AG2001/3216, Transcript of Proceedings [2002] AIRCTrans 363 (8 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2001/3216

ACM DETENTION OFFICERS AGREEMENT 1999

Application under section 170MD(2) of the Act
by Australian Workers Union to vary

PERTH

12.42 PM, WEDNESDAY, 28 NOVEMBER 2001

Continued from 23.8.01 in South Hedland

HEARING CONDUCTED BY VIDEO

PN1015

MR M.D. LLEWELLYN: I appear on behalf of the applicant.

PN1016

MR I. DOUGLAS QC: I appear on behalf of ACM by video.

PN1017

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Douglas is it?

PN1018

MR DOUGLAS: Yes, it is.

PN1019

THE SENIOR DEPUTY PRESIDENT: It looks a bit dark on the screen.

PN1020

MR DOUGLAS: Well, I think that's not our doing, your Honour, I think somebody might have done something technically with the screen but we can see you well.

PN1021

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Yes, thank you Mr Douglas. Now, in my decision on 17 October I directed the parties confer and prepare a draft order to give effect to the decision that I had given there. To date I don't think a draft order has been filed or if it has it hasn't come to my attention. And subsequently I have received from Anderson Legal, the solicitors for ACM, some correspondence referring to my decision and the provisions of the Agreement relating to the disciplinary procedures and guidelines document being amended from time to time. So perhaps I might ask Mr Llewellyn first all what is the situation with the draft order?

PN1022

MR LLEWELLYN: As far as the parties jointly conferring, I think it would be fair to say I have had no response from ACM at all as to whether they would be willing to confer. Apart from the letter received from Anderson Legal and a letter received from Mr McCormick asked me to point out what undertakings were given by counsel in the last proceedings in relation to the issue of any person, which I've subsequently replied to him and provided copy of that section of the transcript, where you were having a discussion with Mr Hooker at the time.

PN1023

MR DOUGLAS: I've got that too.

PN1024

MR LLEWELLYN: Other than that, there has been no other correspondence between us. I think I sent a letter through to the Commission copying a letter I had sent to Mr McCormick, requesting that we confer with the aim of getting a draft order. I do have a draft order, unfortunately there was a printing mistake in it when I reprinted it I forgot to grab it off the printer on the way out, which I've drafted up which goes a bit further than the decision. Because as a result of what's occurred since the decision and ACM's insistence, despite the commitments given by Mr Hooker at last proceedings of what "any person" means, they still seek to read "any person" down and are not allowing the appointment of "any person" as such to represent employees and I intended to put that forward today as part of the draft order.

PN1025

But essentially all I have done is a draft order that would say that "any matter" is defined as a matter that arises under the Agreement or the Code of Conduct including disciplinary procedures as a definition to insert in subclause (3) of the Detention Officers Agreement. But I also included that a definition of "any person" meant "any person", be it solicitor or advocate, union official, industrial representative or indeed any other person and shouldn't be read down as a definition, given that it would seem that the commitments given by Mr Hooker aren't to be honoured by ACM in terms of their practicality. So that is basically where we're at at the moment as I understand it.

PN1026

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the draft order with you?

PN1027

MR LLEWELLYN: No, unfortunately I reprinted it and threw the draft I had out and forgot to grab it off the - I can get it faxed from my office to here. That is probably the best I can do at this point in time.

PN1028

THE SENIOR DEPUTY PRESIDENT: All right.

PN1029

MR LLEWELLYN: I thought I had put it with the paperwork to grab on the way past, but I was going from matter to another.

PN1030

THE SENIOR DEPUTY PRESIDENT: All right. Okay. Mr Douglas, what's the position at ACM about the concession that was made by Mr Hooker in course of the proceedings before me?

PN1031

MR DOUGLAS: Well, your Honour, I don't see that as being a concession. I think that is simply something that Mr Hooker said during the proceedings. There are a number of issues, your Honour, that give us problems. Could I say, your Honour, that from a view of - well from a point of talking about, in terms of the documentation that is prepared, there hasn't been a conference. But we, your Honour, haven't been idle about this. We have been addressing this issue since your Honour's position and quite frankly, your Honour, I must say this with respect, that we see ourselves facing a profound difficulty in putting together a draft order that would seem to meet the terms of your Honour's decision and which, at the same time, would not result in a substantive addition to the Agreement.

PN1032

Now, your Honour, there are a whole bunch of reasons why we have that position and I don't wish to take up the Commission's time unnecessarily today. What I suggest, your Honour, is this, and I believe that there is no possibility of the union, Mr Llewellyn and us agreeing on a draft order. No possibility whatsoever. What I suggest, your Honour, is this, that each side formulates its own draft order and provides such draft orders to your Honour within seven days, accompanied by any submissions that one side or the other might wish to put in support of each's proposed draft order. And that each side thereafter have a further seven days to reply in writing again to the position of the other side and once that exchange has taken place then, your Honour, comes to a conclusion as to the form of the order.

PN1033

Your Honour, I put forward that proposal as an alternative to us speaking to the minutes exercise, which would mean that we would either have to come to Perth or Mr Llewellyn would have to come across here. I think the matter could be dealt with in writing in that way if that's satisfactory to your Honour. But we do have profound difficulties in drafting up an order which would be acceptable to the union and one which would fit concisely, as we understand the reasoning of your Honour's decision. We understand what your Honour's decided. But we do have this - - -

PN1034

THE SENIOR DEPUTY PRESIDENT: I hope so.

PN1035

MR DOUGLAS: Yes. We do have difficulty, your Honour and the legal - - -

PN1036

THE SENIOR DEPUTY PRESIDENT: But is the difficulty - sorry Mr Douglas - is the difficulty that that has been set out in the letter from Anderson Legal to me concerning the interaction between the grievance discipline in appeals procedure in the, well the Code of Conduct, if you like, and the Agreement.

PN1037

MR DOUGLAS: Yes, your Honour, but that letter just raises the issue, it doesn't explain what I have in mind, your Honour. I could do that now - - -

PN1038

THE SENIOR DEPUTY PRESIDENT: No, no. I think what you have suggested is probably the most effective way to deal with it in view of the situation that has developed. Subject to anything else you want to say about I would ask Mr Llewellyn his views about that, but it seems to me the most practical way to deal with it if there's no likelihood of any agreed draft being put to me between the parties.

PN1039

MR DOUGLAS: Yes, your Honour. I think, your Honour, at the end of the day your Honour is going to have to decide and Mr Llewellyn is talking about going beyond your Honour's decision and that raises, of course, another issue. But I can't - - -

PN1040

THE SENIOR DEPUTY PRESIDENT: Well that can't happen obviously.

PN1041

MR DOUGLAS: But I'm happy to address the nature of his proposed order by written submission and suggest that he do likewise with ours, and your Honour either pick one or the other or come down in the middle.

PN1042

THE SENIOR DEPUTY PRESIDENT: All right. Very well. Thanks Mr Douglas. Mr Llewellyn, what do you say about that? You heard what I have just said, by the way. I don't see how an order to give effect to my decision can go beyond my decision.

PN1043

MR LLEWELLYN: Well, only to this extent I suppose. I mean the decision is predicated on the fact that in terms of the application that was made, there became two issues. The issues that were before your Honour at that stage was the question of any person, and that was the issue that the employees took up.

PN1044

THE SENIOR DEPUTY PRESIDENT: Yes, and I found that there had been a concession made by Mr Hooker.

PN1045

MR LLEWELLYN: I understand that and - - -

PN1046

THE SENIOR DEPUTY PRESIDENT: But, let me just say this. Then if I'm wrong about that, then there are other means for the company to take whatever action it may be advised to take in relation to that. But that is not a matter that ought to be addressed now because I have made a finding that there was no issue in the end about that. Now, as I say, if I'm wrong about that, there is other avenues for the company to follow. But I have made a decision that reflects what I understood to be the position of the parties on the question of personal.

PN1047

MR LLEWELLYN: Well, perhaps that is for us to follow because the company's still refusing to recognise "a person" nominated by the employees and if you go back to the transcript that was the same comment I made on transcript. That I believe the undertaking, the evidence of Ms Deep at the time, were in conflict. But nevertheless I will address that elsewhere if that is the desire, the - - -

PN1048

THE SENIOR DEPUTY PRESIDENT: Well, I mean, you don't challenge my decision as I understand it or what I say about - - -

PN1049

MR LLEWELLYN: I accept your decision. The problem is that the - - -

PN1050

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, when you get your order then perhaps, if there's still a difficulty, then you can pursue it with your order or perhaps the company can take up their position in some other avenue against my decision.

PN1051

MR LLEWELLYN: All right. The other thing that is of concern to me is we are now a month after the - or a bit over the month after the order was issued and the first correspondence we received from ACM through Anderson Legal is basically the week before, or after the matter's been called on again for mention. The issue of, and I would have thought in accordance with your decision, particularly in paragraph 41 of your decision, it is fairly plain on what a definition of a matter would be. Now it would appear to me that, given the letter from Anderson Legal and the comments of counsel on this occasion, is that they simply seek to reopen the matter and start hearing further evidence on what those documents were that were brought before the Commission at that stage through Ms Deep and through witnesses for the applicants in this matter.

PN1052

MR DOUGLAS: Your Honour, could I just say this. I don't quibble with the meaning of the words another person in clause 7. In relation to disputes that arise over the application of the Agreement, there are not disputes concerned with discipline. But the problem we have, your Honour, is that the decision and the intended order seems to imply that the company's ability to deal with this Agreement, in accordance with the three documents that make up the Code of Conduct, is being taken away. That's the problem we have. Now what Mr Hooker says about "any person", I mean it's just clear English, "any person" means "any person". But that must be confined to disputes that arise over the application and the grammar that are outside the scope of the Code of Conduct. Now that's the problem that we have, your Honour.

PN1053

MR LLEWELLYN: Well, if that's the case, it confirms what I have just said, what Mr Douglas now says, is he challenges what is in paragraph 41 of the Agreement, full stop, 41 of the decision and that is that any matter that does not relate to any disciplinary issue and if that is what he is saying that's a direct challenge to what the decision says.

PN1054

THE SENIOR DEPUTY PRESIDENT: Yes. Well, ACM have their rights if they want to challenge those things. That's - - -

PN1055

MR LLEWELLYN: I agree with that, sir, and the right place to challenge it is by appeal.

PN1056

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1057

MR LLEWELLYN: Not by simply saying we want to change what the decision is. By redrafting, because we can't draft an order that says "any matter" where it relates to disciplinary issues.

PN1058

MR DOUGLAS: Well clearly put, your Honour, the Commission is not functus officio on this matter at this time. And what I'm suggesting is that clause 8 makes it very clear that the Agreement authorises - well the Agreement gives the Code of Conduct a standing as part of the Agreement and it also authorises that Code of Conduct to be unilaterally changed by ACM from time to time by agreements in operation. And the - as we read it, your Honour, that ability is being taken away. We can't - we can't propose a draft order which would do that.

PN1059

THE SENIOR DEPUTY PRESIDENT: I don't know that I have addressed it in any detail in my decision, but it seems to me that any right in the employer to unilaterally change the disciplinary code would not entitle the company to take away any substantive rights that are conferred on the employees under the Agreement.

PN1060

MR DOUGLAS: That's the - the very problem, your Honour. The Code of Conduct is part of the Agreement. That's made part of the Agreement by clause 8 and when the - when it was voted on by the employees and at a time was making it, it was an LK agreement, the employees voted for clause 8 in its current form. That is, to give the company the right to change it unilaterally from time to time. Now the company could have a procedure operating today in relation to discipline, which gave representational rights in respect to any person. Or in fact confined representational rights to a lay person. And - and that ability exists in the - in the ACM because of the terms of the Agreement and that cannot be touched by the Commission under MD(6), in fact it can't be touched at all unless it is touched by a variation on the Agreement made in accordance with the legislation and with the valid majority support.

PN1061

THE SENIOR DEPUTY PRESIDENT: But surely, isn't that a matter for you to take up by way of appeal against my decision?

PN1062

MR DOUGLAS: Well not necessarily, your Honour. That's why I say the Commission is not functus officio at this time because you haven't yet made an order.

PN1063

THE SENIOR DEPUTY PRESIDENT: No, that's true.

PN1064

MR DOUGLAS: And it just seems to me that if there is this difficulty and if what I'm saying is real, then it is a matter that should be addressed by the Commission at this level and the parties and the Commission shouldn't be put in a position where we have to take the matter somewhere else and go through the whole rigmarole again.

PN1065

THE SENIOR DEPUTY PRESIDENT: Yes. Right. All right.

PN1066

MR DOUGLAS: That's why I say, your Honour, I'm putting some written submissions, I address the issue and it's up to your Honour to decide.

PN1067

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Mr Llewellyn, do you want to say anything else?

PN1068

MR LLEWELLYN: No, sir, other than I object to that course of action. I just think Mr Douglas wants to re-hear the matter.
YTHE SENIOR DEPUTY PRESIDENT: Well, I mean, you object to the course of action if filing draft orders?

PN1069

MR LLEWELLYN: I don't have a problem with filing a draft order. What I have a problem with is the decision has issued. We have a situation that arises currently where employees are being denied representation by this organisation and they seek to delay it. Not unlike they seek to delay things in other jurisdictions in other matters. And quite frankly I see this as a month of sitting on their hands, despite a request to Mr Serong made in this very Commission in this building and letters to the respondent trying to seek - to sit down and do what your Honour has ordered and we come along here at the eleventh hour and Mr Douglas proposes that he really wants to re-hear the matter. Now he had his opportunity, with counsel, in Port Hedland to put all those issues before the Commission and what he proposes now is to simply re-do it again, at the same time that employees are being disciplined without representation.

PN1070

THE SENIOR DEPUTY PRESIDENT: All right. Well, these are the directions that I propose making. That on or before 5 December 2001 the applicants and ACM, that is the parties, file in the Commission and serve upon each other party a draft order to give effect to my decision of 17 October 2001. This is the second order. On or before 12 December 2001 the parties file in the Commission and serve upon each other any submissions they wish to put before the Commission in considering the competing draft orders.

PN1071

MR DOUGLAS: Thank you, your Honour. We're happy with that.

PN1072

THE SENIOR DEPUTY PRESIDENT: Now I don't propose to list the matter unless either party asks for the matter to be listed again or unless I have some difficulty that requires the parties to address me on the submissions that they might make in the matter.

PN1073

MR DOUGLAS: Yes, your Honour. It's unlikely, your Honour, that we receive such a hearing.

PN1074

THE SENIOR DEPUTY PRESIDENT: Very well. I anticipate then that if the submissions are made in accordance with the directions that there should be an order issued very shortly thereafter.

PN1075

MR DOUGLAS: Thank you, your Honour.

PN1076

THE SENIOR DEPUTY PRESIDENT: Mr Llewellyn, anything else?

PN1077

MR LLEWELLYN: No, sir.

PN1078

THE SENIOR DEPUTY PRESIDENT: Thank you.

ADJOURNED INDEFINITELY [1.03pm]