C2002/1804, Transcript of Proceedings [2002] AIRCTrans 2837 (24 July 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2002/1804

APPLICATION FOR SEVERANCE ALLOWANCE
OR SEPARATION BENEFITS

Application under section 170FB of the Act by
AFMEPKIU re severance allowance or separation
benefits in relation to Waycon Services Pty
Limited, Advantage Personnel Pty Limited,
Manpower Services (Australia) Pty Limited,
Labour Co-op Office Tech, Anka Steel and
Varley Services Pty Limited at the ADI Limited
Minehunter Project

SYDNEY

11.40 AM, WEDNESDAY, 10 JULY 2002

Continued from 22.5.02

Hearing continuing

PN60

THE SENIOR DEPUTY PRESIDENT: The appearances are the same as on the last occasion. The matter is listed for a report. Mr Terzic, would you like to start?

PN61

MR TERZIC: Yes, your Honour. Right up till this morning there were negotiations between the principal parties aimed at reaching a settlement that would resolve the matter but that has not occurred and it is now apparent that a hearing will be necessary to deal with this application. At this juncture it would have been opportune to set down a programme, having the parties assembled here, but for reasons that I have explained that cannot be done at the moment. The reason is, your Honour, this is my last full week as an employee of the AMWU, I am moving on to Canberra of all places, and really it would be better to have a timetable established that met with the schedule of my successor who has now accepted the post with the union.

PN62

I am aware that my successor has a commitment to go overseas not long after starting work with the union so it would be best if she were consulted on the future dates for hearing this matter. I am in contact with her at the moment, I will suggest that she consults with the parties at the bar table and the Commission and perhaps a programme could be arranged without recourse to a further hearing and dates set down as appropriate and also other matters such as filing, serving and witness statements, etcetera, could be dealt with.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR TERZIC: Also, your Honour, as far as I am concerned I am amenable to dealing with the threshold issue that ADI wish to agitate which goes to the employment relationship, I guess, I hope I am not taking it out of context. If the Commission pleases.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Jolly.

PN66

MR JOLLY: Thank you, your Honour. There are actually a couple of jurisdictional and threshold matters which ADI would raise. Your Honour, we would be suggesting that the matter be set down say for a day to deal with those threshold issues and perhaps with a timetable for the exchange of contentions beforehand. It is our submission, your Honour, that that would be the most efficient way to progress the matter. We consider that the jurisdictional and threshold matters are strong arguments and that that would be the most expeditious way of dealing with them.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Moir.

PN68

MR MOIR: Your Honour, I would support what Mr Jolly has just put to you, perhaps also noting that given that Mr Terzic is about to leave the union and his successor will come on board to take carriage of the matter, perhaps a hearing on the threshold issues could be stood over as it were until such time as that person comes on board.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Jolly, these threshold issues, would they require evidence?

PN70

MR JOLLY: At this stage, your Honour, I would imagine that if they did it would be very, very limited evidence. At present I imagine that the jurisdictional issues would not require evidence. The threshold matters, which essentially concern whether the AMWU's order should be made, given the existence of the ADI certified agreement and its terms, that would probably not involve evidence, your Honour, but we have not yet made a final determination on that.

PN71

MR TERZIC: We could consult on agreed facts, if you like.

PN72

MR JOLLY: I am sure that one way or another, your Honour, the evidence would be quite limited, enhanced by trying to develop an agreed statement of facts between the parties. In any event, even if that were not possible, the sort of evidence we would be considering would not be substantial, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: What I propose is this, I would reserve 14 and 15 August for dealing with jurisdictional and other such preliminary matters and could I ask the parties to confer in relation to the preliminaries for that, such as exchange of contentions and witness statements if any for the preliminary hearings. The pressure of me doing it now might be inconvenient in the light of the opposition of Mr Terzic. If the parties could let me know within a week of some draft directions I could then make them, or if you agree I don't need to make them, a programme could be agreed between the parties, with that object of dealing with the matters on 14 and 15 August.

PN74

MR TERZIC: Your Honour, as far as I know the schedule of my successor I think it's bullseye there, those dates might well be appropriate. Without letting too much out of the bag, she is employed in this building, I can go and speak to her perhaps now and see if that suits her schedule.

PN75

THE SENIOR DEPUTY PRESIDENT: That might be the best, if we can firm up those dates it would be advantageous. Mr Jolly, have you got a problem with them?

PN76

MR JOLLY: We have a difficulty with one of those dates, your Honour. We have got the counsel, counsel is available on 15 August, 20, 22 and 23 August, and is then available on a range of dates in September.

PN77

THE SENIOR DEPUTY PRESIDENT: He is available on the 15th and the 22nd, is that right?

PN78

MR JOLLY: Yes, your Honour.

PN79

THE SENIOR DEPUTY PRESIDENT: Would it inconvenience you if we split the days, Mr Terzic?

PN80

MR TERZIC: I think the earlier of the days, like 15 August, would be better.

PN81

THE SENIOR DEPUTY PRESIDENT: I am proposing to use the 15th, it's just that if we spill over we would have to go to the 22nd, that's all.

PN82

MR TERZIC: That might be all right.

PN83

THE SENIOR DEPUTY PRESIDENT: Could you check that matter out, Mr Moir, that both days are all right?

PN84

MR MOIR: That's fine, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: We will adjourn for five minutes and if you could check out the position, I would be grateful.

SHORT ADJOURNMENT [11.49am]

RESUMES [11.55am]

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Terzic.

PN87

MR TERZIC: Your Honour, I have consulted with my successor, Ms Buchanan, and she has said those dates will be fine so a programme could be made around hearings on those two dates. As for other matters, exchange of contentions, etcetera, I think I will just have Ms Buchanan contact Mr Jolly over those matters.

PN88

THE SENIOR DEPUTY PRESIDENT: Very well. I would ask that that be done within 14 days or a reasonable period so that we don't suddenly find ourselves on the 15th without anything having been done, so if you would have Ms Buchanan contact Mr Jolly and Mr Moir about those and see if you can make those arrangements between yourselves. If not, I will list the matter for mention if necessary by video conference to finalise arrangements so that we can proceed on 22 August. Subject to that, the matter will be adjourned for hearing on 15 August in Sydney at 10.30am and we will reserve 22 August.

ADJOURNED UNTIL THURSDAY, 15 AUGUST 2002 [11.57am]