C2001/4369, Transcript of Proceedings [2002] AIRCTrans 220 (16 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 1987

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/4369

APPLICATION UNDER SECTION 118A OF THE ACT
BY UNITED FIREFIGHTERS UNION OF AUSTRALIA
CONCERNING THE REVOCATION OF THE INTERGRAPH
BEST (VIC) PTY LIMITED DEMARCATION ORDER
1996 (PRINT N2621)

MELBOURNE

10.12 AM, TUESDAY, 8 JANUARY 2002

Continued from 4.1.02

PN359

THE SENIOR DEPUTY PRESIDENT: Good morning, could I have appearances please, or any changes in appearances.

PN360

MR P. ROZEN: There are some changes, people are back from leave, your Honour. I appear with - - -

PN361

THE SENIOR DEPUTY PRESIDENT: Welcome back.

PN362

MR ROZEN: Thank you, your Honour. I appear with MR P. MARSHALL and MR N. CRAMPTON for the applicant, UFU.

PN363

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rozen.

PN364

MR HENDERSON: Your Honour, MR M. KARLOVIC is with me today, from the ASU.

PN365

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

PN366

MS A. SMEATON: I seek leave to appear on behalf of the CEPU.

PN367

THE SENIOR DEPUTY PRESIDENT: Any objection - sorry, Ms Forbath, I think you are entered as an appearance.

PN368

MS B. FORBATH: Well, there is no change in appearances, I appear for the LHMU.

PN369

THE SENIOR DEPUTY PRESIDENT: Any objection to Ms Smeaton having leave to appear. No, very well, leave is granted, Ms Smeaton. Mr Rozen, unfortunately you were away on holidays on Friday when - - -

PN370

MR ROZEN: I don't know if that was unfortunate.

PN371

THE SENIOR DEPUTY PRESIDENT: - - - I convened a mention, or directions hearing, and during the course of that proceeding Mr Henderson raised an objection or he - jurisdiction issue, as he put it, in relation to the further - proposed further amended application. So this morning I listed the matter here in order to deal with the proposed further amended application as a preliminary matter.

PN372

MR ROZEN: Yes, I have had an opportunity to read the transcript, your Honour, and I have had some discussions with Mr Marshall and Mr Crampton about it. The long and the short of it, your Honour, is that we don't press our application which we foreshadowed in a letter prior to Christmas to amend our amended application. So the further amended application is not pressed.

PN373

THE SENIOR DEPUTY PRESIDENT: Very well. How do you propose that the matter should proceed now.

PN374

MR ROZEN: It would be our submission, your Honour, that the matter should proceed as originally anticipated on our amended application, which we did obtain leave to file. I am concerned, your Honour, and we have had some brief discussions here at the bar table about the prospect of losing today as a hearing day. I understand that the view was postponed. I don't know if it is possible, I notice there is no one here from Intergraph or BEST.

PN375

THE SENIOR DEPUTY PRESIDENT: They didn't - they had no attendance on Friday neither.

PN376

MR ROZEN: Yes. Well, they always knew about today's hearing date.

PN377

THE SENIOR DEPUTY PRESIDENT: Yes. And there was a notice sent out about the changes in arrangements.

PN378

MR ROZEN: Yes. I am in your Honour's hands as to how many - - -

PN379

THE SENIOR DEPUTY PRESIDENT: I mean, subject to what the other parties say, I would be proposing to proceed perhaps with an inspection this afternoon, if that could be arranged.

PN380

MR ROZEN: Yes, I wonder if that could be possible. It might speed things along.

PN381

THE SENIOR DEPUTY PRESIDENT: Yes. But I will hear - do you want to say anything more at this stage.

PN382

MR ROZEN: No, just to indicate that we have witnesses available for tomorrow, but no one has been arranged for today, given the way it had been structured.

PN383

THE SENIOR DEPUTY PRESIDENT: Very well.

PN384

MR ROZEN: If your Honour pleases.

PN385

THE SENIOR DEPUTY PRESIDENT: I don't know whether you would propose an opening at all.

PN386

MR ROZEN: I could briefly open.

PN387

THE SENIOR DEPUTY PRESIDENT: Yes.

PN388

MR ROZEN: I think the issues are reasonably clear, but it might assist everyone if I was to open the matter briefly at some appropriate time.

PN389

THE SENIOR DEPUTY PRESIDENT: Yes. Well perhaps I will hear from Mr Henderson though in relation to the other matter that he raised. Thank you, Mr Rozen. Mr Henderson.

PN390

MR HENDERSON: Your Honour, just in relation to the application, so I take it now the applicant has returned to the amended application and - never left it, Mr Rozen said. They went to the top of the mountain, looked over and decided to come back down. In relation to that application it simple seeks to revoke the 118A order, yet in the - - -

PN391

THE SENIOR DEPUTY PRESIDENT: That was the original application as well.

PN392

MR HENDERSON: And the original application, that is correct. But in the applicant's contentions, as I noted in the submissions outline that we filed, the second point of their contentions is to effectively seek a variation of the application in the - of the order as an alternative. I would take it that that is still the case, or that that is not pressed either.

PN393

THE SENIOR DEPUTY PRESIDENT: Well perhaps we should ask Mr Rozen's position on that.

PN394

MR ROZEN: We don't resile from what is in our contentions - - -

PN395

THE SENIOR DEPUTY PRESIDENT: No, no.

PN396

MR ROZEN: - - - if that is what my learned friend wants to hear from me.

PN397

THE SENIOR DEPUTY PRESIDENT: Yes. I don't see that as a basis for having a preliminary hearing into that issue though, Mr Henderson. If that is what you are proposing at all.

PN398

MR HENDERSON: No, no, your Honour, just wondered whether that was still being pressed and obviously that would be dealt with on the way through. As far as - - -

PN399

THE SENIOR DEPUTY PRESIDENT: Yes. Presumably on the same basis as your contentions for the other further amended application.

PN400

MR HENDERSON: Yes, your Honour. As far as the other matter, I think it would be - I think the whole basis of having an inspection was so that we had some appreciation of the scene before your Honour hears witness evidence, so if we could do that today that would be fine from our point of view. The only rider I would put on it, and I think my friend, Ms Smeaton, is in the same position, is that we would want to perhaps organise it so that we finish in the city, not too late. Perhaps not much later than 4 o'clock. And perhaps, subject to what everyone else at the bar table has to say, we might need to go off the record to work that out, because I think the absence of Intergraph could well present an interesting aspect to whether or not we can do it today or not.

PN401

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that.

PN402

MR HENDERSON: That is all I have to put, your Honour.

PN403

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Henderson. Ms Smeaton.

PN404

MR SMEATON: Yes, your Honour, I would just like to raise a couple of points with respect to the UFUs position seeking leave to further amend their amended application. It appears that we seem to be in a bit of a silly position now and really, in truth, the UFU don't seem to be seeking a revocation, really a variation. They have admitted - - -

PN405

THE SENIOR DEPUTY PRESIDENT: Say that again?

PN406

MR SMEATON: Well, they are really seeking a variation, your Honour.

PN407

THE SENIOR DEPUTY PRESIDENT: Well they have just said that they are not pressing their further amended application.

PN408

MR SMEATON: Right, I mean - - -

PN409

THE SENIOR DEPUTY PRESIDENT: And they seek now to pursue the application as amended for a revocation of the whole order.

PN410

MR SMEATON: Yes. The instructions that I have from my client, unfortunately I don't have anyone instructing me today, however, I do have telephone contact with Sydney, was that there was an agreement reached between my client and the UFU with respect to the conduct of these proceedings, certainly as they were for the World Trade Centre. There has certainly been - there is no evidence provided by the UFU with respect to the World Trade Centre and the agreement that was reached between my client and the UFU was that really what they were seeking was a variation of the demarcation order rather than a revocation.

PN411

THE SENIOR DEPUTY PRESIDENT: But if an order was made to revoke a section 118A order, would that have any impact on your agreement, or the agreement between the UFU and the CEPU?

PN412

MR SMEATON: Well, what I could probably foreshadow would be then a demarcation dispute between my client and the ASU.

PN413

THE SENIOR DEPUTY PRESIDENT: But you said there was some agreement reached, or understanding - - -

PN414

MR SMEATON: That is my instructions, that there was an agreement reached.

PN415

THE SENIOR DEPUTY PRESIDENT: Well, what I am saying is, I don't know the terms of that agreement or what stage the agreement reached. But revocation to a section 118A order might not necessarily affect the terms of the agreement that has been reached between the CEPU and UFU. I don't know, as I say, because I don't know what the terms of the agreement are. But in any event if you raise that as an objection to the proceeding, presumably under 111(1)(g) that would be a matter, I think, appropriate for consideration in the determination of the 118A matter, for this reason, that one of the issues that I am required to consider under 118A is the existence of any agreements.

PN416

MR SMEATON: Yes. So - okay. Thank you, your Honour.

PN417

THE SENIOR DEPUTY PRESIDENT: That is all right. Did you want to say anything else? I am not quite sure that I understood you application, but am I right in understanding you are pressing it as a 111(1)(g) matter?

PN418

MR SMEATON: Well, what I am saying is really what is being sought here is a variation and I think the UFU have, in a way, shown their hand for that to be that and they have originally asked for revocation. They have now sought - well the understanding I have and the instructions I have in the agreement which was reached between my client and the UFU was that an agreement was made that the UFU would be seeking leave to amend the further amended application to be that of a variation. I suppose - - -

PN419

THE SENIOR DEPUTY PRESIDENT: But they are not seeking that leave any longer.

PN420

MR SMEATON: Yes, I understand that, your Honour.

PN421

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms Smeaton. Ms Forbath, did you wish to say anything?

PN422

MS FORBATH: No, I have nothing further to add.

PN423

THE SENIOR DEPUTY PRESIDENT: Yes.

PN424

MR ROZEN: Your Honour, could I just briefly reply to a couple of things that Ms Smeaton has said. The first thing, my instructions are very clearly that no agreement was reached between the unions. Now, obviously we can't ask your Honour to resolve that, nor do we ask your Honour to resolve it, and ultimately, if necessary, it could be the subject of evidence, if that becomes - if it is a matter that is pressed. There were negotiations in good faith, they fell through, no agreement was reached.

PN425

Secondly, to say that there is no evidence about the World Trade Centre site is not correct. There is evidence and it will be expanded upon in oral evidence of the ability of people to move from one site to the other under the various industrial instruments. So it - whilst we talk of two sites, there is a somewhat fluid relationship between those two sites and ultimately we will say that is an important matter. And thirdly, I would just confirm that we do seek a revocation of the order in its entirety. That is our application.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes.

PN427

MR ROZEN: If your Honour pleases.

PN428

THE SENIOR DEPUTY PRESIDENT: Look, I will go off the record for a while.

OFF THE RECORD

PN429

THE SENIOR DEPUTY PRESIDENT: What I propose is to adjourn this proceeding until 1 pm at which time it will resume at the Tally Ho site for the conduct of an inspection and immediately following the inspection at the Tally Ho site we will move to - what is the name of the other site?

PN430

MR MARSHALL: World Trade Centre.

PN431

THE SENIOR DEPUTY PRESIDENT: World Trade Centre for the purpose of inspecting the facilities at that site. During the course of the adjournment my associate will communicate with Clayton Utz regarding their interests to inform them of the proposed inspections and Mr Rozen, or those instructing him, will also communicate with Clayton Utz regarding those matters. Anything else. Very well, the matter is adjourned.

ADJOURNED ACCORDINGLY [10.30pm]