C2001/4369, Transcript of Proceedings [2002] AIRCTrans 223 (16 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N 1970

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

10.35 AM, FRIDAY, 4 JANUARY 2002

Continued from 16.11.01

PN237

MR P. MARSHALL: I appear on behalf of the United Firefighters Union of Australia.

PN238

MR N. HENDERSON: I appear for the Australian Services Union.

PN239

MR P. GARDNER: I seek leave to appear for the CEPU with my learned friend, MS SMEETON.

PN240

THE SENIOR DEPUTY PRESIDENT: Mr Marshall, Mr Henderson, any objection to Mr Gardner having leave to appear?

PN241

MR MARSHALL: No objection, your Honour.

PN242

THE SENIOR DEPUTY PRESIDENT: Leave granted, Mr Gardner. I have listed this matter for mention this morning because I have received a letter dated 20 December 2001 from the United Firefighters Union seeking leave to file a further amended application proposing to limit the inspections that were programmed for the first day. There was then received in my office a fax letter from the ASU dated 21 December, objecting to the amended application and then a further letter dated 21 December - or fax, I should say, from Clayton Utz on behalf of Intergraph objecting to the proposal for limited inspections.

PN243

They in fact have suggested that the inspection should be carried out as programmed for the two sites. So I thought that it might be appropriate to call the matter on this morning to see if I could get some indication from the parties about firstly, the objection raised by the ASU to the amended application and then to - if necessary, program that matter into the beginning of the proceedings on the Tuesday. So perhaps I will ask you, Mr Henderson, first of all, if you would tell me the nature of the objection to the further amended application.

PN244

MR HENDERSON: Yes, thank you, your Honour. The ASU - from the ASUs point of view, we see the amendment - or the proposed amendment to the application, as being a fundamental change in the nature of the proceedings. The Commission might recall that the original application and even the amended application sought to revoke altogether the section 118A order in relation to Intergraph, and then in the alternative sought to partially revoke the order in those terms, only in relation to the Tally Ho site, which is the part of the order which relates to the ASU.

PN245

The ASU, and its contentions put forward that a partial revocation of the order would amount to a variation of the order and that there are various authorities dealing with the way in which such an application in relation to a 118A order should be approached. But given that the applicant was seeking, as a primary position I suppose, to revoke the order in full, the way in which they put their case in their contentions still clearly had legs and could have been heard and determined on the merit.

PN246

But from our point of view, and our submission, the application now raises as a preliminary point, whether a partial revocation is a variation to the order and in our view, given the material filed by the UFU in support of their application, if the Commission finds that a partial revocation is in fact a variation, then on their own material they can't succeed unless they are going to argue that certain - we would say, very persuasive authorities of the Commission are wrong, or don't apply.

PN247

So from that point of view, your Honour, leaving aside what interests my colleagues in the CEPU might now have, it would seem to us to be putting the cart before the horse to have the inspections at this point, given that there is this serious matter - legal question, to be really determined before the matter continues. Because it may well be, and we would submit, would definitely be the case that the application would immediately fail, if it was an application to vary the section 118A order.

PN248

THE SENIOR DEPUTY PRESIDENT: That is what it sounds like on the face of it, doesn't it?

PN249

MR HENDERSON: Well that is - - -

PN250

THE SENIOR DEPUTY PRESIDENT: A partial revocation. I mean, I haven't looked at it in any detail but the first thing that struck me about the motion of a partial revocation was that it was in effect a variation.

PN251

MR HENDERSON: Well, your Honour, I was reading a document which purported to be a judgment of a judge in the United States where he said that you can put it in a calico frock and call it Florence, but a pig is still a pig.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, I think I saw the same judgment.

PN253

MR HENDERSON: And I think that would be - in a nutshell, that would be our submission in relation to this. But you know, in seriousness, your Honour, that is a serious question to be dealt with and from our point of view it would be dealt with fairly concisely. It certainly wouldn't take a long time for us to put our argument about why the applicant's application for a partial revocation was in fact a variation. And if the answer to that question was along the lines that we suggest, then that really is an end of these proceedings. Now, contrasting that with the potential for five days of hearings, in our submission it is a very compelling proposition for the Commission to consider that we should deal with that preliminary point first before we take up the resources of all the parties, including the applicant, for the period that the matter is listed. If the Commission pleases.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes. Does the CEPU have any position on that, Mr Gardner?

PN255

MR GARDNER: Your Honour, it seems to us that - well, first of all, can I tell the Commission that essentially there is - well there is agreement between the CEPU and the UFU and Mr Marshall, in a minute, will seek to tell you in detail about that, but for present purposes, can I tell the Commission that there is agreement and the agreement is to the effect that the application will be varied to ensure that the demarcation - or the application so that the demarcation order really only applies - or is only - no longer applies at the Burwood site. So that really means that from the CEPUs point of view we would have no further interest in the proceedings. But if the ASU are contending that what is sought to be done can't be done - - -

PN256

THE SENIOR DEPUTY PRESIDENT: It might undo your agreement.

PN257

MR GARDNER: Well no, absolutely not. The applicant then - and they have a different view about it, the applicant presumably will persist and the matter should be determined. But from our point of view we would say that there is a lot of sense in splitting the case, because in a sense that is what Mr Henderson is proposing, but from our point of view if what is sought to be done can be done, well we're out of it, it no longer affects us, we have got no interest at all, so we wold be strenuously urging the Commission to get that aspect of it dealt with.

PN258

We would say, in relation to the inspections, there is little point in having inspections when you don't know what you are inspecting about. If - we would be very reluctant to proceed on a set of inspection where we weren't clear what the effect of the application was, and that seems to be in contest between my friend on my left and my friend on my right.

PN259

THE SENIOR DEPUTY PRESIDENT: One of the difficulties about that is that some of the parties to the proceedings have been granted leave to intervene and found that it was too inconvenient for them to come to the mention this morning obviously.

PN260

MR GARDNER: Well that is their problem, your Honour, and that is well established. Presumably they got notice.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes.

PN262

MR GARDNER: That is the end of it, they have had their chance. So we would urge the Commission to deal with, to finality, this point that is being agitated by Mr Henderson. It makes good sense in terms of the proceedings, of the Commission's resources, the parties resources, but from my client's point of view, it makes especially good sense because we are out of it.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Thank you, Mr Gardner. Just before I ask you to respond, Mr Marshall, Mr Henderson, would - from your point of view would there be any prospect in reaching some resolution by conciliation of the issues between yourself and the United Firefighters.

PN264

MR HENDERSON: Well, I don't have - obviously from the branch, I don't have any instruction about the machinations of what might go on. I simply say this, your Honour, I notice that when the orders were made there were various agreements put in place between the unions as to how things would be dealt with at Intergraph and without putting it any higher than this, it seems to me that no one has ever utilised those mechanisms for the life of the order. Now, from our point of view I think my instructions are clear, that we want to see the 118A order left as it is for the balance of the time that at least Intergraph is in its current form.

PN265

So, if I can - of course conciliation is conciliation, but I could say this, that conciliation along the lines of giving effect to what was put in place when the order was made, would certainly seem to me to be something which could be contemplated. But whether of course that is acceptable to the UFU is another matter. I don't know if that - - -

PN266

THE SENIOR DEPUTY PRESIDENT: Right. Yes, no that is find, thank you, Mr Henderson. Mr Marshall.

PN267

MR MARSHALL: Thank you, your Honour. Your Honour, I am in a little bit of disadvantage because - - -

PN268

THE SENIOR DEPUTY PRESIDENT: Yes, I understand, you don't have your legal representation here and they - or he or they have been developing the case as it is and you perhaps are at some disadvantage in responding.

PN269

MR MARSHALL: Yes.

PN270

THE SENIOR DEPUTY PRESIDENT: I understand they are still away on leave, you have contacted my associate.

PN271

MR MARSHALL: Yes, that is correct,sir. Sir, however I would like to make some comments. First of all, sir, I was able to contact my industrial officer, Mr Crampton, who has predominantly had carriage of this matter instructing the barrister, Mr Rozen, and I explained to Mr Crampton that there may be a number of preliminary issues that your Honour would like to agitate this morning to get a view of where they may be heading. Mr Crampton has said quite clearly to me that if the argument is in relation to variation as opposed to revocation, and it can't be done, well of course our discussions with the CEPU would have to change.

PN272

Primarily - and that is in relation to the agreement we have with that organisation. Primarily, sir, we believe very strongly that the matter should proceed as scheduled on the time frame. If the ASU have an outline of arguments they can put that. It may delay a decision from the Commission, but indeed we have a lot of angst amongst employees out at the Burwood site and there is a number of things going on there, and we believe that that would actually prejudice those employees if the matter wasn't to proceed as is.

PN273

In relation to conciliation, sir, the original order that the agreements that were reached before the ACTU, the UFU has written to the ASU on a number of occasions requesting that they be actioned as per those agreements, and that just hasn't occurred. I don't believe, sir, from our point of view, that there is any chance of conciliation from - with the ASU. However, in relation to the CEPU, sir, I don't know, sir, if you understand we are talking about two distinct sites here, one - - -

PN274

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN275

MR MARSHALL: - - - one deals with fire and ambulance, the other deals with police.

PN276

THE SENIOR DEPUTY PRESIDENT: Yes.

PN277

MR MARSHALL: We have no interest in the coverage in the World Trade Centre area and we would have thought it would be - would have been a good way of approaching it to put the least impact on resources from both the unions concerned and also the Commission.

PN278

THE SENIOR DEPUTY PRESIDENT: Yes, but what Mr Henderson is saying is that there is some doubt about the jurisdiction to make the order as it is sought at the present time. Now, I don't make any determination of that point at this stage. I mean, I would have to hear the argument on both sides, and it does seem to make good sense to deal with that matter as an issue at the outset, or as a preliminary matter, just because if he is right, then what was going to take five day can probably be finished in one day.

PN279

MR MARSHALL: Yes, sir. It would help if we were able to see what the argument was.

PN280

THE SENIOR DEPUTY PRESIDENT: Yes.

PN281

MR MARSHALL: And again, it would help if we got an indication of how long the argument would go for, because we would not like to see the programming that has been set, set aside.

PN282

THE SENIOR DEPUTY PRESIDENT: Well I don't imagine it would be. I mean, if Mr Henderson is right I suspect the matter could be resolved in the course of a half a day, or a day at least, and if he is wrong, it could still be resolved in the same time frame and we could proceed with the rest of the hearing.

PN283

MR MARSHALL: Well that would suit us, sir, as long as we are able to have an outline of what the argument is so as we have some notice in writing as to what the argument is, that would be very helpful. Sir, the other - my understanding is the other issue your Honour wanted to actually get an indication was in relation to inspections, is that correct.

PN284

THE SENIOR DEPUTY PRESIDENT: Yes, because - well again, that will all be subject now to the outcome of the ASU application, or claim. The point was that Intergraph has suggested that if there is to be any inspection then there should be inspections of both sites, not just the one site as proposed by the UFU, and I mean, I can understand why that is because UFU are seeking to amend its application so that it would apply only in relation to one site.

PN285

MR MARSHALL: Sir, can I - it may assist the Commission, that is our primary view that at the end of the day, sir, if they want to have inspections of the World Trade Centre, we don't see the point of it, but - - -

PN286

THE SENIOR DEPUTY PRESIDENT: Yes, well I think I understand why they want to have both sites inspected, if they do have any inspections, and on the basis that the matter proceeds, if it does proceed to a final hearing, then I would be disposed to do the inspections as requested by Intergraph, at the other site as well.

PN287

MR MARSHALL: Yes, sir.

PN288

THE SENIOR DEPUTY PRESIDENT: So what I propose doing then is to issue further directions today that the preliminary matter raised by - well, let me put it this way, to hear the application by UFU to amend its application will be listed for Tuesday morning now.

PN289

MR MARSHALL: Sir, can I just ask this question, with respect, sir, I have got to try and contact my barrister after here, if I can track him down - - -

PN290

THE SENIOR DEPUTY PRESIDENT: Yes.

PN291

MR MARSHALL: - - - and if the view is similar to the ASU, the UFUs position would simply be that we would proceed as the original application for a total revocation of the order, because really we were just trying to accommodate the CEPU and then seeing we had no interest there, as well as lessen the burden on the Commission. In doing so we mind find ourself in a position where we actually prejudice our own case.

PN292

THE SENIOR DEPUTY PRESIDENT: Was the further amended application drafted by counsel or by yourself

PN293

MR MARSHALL: Sir, I would have to get instructions on that. I have a feeling that - sir, the honest truth of that I don't know, but I would assume Mr Crampton has done it. I seem - I think, sir, he probably would have sought advice, however, I would assume that Mr Crampton has done it. In my preliminary discussions with Mr Crampton before this hearing he just took me to section 111(1)(f) and whether it is a revocation or a variation we did - you know, so again, sir, I am not a legal person.

PN294

THE SENIOR DEPUTY PRESIDENT: No, no, I understand - but do you understand Mr Henderson's point that if it is in fact, or in effect, a variation, Mr Henderson says there is no jurisdiction to vary an order.

PN295

MR MARSHALL: Yes.

PN296

THE SENIOR DEPUTY PRESIDENT: Am I right in characterising your claim in that regard.

PN297

MR HENDERSON: That is correct, your Honour, on the facts, as my learned friend says.

PN298

THE SENIOR DEPUTY PRESIDENT: Yes.

PN299

MR MARSHALL: If that is the case, sir, and I get advice to that effect, from our - we would just proceed with the original application and apologise for the inconvenience. Because all we are trying to do is expedite things for both the Commission and the CEPU.

PN300

THE SENIOR DEPUTY PRESIDENT: Yes, well I think in the circumstances the most convenient way to proceed is to have the matter listed here on Tuesday morning to deal with that preliminary issue and decide then at what point we will do the inspections. Do you know if any arrangements have been made with the particular sites for the inspections themselves.

PN301

MR MARSHALL: Just looking briefly through the file I was only able to grab from Mr Crampton's office, my understanding is he has written to BEST for approval to go and have a look out at the site, and I think they have agreed to that out at Tally Ho. However, I don't know that was in the process of preparation and I do apologise, we should come along prepared, it is just we weren't expecting this.

PN302

THE SENIOR DEPUTY PRESIDENT: No, no, that is all right. Well, it wouldn't take much more than a phone call to organise some deferral of the visit, if there is to be a visit, would it?

PN303

MR MARSHALL: No, sir, no. Again, sir, though, as long as - with respect, sir, as long as the scheduled time frame would not be impacted overall.

PN304

THE SENIOR DEPUTY PRESIDENT: All right. Let me hear what Mr Henderson - - -

PN305

MR MARSHALL: Thank you very much.

PN306

THE SENIOR DEPUTY PRESIDENT: Mr Henderson, the point that you want to make wouldn't take more than half a day would it?

PN307

MR HENDERSON: No, your Honour.

PN308

THE SENIOR DEPUTY PRESIDENT: For both sides to be heard, or for all sides to be heard.

PN309

MR HENDERSON: Yes, I would be struggling to fill an hour of it. I might just join with Mr Marshall, I hadn't had any notice of where we were supposed to be going on Tuesday from anyone, so to the extent to which arrangements have been made, I would say they probably must be only very preliminary arrangements because - - -

PN310

THE SENIOR DEPUTY PRESIDENT: I would have to check the transcript, but my recollection was that on the last directions hearing it was arranged that we would meet at the site.

PN311

MR HENDERSON: At the site at - I think it was at Tally Ho.

PN312

THE SENIOR DEPUTY PRESIDENT: Yes.

PN313

MR HENDERSON: But other than that day, I have heard nothing further.

PN314

THE SENIOR DEPUTY PRESIDENT: I see, yes. Well, what I propose then is to list this matter - sorry, Mr Gardner.

PN315

MR GARDNER: I am sorry, your Honour, but I just think, in fairness, I should alert the Commission and my learned - my friends, that in the event that the UFU proceeded to a total claim, and they now say, well they wouldn't persist with an agreement or however it is that it is ultimately put, my client would have something fairly vigorous to say about that eventuality and I don't foreshadow, now, an application under 111(1)(g) for example, but I should not leave the impression that we would be necessarily sitting, as we have today, with Mr Henderson pursuing a jurisdictional argument and us simply waiting for the outcome of that. I am not instructed, given the developments of today, but in fairness I should just alert the Commission to that, and my friends to it.

PN316

THE SENIOR DEPUTY PRESIDENT: But again, I mean, even if the UFU proceeded with their application in its entirety, it seems to me that there would be - look, I won't say anything about that.

PN317

MR GARDNER: I mean, there is no material on about it - - -

PN318

THE SENIOR DEPUTY PRESIDENT: No, no.

PN319

MR GARDNER: - - - about us, as I understand it.

PN320

MR MARSHALL: You have got witness statements, haven't you?

PN321

MR GARDNER: Sorry?

PN322

MR MARSHALL: You have got witness statements.

PN323

MR GARDNER: Yes - no, I am sorry, no material from you, as I understand it, addressing our site.

PN324

MR MARSHALL: Can I just ask a question, your Honour, if I am able to.?

PN325

THE SENIOR DEPUTY PRESIDENT: Have you finished, Mr Gardner?

PN326

MR GARDNER: Yes, I am sorry, your Honour.

PN327

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Marshall.

PN328

MR MARSHALL: Thank you, your Honour. Your Honour, can I - I am a lay person, it is just - my understanding is that if I speak to - or find Mr Rozen, wherever he may be and I will do my best to track him down this afternoon, and are our rights preserved to proceed with the original application, Because all we were trying to do is accommodate the CEPUs concerns, as well as lessen the burden on the Commission having to deal with something that, in effect, we're not really interested in.

PN329

THE SENIOR DEPUTY PRESIDENT: Yes, well at this stage, Mr Marshall, the UFU has sought leave to file a further amended application. Leave has not been granted, and that is the issue that has to be determined when the matter reconvenes on Tuesday morning.

PN330

MR MARSHALL: Sir, are we able to withdraw that application to seek leave?

PN331

THE SENIOR DEPUTY PRESIDENT: Well, that will - that is entirely up to you, but as you understand, Mr Henderson will be raising his objection in terms of the jurisdiction to deal with the matter in the further amended form. So, I think you would be better off at this stage, and it is a matter for you entirely, leaving it to your counsel on Tuesday morning to deal with the matter when it is put up then.

PN332

MR MARSHALL: And sir, I am sorry, I understand you are not here to provide me legal advice, however, my counsel - - -

PN333

THE SENIOR DEPUTY PRESIDENT: It wouldn't be worthwhile anyway.

PN334

MR MARSHALL: My counsel would be able to withdraw that application for - an amended application.

PN335

THE SENIOR DEPUTY PRESIDENT: Look, you should take your advice from your counsel about that.

PN336

MR MARSHALL: Yes, all right. Thank you very much.

PN337

MR GARDNER: I am sorry, your Honour, I do apologise. Mr Marshall and I had a brief discussion prior to the proceeding and it was agreed between us that we would tell the Commission and the parties about the terms of the agreement between us. Can I just quickly read into the transcript that terms of agreement.

PN338

MR MARSHALL: Sir, I would object to that because my discussions with Mr Cooper, which is instructing Mr Gardner here, did not encompass this scenario that is actually being brought up. As I said, we were only to reach an agreement with the CEPU to accommodate them, because we have no interest, and to lessen the burden on the Commission. That agreement has not been signed, has not been reached and I need to go back and speak to Mr Cooper about that, because when talking with Mr Cooper, we asked as to - does that prejudice our position at all and the answer was no. So it would be very wrong to read that unsigned agreement into transcript.

PN339

THE SENIOR DEPUTY PRESIDENT: Mr Gardner, I think - - -

PN340

MR GARDNER: It will have to be a matter of evidence, obviously.

PN341

THE SENIOR DEPUTY PRESIDENT: Ultimately, yes. Mr Henderson, would you be able to provide me and the UFU and any other interested party of the basis of your objection to the jurisdictional point you wish to make in relation to the proposed further amended application?

PN342

MR HENDERSON: Yes, I can do that. I can do that by this afternoon I would think.

PN343

THE SENIOR DEPUTY PRESIDENT: By lunch time Monday would be satisfactory.

PN344

MR HENDERSON: That is even better, your Honour. I mean, I think it is already foreshadowed in the - in our - - -

PN345

THE SENIOR DEPUTY PRESIDENT: Yes, in the outline of

PN346

MR HENDERSON: In our outline. So on Tuesday, the UFU at this stage would be pressing for leave to amend its application, and our case is really in response to that - the granting of that - - -

PN347

THE SENIOR DEPUTY PRESIDENT: I appreciate that, yes.

PN348

MR HENDERSON: - - - I am just - for Mr Marshall's benefit. So we could certainly do that by lunch time, Monday.

PN349

THE SENIOR DEPUTY PRESIDENT: But if you would - yes, put on paper what your objection is and the basis and the jurisdictional point you raised.

PN350

MR HENDERSON: Yes, thank you.

PN351

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Now, I want to go off the record for a moment just to talk about the arrangements for the electronic hearing. Do you have another appointment, or engagement, Mr Gardner, I see you looking at the clock there?

PN352

MR GARDNER: Your Honour, I would be assisted by it and - because I am not going to actually have the carriage of the matter in any event, but might I be excused, because - - -

PN353

THE SENIOR DEPUTY PRESIDENT: Yes, certainly, Mr Gardner.

PN354

MR GARDNER: Thank you.

PN355

THE SENIOR DEPUTY PRESIDENT: I will go off the record.

OFF THE RECORD

PN356

THE SENIOR DEPUTY PRESIDENT: I will vary the directions in this matter so that the hearing to be convened on Tuesday will commence in the hearing room at Nauru House rather than at the sites that had been planned for inspection, and the hearing will commence at 10 am and the purpose of the proceeding on Tuesday morning will be to deal with the preliminary matters associated with the application by the UFU to further amend its application for revocation of the section 118A order. Are there any other matters.

PN357

MR HENDERSON: No thank you.

PN358

THE SENIOR DEPUTY PRESIDENT: Very well, my associate will issue a notice to the parties informing them of the change in arrangements and I thank you all for your attendance.

ADJOURNED UNTIL TUESDAY 8 JANUARY 2002 [11.12am]