C2002/4168, Transcript of Proceedings [2002] AIRCTrans 3409 (5 September 2002)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LESSES

C2002/4168

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by the
Construction, Forestry, Mining and Energy
Union for an order in respect to Allen
Wilkey and Pridham Earth Movers Pty Limited

ADELAIDE

11.34 AM, MONDAY, 19 AUGUST 2002

PN1

THE COMMISSIONER: Thank you. I will take appearances, thank you.

PN2

MR B. CARSLAKE: If it please the Commission, I appear on behalf of CFMEU Construction General Division South Australian Branch.

PN3

MR R. MANUEL: May it please the Commission, I seek leave to appear as counsel, with my learned friend, Ms Perry.

PN4

THE COMMISSIONER: Thank you. Mr Carslake?

PN5

MR CARSLAKE: Yes, Mr Commissioner, actually I will be seeking to - for some leave to adjourn this matter. We just received the notification from this Commission on 4.54 on Friday. Mr Harrison was the person that deal with this, but notwithstanding that, also it relates to a Supreme Court matter which we need some further advice on that question, but it is - we seek an adjournment until tomorrow, but it is rather pressing because we believe it threatens the rights of our organisers to attend construction sites in the State.

PN6

THE COMMISSIONER: The matter was notified to us on Friday and the Commission was of the view that given the serious of the issue and the requirement to bring the matter on expeditiously, that is what we did. So we weren't aware of whether parties were able to be represented or not, that is not our consideration. The application is made, we act with alacrity and the onus is on the applicant or the party to ensure its representation.

PN7

MR CARSLAKE: I appreciate the Commission's speed in this matter but, of course, we didn't receive the Supreme Court matter until 6 o'clock on Friday, a further injunction. So we do need an extra day to argue about those questions.

PN8

THE COMMISSIONER: I note your application to have it adjourned until tomorrow. I don't know whether we have any time available tomorrow, that is the concern that I have at this juncture. I am happy to entertain your submission at this stage, I haven't heard from Mr Manuel which we will do in due course, but the question of adjournment to a date to be - I mean I would need to be available and that is the critical thing.

PN9

MR CARSLAKE: I am happy with that, Mr Commissioner.

PN10

THE COMMISSIONER: Mr Manuel?

PN11

MR MANUEL: Thank you, Commissioner. In the ordinary course we understand these things happen and so we don't have an objection to the adjournment per se, having regard particularly to what you have said. What I did want to raise, however, was that it is our view that the Commission should summarily dispose of these proceedings any way on the ground that they don't actually disclose any jurisdiction. So although we have no objection to an adjournment in the sense of if there was evidence to be called and the like, our view is that on the face of the application there is absolutely nothing before the Commission that would empower it under section 127 to act and so we would seek the summary disposal of these proceedings.

PN12

THE COMMISSIONER: Yes, I noticed the lack of information or evidence that may be called and given the fact that union is not required to sort of disclose that at this stage but obviously it will be required in due time to do so and to put evidence up that may go to an issue of a preliminary point of discovery so the employer can respond. So that I am not very happy about the nature of any application that may lead to one or the other party being ambushed, if you pardon the expression - - -

PN13

MR MANUEL: Yes.

PN14

THE COMMISSIONER: - - - that is, that the respondent and whoever it may be is not aware of what the issues are and is not able to prepare adequate response to such an allegation. My suggestion would be that we do adjourn the matter, noting that the parties are not adverse to that. I would be looking at providing sufficient time to the parties to be able to do that to perhaps provide some discovery as to what the issues are and that there be a time to be able to permit the parties to undertake that.

PN15

So what I am proposing to do is to adjourn this matter to Thursday, 22nd, in the afternoon so we can commence at say 2.30, if the parties are available. What I would propose is that by close of business say 12 noon tomorrow, say by 12 noon tomorrow the union provide the respondent with such information to permit them to understand what the basis of the application is. Then having got that that the respondent provide by the close of business, it will be Tuesday, that is tomorrow, 20th, would that be sufficient?

PN16

MR MANUEL: I haven't got a diary in front of me, Commissioner. So by 12 o'clock the union would provide - - -

PN17

THE COMMISSIONER: So the union will provide information - discovery to the employer by 12 o'clock tomorrow.

PN18

MR MANUEL: Yes.

PN19

THE COMMISSIONER: And then by close of business tomorrow the respondent can reply to the union.

PN20

MR MANUEL: Yes, yes.

PN21

THE COMMISSIONER: So this is basically to provide a rough outline of what the submission is going to be. If there is any evidence to be called, any witnesses to be called, or any other documents to be provided, well then those documents be discovered. So we will have a clear day, the following Wednesday, to allow the parties, plus the morning of the Thursday, to be able to get any submissions ready. I give you notice of that.

PN22

MR MANUEL: Yes.

PN23

THE COMMISSIONER: Now, also if the parties, prior to Thursday, have any outstanding matter or they are concerned then they can bring the matter on before the Commission in chambers for a directions conference if that is necessary. So I have given myself a day to help the parties on that but essentially we are saying, well, look come Thursday afternoon the application will be dealt with. That is what I would propose for the parties.

PN24

MR MANUEL: Could I seek just some clarification, Commissioner, would it be your intention that the parties be limited to the evidence that they put to each other for their evidence-in-chief?

PN25

THE COMMISSIONER: Well, I'm not proposing to limit any evidence, but I would say that the parties are directed to provide the substance, the substantial part of their information of their case because it may well be in any response that is provides that you want to revisit that. So I'm not going to deny you the opportunity of doing that and even over the course of the next day or so if a party wishes to say: we wish to make reference to certain other information, then my answer would be on the Thursday to entertain that, but as I said, I don't want any ambush tactics being used.

PN26

I want a full disclosure so the parties can get on with it. If there is an issue there then let us get on with it and identify what the issues are and let us address those issues so, you know, parties have a clear understanding what is at risk at this stage.

PN27

MR MANUEL: Commissioner, if I could just try your patience one moment longer. There is one issue I think I should raise specifically at this time. Mr Carslake referred to an injunction, there are Supreme Court proceedings currently on foot. There was an interim injunction granted approximately 2 weeks ago, that was back before his Honour, Perry J, last Friday and his Honour continued that injunction for a further 2 weeks.

PN28

We will just raise, for the CFMEU's information, that an order in the form as sought in 2(a) may well be a contempt of the Supreme Court in that it seeks to stop the plaintiff in those proceedings, being my client, from asserting its rights under the injunction. I would just raise that because the CFMEU may care to amend its grounds before we get in to that rather difficult argument.

PN29

THE COMMISSIONER: Yes. Well, at this stage a party is entitled to relief under an appropriate Act and the respondent has sought relief in a particular jurisdiction and that relief stands. There is no way that this Commission is going to - I can see this Commission would be interfering with another jurisdiction, however, if there are matters that the applicant is of a view that may impinge on their rights pursuant to this jurisdiction then that is where I will be focusing on.

PN30

MR MANUEL: Yes.

PN31

THE COMMISSIONER: And one of the issues that I would be also concerned about is that if that the union can pursue those entitlements under the other jurisdiction then I want know why they are not doing that. Now, that might be another issue. So I have sort of put the union on notice, that is to say: look, you can't have two bites of the cherry. Literally you have to make a determination as to the jurisdiction. I will be looking at it from that perspective as well.

PN32

MR MANUEL: Thank you, Commissioner.

PN33

THE COMMISSIONER: Now, there is another matter I should indicate which has been allocated to me to deal with and that is a section 99 application and I just put it on the record that this is for a voluntary conference pursuant to the Act in respect to a matter that the employer, the respondent has raised, and I'm just curious to see what I should do with that because my course of action is essentially to bring such matters on and but in doing so I am mindful that the parties will have three matters before them.

PN34

MR MANUEL: Yes, I should perhaps explain the history to that. On Friday, Perry J of the Supreme Court was quite concerned that rather than the parties getting bogged down in complex litigation before the Supreme Court that they should investigate the industrial possibilities of resolving the matter by some sort of agreement. As a result, there was an undertaking given by the plaintiff in those proceedings, the respondent in these, to his Honour that we would make an application under section 99 and that we would, under the auspices of the Commission, attempt to sit down and resolve the issues between the parties and so that is the basis of the filing.

PN35

So as a result, we would seek, although I understand time tabling is obviously always a significant issue for the Commission, we would seek at the Commission's earliest convenience a conference to see if we can, at least, delineate what the problems are between the parties and then try and resolve them. Thank you, Commissioner.

PN36

THE COMMISSIONER: Mr Carslake, I'm not sure whether you are aware of this other application?

PN37

MR CARSLAKE: No, no, Commissioner.

PN38

THE COMMISSIONER: What I would suggest is that my associate will contact the union and provide advice as to the nature of the application and then ask the parties to advise the Commission as to how we should proceed on the matter. So essentially we have an application for a conference, a voluntary conference on the issue which I take is presently before us, or integrated with that issue. I'm prepared to bring that matter on as soon as practicable and that may relieve the other matter as well, but I will do so without prejudice to the other application, the section 127 application.

PN39

So what we will do is notify the parties in due course and see about bringing that matter on and chances are we could bring the matter on say for 1 hour, I will find an hour at lunch time, but to bring the matter on before Thursday and in the meantime the matters that I have touched upon in regards to the section 127 matter can still proceed. I am concerned that I don't want the parties to get involved in extraordinary cost, if we can avoid that, then I would hope to avoid it. I don't want to deal with one each, it has to be dealt with independently and treated with the integrity that they deserve and I will do that. All right, so what I propose to do is to adjourn this matter to 2.30 on Thursday, 22 August.

ADJOURNED UNTIL THURSDAY, 22 AUGUST 2002 [11.50am]