C4004/895, Transcript of Proceedings [2002] AIRCTrans 124 (3 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C No 40048 of 1995

Appeal under Section 45 by the State of Queensland
and another against the decision issued by
Senior Deputy President Riordan on 16 January 1995
in C number 20689 and C number 33189 of 1993

BRISBANE

11.10 AM, THURSDAY, 20 DECEMBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. May I have the appearances, please?

PN2

MR C.J. MURDOCH: I'm instructed on behalf of the State of Queensland and I seek leave to appear in this matter this morning.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Murdoch.

PN4

MS V. SEMPLE: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch Union of Employees, and also the Australian Liquor, Hospitality and Miscellaneous Workers Union, Federal Branch.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Have you any objection to Mr Murdoch's application for leave?

PN6

MS SEMPLE: No, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Murdoch.

PN8

MR MURDOCH: Thank you, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Before you start, Mr Murdoch, I should just indicate for the record that it appears that at least some of the notices of listing of this matter were not received by the respondents. It's a curious situation because some did receive it and others didn't and for that, insofar as it's our fault, we apologise. I am grateful to the parties for coming along this morning. The matter has been listed because it has been in the lists for a very long time but the substantive issue is that the appeal needs to be dealt with because the award, if it is to survive, requires simplification under the provisions of the WROLA Act, to use the vernacular, and that is an obligation which the Commission cannot escape. So can I ask you, Mr Murdoch, to start then?

PN10

MR MURDOCH: Yes, thank you, your Honour. Insofar as non-appearance yesterday was the fault of Queensland, I'm instructed to formally apologise to the Commission and whilst a search of our office hasn't revealed a notice of attendance, we apologise in any event and thank the Commission for listing the matter again today.

PN11

THE SENIOR DEPUTY PRESIDENT: It possibly wasn't your fault, Mr Murdoch, because others have not received the notice as well so there may have been a glitch in the modern technology if I can put it that way.

PN12

MR MURDOCH: It fails us all sometimes, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR MURDOCH: Your Honour, the matter has been listed for mention as you've stated to ascertain the status of the appeal and to determine whether the award needs to be reviewed under item 51 or Section 151 of the Workplace Relations Act. If I could first very briefly outline to your Honour our position in respect of the status of the appeal?

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR MURDOCH: In the time available those of us from Crown Law who are now responsible for the matter have attempted to piece together the long and somewhat torturous history of this matter. Unfortunately, the one continuing officer from the State of Queensland side who has been involved in this matter from go to whoa I understand is Mr Eric Porter from the Department of Industrial Relations. Unfortunately, he is on leave at the moment and in hospital so we haven't been able to obtain as comprehensive instructions as we would otherwise like to have, but I will provide you with an outline as best we can ascertain from our files, your Honour.

PN17

The appeal is against a decision of Senior Deputy President Riordan to make an award. The matter was originally adjourned sine die on 1 November 1995, and that was to await the result of related High Court proceedings. Prior to the adjournment being granted, the State of Queensland sought and was granted a stay of the decision of Deputy President Riordan. Now in December of 1997, and this was after the related High Court proceedings were resolved, the State of Queensland advised the associate to Bolton J that the State of Queensland would like to proceed with the appeal and, in fact, the matter was scheduled, I'm instructed, to be heard on 11 December 1997.

PN18

There was subsequently, your Honour, some negotiations between the parties and those negotiations were held on a without prejudice basis. The outcome of those negotiations led the parties to request by consent that the appeal be adjourned sine die and that the stay continue in place, and that request was made in December 1997 and it would appear that that request was granted. Crown Law was contacted again, your Honour, in respect of this matter by the associate to Bolton J in October of this year, and Crown Law's response was made by letter dated 12 October 2001 respectfully advising that the position of the State of Queensland had remained unchanged since 1997, and that it was requested that the appeal remain adjourned and that the stay remain in place.

PN19

My submissions today would be, your Honour, that that status quo remain. Now my basic reason for this is as follows: that both pursuant to item 51 and Section 151 there appears to be a prerequisite for the relevant reviews to occur, the prerequisite being that in the context of item 51(1)(a), there must be an award that is in force; and, similarly, your Honour, when one turns to look at Section 151, the reference is again made to an award that is in force. In my respectful submission, by virtue of the stay under Section 45(4) of the Workplace Relations Act being put in place and remaining in place, there is, in fact, currently no award in force to which item 51 or Section 151 would attach.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, I follow the argument.

PN21

MR MURDOCH: Accordingly, it is open, in my respectful submission, to the Commission to leave the matters as they are and if, at some future time, the appeal is brought back on and determined, will either, if my client is successful the award will be at an end and there will be nothing to be dealt with pursuant to Section 151 or item 51, or if the stay is lifted following the appeal decision, well, the processes under item 51 and Section 151 are free to be applied at that stage.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR MURDOCH: So given that it appears that neither party is agitating the issue at this stage, I would submit that the position be adopted by the Commission simply leave matters as they are and that the status quo as previously agreed between the parties be left in place, with either side be given liberty to apply.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Murdoch.

PN25

MR MURDOCH: Thank you, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Ms Semple?

PN27

MS SEMPLE: Yes, thank you, your Honour. I've been in similar difficulty as Mr Murdoch in trying to follow the history of this matter and, unfortunately, haven't been able to get instructions from Federal Executive members who would be in a position to confirm what the Union's position is on this matter at the current time. However, we wouldn't object if the Commission finds that the Crown's position is acceptable. We wouldn't object to that form of proceeding with the matter in that it be adjourned and then with the ability to be brought back on by either party.

PN28

THE SENIOR DEPUTY PRESIDENT: I must say I have some reservations about it but the decision isn't finally mine. It will have to be made by the President. Can I express my concern so that perhaps both of you can comment on it if you feel so inclined? Accepting Mr Murdoch's argument for the moment that item 51 and Section 151 are not attracted because the award is not in operation, it's not in operation for inherently a machinery type reason, namely, the existence of a stay order. The idea of a machinery type stay order staying in place at infinitum, as it were, is a little difficult, I think, and there must come a time when I think the substantive merits of the matter need to be grasped and dealt with. Either the appeal is to proceed or it's not.

PN29

Now, I wouldn't be wanting to suggest to the President we force the parties on in the short term in relation to this, but I think the parties ought to think about the fact that seriously the matter does need to be dealt with in the intermediate future, if I can put it that way. Now you might like to think about that or get some instructions about that, Ms Semple, too.

PN30

MS SEMPLE: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: And Mr Murdoch, you might like to think about that, too, if you would. I don't expect you necessarily to answer now but I think there are reasons, not to use too strong a term, which suggest that the substantive matter should be dealt with after a period of five years. Now, as I say, I don't necessarily expect you to comment. Ultimately the decision will be one for the President having regard to what you've both said today as to whether he - I think I'm the only surviving member of the Full Bench that was originally constituted, if I can put it that way, and it will be up to him whether he constitutes another Full Bench and, I guess, for that Full Bench to determine what it then wants to do.

PN32

Perhaps if I suggested to you both that within a period of 14 days if you want to put any further submissions on that particular point in writing to me, would that help, because I think the President would probably want it to be addressed?

PN33

MR MURDOCH: Might I just take a moment to take some instructions on the course of action that your Honour proposes?

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, by all means.

PN35

MR MURDOCH: Thank you, your Honour. Mindful of your Honour's comments and also mindful of, if not the application, the spirit of Section 151, in particular Section 151(2), where the parties are invited to have certain discussions in respect of the award, might I respectfully suggest an alternative course of action, your Honour. That be that the matter be adjourned for, say, a period of two months and then brought back on for directions before your Honour, and that will give the parties a chance to assess their respective positions and particularly give the parties a chance to discuss, if considered appropriate by the parties, the further situation in respect of the federal award.

PN36

THE SENIOR DEPUTY PRESIDENT: Ms Semple, how would you react to that? I must say it does have some attractions. At least I get you all in the room together that way.

PN37

MS SEMPLE: Yes, we wouldn't object to that course of action, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Would Thursday, 21 February suit the parties?

PN39

MS SEMPLE: Yes, that would suit me, your Honour. Thanks.

PN40

MR MURDOCH: Your Honour, I haven't got my diary here at the moment. Could I undertake to, if I am to continue in the matter, of course, to check my diary and if that date is not suitable to contact your Honour's associate.

PN41

THE SENIOR DEPUTY PRESIDENT: Could you let me associate know today - - -

PN42

MR MURDOCH: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: - - - and we will then talk to you, Ms Semple, if that's not suitable. But subject to that, we will fix it for 10.30 on Thursday, 21 February, and we will talk to you both if that date doesn't suit.

PN44

MR MURDOCH: Will that be in Brisbane or elsewhere, your Honour?

PN45

THE SENIOR DEPUTY PRESIDENT: It will be in Brisbane.

PN46

MR MURDOCH: Yes, thank you. Thank you, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, unless there's anything further and subject to the rider I have just made, the matter will be formally adjourned to Thursday, 21 February, at 10.30 in Brisbane.

ADJOURNED UNTIL THURSDAY, 21 FEBRUARY 2002 [11.23am]