AG2002/5709, Transcript of Proceedings [2002] AIRCTrans 5193 (23 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT1062

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2002/5709

APPLICATION TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Application under section 170MH of the Act
by Export Meat Packers Pty Ltd concerning
the cessation of meat processing operations

MELBOURNE

9.15 AM, TUESDAY, 10 DECEMBER 2002

Continued from 3.12.02

PN247

MR P. O'GRADY: If the Commission pleases, it is my turn to appear today on behalf of EM Packers, Commissioner.

PN248

THE COMMISSIONER: Yes, thank you, Mr O'Grady. And Mr Bird, you appear in place of Mr Davey.

PN249

MR G. BIRD: I do. Mr Davey being detained doing things that he should have been able to do yesterday afternoon, but the people on the other side did their normal act and sent stuff to him that was due at 2 o'clock at about 6 o'clock at night, so he can't be here this morning.THE

PN250

COMMISSIONER: When this matter was last before, I think it was hoped that the parties would get together and provide me with some agreed directions, but - - -

PN251

MR O'GRADY: I wish we were in that position, Commissioner - - -

PN252

THE COMMISSIONER: - - - hopes brings eternal.

PN253

MR O'GRADY: - - - but we are not. What followed from the last occasion was that at about 12 noon on the 3rd - about 1 o'clock on 3 December, Commissioner, the union wrote to Arnold Bloch Leibler proposing an alternative timetable. You will recall that on the previous two occasions the union has foreshadowed making an application to either stay this proceeding or adjourn it until after March this year. It is not doing that any more, but essentially what it is doing is putting forward a timetable that would achieve the same purpose.

PN254

There was a discussion yesterday between my instructor, Ms Wijewickrama Senior from Arnold Bloch Leibler and Mr Davey about the union's proposal. Following that - sorry, in the course of that discission my instructors indicated that we would be prepared to let the timetable fall out another week in relation o the union's material, but that remained unacceptable to the union, Commissioner. What I have is a note which sets out our proposed timetable building that extra week in. The position is this, the timetable that EM Packers is seeking, Commissioner, is nothing more than a normal sort of timetable and the usual events.

PN255

It is not a question of EM Packers trying to bring the matter on urgently, or anything like that, in fact to the contrary, it is the union endeavouring to sort of push the timetable out. As you know, Commissioner, the sort of application that we are faced with here is one that says well, the agreement is terminated unless it is contrary to the public interest. Now, we have made that application and it ought progress in the normal course of events and ought not be delayed by these sorts of tactics. If I could hand up the proposed timetable to you, Commissioner, and we would seek that you issue directions in accordance with that timetable.

EXHIBIT #O1 PROPOSED TIMETABLE

PN256

THE COMMISSIONER: Yes, Mr Bird.

PN257

MR BIRD: Our position, sir, is as outlined to the company in a letter that Paul Davy wrote to them on 3 December, we said that we have difficulty in doing the work that is required during January because there won't be very many people around. The company has said that there is, as I understand it, no urgency in this. The application is to get rid of an agreement which hasn't operated for 12 months and they say will never operate again, because the company will never employ anyone ever again.

PN258

Now you would hardly - it is very difficult to see where there is going to be any difficulty in having a delay of a couple of weeks which is what we seek. The company says 7 February and I think we say 28 February. We are talking about three weeks in an application for an agreement that has had no application for 18 months and it covers the company and it is never going to operate again. So we believe it is not unreasonable to ask for that extension to 28 February.

PN259

We also believe ti is not unreasonable to await the outcome of proceedings in the Federal Court concerning companies that are owned by the same people who own EM Packers. We have a matter in the Federal Court today involving people the company says were formerly employees of EM Packers and they seek to continue to employ, in preference to people they sacked a couple of weeks ago that were employed by another company called EM Processors. There are other related matters in relation to an attempt to get out of other agreements by the companies associated with these - companies associated with this one in that they sought to set up management companies and light labour hire companies as an attempt to get out of their obligations under an agreement.

PN260

In our view, all of these things are intertwined and it seems to us to be perfectly sensible, given the reasons the company says they want this thing set aside for us to allow the union the right to have some time to make its - to get its witness statements together, which is 28 February on our submission, and then to set it down for hearing after we hear what the Federal Court says about all these - what we say are related matters. And in the meantime, no one is inconvenienced because on the company's own submissions, they are not going to operate, they are not going to work and the agreement is not going to be effected. And we would argue against the proposed timetable by the applicant and argue in favour of the proposition we put to them on 3 December.

PN261

THE COMMISSIONER: Yes. No, we don't have that proposition put.

PN262

MR BIRD: If I could - - -

PN263

THE COMMISSIONER: Mr Bird, to the extent that the matter may or may not be related to other proceedings in the Federal Court, that really does go to the substantive issues, doesn't it, as to whether it would be contrary to the public interest.

PN264

MR BIRD: Yes, we - - -

PN265

THE COMMISSIONER: I think you might be asking me to decide that at this stage before we even get to the hearing in a sense.

PN266

MR BIRD: Well, what I think was said before that we have agreed that we won't be making any application to have this matter struck out is not quite correct, as I understand it and I am at a bit of a disadvantage here. As I said before, Paul Davey has been - has had - - -

PN267

THE COMMISSIONER: Yes, no. I think you are right. This letter which I had better mark as exhibit B1, that reserves the right to have the matter dismissed, presumably under section 41(1)(G).

EXHIBIT #B1 LETTER TO FROM MR P. DAVEY TO THE APPLICANT DATED 3 DECEMBER

PN268

MR BIRD: Yes.

PN269

THE COMMISSIONER: And I am not in any way - and it seems to me that if I am to agree with the second part of your proposition, that is, that the matter not be listed for hearing until after the resolution of the matters in the Federal Court, apart from that being - having a high degree of uncertainty attached to it, it also seems to me to be pre-judging in some way, or asking me to pre-judge in some way the very issue that the company will be - or you will be challenging the company on, I guess, and the company will be arguing about the contrariness to the public interest.

PN270

MR BIRD: Well, I mean, all we would be asking you to do is to do nothing until such time as these other matters are heard and when - - -

PN271

THE COMMISSIONER: Yes, I understand that that is the point that - - -

PN272

MR BIRD: At which time things may be a lot clearer as to what the intentions are in relation to this, but I mean, we can't see how either side, or certainly can't see how the other side could be disadvantaged by the program we put given that what they say is that the company is not going to operate again, there is not going to be - no work done, so, you know, on that basis, if there is no one working and the company is not operating, there is an agreement sitting dormant as it has for 18 months, if it sits dormant for another five or six weeks beyond the timetable that the company is putting, we can't see how anyone can possibly be disadvantaged by that.

PN273

THE COMMISSIONER: No, I understand that argument. It was just the second part of it that seems to me to be - I mean, I understand the argument about there being no disadvantage to the company in delay. It is tying that delay to the Federal Court proceedings that I have some difficulty with in the sense that - you know, I don't know other than in a very vague way what those proceedings are about and what their relevance is to these proceedings.

PN274

MR BIRD: Well, they - - -

PN275

THE COMMISSIONER: And that will become - and I would have thought that that would become a matter of the argument when we are dealing with the substantive application. And for me to determine the matter on the desirability to delay proceedings on the desirability or otherwise and having the Federal Court proceedings resolved seems to me to be begging the question that is before me. That is the only point I am making. I hear what you are saying about delay not causing any - at least on the face of it, not causing any difficulty to the applicant, and I will no doubt hear Mr O'Grady's response on that, but I can almost hear Mr O'Grady expressing the words I just expressed to you about the other matter and that is why I was wanting to raise it with you.

PN276

MR BIRD: Well, at the very least we would ask that the timetable up to that point on the letter - on B1 that that be your ruling that that timetable which enables the union sufficient time to get its witnesses together to respond to the company's position, if they put their position on 20 December, that is basically - - -

PN277

THE COMMISSIONER: They were willing to - see the response is by 31 March. In their proposed timetables, they are prepared to file and serve any further statements and submissions within a week of you lodging yours. Excuse me.

PN278

MR BIRD: Well, if that was to be - if we are talking then about our submission which says 28 February and the company then saying seven days after that being - - -

PN279

THE COMMISSIONER: 7 March.

PN280

MR BIRD: - - - 7 March, or whatever it is, rather than 30 March then I suppose other arguments may be had at that time. Either there would or - - -

PN281

THE COMMISSIONER: Well, I am sure there will be.

PN282

MR BIRD: I mean, the other part of this of course the union certainly - - -

PN283

THE COMMISSIONER: No, no, I was just - that comment was really addressed to the detail of what you propose. I note that you say - I mean, I hear what you are arguing, that you need up until 28 February. You then say we will give them another month to respond but they are only asking for a week and they are - - -

PN284

MR BIRD: The other complication around that time of course will be that there will be matters certainly concerning the union and concerning all the other - three of the other companies of this - the same owners in the Federal Court and the union's lawyers will be involved in that and presumes there will be a team of lawyers for the other side involved in that. I imagine they may be able to slip one down here for this proceeding, but that certainly will be more difficult for the union to do without the resources of this vast organisation.

PN285

THE COMMISSIONER: When is that proceeding meant - - -

PN286

MR BIRD: It is set to start early in March.

PN287

THE COMMISSIONER: Yes. But see, we are looking at a date some time in the second half of February, aren't we?

PN288

MR BIRD: Well, under the applicant's proposal - - -

PN289

THE COMMISSIONER: No, I was looking at yours and taking - - -

PN290

MR BIRD: In our proposal we are looking for a start some time in April.

PN291

THE COMMISSIONER: No, no. But see, it says 28 February. They are happy to respond within seven days of that - - -

PN292

MR BIRD: Yes, so we would be looking at - - -

PN293

THE COMMISSIONER: - - - which will take it to the 7th - - -

PN294

MR BIRD: March.

PN295

THE COMMISSIONER: Sorry, that takes us to March - 7 March - mid-March.

PN296

MR BIRD: Which will be about the start of the proceedings down in the Federal Court.

PN297

THE COMMISSIONER: Yes, yes. Thanks Mr Bird. Mr O'Grady.

PN298

MR O'GRADY: I don't think there is anything else I would really want to say in response other than reiterate the comments that you made, Commissioner, about - really, this argument that is being put is one that goes to the merits of the application. It is - it may well be that we say it is totally irrelevant to the assessment of whether or not - sorry, that it is not in the public interest to allow the application, but that is where it is properly put and that is where it ought properly be heard. And look, and I hear what Mr Bird says about the union resources, etcetera, these sorts of battles go on all the time and resources are found and resources are devoted to them, but the union must have the resources capable of producing the material by the time that we have suggested.

PN299

THE COMMISSIONER: Well, the - it seems to me that the 28th - have you got a strong argument against that 28 February point too?

PN300

MR O'GRADY: Look, other than to say what I have just said, Commissioner - - -

PN301

THE COMMISSIONER: Yes. No, I understand that.

PN302

MR O'GRADY: - - - I can't add to it.

PN303

THE COMMISSIONER: But in the light of - - -

PN304

MR O'GRADY: Okay, I can't add to that.

PN305

THE COMMISSIONER: But it seems to me that the balance - if there would be a balance of convenience, it really does lie with the union on that one, given that the agreement has no application, is not intended to apply, etcetera, etcetera, it seems to me if the union is saying it needs that additional time, I can take that at face value. I think it follows from the discussion I have had - - -

PN306

MR O'GRADY: Yes.

PN307

THE COMMISSIONER: - - - that you would only require seven days after that.

PN308

MR O'GRADY: That is correct, Commissioner.

PN309

THE COMMISSIONER: And at this stage I wouldn't propose to set down a hearing time. It would be some time - obviously some time after 7 March, not because of the sort of argument that Mr Bird makes, it is just because of my own - there is some domestic discussion about leave, so I - - -

PN310

MR O'GRADY: Very well, Commissioner. We - well, would you like to leave it on this basis, Commissioner that - - -

PN311

THE COMMISSIONER: That I would - well, I think leave it on - - -

PN312

MR O'GRADY: - - - the timetable is agreed up until that time and we are happy with a date convenient to you, Commissioner, after 7 March - - -

PN313

THE COMMISSIONER: As soon as possible.

PN314

MR O'GRADY: - - - when that becomes available - as soon as - - -

PN315

THE COMMISSIONER: As soon as possible after 7 March, yes.

PN316

MR O'GRADY: As soon as it becomes available in your arrangements, Commissioner.

PN317

THE COMMISSIONER: And by - I might hasten to add, by domestic I don't mean domestic to the Commission, I mean domestic to me.

PN318

MR O'GRADY: I understand.

PN319

THE COMMISSIONER: Yes, I just wanted to - in case there was any suggestion - - -

PN320

MR O'GRADY: Look, we would be urging as soon as those arrangements are clarified and you know your availability, Commissioner, that we be given the next available date after 7 March.

PN321

THE COMMISSIONER: All right. Well, look, I would therefore make the following directions in relation to this matter. That the applicant file and serve any witness statements upon which - sorry, I should offer you that opportunity to extend that date if you wish now.

PN322

MR O'GRADY: We might take - I mean, we are happy to take the opportunity. If it is not going to be looked at before Christmas to put it in say, in the first week of January, or something like that. I am in Mr Bird's hands. Is it going to be looked at before Christmas?

PN323

THE COMMISSIONER: Mr Bird, do you have a difficulty with that?

PN324

MR BIRD: No.

PN325

THE COMMISSIONER: All right. One calendar I don't have is 2003. 10 January, is that - - -

PN326

MR O'GRADY: That is suitable to us, Commissioner.

PN327

THE COMMISSIONER: Right. My directions are that the applicant file and serve an witness statements upon which it intends to rely in an outline of submissions by 10 January 2003. The respondent will file and serve any witness statements upon which it intends to rely in an outline of submissions by 28 February 2003. That may not be a week day. Has anyone got a calendar? It is all right. Bear with me. Yes, it is 28 February 2003 and the applicant file and serve any further witness statements upon which it intends to rely in any outline of submissions in reply by 7 March - yes, by 7 March. Filing and service may be effected by facsimile or e-mail transmission. That is the correct description of it. I think we know what I mean. And can I just add, if you do do it that way, please don't send a confirmatory copy by ordinary mail or any other way, just send the electronic version. The proceedings are adjourned to a date to be fixed in March 2003.

ADJOURNED ACCORDINGLY [9.36am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #O1 PROPOSED TIMETABLE PN256
EXHIBIT #B1 LETTER TO FROM MR P. DAVEY TO THE APPLICANT DATED 3 DECEMBER PN268