C2002/1931, Transcript of Proceedings [2002] AIRCTrans 1790 (22 May 2002)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT03844

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/1931

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by National Union of Workers re industrial
action which is threatened, pending or
probable or being taken by Graincorp at the
company's Geelong terminal

MELBOURNE

11.02 AM, WEDNESDAY, 8 MAY 2002

Continued from 7.5.02

PN952

THE DEPUTY PRESIDENT: There is a slight change to the appearances, I note.

PN953

MR A. THOW: Yes, Deputy President. I think I was listed with Mr Lyons in the appearance.

PN954

THE DEPUTY PRESIDENT: Yes, I think you were actually, Mr Thow.

PN955

MR THOW: Thank you.

PN956

THE DEPUTY PRESIDENT: I apologise firstly for calling you in here for something that is likely to be very brief. However, I think that might be made up for by the fact that you will at least have a decision in this matter, and I thought it was preferable to reserving and having you wait perhaps a considerable period of time for a written decision. A written decision will issue in the fullness of time, and I will expand on what I have to say here this morning in that written decision. I intend to give that decision now. However, there are a couple of things that I want to say about this matter, because it actually gave me a reasonable amount of concern both in terms of hearing the matter and in terms of thinking about it later.

PN957

I want to say at the outset that I find that the arguments put by the union, that the Company's actions constitute a breach of both appendix B, clause 2 of the certified agreement, and clause 4 of the certified agreement, the no extra claims clause, to be compelling, given the evidence of both Mr McConaghy and Mr Scully, that: firstly, staffing levels have been a major issue both in the lead-up to signing the agreement, and from what I could gather at all other material times; and secondly, that there was a lack of understanding by both Mr McConaghy, and acknowledged lack of understanding by both Mr McConaghy and Mr Scully of the meaning of appendix B, clause 2.

PN958

It seems to me to be unusual in the extreme, and in fact unlikely, that an agreement would be signed and certified on the evidence of both of those people, that at the very least had the potential to lock them into something they categorically didn't want. I would have to say also as an aside - but I can't resist making a comment on it - I am further fascinated and I am perturbed by Mr McConaghy's view of no extra claims provisions in agreements, and I can't help wondering whether his hold on that view would be as strong in the event of what he perceived to be a union breach of that particular clause.

PN959

Coming to the application itself, I have no doubt about the union's standing to make an application, and in any event, as I recall, Mr Johns conceded standing. Neither do I have any doubt that the matter complained of is in relation to work regulated by a certified agreement, and again it is my recollection that that was also conceded by Mr Johns. Save and except for the period agreed between the parties leading up to hearing and determination of this matter, I am satisfied that the conduct of seeking expressions of interest and processing of applications for voluntary redundancies is happening and probably will continue to happen. I am unable to conclude, however, that this conduct represents industrial action within the meaning of section 4 of the Act.

PN960

Now, while there were no arguments advanced to me that a failure to fill vacant positions below a number of 39, on its own, would constitute industrial action, I have also considered that, and I am likewise of a view that it is unable to be represented as industrial action. Some reasons in brief for those conclusions - and they are in brief. As I say I will expand in the written judgment. But firstly, an invitation to express an interest is, in my view, no more than that, and I am unable to be persuaded that such an invitation in and of itself represents industrial action.

PN961

Secondly, to the extent that the invitation is accepted, and a voluntary redundancy is processed by the Company, that would seem to me to fall squarely into the exception of section 4(f). Thirdly, and in respect of the matter that no specific arguments were put to me upon, that is that a failure to fill vacant positions may represent industrial action, given that the numbers on site at any given time is conceded may be less than 39, I am unable to conclude that a failure to fill positions up to 39 represents a restriction or limitation on the performance of work. I therefore find that the requirements of 4(b) and 4(c) and for that matter 4(a) of the Act have not been met.

PN962

Now, given that jurisdiction doesn't exist in my view, then the question of discretion doesn't arise. However, had jurisdiction been established, there are, in my view, compelling reasons to exercise that discretion in favour of granting an order in an appropriate form to restrain the Company. I note that no application has been made under section 170LW and, if I recall correctly, Mr Johns may have at one stage alluded to that in his submissions. But I note that there has been no application under section 170LW of the Act.

PN963

I further note that the certified agreement contains a disputes procedure which enables conciliation and, if necessary, arbitration by this Commission. That is a course that remains, obviously, open to the parties. And on that note, I will adjourn these proceedings.

ADJOURNED INDEFINITELY [11.10am]