C2002/2035, Transcript of Proceedings [2002] AIRCTrans 1747 (21 May 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03942
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/2035

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by Palmer Tube Mills Australia
Pty Limited re alleged industrial
action at 1 Tube Street, Sunshine

MELBOURNE

3.05 PM, TUESDAY, 7 MAY 2002

PN1

MR K. BLAKE: Commissioner, I seek leave to appear on behalf of the company, Palmer Tube Mills Australia Pty Limited.

PN2

MS Z. ANGUS: If it please the Commission, I appear on behalf of the Australian Workers Union, with MR C. MELLAM. Can I just foreshadow our opposition to counsel appearing today.

PN3

MR J. MADDISON: If the Commission pleases, I appear on behalf of the CEPU. Commissioner, while I am on my feet, I apprehend an adjournment application of an appropriate juncture. If the Commission pleases.

PN4

MR M. ADDISON: If the Commission pleases, I appear on behalf on the Australian Manufacturing Workers Union. And I would support the adjournment - will support the adjournment application - at the appropriate time.

PN5

THE COMMISSIONER: I think I had better hear from you before I make my decision about leave, Mr Maddison. Do you want to - - -

PN6

MR MADDISON: Yes.

PN7

THE COMMISSIONER: - - - tell me what the adjournment is about.

PN8

MR MADDISON: Yes, Commissioner, certainly. Commissioner, we received yesterday, faxed through to the State Office, application on behalf of the applicant in this matter, Palmer Tube Mills. In that application - and I make no criticism of my friend in this regard - but the grounds are contained on page 3 and 4 of the application. They are somewhat brief and they go to some nine short paragraphs. In the grounds it discloses no actions or encouragement or incitement etcetera by the CEPU or any of our officials.

PN9

And on that basis, I am not able to obtain instructions, as such, about any conduct that our people may or may not have been involved in. Just a minute or a minute and a half prior to commencement of proceedings, Mr Blake kindly handed me an affidavit of Ian Clinnick, and that affidavit is probably not before you, Commissioner, but in due course, no doubt, you will receive it. It comes to some six pages or so of material plus some attachments. And as I indicated, I only got it about a minute, a minute and a half ago, so I haven't even had a chance to have a cursory glance at it. Commissioner, I seek to hand up a copy of a Full Bench decision.

PN10

It is a Full Bench decision of - I have handed up the authorised version, if you like - it is Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia. The presiding member, Peterson J. Commissioner, if you could have regard to page 433 of the reported version.

PN11

THE COMMISSIONER: Sorry. Say that again.

PN12

MR MADDISON: If you could have regard to page 433 - - -

PN13

THE COMMISSIONER: Yes.

PN14

MR MADDISON: - - - of the reported version. The first full paragraph commencing on page 433, which commences:

PN15

Mr Rothman -

PN16

Counsel for the union. And in that case, Mr Rothman relied on a number of contentions relating to the principles of natural justice, including requirements that (1) the union must know the case it must meet, (2) the union must have an opportunity to present its case and test the case of the applicants, and (3) the union have a proper and adequate opportunity to prepare its case, including cross-examination. He went to list a fourth - what Mr Rothman argued was a requirement of natural justice. But in any event, the Full Bench didn't accept the fourth one, but they did readily accept the first three of these propositions.

PN17

They reflect fundamental aspects of common law principles of natural justice of procedural fairness to which the Commission, under the duty imposed on it to act judicially, is required to adhere. Commissioner, in the circumstances that I have outlined, in respect of receiving both the application and the affidavit, while we do note the Commission's statutory obligation under section 127 to hear and determine the matter as quickly as practicable, we also say that under sub section (4) - under 127(4) - the powers conferred on the Commission by sub section (1) are in addition to, and not interrogation of the powers conferred on the Commission by the rest of the Act.

PN18

And we would say relevantly in this instance the powers pursuant to section 110 of the Act, which amongst other things, allows the Commission to determine the times which are necessary for the fair and adequate presentation of the respective cases, which is found under sub section (3) and under sub section (2)(c):

PN19

The Commission shall act according to equity, good conscience and the substantial merits of the case, without regards to technicalities and legal form.

PN20

Now, we would say that in this instance we would be denied natural justice if the case proceeded today, where I am not in a position to know the case properly, have an opportunity to present the case and the union test the case of the applicants, nor proper opportunity to prepare, including cross-examination. We say that - again without making any criticism of my friend - the fact that the affidavit has been given to us now - while we do appreciate receiving it - if it had been done earlier - today even - I would have had some opportunity to get some instructions about any matters contained herein, which may be adverse to the union.

PN21

But without that opportunity, we say that it the matter was to proceed today, that we would be denied procedural fairness in the circumstances.

PN22

THE COMMISSIONER: Are you referring to an affidavit you say the Commission doesn't have yet?

PN23

MR MADDISON: You may or may not. I just see my friend shaking his head and saying, "No, it is not before you."

PN24

THE COMMISSIONER: I don't think I do, no.

PN25

MR MADDISON: It was just passed to us, as I indicated, Commissioner - - -

PN26

THE COMMISSIONER: I see.

PN27

MR MADDISON: - - - a minute or so prior to - - -

PN28

THE COMMISSIONER: So, what is the extent of the adjournment, do you think?

PN29

MR MADDISON: Commissioner, on my limited instructions, I understand that there is a meeting at the site tomorrow. Presumably that - without conceding whether or not there is any industrial action currently taking place - presumably it gives the parties an opportunity to rectify that, in the circumstances where, if the applicant is right, that there is - and it gives me, at least, an opportunity to get some instructions in relation to this - the matters that are contained.

PN30

So, I am only seeking an adjournment till probably sometime later in the afternoon tomorrow, due to the fact that I have another matter in another jurisdiction early tomorrow morning. And I would also - and probably my friends from the AWU are in a better position to make submissions in relation to this - but we could still hopefully utilise the time that all the parties are here this afternoon, to resolve what I understand is the substantive matter that remains in dispute.

PN31

THE COMMISSIONER: Thank you.

PN32

MR MADDISON: If the Commission pleases.

PN33

THE COMMISSIONER: We will just go off the record for a moment, if we might.

NO FURTHER PROCEEDINGS RECORDED