C2002/4927, Transcript of Proceedings [2002] AIRCTrans 4768 (29 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/4927

MARITIME INDUSTRY SEAGOING AWARD 1999

Application under section 113 of the Act
by The Maritime Union of Australia and Others
to vary the above award re respondency

SYDNEY

10.05 AM, THURSDAY, 14 NOVEMBER 2002

PN1

THE COMMISSIONER: Can I have appearances please?

PN2

MR W.G. McNALLY: If the Commission pleases I appear for the three applicant organisations.

PN3

MR G. HATCHER: If it please the Commission to the extent I am able I seek leave to conditionally appear for the CSL Pacific Shipping Incorporated.

PN4

THE COMMISSIONER: Yes, thank you.

PN5

MR HATCHER: Commissioner, as my learned friend put in correspondence to the Commission, this application has some relationship to proceedings 813 of 2002 and there has been some correspondence between the parties in that regard. Might I tender correspondence from my instructing solicitors to my learned friend's firm dated 4 November 2002.

PN6

THE COMMISSIONER: Yes, thank you, Mr Hatcher, I will mark that exhibit CSL1.

EXHIBIT #CSL1 CORRESPONDENCE DATED 04/11/2002

PN7

MR HATCHER: Thank you, Commissioner. Might I then tender the response from my learned friend's firm, a facsimile dated 12 November 2002.

PN8

THE COMMISSIONER: Yes, I'll marked that exhibit CSL2.

EXHIBIT #CSL2 FACSIMILE DATED 12/11/2002

PN9

MR HATCHER: Might I then tender correspondence from my instructing solicitors to my learned friend's firm dated 13 November 2002.

PN10

THE COMMISSIONER: Yes, I'll mark that exhibit CSL3.

EXHIBIT #CSL3 CORRESPONDENCE DATED 13/11/2002

PN11

MR HATCHER: Now, if it please, Commissioner, the Commission will see from exhibit CSL3 that we advised my learned friend's firm last evening that our client is prepared to have the proceedings in respect of Staticona to be heard concurrently with or joined to the proceedings in relation to the CSL Pacific and I've had the opportunity to have a brief discussion with my learned friend this morning and that appears a convenient course to all the parties. I note, Commissioner, that the proceedings in relation to the CSL Pacific are presently set for hearing on 10 December next. Can I inform the Commission that the proceedings in the High Court in which a stay is sought of those proceedings is listed before a justice of the High Court on Monday next, 18 November.

PN12

Can I also, subject to the Commission's convenience, deal with a matter of some concern in relation to matter 813 of 2002. I appreciate that matter is not formally listed before the Commission this morning, but, Commissioner, you will recall when that matter was last before you, I indicated that my client proposed making a section 111(1)(g) application in those proceedings. That remains my client's intention but an administrative problem has arisen.

PN13

My client would wish to have that matter before a Full Bench and the administrative question is whether that would routinely go back before the Full Bench in view of the initial reference of the matter to the Full Bench and what was referred back by the Full Bench to you or whether our application under section 111(1)(g) would, for the purposes of section 107 of the Act be, in itself, a part of an industrial dispute or a question arising in relation to an industrial dispute, in which case it would require its own section 107 application.

PN14

It may be that this is something that the Commission as constituted hasn't turned its mind to and it may be something I simply need to foreshadow. I don't say it's a difficulty, Commissioner, it's just a matter of the proper procedure to be adopted. It's clear from the Commission's decision in 813 that the President did refer the entire application to a Full Bench under section 107 of the Act, that's to be seen at paragraph 2 of the judgment in print PR922880.

PN15

The Full Bench in turn, pursuant to section 107 subsection 9 referred a part of that matter to you, Commissioner, for determination and I should say that there are different interpretations available on the construction of paragraph 107 of the judgment as to whether what was referred back to you, Commissioner, was simply the question of whether the parties wished to be heard in relation to the show cause, whether you were to hear the merits of an application under the show cause, but clearly there was not in contemplation at that time a section 111(1)(g) application in either circumstance.

PN16

Can I simply raise that as a problem, Commissioner, and perhaps we might formally put it to - perhaps to Munro J's associate.

PN17

THE COMMISSIONER: Well, I think I note what you've put, but perhaps you should write to the Full Bench, to all members of the Full Bench or to Munro J as the presiding member, indicating your request. You will do that however after the 25th.

PN18

MR HATCHER: Yes, after the - - -

PN19

THE COMMISSIONER: Well, after next Monday, because that might, yes, if the stay is granted, well, then these proceedings will essentially be unnecessary at least for some time.

PN20

MR HATCHER: Yes, essentially the question I'm raising, Commissioner, is whether we need to agitate the 107 application before you, in which case you would have to refer it to the President or whether the matter is properly already before the Full Bench.

PN21

THE COMMISSIONER: He may then give it to another Full Bench, we would hope, some of us might say, but I doubt that, but, yes, I see what you mean or whether it's not necessary to do so.

PN22

MR HATCHER: Whether the matter remains before the Full Bench, in which case it's just a matter of putting on the application and it would in due course be listed before the Full Bench. But in any event, if my instructing solicitors communicate with his Honour Mr Justice Munro's associate and his Honour may have recourse to this transcript.

PN23

THE COMMISSIONER: Yes, thank you. Mr McNally?

PN24

MR McNALLY: As I understand my friend, he wants this argument under section 111(1)(g)(3) to be referred to the Full Bench in any event, is that - - -

PN25

MR HATCHER: That's so.

PN26

THE COMMISSIONER: Yes.

PN27

MR McNALLY: I would have thought that the proceedings are before you and I'm reinforced in that view that the final sentences in paragraph 42 indicates that should the parties not consent to the order being varied in the manner previously determined, Commissioner Raffaelli will advise them as to the date for further hearing. Well, it would appear that contemplates an intention that you take the matter back over again. But we, to the extent we can oppose a reference to the Full Bench of this question of section 111(1)(g)(3) our firm preferred option is that the matter proceed before you, Sir or before a single member of the Commission. We can't dictate who hears it, but we do that because we're trying to be practical in these matters because of the money and the time and the Commission's time involved.

PN28

It would seem to us that having regard to the nature of the evidence that my friend has foreshadowed that it would be better if that proceeded before a single member of the Commission and then processed in the Full Bench if one or other of the parties decided to appeal, because the appeal process would occupy less time in the Commission and of the parties in my view than a proceeding, a hearing before a Full Bench which of course has the complication of the various members meeting their other commitments. From a practical point of view, it should proceed before a single member. The other view is that, having regard to the particular evidence that he's calling, there's no special aspect of it. I mean the facts aren't really in dispute.

PN29

What is in dispute is what flows from those facts and it seems to us pointless the three members of the Commission sit and hear the evidence, particularly when the evidence is not seriously in dispute. It's what should flow from the evidence rather than what facts should be found. So having regard to practical considerations and the nature of the case itself our preference would be proceedings before a single member. If the Commission pleases.

PN30

THE COMMISSIONER: Yes, anyway as far as today is concerned we're agreed that it will be adjourned and the matter will be joined with 813 and when and how that proceeds will be determined in due course. So we'll adjourn, and possibly we will resume on 10 December. No doubt you will do so, Mr Hatcher, but if the Commission could be informed of what the outcome of the High Court proceedings are on Monday, and often they will be apparent on the day itself, that would assist me for no other reason than to look to fix up my diary and other matters and also it would assist in discussions that we may have with Munro J and Senior Deputy President Harrison.

ADJOURNED INDEFINITELY [10.18am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CSL1 CORRESPONDENCE DATED 04/11/2002 PN7
EXHIBIT #CSL2 FACSIMILE DATED 12/11/2002 PN9
EXHIBIT #CSL3 CORRESPONDENCE DATED 13/11/2002 PN11