about the content of the agreement which were said to be a sound basis for interlocutory relief.
PN209
THE DEPUTY PRESIDENT: Yes.
PN210
MR BURCHARDT: I say no more about that. Out of abundance of caution and great wisdom the union and company party have removed all of those problems. They have done a few other things as well but it is a new consolidated agreement. We understand Mr Irving wants to be heard. The basis on which he wants to be heard we do not know. As we understand it he is now making an application to the Commission to be heard.
PN211
THE DEPUTY PRESIDENT: Yes, that is right.
PN212
MR BURCHARDT: And we will respond to his application to be heard.
PN213
THE DEPUTY PRESIDENT: Right.
PN214
MR BURCHARDT: I think it will be the case from brief discussions with my friend, and I don't think he minds me saying this, that in making that application to be heard he will traverse the issues
PN215
which he would traverse if he were given permission to be heard.
PN216
THE DEPUTY PRESIDENT: Yes.
PN217
MR BURCHARDT: But the technical position is - - -
PN218
THE DEPUTY PRESIDENT: Yes, he is making - - -
PN219
MR BURCHARDT: - - - as I think we have put it.
PN220
THE DEPUTY PRESIDENT: No, I understand.
PN221
MR BURCHARDT: Yes.
PN222
THE DEPUTY PRESIDENT: All right, Mr Irving, could I just ask you a question before you start?
PN223
MR IRVING: Yes.
PN224
THE DEPUTY PRESIDENT: You have heard the explanation of Mr Burchardt and to some extent of Mr Hinkley. Is that sufficient for your purposes or do you still wish to make an application to be heard?
PN225
MR IRVING: We still wish to make an application to be heard.
PN226
THE DEPUTY PRESIDENT: All right.
PN227
MR IRVING: There are four bases on which we say the Commission should hear the CFMEU about whether or not this agreement should be certified. The first basis is that we seek that the Commission appoint the CFMEU as amicus curiae for the purpose of this proceeding. The second basis - and I will flesh that out in some detail - the second basis is that under section 110(2)(b) of the Act the Commission - I just take you to that, Commissioner. The second basis is under section 110(2)(b) which provides:
PN228
In the hearing or determination of industrial dispute or in any other proceedings before the Commission the Commission is not bound to act in a formal manner and not bound by the rules of evidence -
PN229
And we place reliance on this part:
PN230
- but may inform itself on any other matter in such manner as it considers just.
PN231
The second basis then is that - - -
PN232
THE DEPUTY PRESIDENT: Yes, I understand.
PN233
MR IRVING: The third basis are applications pursuant to section 111(1)(g)(iv) and (v) and we say that a party to an industrial dispute is engaging in conduct that is hindering the settlement of an industrial dispute. And I will get to what that industrial dispute is and what conduct it is that we allege is hindering such prevention and the fourth - and related to that, though separate to it is, that under (g)(v)(A) that a party to the industrial dispute has breached an order of the Commission. And we say that the Commission should dismiss this proceeding or refrain from further hearing this proceeding until as a result of those two paragraphs.
PN234
The final basis is this - the fourth and final basis is we seek to intervene pursuant to section 43(1) and we say that 43(2)(b) doesn't apply to parts of the hearing before you today. If I could just flesh out then those four points - the four bases. To do so it will be necessary to tell the Commission a little bit about the background to this case and I am doing so - as I have no leave of the Commission to be heard on the substance of the matter - I am not calling evidence - I will simply make assertions from the bar table which, if we are given leave to proceed in this matter, and to be heard in this matter, we would propose to call evidence to support the assertions that I am making.
PN235
This agreement proposes - or concerns a couple of plants which are going to be built down at the Shell Refinery in Corio. Shell has called for tenders for construction companies to build these plants. It has entered into - there have been two successful tenderers, an organisation called Transfield and one called CBI. I am instructed that it was a requirement of the tender that the tenderers agree that they would engage labour through a labour hire firm, MRE, the employer in this proposed certified agreement.
PN236
There was further an agreement between MRE and Shell about the provision of labour to Transfield and CBI, the two successful tenderers. As a result of that web of agreements the effect is that the successful tenderer such as Transfield will not directly employ employees to perform the work in the construction of the plant. Rather, the work will be provided by employees engaged by the labour hire firm. Transfield is currently respondent to a certified agreement with the CFMEU - - -
PN237
THE DEPUTY PRESIDENT: Which is the labour hire firm again?
PN238
MR IRVING: MRE.
PN239
THE DEPUTY PRESIDENT: Right.
PN240
MR IRVING: Transfield, for example, is currently respondent to a certified agreement with the CFMEU about employees at that site, at Shell in Geelong. By engaging in this set of contracts one has managed to avoid a certified agreement which continues to run up till, I think it is, 31 March 2003, one has managed to avoid the certified agreements that are in place. Becoming aware of these matters the CFMEU made an application in the Federal Court of Australia. The application makes specific reference to particular obnoxious provisions within the certified agreement as it then stood.
PN241
Those obnoxious provisions have been deleted and we were informed about that late yesterday. As a result - - -
PN242
THE DEPUTY PRESIDENT: Just let me get this straight. So the freedom of association objections are now - that you had in the Federal Court you no longer have; is that correct.
PN243
MR IRVING: The specific ones that we raised in the Federal Court we no longer have.
PN244
THE DEPUTY PRESIDENT: Do you still have any remaining freedom of association?
PN245
MR IRVING: We do. And the freedom of association objection that remains relates to entering into this series of contracts for the purpose of getting out of the current certified agreement. In particular, we say that these arrangements were entered into because the prospective employees would be entitled to the benefit of an industrial instrument, namely, the certified agreement with Transfield, unless - that set up this scheme or scam, or however one wants to characterise it, to engage a labour hire firm to break the loop.
PN246
The Commission under section 170LU sub-section 3 - - -
PN247
THE DEPUTY PRESIDENT: Just bear with me for a second while I turn that provision up. Yes.
PN248
MR IRVING: Subsection 3 provides:
PN249
The Commission must refuse to certify an agreement if it is satisfied that -
PN250
Subsection (a):
PN251
- the employer has in connection with negotiating the agreement contravened section 170NB or Part XA.
PN252
If we were granted leave to make submissions and to appear in this place about the certification of this agreement then we would propose to address your Honour about whether or not the agreement was made, or the negotiation of the agreement contravened Part XA.
PN253
THE DEPUTY PRESIDENT: Yes.
PN254
MR IRVING: The problem with not having the CFMEU here, of course, is that there is no contradictor. Ordinarily in proceedings ones has two opposing parties but - and, therefore, nobody turns up and addresses - - -
PN255
THE DEPUTY PRESIDENT: Not in agreement places you don't.
PN256
MR IRVING: Sorry.
PN257
THE DEPUTY PRESIDENT: It is very rare to have such a position in certified agreement certification matters.
PN258
MR IRVING: Absolutely. And nobody comes and draws these matters to the Commission's attention and, therefore, the Commission rarely addresses themselves - itself specifically to these issues. But in my submission there is a way out of that. There is a way out of that by appointing an amicus curiae to make submissions and even to lead evidence about the compliance of the agreement with Part XA. There is a difference between appointing an amicus curiae and intervention. There is a specific authority on - - -
PN259
THE DEPUTY PRESIDENT: Mr Irving, in two paragraphs what is this alleged freedom of association breach?
PN260
MR IRVING: A breach of section - - -
PN261
THE DEPUTY PRESIDENT: What is it, which provisions of this agreement?
PN262
MR IRVING: The negotiation of the agreement is the breach of - - -
PN263
THE DEPUTY PRESIDENT: The negotiation?
PN264
MR IRVING: Correct.
PN265
THE DEPUTY PRESIDENT: Why is that?
PN266
MR IRVING: Because it was entered into for the purpose of avoiding entitlements under the current certified agreement with Transfield, circumventing the current arrangements which are in place.
PN267
THE DEPUTY PRESIDENT: It had that purpose, did it?
PN268
MR IRVING: Yes. That is the position of the CFMEU.
PN269
THE DEPUTY PRESIDENT: That may be the effect but why is that the purpose?
PN270
MR IRVING: The purpose of it will be ascertained by looking at the evidence of the relevant people who made it and the surrounding factual circumstances. That is how the purpose will be fleshed out. For example - I mean it is an extraordinary arrangement to have a certified agreement with a tenderer about that very site in existence, but have an agreement go off to a labour hire firm and undermine and circumvent that - why?
PN271
THE DEPUTY PRESIDENT: But why is that the purpose - why is circumventing the purpose - why is circumventing the existing agreement the purpose? What is the nature of your case on that? Do you have direct evidence, a statement to that effect?
PN272
MR IRVING: We don't have direct evidence because - - -
PN273
THE DEPUTY PRESIDENT: No direct evidence.
PN274
MR IRVING: How one proves purpose under Part XA - there is one of two ways. The first is the employer puts their hand up and says, yes, I sacked him for that reason, or I did it for that reason. Alternatively one calls evidence and looks at the surrounding circumstances and says, well, this is an extremely unusual arrangement entered into, what was the purpose of all this, what is the correspondence between Shell and Transfield, between Shell and MRE, Transfield and MRE and that will flesh out what it is that they are trying to do by these extraordinary arrangements.
PN275
THE DEPUTY PRESIDENT: So we would infer it from the circumstances, would we?
PN276
MR IRVING: Yes. Well, we - on my instructions we currently have no direct evidence but if we ultimately proceeded with our case there may well be direct evidence.
PN277
THE DEPUTY PRESIDENT: No. I understand, cross-examination or whatever, yes.
PN278
MR IRVING: Indeed. So if I could take you to the decision of the Full Federal Court. This is a decision of the Full Federal Court reported at volume 83 of ALR. It concerned an organisation called the Australian Federation of Consumer Organisations and whether or not it should be granted leave to appear as amicus curiae. Ultimately it was joined as party so what the Court said about the position of amicus curiae and its role of an amicus curiae isn't - is merely part of the dicta of the case.
PN279
However, on page 93 onwards the Court considers at some length the position of an amicus in Australia. If I could take you to page 93 at the foot of the page, where the Court says in the final paragraph from about line 47:
PN280
It is necessary to distinguish the position of an amicus curiae from that of an intervener. Although intervention has since been put on a statutory basis and provided for in the various rules of Court it appears that intervention -
PN281
And then the Court continues to consider the historical basis of intervention. And then on the next page in the first paragraph their Honours quote approvingly from the judgment of Justice of Appeal Hutley in the second paragraph:
PN282
A person accepted as an intervener becomes a party to the proceedings with all the privileges of party and thus he can appeal, tender evidence and participate fully in all respects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal.
PN283
And then continues in the following paragraphs to contrast the positions between interveners and amicus curiae.
PN284
THE DEPUTY PRESIDENT: Which tribunal did this matter concern?
PN285
MR IRVING: This concerned the Federal Court itself.
PN286
THE DEPUTY PRESIDENT: The Federal Court.
PN287
MR IRVING: Indeed. And I am not aware of any authority of the Commission regarding the role.
PN288
THE DEPUTY PRESIDENT: Is the statutory scheme for present purposes the same in that Court as in these cases relating to certified agreements or whatever? Is there an equivalent to section 43(2)(b)?
PN289
MR IRVING: No.
PN290
THE DEPUTY PRESIDENT: No.
PN291
MR IRVING: Not to my knowledge although there is a provision for intervention.
PN292
THE DEPUTY PRESIDENT: Yes.
PN293
MR IRVING: And the rules are silent as to amicus curiae.
PN294
THE DEPUTY PRESIDENT: Yes. Right. There is no prohibition on an intervener in certified agreement matters in the Federal Court?
PN295
MR IRVING: There is no prohibition on - well, there is no certification of agreement, but - - -
PN296
THE DEPUTY PRESIDENT: No, I understand that, but there may be Federal Court proceedings relating to certification. Are there any special provisions relating to who may or may not appear in such proceedings?
PN297
MR IRVING: I understand, though I do not have the relevant parts of the Federal Court Act here, that there are express provisions relating to intervention in proceedings in the Federal Court. For example, section 470 of the Workplace Relations Act is such an express provision. It relates to intervention in proceedings relating to industrial matters broadly speaking, but it doesn't contain an exclusion in the similar terms of subsection (2).
PN298
THE DEPUTY PRESIDENT: 43(2)(b) you mean?
PN299
MR IRVING: Yes, 43(2)(b).
PN300
THE DEPUTY PRESIDENT: Yes.
PN301
MR IRVING: I understand that, your Honour, but there is a distinction between intervention - - -
PN302
THE DEPUTY PRESIDENT: No, I see that.
PN303
MR IRVING: - - - which is prohibited and - or which is restricted.
PN304
THE DEPUTY PRESIDENT: And you are saying that an amicus curiae is on the authority of this decision not an intervener, therefore, section 43(2)(b) doesn't apply; is that it in a nutshell?
PN305
MR IRVING: Yes, your Honour, yes.
PN306
THE DEPUTY PRESIDENT: All right. Now, this case, this US Tobacco case doesn't relate to certified agreements or anything of the sort, does it?
PN307
MR IRVING: No.
PN308
THE DEPUTY PRESIDENT: No. All right.
PN309
MR IRVING: No, it doesn't.
PN310
THE DEPUTY PRESIDENT: I just wanted to clarify, thanks. I think I follow what you are saying.
PN311
MR IRVING: Yes. There is one final point - or two final points that I want to draw your attention to in that provision, or in that case. At about line 35 there is a statement of the Court - - -
PN312
THE DEPUTY PRESIDENT: On page 94?
PN313
MR IRVING: Sorry, on page 94, yes.
PN314
THE DEPUTY PRESIDENT: Line 35.
PN315
MR IRVING: And it is a quote from an American decision and it refers to:
PN316
Courts undoubtedly have the right to allow an attorney or a person to appear as a friend of the Court ...(reads)... argue the case and introduce evidence.
PN317
If the Commission was inclined to grant us leave to appear as an amicus curiae then it would be on terms that the Commission determines in relation to the presentation of argument and the introduction and filing of evidence. I appreciate that is the functional nature of an amicus.
PN318
THE DEPUTY PRESIDENT: All right, I understand. So that is what you say you would be able to do in these proceedings.
PN319
MR IRVING: Yes.
PN320
THE DEPUTY PRESIDENT: Right.
PN321
MR IRVING: We would if we were granted the right to appear in that capacity.
PN322
THE DEPUTY PRESIDENT: Yes.
PN323
MR IRVING: It is a matter of discretion, but it allows the Commission to find out - when the Commission is aware of concerns about breaches of Part XA as here, then it allows the Commission to properly inform itself as to whether or not the conditions for certification in section 170LU(3) have been made out. Otherwise ordinarily there would be no or little capacity for the Commission to truly ascertain whether or not there has been a breach of Part XA in connection with the negotiation of the agreement.
PN324
Matters in connection with the negotiation of the agreement are not brought to the attention of the Commission in either the statutory declarations which haven't been filed to support this agreement - - -
PN325
THE DEPUTY PRESIDENT: I think they have been filed in this agreement.
PN326
MR IRVING: Have they. Well, my instructor - - -
PN327
THE DEPUTY PRESIDENT: Perhaps you haven't seen them, Mr Irving, but I think - - -
PN328
MR IRVING: I have seen the - - -
PN329
THE DEPUTY PRESIDENT: Correct me if I am wrong, and I am sure the parties will enlighten me if I am wrong, I think new statutory declarations have been filed, together with the new agreement.
PN330
MR IRVING: All right.
PN331
THE DEPUTY PRESIDENT: And I think included in them is a statement relating to genuine negotiations and the like. Correct me if I am wrong.
PN332
MR IRVING: My instructor sought a copy of what was on the file yesterday and new statutory declarations weren't on the file at that time.
PN333
THE DEPUTY PRESIDENT: Yes, I was advised - I am advised that the statutory declarations came in late yesterday afternoon following a conversation which your representatives apparently had with my office.
PN334
MR IRVING: Yes. Thank you, your Honour, I am now informed of that.
PN335
THE DEPUTY PRESIDENT: Mr Irving, the issue of intervention in certified agreement proceedings has been a matter of some considerable debate during passage of the various amending Acts relating to certified agreements. The scheme has changed on a number of occasions over the last 10 years. I think it is fair to say that the direction of change and the expressed intention has been to minimise or reduce or remove the scope for non-parties to agreements to put submissions. And if we went to, I am sure - I am speaking from recollection here of the second reading speeches and explanatory memorandum.
PN336
The submission you have just put would seem to allow the Commission to avoid all those restrictions on intervention of external parties, parties not party to an agreement by a device, if you like, of describing an intervener as an amicus curiae. Now, I must say I have real doubts that that was the intention of parliament to allow such an exception to their exclusion of non-parties to agreements. I have real doubts about that and I put them to you now that can you in a sentence or two, or whatever is required, deal with this issue of the parliamentary intention when introducing section 43(2)(b)?
PN337
MR IRVING: The parliament could have excluded the opportunity for anyone to appear as a non-intervener in any way by saying that the Commission shall not receive submissions or from anyone whether an intervener party or otherwise in relation to the matter. They didn't express it in those terms. The parliament made the laws proscribing the right to intervene with the knowledge of the common law and the common law always drew a distinction between intervention and amicus curiae.
PN338
So one can infer from that in my submission that parliament did not intend to prevent intervention or prevent appearance - an appointment of an amicus curiae in the - in relation to the certification process. I should also add, your Honour, there was an enlightening discussion by Weinberg J in the proceedings before the Court. I understand that transcript was filed.
PN339
THE DEPUTY PRESIDENT: Yes, just bear with me. Do you want to take me to it?
PN340
MR IRVING: Yes, if I could your Honour.
[11.55am]
PN341
THE DEPUTY PRESIDENT: Is it the transcript attached to a letter from Slater and Gordon dated 20 March 2002?
PN342
MR IRVING: Yes, it is, your Honour. And it is page 10 of that
PN343
transcript.
PN344
THE DEPUTY PRESIDENT: Do we need to mark this bundle of materials, perhaps, so that we can identify it.
PN345
PN346
THE DEPUTY PRESIDENT: Now - - -
PN347
MR IRVING: There is in I1 a 15 page transcript which should either be at the commencement of I1 or at the conclusion of I1.
PN348
THE DEPUTY PRESIDENT: It is the conclusion, I have it.
PN349
MR IRVING: Yes, your Honour.
PN350
THE DEPUTY PRESIDENT: Do the other parties have it, do they?
PN351
MR IRVING: Yes, they were provided with copies.
PN352
THE DEPUTY PRESIDENT: The parties have it?
PN353
MR IRVING: Yes.
PN354
THE DEPUTY PRESIDENT: Yes?
PN355
MR IRVING: If I could take you to page 10. And after outlining what we said were the breaches of section 298K the following exchange occurred. At line 35 it said there, as I explained to his Honour:
PN356
The only relevant -
PN357
That should read, provision:
PN358
...related to the negotiation of the agreement and the negotiations incomplete.
PN359
And then I go on to say:
PN360
I should say this, your Honour, that ordinarily one would go to the Industrial Relations Commission and say, look, this is a problem we have with the certification. However, section 43 relating to intervention proceedings in the Commission - sub section (20(b) provides we are not to be given leave to intervene.
PN361
And I clarified that paragraph (a) didn't apply. Then on the next page his Honour expressed concerns about what other endeavours were made to convey the views of the CFMEU to the Commission and at line 10 his Honour made reference to that the Deputy President wouldn't be privy to the breach - wasn't aware of the breach as it were. And then at line 20:
PN362
Well, have you written to the Commission asking to have the views of the CFMEU taken into account, if you like, or drawn the attention of the Commission to the fact the proposed certified agreement will involve contraventions of the Act.
PN363
I said:
PN364
Well, no we have not. Though any attempt to do so, in my submission, would be and should be dismissed by the Commission until it deals with the application in open Court.
PN365
And his Honour proceeded:
PN366
Is that right that some public spirited citizen sees or learns that something is to happen in the Commission that will involve a breach of the Act and writes to the Commission saying Mr Commissioner, I just draw your attention to the fact that the proposed certified agreement will involve at least four separate contraventions of the Act. These are the sections. Your sincerely. The Commission can't have regard to that at all and consider whether there is any merit in the letter.
PN367
And a discussion then ensued between his Honour and my Honour - his Honour and myself at line 40 as to the operation and effect of section 43 and his Honour says at the foot of page 40 - sorry page 12 at line 40:
PN368
Well that is wishing to be heard but it doesn't say anything why the CFMEU wishes to be heard or alleged that if the agreement is certified it will constitute serious contraventions of the Act, if I can put it that way. Can -
PN369
One doesn't know the section - that is section 43 prescribes granting leave to intervene in a matter. Does it prescribe or prevent the Commission from allowing amicus curiae to appear, simply to point out to the Commission that what it is engaged in arguably is the commission of an offence or the facilitation of the commission of an offence under the Act or a breach of the Act, I should say. At the time that the matter was prosecuted in the Court the CFMEU had looked at section 43(2)(b) and had come to the conclusion that going to the Commission was going to cause problems.
PN370
However, in light of what his Honour has raised as the appropriate course of raising issues first here and attempting to be heard here before going off to the Court to seek relief we have come here to seek to be heard about those issues in the capacities that I have advanced. Indeed, Mr Bornstein at page 14 had been appearing for the AWU explained to his Honour that:
PN371
I don't think that the Act does preclude the CFMEU or anyone else informing the Commission about concerns they may have about the matter.
PN372
That is what we seek to do.
PN373
THE DEPUTY PRESIDENT: Sorry, where is that statement?
PN374
MR IRVING: That is at page 14 - - -
PN375
THE DEPUTY PRESIDENT: Yes.
PN376
MR IRVING: Line 10.
PN377
THE DEPUTY PRESIDENT: Mr Bornstein appeared for?
PN378
MR IRVING: The Australian Workers Union.
PN379
THE DEPUTY PRESIDENT: So just let me get this straight. So, in that paragraph the AWU is expressing the view that it does not think that the Act precludes you appearing as amicus curiae?
PN380
MR IRVING: It - there is no express reference to amicus curiae but there is - certainly there were no concerns about - - -
PN381
THE DEPUTY PRESIDENT: Right.
PN382
MR IRVING: - - - having the CFMEU raise concerns with the Commission.
PN383
THE DEPUTY PRESIDENT: Yes.
PN384
MR IRVING: And it can only do so either as amicus curiae or pursuant to one of the other powers within the Act.
PN385
THE DEPUTY PRESIDENT: Yes.
PN386
MR IRVING: That is what we have to say about amicus curiae. The other grounds are essentially these. The Commission can, we say, pursuant to section 111(2)(b), the provision I previously took your Honour to. It may inform itself in any manner and in such manner as it considers just, that is, it could allow the CFMEU to make submissions, to lead evidence to allow it to investigate whether or not there has truly been a breach of Part XA which would prevent the certification under section 170LU. The third basis, your Honour, is this. It arises under section 111 - - -
PN387
THE DEPUTY PRESIDENT: Section 110, really, that provision you have just referred me to really relates to informality in the rules of evidence. Does it have any bearing on intervention or amicus curiae or anything of the sort? Does it qualify section 43(2)(b)?
PN388
MR IRVING: Well, it allows the Commissioner an investigative function as well as purely listening to the parties. As an ordinary principle the Courts can only hear evidence from witnesses called by parties whereas here the Commission can inform itself, not necessarily by listening to the evidence put before it, but it can take other steps to inform itself in any manner as it sees just fit. It might call witnesses itself. It might call for the production of the documents between the various parties itself.
PN389
It might allow counsel for the CFMEU to issue summonses as to those documents, for example, to inform itself as to a relevant matter before it. The third basis is under section 111(1)(g). I should note that in certification proceedings the Commission must not, in performing its functions, may not act under paragraph 111(1)(g)(i)(ii) or (iii). That is prescription imposed by section 170LA(3). However, that leaves the possibility of the Commission refraining from hearing a matter based on (iv) and (v). The introductory words of - - -
PN390
THE DEPUTY PRESIDENT: What, so it is simply refrained from hearing and to take no further action even though I may not be able to hear you. Is that the submission?
PN391
MR IRVING: Well, it may - the Commission may permit us to call evidence as to why - - -
PN392
THE DEPUTY PRESIDENT: Oh, I see.
PN393
MR IRVING: The introductory words refer to dismiss a matter or part of a matter or refrain from further hearing or from determining the industrial dispute. Sub section (2) of 111 makes it clear that a reference to an industrial dispute includes reference to any other proceeding. So it can refrain from hearing any other proceeding on the basis set out in (iv) and (v). The CFMEU seeks to lead evidence that a party to the industrial dispute is engaging conduct that is hindering the prevention and settlement of the industrial dispute.
PN394
We say that there is an industrial dispute between the AWU and the MRE and they are engaging in conduct, namely, the negotiation and application of certification of this agreement that is hindering the prevention and settlement of another industrial dispute. The other industrial dispute is a dispute between the CFMEU and Transfield which is partially settled by the certified agreement made between the CFMEU and Transfield. By engaging in this grand scheme of contracting out and subverting the certified agreement in place the AWU and MRE are engaging in conduct that is hindering the settlement of the dispute between ourselves and Transfield, in my submission.
PN395
The second aspect is in relation to 111(1)(g)(v) - - -
PN396
THE DEPUTY PRESIDENT: How would I be able to exercise powers under section 111(1)(g) if by operation of section 43(2)(b) I am not able to hear you? Do I just do it on my own accord on - - -
PN397
MR IRVING: We are a party to that industrial dispute.
PN398
THE DEPUTY PRESIDENT: The other one?
PN399
MR IRVING: Yes.
PN400
THE DEPUTY PRESIDENT: I see.
PN401
MR IRVING: And one could call on the industrial dispute between the CFMEU and Transfield.
PN402
THE DEPUTY PRESIDENT: Join it.
PN403
MR IRVING: Joint it. And then - - -
PN404
THE DEPUTY PRESIDENT: Is this other industrial dispute - was the certified agreement made on the basis of an industrial dispute or is it the constitutional corporation provisions or what?
PN405
MR IRVING: There is - - -
PN406
THE DEPUTY PRESIDENT: Or is there another form of industrial dispute.
PN407
MR IRVING: Yes, there is - I am unsure whether or not there is an industrial dispute in existence between the AWU and MRE which has been the subject of a finding by the Commission.
PN408
THE DEPUTY PRESIDENT: Right, AWU and MRE, yes.
PN409
MR IRVING: That there is an industrial dispute. However, one - it would be quite simple to obtain evidence that there is such a dispute between the parties because they are arguing and still sorting out conditions today as to what should prevail at the workplace. So there must be some dispute in existence.
PN410
THE DEPUTY PRESIDENT: I think they have reached agreement, have they not?
PN411
MR IRVING: It is possible. That would be a matter of evidence. It would be possible that an - that agreement that they have reached has exhausted any dispute between them. However, it would - it is also possible that there is a log of claims that has been served by the AWU or MRE. We don't know about that yet. I should say, Deputy President, that up until late yesterday we had a completely different case to argue, your Honour, a completely different certified agreement. So we don't have all of this evidence compiled here now. t we are proposing a course to the Commission.
PN412
THE DEPUTY PRESIDENT: So, just let me get this straight. The other industrial dispute you are referring to is a dispute, you say, - that you say exists between the AWU and MRE, is that right?
PN413
MR IRVING: No.
PN414
THE DEPUTY PRESIDENT: Not between the CFMEU and Shell or anything of the sort?
PN415
MR IRVING: If one looks at (iv) of sub section (g) - - -
PN416
THE DEPUTY PRESIDENT: Yes, yes.
PN417
MR IRVING: - - - it refers to two industrial disputes that are party to the industrial dispute.
PN418
THE DEPUTY PRESIDENT: Yes, I see.
PN419
MR IRVING: Engaging in conduct - - -
PN420
THE DEPUTY PRESIDENT: And that is the dispute between the AWU and MRE which you say exists here.
PN421
MR IRVING: Yes. Which in the Commission's opinion is hindering the settlement of - - -
PN422
THE DEPUTY PRESIDENT: Right.
PN423
MR IRVING: - - - another industrial dispute, that is the industrial - - -
PN424
THE DEPUTY PRESIDENT: CFMEU and Shell?
PN425
MR IRVING: Yes.
PN426
THE DEPUTY PRESIDENT: Transfield?
PN427
MR IRVING: Transfield, rather.
PN428
THE DEPUTY PRESIDENT: Ad you seek leave to intervene or whatever to deal with that, is that - - -
PN429
MR IRVING: Well, we would seek leave to have that dispute joined with this certification proceeding and then appear as a party.
PN430
THE DEPUTY PRESIDENT: I see. But that dispute isn't before the Commission, is it?
PN431
MR IRVING: Not at the moment, your Honour.
PN432
THE DEPUTY PRESIDENT: How can I deal with it if it is not before me?
PN433
MR IRVING: Well, one could adjourn these proceedings and call it on before you.
PN434
THE DEPUTY PRESIDENT: I see.
PN435
MR IRVING: If you will bear with me for two seconds. Thank you for that moment, your Honour.
PN436
THE DEPUTY PRESIDENT: Well, there will two disputes, wouldn't there. A dispute between the AWU and MRE and Transfield - and another one between Transfield and the CFMEU of an unspecified nature and C number and the like.
PN437
MR IRVING: Well, one could - the C number for the dispute between CFMEU and Transfield is reasonably easy to - or obtain. I think it is C number 37095 of 2000.
PN438
THE DEPUTY PRESIDENT: Yes.
PN439
MR IRVING: Tough I acknowledge there is no party here from Transfield at the moment. The final aspect of the 111(g) argument relates - is that a party to the industrial dispute has breached an order of the Commission. The industrial dispute that we rely upon there is the alleged industrial dispute between AWU and MRE.
PN440
THE DEPUTY PRESIDENT: Yes.
PN441
MR IRVING: And the order of the Commission is an order of Deputy President McBean in 1993. I apologise to my friend, I am a copy short. Oh, no, we do, okay. This is a demarcation decision. The order is set out on page - at the foot of page 29 and it is that;
PN442
The CFMEU shall have the right to the exclusion of the AWU FIME to represent under the Industrial Relations Act the industrial interest of any person employed or engaged by any person, body, corporation, employer, principal that is engaged in the building and/or constructions industry in the occupation of carpenter and/or joiner.
PN443
The AWU has purported to represent under the Industrial Relations Act the industrial interests of carpenters and joiners. There is a specific provision in the certified agreement relating to carpenters and joiners.
PN444
THE DEPUTY PRESIDENT: Is that order still inn force?
PN445
MR IRVING: On my understanding, your Honour, it is still in force.
PN446
THE DEPUTY PRESIDENT: It says at the bottom of the page, quote:
PN447
These orders shall come into force on and from 23 November 1993 and shall remain in force for a period of three years.
PN448
Was it continued on after 1996 by operation of an Act or another order remembering that this is a demarcation order under an earlier Act?
PN449
MR IRVING: Yes, if you bear with me - - -
PN450
THE DEPUTY PRESIDENT: So there is transitional provisions. There is - go on.
PN451
MR IRVING: If you bear with me for two moments, your Honour.
PN452
THE DEPUTY PRESIDENT: Yes.
PN453
MR IRVING: If I could just obtain instructions on that.
PN454
THE DEPUTY PRESIDENT: Of course.
PN455
MR IRVING: I have no instructions as to whether or not there was a further order of the Commission and I haven't, frankly, looked at the question of whether or not demarcation orders are like other awards of the Commission and continue in force up until the time they are set aside or otherwise.
PN456
THE DEPUTY PRESIDENT: Yes, all right, so that is an open issue?
PN457
MR IRVING: Yes. And the final ground on which we should be given leave to intervene arises under section 45(3) - sorry 43, rather. What we say is that for the exclusion in sub section (2) to apply there must be an - - -
PN458
THE DEPUTY PRESIDENT: Sorry, which section are you referring to?
PN459
MR IRVING: 43.
PN460
THE DEPUTY PRESIDENT: Yes.
PN461
MR IRVING: Sub section (2).
PN462
THE DEPUTY PRESIDENT: Yes.
PN463
MR IRVING: For the exclusion for sub section (2) to apply there must be an application under division 2 or division 3 for certification.
PN464
THE DEPUTY PRESIDENT: Yes.
PN465
MR IRVING: It may have been resolved last evening but currently there is only an application for certification of the old certified agreement, not the current one. And in any event even if such an application were made we would say that it would be an application under section 170LL - - -
PN466
THE DEPUTY PRESIDENT: Yes.
PN467
MR IRVING: And there are jurisdictional provisions or jurisdictional conditions to the certification of such an agreement, in particular, whether or not the business is a new business. If the business is not a new business then there is no valid application to certify an agreement under section LL. And if there is no valid application to certify an agreement then the exclusion in sub section 43(2) doesn't apply. Therefore the CFMEU - - -
PN468
THE DEPUTY PRESIDENT: So what is it? It is a nullity?
PN469
MR IRVING: Yes. If after investigation one finds that there is no new business - - -
PN470
THE DEPUTY PRESIDENT: Yes.
PN471
MR IRVING: - - - then there is no application. Therefore the exclusion under sub section (2) does not apply for it only applies to applications which would read, or be read as, valid applications. And therefore under sub section (1) the CFMEU should be entitled to be heard in the matter before the Commission. The matter on that part - that matter being whether or not there is a valid application, and in particular, whether or not there is a single business or in fact MRE has been carrying on a series of businesses of this nature.
PN472
THE DEPUTY PRESIDENT: Would that submission you are putting on the new business pre-condition, does that extend to all the other pre-conditions for certification or is it somehow special, and if so, what makes it special? In other words if an application breaches any of the provisions of the Act are you saying it is a nullity?
PN473
MR IRVING: No, it is not any of the conditions, in that there are - sub section - or section 170LT applies to requirements. Whereas this, we say, the very existence of a new business - like the very existence of an organisation under the Act, is a pre-condition to the making of such an application. Whether or not then subsequently meets the requirements in LT and LU and all of division 3 is a different matter in that respect. So one would only - - -
PN474
THE DEPUTY PRESIDENT: Well, say if it is not a constitutional corporation does that make the proceeding a nullity if it is not?
PN475
MR IRVING: Yes.
PN476
THE DEPUTY PRESIDENT: It does. Or - - -
PN477
MR IRVING: Or if the AWU were registered as an organisation of employees.
PN478
THE DEPUTY PRESIDENT: Wouldn't that be contrary to section 170LV - other options open to the Commission instead of refusing to certify?
PN479
MR IRVING: Sorry, LV, did you say, your Honour.
PN480
THE DEPUTY PRESIDENT: Yes. For example, 170LV(1)(b) enables the Commission or requires the Commission to give the parties to an agreement an opportunity to take any action that may be necessary to make the agreement certifiable. Now, a lot of these conditions for certification can be cured, if you like, by actions of the parties.
PN481
MR IRVING: The require - - -
PN482
THE DEPUTY PRESIDENT: For example, removing breaches of freedom of association. Are you saying that a breach of freedom of association in an agreement makes those proceedings a nullity so that LV(1)(b) can't be used to remove those provisions?
PN483
MR IRVING: No, I am not, your Honour. I am saying that they are requirements subsequent to the making of a valid application. And whereas the existence of constitutional corporation, the existence of a new business, they are requirements - pre-conditions in the proper sense of a valid application.
[12.23pm]
PN484
THE DEPUTY PRESIDENT: Yes, I see.
PN485
MR BURCHARDT: I should say, your Honour, that the unfortunate thing is that if I am wrong about all these things and we can't be heard, and then our proper relief is to go off - for example, say it didn't turn out to be a constitutional corporation, appropriately we could then go off and get prerogative relief which strikes everyone, I think, as absurd. It should be a - there should clearly be an opportunity for someone to say, "Hey, that is not a corporation. That is not registered yet." Or whatever. And - - -
PN486
THE DEPUTY PRESIDENT: What you are saying is that as a matter of commonsense these issues should be dealt with here. Is that what you are saying?
PN487
MR IRVING: Yes, yes, your Honour. And when approaching the provisions of the Act and the - and addressing how they could be construed, those matters of commonsense should have considerable sway in - in construing what it is the Act allows or does not allow.
PN488
THE DEPUTY PRESIDENT: All right. I just have one last question, if I could, the effect of what you seem to be saying is, correct me if I am wrong, but in any - well, in nearly all cases where a party - where a body wishes to intervene to oppose the certification of an agreement between two other bodies, that party would either be able to do so or able to seek leave of the Commission, which would be empowered to let it do so.
PN489
Now, I think that is probably the net effect of what you are saying, or possibly - subject to what you have got to say.
PN490
MR IRVING: Yes.
PN491
THE DEPUTY PRESIDENT: And if it is true, what I have said - and I hear you in a minute on that - doesn't that, I suppose, drive a horse and cart through the fairly clear intention, policy intention, underlying section 43(2)(b)?
PN492
MR IRVING: It is not the effect, for this reason - - -
PN493
THE DEPUTY PRESIDENT: Right.
PN494
MR IRVING: - in relation to the intervention ground - - -
PN495
THE DEPUTY PRESIDENT: Yes.
PN496
MR IRVING: - - - the final point I argued, it would only be in relation to the preconditions not the subsequent requirements, like no disadvantage - - -
PN497
THE DEPUTY PRESIDENT: Such as the no disadvantage or - - -
PN498
MR IRVING: Yes.
PN499
THE DEPUTY PRESIDENT: Right. So it is limited to some tests not others?
PN500
MR IRVING: Yes. And in relation to amicus curiae and section 110, it would always be a matter of discretion - - -
PN501
THE DEPUTY PRESIDENT: True.
PN502
MR IRVING: - - - as to whether or not the Commission would allow parties to make submissions. And it would only do so where there is - where there is at least sufficient grounds for a proper allegation that was part a breach of a Part XA or giving rise to sufficient concerns of the Commission. And Exhibit I1 contains enough - the basis on which one can say, well, there are sufficient concerns about Part XA and how it is - - -
PN503
THE DEPUTY PRESIDENT: Well, regardless of it all, Mr Irving, I have now got Exhibit 1A before me - Exhibit I1 before me as a result of your application. So in a sense the net effect of what you are seeking is already partly before me, is it not - as a matter of commonsense?
PN504
MR IRVING: Well, we would seek to - - -
PN505
THE DEPUTY PRESIDENT: In a truncated form, but the allegations are still there. I am aware of them.
PN506
MR IRVING: Well, no they are - because I1 arose and dealt with the old agreement it focussed on the old agreement and not in the pre-dating negotiations - - -
PN507
THE DEPUTY PRESIDENT: Yes, but I have heard your submissions today. I have heard your submission today. I am aware of your concerns and the nature of them.
PN508
MR IRVING: Yes, but they are in a very truncated form without the proper evidence.
PN509
THE DEPUTY PRESIDENT: Yes. But I am still aware of them.
PN510
MR IRVING: Yes. I appreciate you are aware of what I have - those matters that I have informed you of, your Honour, the - - -
PN511
THE DEPUTY PRESIDENT: Yes.
PN512
MR IRVING: Yes.
PN513
THE DEPUTY PRESIDENT: All right.
PN514
MR IRVING: Unless your Honour has any further questions, I have got no further submissions.
PN515
THE DEPUTY PRESIDENT: All right. Thank you very much, Mr Irving. Well, look, I will now adjourn for five minutes and then I will hear from the other parties in the time that is left to us.
SHORT ADJOURNMENT [12.27pm]
RESUMED [12.35pm]
PN516
MR IRVING: Your Honour asked me about the demarcation provisions, whether or not they carry over.
PN517
THE DEPUTY PRESIDENT: Yes.
PN518
MR IRVING: The demarcation order carries over pursuant to section 148 of the Act.
PN519
THE DEPUTY PRESIDENT: Sorry, continues on in force.
PN520
MR IRVING: Yes, that is right.
PN521
THE DEPUTY PRESIDENT: Even a demarcation order under an earlier Act.
PN522
MR IRVING: Under an earlier Act it is dealt with both transitional provisions - - -
PN523
THE DEPUTY PRESIDENT: Yes.
PN524
MR IRVING: - - - scheduled for part 2(13)(ii) - - -
PN525
THE DEPUTY PRESIDENT: Sorry, clause 13?
PN526
MR IRVING: Yes.
PN527
THE DEPUTY PRESIDENT: Sub clause 2.
PN528
MR IRVING: Which provides that a demarcation order that was actually enforced continues as if it were a demarcation - - -
PN529
THE DEPUTY PRESIDENT: So your chain of reasoning, essentially, is that the '93 order, I think it was '93, continued on by operation of 148, and then continued on under the transitional provisions. That is your chain of reasoning is it?
PN530
MR IRVING: Yes, your Honour.
PN531
THE DEPUTY PRESIDENT: All right. One last question before you sit down, I think you said that a breach of freedom of association provisions rendered the agreement, and therefore the proceedings - well, rendered the proceedings - it was a precondition. Is that right.
PN532
MR IRVING: No, your Honour.
PN533
THE DEPUTY PRESIDENT: No?
PN534
MR IRVING: No. It is not a precondition to a valid application but it is a requirement that you have got to be satisfied of before you certify it.
PN535
THE DEPUTY PRESIDENT: Yes. No, I understand that. All right. So that wasn't your - well, your objections to this agreement are that it doesn't comply with freedom of association, is that correct?
PN536
MR IRVING: Yes, and it is not a new business.
PN537
THE DEPUTY PRESIDENT: Right. So you are not saying then that this is - so you are saying - so this is a valid application then, in your view?
PN538
MR IRVING: No, it is not because it is not a new business.
PN539
THE DEPUTY PRESIDENT: I see. That part of it renders - I understand. Sorry about that.
PN540
MR IRVING: Yes.
PN541
THE DEPUTY PRESIDENT: Thank you, Mr Irving.
PN542
MR IRVING: Thank you, your Honour.
PN543
THE DEPUTY PRESIDENT: All right. Who is next?
PN544
MR HINKLEY: I am, your Honour. My learned friend and I have divided our responses however neither of us are quite clear on what basis but we proceed. Can I just draw attention to some central elements of my learned friend's case, your Honour. What he says about his intention to participate in the proceedings is to make submissions to the Commission about the application of the Act in relation to freedom of association, based upon evidentiary material - none of which is available to him.
PN545
He said that he would seek evidentiary material about motives relevant to freedom of association from the witness, from the union - AMWU, that is - and the employer. He comes, really, on a grand fishing expedition saying he wants to be allowed to participate in the hearing to explore the possibility that the parties have made this agreement, have conducted themselves in a way that is a breach of the Act. He doesn't say he has got any evidence. he says he wants to "explore" with the parties witnesses what the evidence would be.
PN546
That is an extraordinary proposition. He doesn't have a case but he thinks he might have one if he can get the parties to give him the evidence that he has got a case.
PN547
THE DEPUTY PRESIDENT: I think he said he could infer breach of association from the circumstances - I think.
PN548
MR HINKLEY: Well, the inference of breach of the provisions to be inferred from the circumstances, I would suggest to the Commission, is simply not available - but can I come to that in a minute. Still on the evidentiary question. Earlier on your Honour asked him about the issue of whether or not he had evidence in relation to this work being a new business or not and his response to the question, your Honour, was that he didn't but if after investigation it was found that it wasn't a new business then section 170LL would apply.
PN549
Again, he wants to come along to investigate. He wants to come along and lead evidence that he hasn't got, or get by cross-examination of people. Both those evidentiary issues - the breach of the Act, evidence coming from witnesses and whether or not it is a new business - are prejudiced upon him somehow or other getting representatives of the company and the union to go into the witness box and answer his questions. He comes with nothing in that regard, your Honour, nothing at all.
PN550
Save for a rather plaintive plea that if one notices that there are other awards and agreements - I will withdraw that - there are other awards that might apply to these employees if they were employed by somebody else, then you can infer that the intention of the parties in making this agreement was to avoid those other awards applying, if they did apply. He sais the CFMEU has an award with Transfield. Anybody who makes an agreement in relation to work in which Transfield has an interest is necessarily conducting themselves in breach of the freedom of association provisions.
PN551
THE DEPUTY PRESIDENT: Sorry, Mr Hinkley?
PN552
MR HINKLEY: I am sorry, your Honour.
PN553
THE DEPUTY PRESIDENT: I was listening, sorry.
PN554
MR HINKLEY: Your Honour, the Act contemplates in a very large number of circumstances that there will be employers who are not parties to awards who can be parties to agreements. Section 170LL, and we emphasise that is the section we are moving under, contemplates that there won't even be employees. So the implication he asks your Honour to draw from the fact that the CFMEU and Transfield have an award, therefore consequently subcontractors to Transfield MRE can't make a green fields agreement with AWU without contravening the freedom of association provisions is quite fanciful.
PN555
The very existence of the provisions in the Act that permitted these agreements shows that. Really, in the end, he is driven back to trying to get parties to give him evidence to fit his conspiracy theory that something is amiss. So he comes to fish, not to present an argument. Now, your Honour, that in our submission is the fundamental flaw in everything my learned friends put to you, but I will briefly go to other things. He doesn't really come with a case. He comes to ask your assistance in him making a case.
PN556
Now that, if he were considered to be an amicus, is not the role of an amicus. And can I say about his desire to be an amicus, your Honour, that we would be urging upon the Commission to make a fulsome decision about his purported application. It will be said to you that there is no role of amicus in proceedings such as this, and my learned friend, Mr Burchardt, will take you to cases about it. But can we say about that that we would want the Commission, if it were minded to, to work on a premise that even if there were such a principle applying here, in our submission the Commission would say, "I would not have admitted this amicus to hearing."
PN557
And one of the reasons for that is the one I have referred to. Another reason for it is the very nature of what an amicus is. And my learned friend very helpfully provided to the Commission and the parties a copy of the Federal Court decision in '83, Australian Law Reports at 79. And at page 95 there is a helpful passage. I think my friend referred to it at about line 20, where the Full Court is saying - not quoting cases but saying there at line 19:
PN558
The general principle is that the parties are entitled to carry on their litigation free from ...(reads)... be understood to delimit or restrict the availability or effectiveness of this useful tool.
PN559
Well, this amicus doesn't come with evidence, your Honour. This amicus, really, as an officious bystander to say, "We are upset, we want to cross-examine these people about their motives." And like, who says anyone is going to go into the witness box anyway? Are they going to summons people? Are they going to have a role at all, granted that they don't have any evidence and they are not prepared to suggest they have got any evidence about what is said to be the basis of their role as amicus.
PN560
THE DEPUTY PRESIDENT: I think an amicus can call evidence. And this submission you are putting is that they have said they have no evidence to call. Is that right?
PN561
MR HINKLEY: That is right, your Honour. But they don't say, "Look, we can tell you that this is what the AWU did in its deal with the MRE." It can't say that. It doesn't even allege that certain acts were done. It says, "We think there is an inference." I suggest to your Honour that inferences is quite spurious. I mean, why would there be an inference that because a subcontractor makes a certified agreement with a union that that somehow or other in itself a breach of the freedom of association provisions.
PN562
It is an enormous step in the dark, unless you have got evidence. What he wants to do is to have us come along, and the employer, and subject ourselves to his questions to see whether or not there is evidence that supports his case.
PN563
THE DEPUTY PRESIDENT: And you are saying that your witnesses will not be called by you.
PN564
MR HINKLEY: Well, your Honour, I said something more fundamental than that. He isn't coming to you saying, "Look, I have got evidence. I can give you evidence that shows 1, 2, 3, and 4." He can't do that. He says, "I have got a suspicion. I want you to draw an inference. And I want the chance to find if there is any evidence to support my suspicion and validate the interest." And you say to him - one says to him, "Okay, what is that evidence?" - and your Honour said this a couple of times. He said, "Oh, we will get it out of the employer's and the union's witnesses."
PN565
Well, he doesn't come to them - except the fishing net. He says, "If I get a chance to get these people in the box and do them over, I will get the dope on these people. But I haven't got it now, your Honour, and I can't even tell you what it is." Now that is not the role of an amicus. Indeed, that is not the role of an intervener, even, coming and saying, "Well, we want to find out whether or not there is a good case here."
PN566
And as far as "being helpful" to the Commission is concerned, he doesn't give you a basis on which you can envisage being helped because he can't say what his evidence would be. He doesn't know. What his role in these proceedings really would be, to try to get the parties to give him evidence to show a breach of the freedom of association provisions.
PN567
THE DEPUTY PRESIDENT: Yes. And you have filed statutory declarations which state that the provisions of Part X are not breached in this agreement, have you not?
PN568
MR HINKLEY: Indeed, your Honour, and also a statutory declaration that says, "This is a new business under section 170LL."
PN569
THE DEPUTY PRESIDENT: Right. Yes.
PN570
MR HINKLEY: What he says about them is, "We would like to examine these people to show it is not a new business, if it is not a new business." He doesn't know. he doesn't say he has got an argument to present. He doesn't even take any notice of the affidavit evidence that is here, which says that.
PN571
THE DEPUTY PRESIDENT: So I have been given nothing to doubt the sworn evidence in two statutory declarations on those two points.
PN572
MR HINKLEY: Exactly. Yes. And you have been given nothing to suggest that the parties were motivated by intentions, or actions, that would breach the freedom of association provisions. All he says is, "If we get a chance to have a bash at these people then we might be able to get something that supports our argument." And the shallowness of that approach, and I say that with respect to my friend, the shallowness of that approach is shown when he talks about a new business.
PN573
He doesn't know. He is not even able to say to you, "I am instructed that it is not a new business." He can't even go that far. "But if we had a chance to cross-examine these people, it may be that it is not a new business." Well, your Honour is entitled to be satisfied on the unchallenged affidavit material on that point.
PN574
THE DEPUTY PRESIDENT: Well, obviously I would be concerned if there was a breach of freedom of association provisions. I mean, for the record, that would be of great concern to the Commission.
PN575
MR HINKLEY: Very properly, yes, your Honour.
PN576
THE DEPUTY PRESIDENT: But I do have two statutory declarations sworn to the effect that those provisions are not breached. I am just wondering, do I have any reason to question that or doubt that as a result of submissions today.
PN577
MR HINKLEY: Well, with respect, you don't, your Honour. And if you move aside from that just to the argument my learned friend tries to produce, which is, "I haven't got any evidence that would cause your Honour to be worried. But if I got a chance to examine these people I might get some evidence," well that really isn't the sort of proposition that would move the Commission to doubt its jurisdictional base - "It may be that you haven't got jurisdiction but I can't tell you why on the basis of any evidence. But I would like to have a chance to come along and see if there is any."
PN578
It is the sort of thing that is rejected out of hand time and time again. You come along to present a case not to try and find out whether there is one. And that seems to us to be the central flaw in my learned friend's proposition - although I do want to go to particular arguments he had. That he doesn't come, even outlining what his evidence would be, come saying, "If I get a chance to cross-examine or examine these people then," and he can't put it any higher than this, your Honour, "then there might be evidence that supports my allegation."
PN579
THE DEPUTY PRESIDENT: I think he said that he had no direct evidence that there has been a breach of Part XA. He couldn't rule it out, emerging from cross-examination. That is the sense of what I think he said.
PN580
MR HINKLEY: Yes. And I think perhaps with more generous fairness to him, Commissioner, he would want to say, "If these people went into the box I might, or I would hope that they would give evidence to support my proposition." But he doesn't tell you that he has got any evidence. Quite the contrary. He says he would be trying to get it out of the employer and the union.
PN581
THE DEPUTY PRESIDENT: Well, he did say he could "infer" a breach from the circumstances.
PN582
MR HINKLEY: He did say that, your Honour, and that is the - - -
PN583
THE DEPUTY PRESIDENT: I don't know if that is true or not.
PN584
MR HINKLEY: Well, what are the circumstances? He did say the circumstances were that there was a CFMEU Transfield Award - Agreement, I am sorry, and there is now an AWU MRE agreement. And you would have to infer that - what, the MRE and the AWU made this agreement for the purposes - or for reasons that breach the freedom of association provisions.
PN585
And if you say, "Well, what is the basis of that? Why do you infer that because a subcontractor has made a certified agreement with somebody and the head contractor has got a certified agreement with someone else, that the first agreement is made for the purposes of - purposes that are outside the freedom of association provisions?" Why would you - I mean, without evidence the very fact doesn't lead to any inference at all. There could be a multitude of explanations for it.
PN586
THE DEPUTY PRESIDENT: Look, e are going to have to adjourn these proceedings, regrettably. We have had some delays today - - -
PN587
MR HINKLEY: Yes.
PN588
THE DEPUTY PRESIDENT: - - - for understandable reasons, and I am certainly not critical of any party for that. It is - these are complicated proceedings. But we - if you just bear with me Mr Hinkley.
PN589
MR HINKLEY: Yes, your Honour. Yes.
PN590
THE DEPUTY PRESIDENT: A matter I have had has just been cancelled, Mr Hinkley and Burchardt, tomorrow. I can adjourn this matter until 11.15 tomorrow and - I have another matter in the afternoon but it may be a short matter. Would that be suitable, Mr Hinkley, Mr Burchardt?
PN591
MR HINKLEY: If the Commission would excuse me for a moment.
PN592
MR BURCHARDT: I will just wait until Mr Hinkley has formed a view, your Honour, and I will work around it because he is still going. I am third up at bat.
PN593
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Burchardt.
PN594
MR BURCHARDT: Those times would be convenient for us, Commissioner. The times are convenient and might I say this, your Honour, if we had proceeded today into the luncheon adjournment I would have simply, as it were, concertinaed by submissions downwards to enable us to finish within the relevant time. And I will do that tomorrow because I will be, I can foreshadow, adopting and supporting the submissions of Mr Hinkley.
PN595
THE DEPUTY PRESIDENT: I assumed that.
PN596
MR BURCHARDT: It is a reasonable assumption.
PN597
THE DEPUTY PRESIDENT: Yes.
PN598
MR BURCHARDT: That is one inference you could reasonably draw on the material before your Honour. But I am sure we will be able to work in with whatever time is available.
PN599
THE DEPUTY PRESIDENT: All right. Just - - -
PN600
MR IRVING: That is a convenient course for me, too, your Honour.
PN601
THE DEPUTY PRESIDENT: It is, Mr Irving?
PN602
MR IRVING: Yes, your Honour.
PN603
THE DEPUTY PRESIDENT: Thank you. I was about to come to you.
PN604
MR IRVING: I am sure you were.
PN605
THE DEPUTY PRESIDENT: Just for the record, tomorrow I have from 11.15 until lunch time and likely time later in that afternoon, following a matter at 2.15. So we will adjourn until 11.15 tomorrow.
ADJOURNED UNTIL THURSDAY, 28 MARCH 2002 [12.58pm]
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EXHIBIT #I1 LETTER DATED 20/03/02 FROM SLATER AND GORDON TO DEPUTY PRESIDENT HAMILTON PN346
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