C2002/5144, Transcript of Proceedings [2002] AIRCTrans 5208 (23 December 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT10114
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT WILLIAMS
COMMISSIONER TOLLEY

C2002/5144

APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTRALASIAN CORRECTIONAL MANAGEMENT
AGAINST THE DECISION [PR923017] OF
SENIOR DEPUTY PRESIDENT LACY AT PORT
HEDLAND ON 30 SEPTEMBER 2002 IN
C2002/207

MELBOURNE

10.35 AM, TUESDAY, 10 DECEMBER 2002

PN1

MR I. DOUGLAS: I seek leave to appear on behalf of the appellant.

PN2

MR J. NOLAN: I seek leave to appear on behalf of the Australian Liquor Hospitality and Miscellaneous Workers Union. I notice on the notice of appeal the respondents are described as employees engaged as Detention Officers at Port Hedland Immigration Reception and Processing Centre. Notwithstanding that, I understand we have been served with the appeal, and if it is necessary to do so, I would be able to indicate exactly what our interest is in this matter, which I think in any event would be very well known to the Commission, particularly to your Honour the presiding judge.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I see. I had not noticed that before. Yes, thanks.

PN4

MS A. GOOLEY: I seek leave to appear on behalf of the Australian Workers Union, together with MS K. WILD.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Any issues arise in relation to leave?

PN6

MR DOUGLAS: No, your Honour.

PN7

SENIOR DEPUTY PRESIDENT HARRISON: And do we need to worry about the manner in which the respondents are identified in the notice of appeal?

PN8

MR DOUGLAS: No, your Honour.

PN9

SENIOR DEPUTY PRESIDENT HARRISON: Leave is granted in each case.

PN10

MR DOUGLAS: Can I firstly turn to the notice of appeal, and to the paragraph right at the end which says:

PN11

Notwithstanding this appeal, ACM will abide by the terms of the undertaking by ACM to the Commission given on 1 October at Port Hedland with respect to return to work, a copy of which is attached.

PN12

That position continues, and there is no reason for that to change: in fact, it will not change. Work is being performed normally at Port Hedland, and an agreed position is in place.

PN13

Could I provide just by way of background to the Commission, and I certainly do not ask the Commission to go to any of the detail, a chronology of events which have occurred since his Honour's decision on 30 September, with various attachments. This material is in fact on the Commission's record. The first page is really the relevant page, save for one comment which I will make later with respect to the first item which is mentioned by reference to 14 October, a letter from the AWU to various employees at Baxter.

PN14

Can I summarise our position with respect to the public interest test which is required to be met in accordance with section 45(2).

PN15

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Shall we just put the chronology - - -

PN16

MR DOUGLAS: Yes. Could it be - - -

PN17

SENIOR DEPUTY PRESIDENT HARRISON: Only because I don't know if they want to say something about it, Mr Douglas, but I am happy to deal with it a little later, if we need to.

PN18

MR DOUGLAS: Yes, your Honour.

PN19

SENIOR DEPUTY PRESIDENT HARRISON: And for the time being, put it to one side.

PN20

MR DOUGLAS: We could deal with it later. It may not be a relevant issue. I simply place it before the Commission because of that last paragraph, which refers to the understanding that was reached.

PN21

SENIOR DEPUTY PRESIDENT HARRISON: Well, maybe the two unions will address it later if they need to.

PN22

MR DOUGLAS: It will be seen that both unions have continued to participate in the discussions, and those discussions have been led by his Honour, Senior Deputy President Lacy. We say that public interest that satisfies the test arises because the decision, firstly, presumed jurisdictional capacity in the Commission, which in reality was not available, allowed the AWU to participate as a party in the proceedings when it had no right to represent the industrial interests of any relevant employee.

PN23

It was contrary to a decision of his Honour, Senior Deputy President Lacy, which is in Print PR919520, a decision of 28 June of this year, wherein his Honour ruled that the AWU could not represent the industrial interests of any ACM employee at Port Hedland. That it appears as to safety to be based at least in part upon undisclosed information received by his Honour in private conferences held with the Liquor Trades - the LHMU - I apologise for calling it the Liquor Trades Union - the LHMU and the AWU, and was made without ACM being afforded any opportunity to answer union allegations as to safety, or to show that the safety issue was intrastate rather than interstate in character.

PN24

Finally, was made without ACM being afforded the rights referred to in the Citicorp decision, which is in Volume [1989] HCA 41; 167 CLR 513, and I provide the Commission with a copy of that decision. The relevant passage is at page 519, about point 5, where the whole court said:

PN25

The Industrial Relations Commission is bound to act judicially. One aspect of the duty to act judicially is the duty to hear a party, and to allow him or her a reasonable opportunity to present his or her case, and coupled with that is a duty to consider the case put.

PN26

It will be seen from the record of findings of 30 September that his Honour found a single dispute. That there were three parties, being ACM, the LHMU and the AWU. That the subject matters were demarcation and safety, and to the extent that the dispute concerned safety, it extended to Western Australia and South Australia.

PN27

His Honour at paragraph 29 of the decision under appeal said this:

PN28

What is a dispute is a question of fact.

PN29

In my submission, he would have been slightly more correct if he had added the words, "and law." There is nothing in the Act, nor is there any practice of principle of the Commission that we are aware of, that requires a Commission member or a notifier under section 99 to be confined or compromised by the wording of a section 99 notification: and it would be extraordinary if the position were otherwise.

PN30

In Re ABEU ex parte ABN Australia, Dawson J said this - and I provide the Commission with a copy of this short decision. It is on the second page, in the second paragraph, where his Honour said:

PN31

The power, indeed the duty of the Commission to determine whether an industrial dispute exists is not dependent upon the notification of a dispute ...(reads)... by no means an exclusive means.

PN32

And of course that is consistent with the lore that operates within this Commission. We say that Senior Deputy President Lacy's decision does not accord with the facts brought before him in open proceedings at Port Hedland on 29 September: nor does it accord with the law.

PN33

We submit that the true position was this. That there was a single dispute. It was a demarcation dispute. It was a section 4 paragraph (c) demarcation dispute. The Commission will remember that a demarcation dispute is defined as including a dispute of the kind referred to in paragraph (c). It had three, possibly four parties: ACM, the LHMWU, ACM employees at Port Hedland who wished to be represented by the AWU, and that was not all of the employees, and on one view of the law arising from the changes in legislation that occurred after the decision in Southern Aluminium, the AWU, notwithstanding its ability to represent the industrial interests of such employees.

PN34

Finally, that that dispute was confined to Port Hedland in the State of Western Australia. It was not a dispute having an interstate character. And we say that this much was beyond argument. The AWU could not then, that is, at 29 September, or 30 September when the finding was made, and it cannot now lawfully represent the industrial interests of any ACM detention officer or detention supervision, whether employed at Port Hedland or elsewhere.

PN35

Consequently, we submit it was not open to his Honour to find, as he did find, that the AWU was a party to a dispute about any matter that pertained to ACMs employment of such employees, safety of course being one such matter.

PN36

SENIOR DEPUTY PRESIDENT HARRISON: Mr Douglas, I am aware of the case that you rely upon to support the lack of ability to cover resting in the AWU, and that is the decision of the Senior Deputy President's. I know in that decision he made comments like, "They have no coverage of the employees at Port Hedland", but I had rather read it as being a decision that required him to focus on a subset of employees who are identified in the notice initiating the bargaining period, none of whom, when he went through the evidence, either were represented by or could be represented by, nor could there be an agreement for. I do not recollect that detention officers were even mentioned in that decision.

PN37

MR DOUGLAS: They were, your Honour. He dealt with - and I will come to this in a moment - he dealt specifically with persons having particular qualifications, like a motor mechanic, kitchen staff, and so on. But also by reason of a section 202 agreement, he dealt with the detention officer group, and I will explain how that was so.

PN38

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN39

SENIOR DEPUTY PRESIDENT WILLIAMS: But he found that you could not represent them because of the provisions of the Act.

PN40

MR DOUGLAS: That is right.

PN41

SENIOR DEPUTY PRESIDENT WILLIAMS: He didn't say they could not cover them. He just said that a claim to be entitled to represent persons who are members by virtue of a 292 agreement does not give you the right to represent their industrial interests under the Act.

PN42

MR DOUGLAS: That is so, your Honour, but the debate which occurred before him in Perth did involve in part a discussion as to detention officer coverage, and whether it existed or not. I in fact took him through the two relevant rules of the AWU in great detail.

PN43

SENIOR DEPUTY PRESIDENT HARRISON: Debate back in June?

PN44

MR DOUGLAS: Yes. Well, it was in the year before, but which led to that decision.

PN45

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN46

MR DOUGLAS: To show that the specific people aside, kitchen staff and the like, the AWU did not have a capacity to deal with detention officers. So he knew our position. The AWU did not assert in that proceeding that it had the capacity to cover detention officers by reason of its federally registered rules. To the contrary, it asserted that it had the right to cover such people because of the section 202 agreement. That was the submission that was put by Mr LLewellyn.

PN47

SENIOR DEPUTY PRESIDENT WILLIAMS: Well, they didn't press their claim for the detention officer, did they?

PN48

MR DOUGLAS: No. One reason for that would have been, your Honour, that those people were covered by a section 170LK agreement at that time which was then operating within its nominal life: so the bargaining notice, in reality, could not impact upon those people.

PN49

SENIOR DEPUTY PRESIDENT WILLIAMS: But whatever the reason may have been, the fact is, is it not, that Mr Llewellyn, as his Honour records in his decision, did not press any claim in relation to the detention officer. Therefore, what her Honour is just saying is that Senior Deputy President Lacy was not required to determine that specific issue.

PN50

He may well have determined that the AWU could not cover people in the kitchen, or various other people, but he did not specifically, and was not called to specifically determine the question of coverage of the detention officer.

PN51

MR DOUGLAS: I accept that, your Honour, and that comes from the decision. But what I do say is that when it came to the open proceedings before his Honour on 29 September at Port Hedland, his Honour knew precisely the position that ACM held with respect to the AWU: that was to say, ACM took the view that under the federal rules of the AWU, it did not have the capacity to cover detention officers, and that had been explained to him in some detail.

PN52

SENIOR DEPUTY PRESIDENT WILLIAMS: In other proceedings, is what you are saying.

PN53

MR DOUGLAS: In other proceedings.

PN54

SENIOR DEPUTY PRESIDENT WILLIAMS: Was it put in the proceedings before him in relation to this finding?

PN55

MR DOUGLAS: Yes. It wasn't argued in detail, your Honour. I simply referred to that position, and to those proceedings, and in fact his decision said that it was our position that the AWU had no right to represent such employees. In fact, the AWU didn't ever assert to the contrary in that proceeding, or in the earlier proceeding.

PN56

I should provide the Commission with a copy of the AWUs rule. I don't intend to go through it, but I invite you to look at it. It is rather lengthy, as you know. It will be seen that there are no words within the rule of eligibility or the description of industry which could in any way, shape or form suggest that the AWU has eligibility rights with respect to detention officers.

PN57

SENIOR DEPUTY PRESIDENT WILLIAMS: Are you saying, Mr Douglas, that - from what you said earlier, if I can get this right - are you saying that a dispute could have been found between ACM, the ALHMWU, the relevant employees, and you say possibly the AWU, and the subject matter of that dispute was demarcation?

PN58

MR DOUGLAS: Yes, your Honour.

PN59

SENIOR DEPUTY PRESIDENT WILLIAMS: And that Senior Deputy President Lacy went beyond that in the finding he made?

PN60

MR DOUGLAS: He went beyond that, yes. And that is the problem we have. You see, your Honour, that much was made clear to him on what was put. Additionally, it was also made clear to him, and we never shied away from this, that there was a dispute as to safety: but that safety was confined to the State of Western Australia - that issue.

PN61

What happened on the 29th, as I will show, could not give rise to a situation where his Honour could validly determine that safety was a problem of an interstate nature.

PN62

SENIOR DEPUTY PRESIDENT HARRISON: Mr Douglas I might raise this with you now, because you can address it when convenient in your submissions. We have no transcript, we have no exhibits. We have nothing before us except the notice of appeal, the finding and the decision. I suspect from the submissions you have made that you will try and bring before us some things that were said, or perhaps not said.

PN63

I am wondering whether in all these circumstances, and given that you say there was a dispute finding that could be made, but it did not go to safety, and it did not go to interstate-ness, whether your power to apply to the Senior Deputy President to have the dispute varied or revoked, is not a more appropriate procedure to be invoked, rather than this appeal.

PN64

MR DOUGLAS: Your Honour, we have thought of that, and - - -

PN65

SENIOR DEPUTY PRESIDENT HARRISON: I am not surprised you thought of it, but I am thinking of it too.

PN66

MR DOUGLAS: Yes. Your Honour, that in one sense would be an appropriate course. And if the bench takes that view, then we will certainly pursue that. The appeal was taken, your Honour, because I indicated to his Honour immediately after the finding was made, that the finding would be appealed. And it was inappropriate that - - -

PN67

SENIOR DEPUTY PRESIDENT HARRISON: Yes, and he has identified that you did.

PN68

MR DOUGLAS: Yes, and it was inappropriate at that time to ask his Honour to vary the finding or revoke it, because of what had occurred. I must say there was a certain amount of heat in the atmosphere at Port Hedland at the time because of the strike activity, and the coming and going of employees, and so on. So it wasn't an easy exercise for anybody, including his Honour. And his Honour dealt with it, I must say, with respect, in the best possible way: save that the appeal, the taking of the appeal was encouraged because of some of the criticism that he made of ACM. And I am sure members of the bench, on reading the decision, would have seen that criticism.

PN69

Our problem is that he made that criticism on the basis of jurisdictional submissions that I had put to him, not because of anything any of the union - what the union said, or any employee might have said to him, either in open session of in private conference, or because on the basis of anything that we put to him about merit. In fact, everything that ACM put to him on the 29th, prior to him going into private discussion with the two unions, went to the issue of jurisdiction. In fact, one step we took during tha process was to withdraw the section 99 notification, if one can actually do that: but I use those words, that we withdraw the notification.

PN70

He criticised ACM, and could only criticise ACM on the basis of the submissions that I put. For instance, he said it was preposterous that ACM or the instructing solicitors, Deacons, who filed the notification, were unaware of the nature of an industrial dispute, and that interstate-ness was involved.

PN71

Well, it is self-evident that in one sense his Honour was very wrong in coming to that conclusion, because, as I pointed out to him, you didn't have to have interstate-ness to have a demarcation dispute found, and thereby provide the Commission with jurisdiction. In a sense, his Honour could have done all that he did on the 30th and the days following, if he had made an appropriate finding with respect to the demarcation dispute: save that the AWU would not have had the role that it has had up to this time. But at the end of the day, the resolution that was found would have still been found.

PN72

Now, your Honour, we are happy to go back to his Honour and seek a variation, or a revocation of the finding, if members of the bench deem that appropriate. And maybe that is a matter you might wish to consider.

PN73

MR NOLAN: Can I say something on that, if I may?

PN74

SENIOR DEPUTY PRESIDENT HARRISON: Yes, indeed, Mr Nolan.

PN75

MR NOLAN: Your honours, Commissioner, we would for our part think that that was a sensible course to take, to let the matter go back to the Senior Deputy President to be considered upon an application to vary the dispute finding, for another reason: and that is - and this is something I was going to canvass in due course, but it is convenient to do it now. Can I hand up to you a copy of the original record of finding.

PN76

You will recall this, I think, your Honour, the presiding judge. Perhaps it is something you have put out of your memory, but - - -

PN77

SENIOR DEPUTY PRESIDENT HARRISON: I am not going to lead with my chin, Mr Nolan. You tell me what I recall.

PN78

MR DOUGLAS: It is well in my memory, your Honour, because of another proceeding.

PN79

MR NOLAN: What we have endeavoured to do here is just conveniently put together a record of finding of the original dispute that gave rise to the award that was made. I should point out that the attachment does not contain ACM, but that was for reasons that are explained in the proceedings, the transcript of which, or an extract of the transcript which is next in line in these materials. And there was no demur to the proposition advanced by me in those later proceedings that the dispute finding that was made originally by Boulton J extended to ACM. We have simply put that there for the record.

PN80

Attached to that is the log of claims. That log of claims form the basis for the dispute finding. What is attached to that, in turn, is an extract from the log, the notifying documents, and the clause in the log which deals with occupational health and safety. So it would be our submission that his honour, the learned Senior Deputy President, really had the basis upon which he could have made a piecemeal dispute, or conciliated, and so on, because it was already there in the underlying industrial dispute that had led to the award being made. That is something that could be the subject of further settlement, in the context of the dispute that broke out at Port Hedland.

PN81

So the jurisdiction was there. It was simply something that was not drawn to his attention. He could, in our submission, adequately go forward to deal with any extant or existing, or remaining issues that arise from the recent events in Port Hedland, on the sure footing of the dispute finding that was made back then.

PN82

It is trite perhaps to observe that the Commission, and the High Court has said this, can deal with a matter if it has got jurisdiction to deal with it, and can continue to deal with it, albeit that it may have misapprehended the source of its jurisdiction. That is a matter that I can canvass, if it is necessary to do so, later on. But we would say this is another good reason for the matter to be dealt with as your Honour has perhaps suggested. That it go back. That the dispute be varied. All the parties have an opportunity to put their submission on variation to the Senior Deputy President, and it go forward from there.

PN83

SENIOR DEPUTY PRESIDENT HARRISON: Ms Gooley, do you want to say something about this?

PN84

MS GOOLEY: No, your Honour.

PN85

MR DOUGLAS: Your Honour, I have - - -

PN86

SENIOR DEPUTY PRESIDENT HARRISON: Did Ms Wild announce an appearance? She didn't: she is with you, isn't she?

PN87

MS GOOLEY: Yes.

PN88

MR DOUGLAS: Your Honour, I am instructed to inform the bench that we are happy to go back to his Honour with a variation application, and that is what we will do. So I do not - - -

PN89

SENIOR DEPUTY PRESIDENT HARRISON: What do you want to do with this appeal - or what do you say we should do with this appeal?

PN90

MR DOUGLAS: Your Honour, I would ask that the issue be adjourned sine die. We would, after we have been back before his Honour, regardless of the consequences, then communicate with your Honour, and the Commission can take what steps that it then deems appropriate.

PN91

SENIOR DEPUTY PRESIDENT HARRISON: Mr Nolan, do you - - -

PN92

MR NOLAN: I agree with that suggestion.

PN93

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN94

SENIOR DEPUTY PRESIDENT WILLIAMS: Would you be happy to put a time limit on that? In other words, if we didn't hear back within six months, we could just dismiss it?

PN95

MR DOUGLAS: Yes, I would think that is appropriate, your Honour. I know Senior Deputy President Lacy has got other proceedings involving ACM in February/March of next year, so I would hope that he would get to this some time in the next three months.

PN96

SENIOR DEPUTY PRESIDENT WILLIAMS: I am not suggesting that the six months is absolute. Of course you would be able to come back and say, we are still doing things.

PN97

MR DOUGLAS: Yes, but from our point of view at the moment, there is no urgency in him dealing with a revocation application. It can wait until the New Year.

PN98

SENIOR DEPUTY PRESIDENT HARRISON: We might just adjourn for a short time to consider what we should do.

SHORT ADJOURNMENT [11.03am]

RESUMED [11.06am]

PN99

SENIOR DEPUTY PRESIDENT HARRISON: We have decided that this appeal should be adjourned to a date to be fixed. We should indicate that if within six months or if by six months time we have not heard from your instructing solicitors, Mr Douglas, you should assume that the appeal will be dismissed.

PN100

MR DOUGLAS: Yes, your Honour.

PN101

SENIOR DEPUTY PRESIDENT HARRISON: Obviously you have liberty to apply in relation to that. I think all the Full Bench needs to do is note that it is likely an application to vary or revoke the dispute findings may be made to Senior Deputy President Lacy. We may pass that information on to him but I don't think we do anything more about that.

PN102

MR DOUGLAS: That step will be taken, your Honour. Yes.

PN103

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Do we need to do anything more then this morning?

PN104

MR DOUGLAS: I don't think so.

PN105

SENIOR DEPUTY PRESIDENT HARRISON: The Commission now adjourns.

ADJOURNED INDEFINITELY [11.08am]