C2002/4752, Transcript of Proceedings [2002] AIRCTrans 4288 (30 October 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 VT10000
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/4752

RECOMMENDATIONS BY CONSENT

Application under section 111AA by Australian
Liquor, Hospitality and Miscellaneous Workers
Union - Victorian Branch and Carlton and United
Breweries Limited requesting the Commission to
conduct a hearing and make recommendations

MELBOURNE

1.06 PM, MONDAY, 14 OCTOBER 2002

PN1

THE DEPUTY PRESIDENT: Good afternoon. Is there any changes to the appearances at all? No. Thank you. This matter was down for hearing in relation to section 111AA. Now, I understand there has been a fair bit of toing and froing about what issues are to be considered if such an arbitration is to go ahead so perhaps a good place to start, Mr Tuck, is if you can apprise me of the circumstances that have taken place since we were last together and where we are now at.

PN2

MR TUCK: From the point of view of the company, your Honour, the transcript from the hearing of the section 127 application reveals that whilst the parties had agreed in principle to an application being brought under section 111AA, what was still to be finally determined was the nature of the matter to be brought before the Commission to be resolved; that is, what would be the parameters of the matter to be placed before the Commission for recommendations.

PN3

Your Honour, the company wrote to the LHMU on 18 September, that was by Freehills. Now, the union didn't receive that document as they advised in a letter on 23 September, but in the meantime they had filed a consent arbitration application which is the matter on the file. The company wrote on 23 September again to the LHMU and again indicated that there was some difference between the parties in relation to what they understood would be the parameters of the arbitration. Your Honour won't have any of those documents on file. I will see if I can get copies for you.

PN4

In between time, your Honour - that was the hearing I think on 17 September when we were last before you. On 18 September Mr Fountain was placed into the position of temporary organiser by the union and part of his responsibilities as the company was advised was to be responsible as an organiser employed by the union to come on to the Abbotsford site. The company wrote back to the LHMU at that time and said we did not think that was appropriate, but there were other issues in relation to the introduction of a flexibility known as continuous running, and the company wasn't going to make an issue and refuse Mr Fountain access to the site in that role, notwithstanding that it believed it to be inappropriate.

PN5

That continuous running issue, your Honour, did not resolve and was the subject of three days of hearings before Senior Deputy President Duncan, concluding last Thursday, and he has reserved his decision in relation to an application by the company and the mirror application by the union for orders under section 127.

PN6

The company last week, your Honour, became aware - before I go there, your Honour, the position, as we understood it, around 23 September was that the parties were not at one in terms of the matter to be brought before you to be arbitrated, and that is clear in the correspondence. The union put a position to the company that they use this day as an opportunity to confer around the terms of the arbitration. We did not respond to that correspondence. We did have some discussions because we were in the Commission together and Ms Barnesby had a number of discussions with the union in relation to what the process would be. There was a concern at one stage that the union would not be in a position to file its witness statements in time. It did file its material and the company did file its material and they are before you.

PN7

The union then wrote to the company last Thursday and indicated that it wanted to go ahead today. The reason that the company has moved from a position of moving forward and using today as an opportunity to confer about the terms is because we wrote to the union last week - I think it was 8 October - and we raised two matters: that Mr Fountain had accessed the Abbotsford site during his period of suspension, not in his capacity as temporary organiser, but in a personal capacity on two occasions; and that he was not authorised to access during his period of suspension, that he sought to access his computer both on 16 September and 4 October, and the company indicated that it wanted to speak to Mr Fountain about that behaviour.

PN8

That behaviour, your Honour, means that today the company does not consent to any arbitration in relation to this matter. The company has instructed me that it has a meeting arranged with Mr Fountain tomorrow at noon. It needs to consider Mr Fountain's responses in relation to the allegations that will be made to him about his unauthorised access to the site on those two occasions, and it will reserve its position in relation to what it wants to do in relation to Mr Fountain's employment after it has had an opportunity to meet with him and interview him in relation to that behaviour.

PN9

Your Honour, the company wrote to the union on Friday and indicated that was its position. Essentially, your Honour, it is this, that whilst there was an agreement in principle on 17 September to have an arbitration by consent in relation to the response of the company to the behaviour that it believes occurred on 5 and 6 September, that is the drinking before work, attending for work having been drinking, and we say further, drinking at work, and whether or not the response of the company was available and reasonably open to it, the union's position as I understand it is well, you take the behaviour and you, your Honour, make recommendations as to what would be the appropriate response to that behaviour. That is where the difference is.

PN10

The company is prepared to have its behaviour determined on the basis of whether it was reasonable and open to it. The union says no, the question is that is the behaviour, what does the Commission say, your Honour, is the appropriate response to that behaviour. The company is not prepared to consent to an arbitration which asks the Commission to take over its role in relation to the disciplinary responses to its employees. It is prepared to have its disciplinary response considered by you, your Honour, as to whether it was open and reasonable to it, but not simply pass over that responsibility to the Commission.

PN11

Your Honour, the behaviour between 17 September and today means that the company now has another matter that it needs to interview Mr Fountain in relation to. It is pointless to, we say, discuss the terms of any consent arbitration today because, your Honour, even though we are apart on those matters, we are not going to have an assessment of the company's response to the 5 and 6 September when we haven't yet dealt with this further behaviour because that would be to deal with the matter in a vacuum, it would be artificial, your Honour, and it would be essentially a waste of time to do that when we have this other outstanding issue to give consideration to and the company says it must respond to that matter now.

PN12

Now, it has not formally - it hasn't made any decision as to the impact of that behaviour on the employment of Mr Fountain. It will listen to his responses tomorrow in relation to that. That leave a day, your Honour. We simply would ask that the matter either be adjourned till after the hearing, but adjourned only on the basis that we would be prepared to report back to you, your Honour, of our further position, having had that opportunity to interview Mr Fountain.

PN13

THE DEPUTY PRESIDENT: All right, thanks, Mr Tuck. Mr Veenendaal, I note by the way that you had an objection to leave being granted to Mr Tuck at the last hearing which wasn't proceeded with at the time, and I apologise for not raising that at the outset, but I thought that I should hear the position from the company and I didn't really think you needed another complication right at this time.

PN14

MR VEENENDAAL: I suppose it is whether Mr Tuck was entitled to outline the position of the company, but I accept what you are saying, your Honour, and it probably is an issue that doesn't need to be dealt with until and if such a time that the substantive matters that were the subject of the consent arbitration actually proceed before your Honour.

PN15

I would just say, your Honour, that we are concerned from our side not only from the union's point of view, but obviously from Mr Fountain's point of view, about what I say ostensibly is a fairly drastic change in the company's position from just a few days ago when there seemed to be a position which was that they were prepared to go ahead with a consent arbitration.

PN16

I would indicate that I don't think it is an industrially sound practice for the company to accept as a condition of the union settling their application on 17 September and certainly one of the key conditions of the union to settle that matter was that they subject themselves or at least consent to a consent arbitration pursuant to section 111AA in respect of the matters of the disciplinary action taken against Mr Fountain, and accept obviously that their application doesn't need to proceed and the inconvenience that that would cause them in proceeding with that application, and then after the event, ex post facto, your Honour, they then turn around and say, well, now we have withdrawn consent.

PN17

I would indicate that apart from the fact that is an industrially unsound practice, I don't think they are entitled to do it in any event under section 111AA because section 111AA does seem to contemplate a contemporaneous element to it, if I can put it that way, your Honour, and it does say that if the Commission is exercising powers of conciliation in relation to a particular matter, and I refer specifically, your Honour, to section 111AA(1)(b):

PN18

All the parties request the Commission to conduct a hearing and make recommendations about particular aspects of the matter on which they are unable to reach agreement.

PN19

All the parties request the Commission to conduct a hearing. Now, on the 17th, your Honour, and it is on the transcript, both of the parties in the company's section 127 application did request that the Commission conduct a hearing at a later stage and clearly that was contemplated in it, and in fact a date was set at that time, in respect to the recommendations that the parties were prepared to look at and enable the Commission to make recommendations about - or at least those issues that the parties wanted the Commission to make recommendations about.

PN20

And 111AA(1)(c) I don't think is relevant to this issue of withdrawal of consent. So what I am saying, your Honour, is I don't think the company, in fact, is entitled to withdraw its consent, and I think it is a practice that certainly should be scorned on by the Commission when - - -

PN21

THE DEPUTY PRESIDENT: Sorry, Mr Veenendaal, just on that - I am sorry to interrupt you while you are in full flight, but just while we are on the subject of 111AA(1)(c), if I can just draw your attention to (c)(ii).

PN22

MR VEENENDAAL: Yes, your Honour.

PN23

THE DEPUTY PRESIDENT:

PN24

The Commission must be satisfied that all parties have agreed to comply with the Commission's recommendations.

PN25

MR VEENENDAAL: Yes. Yes, your Honour.

PN26

THE DEPUTY PRESIDENT: So what would you say to me about that particular point?

PN27

MR VEENENDAAL: Well, I think that is a different provision, your Honour. That doesn't deal with an issue about withdrawal of consent ex post facto. What it deals with is the issue, if you like, the terms upon which the consent is made on 17 September in this case, your Honour, and what it says is that the parties have to agree that they will comply with the Commission's recommendations. Now, I can't recall, your Honour, whether in fact that issue was raised on 17 September, but certainly there is no doubt that we entered into the process of consenting to 111AA arbitration on the basis that we were prepared to consent. There is no other way to operate in respect to a section 111AA recommendations by consent, your Honour.

PN28

If the parties are going to say, well, we will have a bit each way and we say that this is unenforceable because it is a recommendation and clearly that is the case, or we are simply going to have a look at the recommendation, and if it is a recommendation that suits us, we will cop it, if it is not, we won't. That is clearly not my industrial experience in relation to section 111AA consent arbitrations and I have been involved with one or two before, your Honour.

[1.20pm]

PN29

I can indicate very clearly to the Commission today that that is not our position in respect of this particular matter, so what I say in respect to that particular provision at 111AA(c) that is an issue which deals with the conditions upon which the request to the Commission for consent arbitration is borne on. We are not saying that that enables the company to come along today and say, well the union is not going to comply so therefore we don't have recommendations by consent, and in any event, as I am saying, your Honour, we have not done that, quite the opposite. If we didn't do it on the 17th I am certainly doing it now and saying to the Commission that we are prepared to comply.

PN30

So I just make that initial comment that I think that it is not open to the company to in fact withdraw its consent when consent was given as a condition to the settlement of this application and in the ordinary meaning, or the ordinary sense of the meaning that you can read down in respect of section 111AA, your Honour, particularly section 111(1)(b). Now, in respect to the - if I could describe as the merits of this, Mr Tuck seems to be putting a proposition.

PN31

I think some of what he says in terms of the facts is reasonably correct, but he seems to be indicating that the company's position really hasn't changed and it is all now - needs to be considered in light of this other so called, or allegation of a breach that Mr Fountain has been involved with, apparently where he attempted to turn up to the site on two occasions and effectively clear his locker, which is, I understand, what he did on those days whilst on suspension.

PN32

Now, I would want to draw the Commission's attention to two things in a little more detail, one of which Mr Tuck has referred to in his outline, or his submissions, and one which he didn't refer to, which I need to draw the Commission's attention to. And he did mention that there was an exchange of correspondence and that exchange occurred between the 18th and 19 September, your Honour, and I can tender these letters, I don't think it is necessary, but if the Commission wants to sight the letters or have a look at them, I certainly can tender them.

PN33

But the union did write to the company on 18 September announcing it had appointed Mr Fountain as a temporary organiser, specifically to deal with the issue of continuous running, and that was a very detailed letter, your Honour, and it actually outlined in quite a bit of depth and detail, it was a three page letter, as to the reasons why we were in fact appointing Mr Fountain and they really had to do with resourcing issues and we listed all of the issues that are currently before the union at the site, and there was something like a dozen or more issues listed at page 2 of the letter relating to redundancies, work trials, general issues, the continuous running issue was one issue but there are a number of letters here which are dealt with here.

PN34

And alerting the company to the - to the company's attention, the fact that the organiser, Mr Wiseman, who deals with that site, actually has 14 other sites that he has to deal with. Now, the reality is he does spend a lot of time out at that site and the reality is, it is probably his largest site in terms of absolute numbers, in terms of members. But we are simply saying that there was a resourcing issue here and we thought it was appropriate for that resourcing issue and in order to maintain continuity to appoint Mr Fountain as a temporary organiser.

PN35

It was no more or less than that, I am not saying Mr Tucker is saying it is any more than that, but we are saying there was sound industrial reasons for his appointment. Then the company wrote to the union on the 19th and, in fairness, your Honour, I don't think they were overjoyed by the fact the union had appointed Mr Fountain and indicated that he wished Mr Fountain to be - to continue to be involved in his capacity as an officer of a union with a continuous running issue, but the company did say, and I quote from a letter dated 19 September from Mr Robinson, and as I say, if this contested, and I don't think it would be, or if the Commission wants to sight it, you can, and I quote from paragraph 5:

PN36

However, not withstanding that the company considers the appointment to be inappropriate we will allow Mr Fountain to attend our site in his temporary capacity as a temporary branch organiser.

PN37

So on 19 September it is very clear, I think, from that paragraph, and I understand the Commission doesn't have the letter before it, but I think in the context of the letter it is very clear that the company is accepting the fact that the union has appointed Mr Fountain, or had appointed Mr Fountain and so advised the company on 18 September. It now comes back with this bizarre proposition that somehow Mr Fountain should spend his time in a different way in a context where the company has suspended Mr Fountain without pay, and I think that is very important, they have denied Mr Fountain his livelihood and they are also now saying that it is inappropriate for him to spend his 6 weeks suspension without pay where he is barred from the site in some other capacity that the company deems appropriate.

PN38

Now, I think that is a bit righteous of them to say the least, your Honour, and I also advise your Honour that we also wrote to the company subsequent to their letter of 19 September on I think 23 September and indicated that it was our view that given Mr Fountain wasn't in fact being paid that, if you like, his contractual obligations, whether they be expressed or implied terms of his contract with CUB, were also suspended, because his is not being paid.

PN39

Now, I wouldn't have thought that is particularly controversial and I think it is very righteous for the company to say that Mr Fountain is in fact spending his time in a way that should be other than being appointed as a temporary organiser of the union. I just make that comment in passing because I do think that some of the issues that are raised in 8 October letter that Mr Tuck referred to, and I think he might have mentioned it came to the union, it didn't come to the union it came to Mr Fountain's attention.

PN40

I think some of those issues are a bit of a sham and I am not certain why they have actually been raised but it could e that they have been raised to try and avoid a consent arbitration like this, or to provide the company with excuses for avoiding a consent arbitration like this because it doesn't really want, subsequent to 17 September it has had a change of mind about wanting these issues to come before the Commission.

PN41

I am speculating there, your Honour, and I certainly don't indicate that speculation should be given any further weight than speculation, but I can only really wonder why the company is doing this, and in respect of the two issue, the 16 September alleged entry to the site and the 4 October alleged entry to the site, it is noteworthy I think that 16 September issue was so unimportant, your Honour, that they didn't choose to draw it to Mr Fountain's attention until the letter of 8 October, which I think is about 18 days later.

PN42

So it really couldn't have been a particularly important issue. And I also say to your Honour that of course it is a matter of act that Mr Fountain presented at the security hut, he didn't try and barge through the gate, he didn't scale the fence, your Honour, he presented at the security hut and asked the security guard on duty as to whether he could clear out his locker and the security on duty said he could, so in fact he was admitted entry by a person that the company has appointed to - and who is entitled as part of his duties to either deny or admit people entry to the site.

PN43

So how that is a disciplinary action for our members is a mystery to me, or how that has disciplinary consequences for our members is a bit of a mystery to me. And on 4 October Mr Fountain appeared to clear further items from his locker because Mr Fountain, myself and other union officials were involved in another application made by the company pursuant to section 127 where - which was heard before Senior Deputy President Duncan last week and the week before where Mr Fountain wanted to get some documents from his locker which he thought might be valuable in dealing with that case.

PN44

So again he presented to the security office, again he was admitted entry and he was allowed to pick up those documents from the site. So I really think these issues are trivial, to say the least. I think there may be some vexatious motivation behind them as well, but as I say, that is just speculation, your Honour. But the other thing that I wanted to draw your Honour's attention to was a letter from Mr Tuck dated 7 October, and Mr Tuck is right.

PN45

He has correctly, I think, represented the position of the union because we were in difficulty circumstances from a resource point of view, heavily involved in a very complex arbitration before Senior Deputy President Duncan which took 3-1/2 days of hearings to deal with and because I was heavily involved with that I did approach both Ms Barnesby and Mr Tuck and indicate that I thought it was going to be difficult for me to meet the deadline of 7 October because I had another deadline concurrent to that where I had to file statements in respect to the proceeding before Senior Deputy President Duncan.

PN46

But subsequent to that I thought, no I have just got to do this and I did do it and the statements were filed. But the thing that is interesting, I think, is the letter Mr Tuck from 7 October to Mr Daly, where he says, and I quote - and this is in respect to the exchange of material:

PN47

Whilst we differ on what are the terms of the consent arbitration we do not think the hearing should be adjourned.

PN48

This hearing, now that suddenly has to be adjourned because of all these reasons shouldn't be adjourned:

PN49

Further, it is our view that the parties are able to prepare their material now as the hearing can proceed once the terms have been resolved.

PN50

And I also had a discussion with Mr Tuck where he indicated to me verbally that he felt that the difference between us on the terms was fairly immaterial. I think he described it as a matter of semantics. But now it is suddenly an important issue that needs to be dealt with by way of a report back after Mr Fountain's issue has been dealt with tomorrow. So I have to say, your Honour, I am perhaps a suspicious person, perhaps I am a cynical person, but I am a little bit suspicious about what is going on here and it does seem to me that the company is employing tactis which are not unknown to companies, and they are delay tactics in respect to this particular proceeding.

PN51

I did write to the company, as Mr Tuck represented, on 11 October and indicated that we did view these - the industrial implications of the matters that the company has raised with Mr Fountain - that the company now says they want to talk to him about tomorrow as separate issues in the sense of the type of issues that they want to deal with tomorrow with him, to the issues that are before the Commission in respect of this consent arbitration, and I did indicate to the company that I really saw no particular reason for why the issues that are before the Commission in respect of the consent arbitration can't go ahead today.

PN52

Now, if we have to have a discussion, whether it is in conference or on the record, about the terms of reference I think that can be done fairly quickly, particularly in light of Mr Tuck's letter of 7 October, and I presume he got instructions before he wrote that letter, I presume that was the company's view, and we are happy to do that if necessary, your Honour, and I can't really see for the life of me why we can't proceed, at least with some of the evidence today. I have got Mr Fountain here who is our key witness, if I can put it in that sense, and I think in terms of the time - the time limits of hearings I think dealing with him or disposing of his evidence would probably take the greatest proportion of time in respect of the four or five witnesses that we have in our case.

PN53

And certainly we could then proceed with setting dates for further hearings in the event deemed necessary to deal with the matter. I can't really see why we couldn't commence that process today, and obviously the company will be talking to Mr Fountain about those other issues tomorrow. If in fact the company decides to do something with Mr Fountain tomorrow, which means that, for example, he wouldn't be employed at the site after tomorrow, well then obviously the matters don't continue to proceed.

PN54

But I don't really think I can agree with Mr Tuck's submission about this process as a result being highly artificial. The process isn't artificial because it was an agreed process in a proceeding properly before the Commission, before your Honour at that time, on 17 September that the process occurred. So I don't really accept that it is an artificial process for us to proceed on that basis today. So I am simply indicating to your Honour that we are prepared to have some discussions with the company today about the terms.

PN55

We think we could proceed at least with Mr Fountain today, I am prepared to run the case, get Mr Fountain up to give his evidence. I can't see why that can't occur. If there is any other issues that need to be dealt with I think we can deal with them today as well and then further hearing need to be set to deal with the substantive matters if that is necessary at a future time.

PN56

I think I will probably leave it there at this stage, your Honour.

[1.35pm]

PN57

THE DEPUTY PRESIDENT: Yes, thanks, Mr Veenendaal.

PN58

MR TUCK: Your Honour, can I just place a couple of things on the record?

PN59

THE DEPUTY PRESIDENT: Mr Tuck, just before you do, it seems to me, if I can just refer you to paragraphs 23 and 24 of the transcript, at least to me you seem to acknowledge there that a consent arbitration under 111AA is to go ahead and that the issue, if there is any issue in respect of that proceeding, it is, to use your words, to have an opportunity to seek to put in writing the subject of that proceeding, so it would seem to me that the issue, to the extent that there was any issue in relation to these proceedings was getting clear between the parties exactly what it was that was to be arbitrated in those proceedings.

PN60

MR TUCK: I accept that, your Honour. That is an important matter, though, of jurisdiction.

PN61

THE DEPUTY PRESIDENT: Yes, and I am not making any suggestion otherwise about that, Mr Tuck. All I was simply going to say was it would seem to me on the basis of what has been said here today that that really remains the only issue in relation to these proceedings. I am not convinced and I will give you the opportunity in a moment to respond to that - that is why I wanted to make some comments first - I am not convinced on the basis of what has been put to me so far as to the relevance of any behaviour that might have been undertaken by Mr Fountain in relation to access to the site, I am not too sure, as I was about to say, of the relevance of that to this particular proceeding and to the one issue which was to clarify the terms of reference of this particular proceeding.

PN62

MR TUCK: I will say this. The first issue raised is a fundamental issue. That is, the Commission does not have jurisdiction to deal with an arbitration under section 111AA unless it is satisfied the parties agree to place the matter and would be bound by the recommendations. Now, we have agreed in principle, we don't walk away from that, the company does not walk away from its agreed position in principle on 17 September that it would agree to a consent arbitration. What needs to be agreed is what is the terms of the matter to be referred to the Commission to you, your Honour, for determination?

PN63

Otherwise, unless the parties agree that fundamental matter, there is no jurisdiction in the Commission. Now, it is clear on the correspondence that the parties have not reached that position, notwithstanding their optimism that that would be a simple matter to achieve. That hasn't happened. The union filed an application dated 23 September. The correspondence, your Honour, of the company on the 18th and then on 23 September makes clear that the company does not and has never agreed to an arbitration in the terms of the application that was put and filed before the Commission. The company does not agree to that arbitration and has never indicated that it would.

PN64

Now, on - and the first opportunity we have to sight that, we write and say, we don't agree to that. We refer you back to our letter - - -

PN65

THE DEPUTY PRESIDENT: Mr Tuck, I am very clear about that and I am not taking any issue with that.

PN66

MR TUCK: But, your Honour - - -

PN67

THE DEPUTY PRESIDENT: The issue that I was taking with you was that it seems to me that that is the issue that is between the parties at the moment, whatever those terms of reference are going to be.

PN68

MR TUCK: In addressing that, your Honour, could I just indicate that on 30 September the union wrote to me, your Honour, and in the letter they acknowledge that we don't agree:

PN69

As it appears that CUB do not agree with the terms we have suggested, it seems appropriate that the matter be referred back to Deputy President Ives to enable discussion about the terms to take place.

PN70

Now, that is where we are today, your Honour, save for the behaviour of Mr Fountain that needs to be investigated by the company - - -

PN71

THE DEPUTY PRESIDENT: Yes.

PN72

MR TUCK: - - - his behaviour on 16 September and 4 October. Now, Mr Veenendaal has expressed a view as to the nature of that behaviour. The company has not had an opportunity to speak to Mr Fountain about those matters.

PN73

THE DEPUTY PRESIDENT: Yes. I am just asking you, Mr Tuck, to explain to me and to convince me why that is relevant to this proceeding.

PN74

MR TUCK: Well, your Honour, first I say I don't have to convince you because our consent is not before you, so your Honour does not yet have jurisdiction, and I don't mean that in any other way than that is the basis upon which we start. Now, your Honour, I do want to seek to bring you with us in terms of where we are at.

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR TUCK: Your Honour, we haven't had an opportunity to speak to Mr Fountain about his behaviour but the matter that we believed ought to go before you is about resolving whether or not the disciplinary action against Mr Fountain is appropriate. That is, what we did in relation to his conduct on 5 and 6 September was appropriate and it has, in part, a continuing relevance because it talks about whether or not he will be transferred to a particular role on his return from his suspension.

PN77

Your Honour, we don't see any point in having an arbitration determined in relation to those matters only when there is possibly further misconduct by Mr Fountain in the intervening period which might make that process redundant. That would ask the company and would put Mr Fountain in running a case before you in a vacuum and, we don't operate in a vacuum. There is further behaviour. We did not ask Mr Fountain to attend our site on 16 and 4 October. We did not give him permission to do so and he was under clear instructions from the company that he was suspended.

PN78

For him to attend the site in the way he did has a look of it, without being further investigated, of further serious misconduct. Now, he says through Mr Veenendaal, he was there to clear out his locker. That is not the position as we understand it - - -

PN79

THE DEPUTY PRESIDENT: Yes, but the thing that I can't get clear - - -

PN80

MR TUCK: - - - and it raises serious matters.

PN81

THE DEPUTY PRESIDENT: Yes, Mr Tuck, they may well be but the thing that I can't get clear in my mind is how that is relevant, particularly when you say to me that the company's position was that the subject matter of this hearing, if it was to proceed, was to have a look at the company's response with respect to the behaviour of Mr Fountain on 5 and 6 September and determine whether in all of the circumstances that response was a reasonable response. That was what you put to me earlier as being the position of the company. Now, if that is the company's position, that the behaviour of 5 and 6 September of Mr Fountain and the company's response to that behaviour was to be reviewed in the light of whether it was reasonable and open to the company, then I am not sure still what the relevance of any further behaviour and any response by the company to that behaviour, whatever that response might be, how that impacts at all upon these proceedings.

PN82

MR TUCK: Well, it may become a redundant process, your Honour.

PN83

THE DEPUTY PRESIDENT: Well, it may well but I think, as Mr Veenendaal said, if that was the case, then that would be the case, would it not? I mean - - -

PN84

MR TUCK: Well, that would be a waste of time and - - -

PN85

THE DEPUTY PRESIDENT: - - - if the company makes a determination that there has been misconduct by any employee or the suspicion of misconduct by an employee, then the company will conduct an investigation, I would assume, of that misconduct and ultimately come to a decision in respect of that misconduct. That doesn't mean that everything stops in the organisation in respect of that employee or any of the employees whilst that occurs, does it?

PN86

MR TUCK: Well, your Honour, in this case it does because we haven't consented to any arbitration. We have put our position clearly - - -

PN87

THE DEPUTY PRESIDENT: You have, in fact - in your own words, Mr Tuck, you have consented to the arbitration. What remained - and, as I say, I can point - - -

PN88

MR TUCK: There is no agreement, your Honour. There is no agreement to have this matter arbitrated by both parties in the terms required by section 111AA.

PN89

THE DEPUTY PRESIDENT: No.

PN90

MR TUCK: As Commissioner Blair has said, even at the beginning of this year, I believe it was, in the ANF matters, unless the parties come before you with that agreement, then the Commission doesn't have jurisdiction. Now, your Honour, I say that only - that is the parameters in which the submission is put. Your Honour, what we are saying is we haven't started that process. Yes, we have done a lot of work towards moving to that position. We are aware of further conduct which we say may make this process redundant.

PN91

We sought to interview Mr Fountain last week and we were told we couldn't - no, we weren't told that; we were told it was unfair, and we said we would adjourn it off. Now, we want to deal with that process, that interview, now. We are happy to come back before you, your Honour, after that process is gone through but we are not prepared to agree to a process where we start some artificial arbitration which may be redundant, take up company's resources, take up the time of Mr Fountain and Mr Veenendaal, take up costs on the company's side in a process that has been overtaken by behaviour of Mr Fountain which we need to investigate, your Honour.

PN92

THE DEPUTY PRESIDENT: All right. So you are happy to come back before me to do what, Mr Tuck? If you are not prepared to waste the time of the company and the unions and everybody else, then, hopefully, you are not prepared to waste the time of the Commission either. So for what reason would you be seeking to come back?

PN93

MR TUCK: The events of tomorrow, your Honour, after we interview Mr Fountain, may well be that his explanations are credible and believable and proper explanations for his behaviour and we would be back in a position where we may, therefore, then want to deal with this matter.

PN94

THE DEPUTY PRESIDENT: How would you propose to deal with it, given that you have an issue between the parties as to what the terms of reference should be and you say that, in the absence of agreement on those terms of reference, there is no consent. So how would you propose to deal with that?

PN95

MR TUCK: We would ask the union to agree that the position that we are prepared to have an arbitration in relation to, if those - the fundamental circumstances hadn't changed between now and then.

PN96

THE DEPUTY PRESIDENT: But what would I be listing the matter to hear, Mr Tuck? Whether or not - - -

PN97

MR TUCK: Well, you don't necessarily - your Honour, as long as it is - if it listed and we say, after our interview, we will be there with Mr Fountain tomorrow asking him about these matters, we are not saying that we have walked away from this process at all. Notwithstanding the issues that have been put by Mr Veenendaal, CUB is not walking away from this process. CUB is simply saying we need to address this further behaviour because we believe it is serious and it needs to be taken seriously. And, your Honour, the view of the company is that the process - this would be possibly a redundant exercise, to start whilst that process is going through. Now, your Honour, that is their view.

PN98

THE DEPUTY PRESIDENT: Look, I don't know that we need to get too heavily bogged down in argument about that one way or the other, Mr Tuck. I mean, this matter has now been afoot for some considerable period of weeks. If an interview is to take place with respect to this other behaviour in the immediate short term, which seems to be the case, then an adjournment of a couple of days so that that can occur before there was any hearing of this particular matter doesn't seem to me to be something - subject to what the parties might have to say - that should cause a great obstacle.

PN99

But, from my point of view, if I am to relist something, then I want something to relist. I don't want to be calling a hearing on for later in this week for some discussion that is simply for my fascination, because I can assure you I won't be that fascinated.

PN100

MR TUCK: No, I don't have those instructions, to waste your time, your Honour.

PN101

THE DEPUTY PRESIDENT: I would expect if I am to relist the matter for later in the week, then what I would be relisting the matter for is to hear a section 111AA application and, to the extent that there is an issue between the parties in respect of the terms, that that would have been resolved along with whatever other issues relating to this other matter that is before the parties that would have been sorted through as well.

PN102

MR TUCK: Your Honour, can I just say this. The parties have obviously attempted to do that and have reached an impasse where, I think, without the resources and assistance of the Commission, we were not going to reach a position of agreement, and that was clear before today. The company did first seek to interview Mr Fountain last week in relation to this further behaviour and the union put a position and I was given instructions to allow that matter to be deferred. In the intervening period, the company has taken the view that it would like that to happen.

PN103

The issue that remains, as your Honour rightly pointed out, is the terms of reference. Now, we could agree that today - that would be a first step - subject to whatever happened in relation to any interview - - -

PN104

THE DEPUTY PRESIDENT: Well, that would seem to be an appropriate course.

PN105

MR TUCK: And we would then indicate to your Honour after tomorrow, if that was appropriate, ring your associate and indicate whether or not the parties would now wish to take up the time of the Commission to hear the arbitration, either later this week or the beginning of next week, whenever you are available - and Mr Veenendaal, I know, has some time pressures and has been under considerable pressure in terms of his time - and we would be prepared to go down that process, your Honour. That may be a way to usefully use today.

PN106

The company has instructed me that having the interview with Mr Fountain is important in their mind because they want to do that before they start this process because they do see the process as being holistic.

PN107

THE DEPUTY PRESIDENT: Yes. Well, with all due respect, Mr Tuck, quite frankly, I am not that interested at this point in time in the alleged behaviour of Mr Fountain in the intervening time between 5 and 6 September and now, and to the extent that the company needs to address that, then fine, it should go ahead and address it. I am interested in the fact that we did have set down today a hearing under section 111AA, which you are putting to me cannot go ahead.

PN108

Now, if it can't go ahead because of, you say, two issues - in my mind it is still only one and the one is whether or not there are terms of reference, but you say two issues and I will accept that for the time being. It seems to me that at least we could dispense with, if it can be dispensed with, that one circumstance that is relevant to these particular proceedings in respect of what it is that these proceedings will ultimately determine. It seemed to me from what you said at the outset as to the company's position with respect to those terms of reference and the union's position, as it was portrayed both by yourself and Mr Veenendaal, that that shouldn't be an insurmountable obstacle because it didn't seem to me that they were that far apart.

PN109

MR TUCK: I don't think we are, your Honour, and we would happily use today to achieve that outcome.

PN110

THE DEPUTY PRESIDENT: So you would propose to do that in conference, Mr Tuck, or would you propose that that should take place independently between the parties?

PN111

MR TUCK: I think it would be a more useful discussion in conference, your Honour.

PN112

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Tuck. Mr Veenendaal, did you have anything further you wanted to say on the record, because I would propose to adjourn into conference at this stage?

PN113

MR VEENENDAAL: No, your Honour.

PN114

THE DEPUTY PRESIDENT: I will go off the record, thank you.

NO FURTHER PROCEEDINGS RECORDED