C2003/1421, Transcript of Proceedings [2003] AIRCTrans 1986 (26 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 2576

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2003/1421

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

HUME CITY COUNCIL

Notification pursuant to section 99 of the Act
of a dispute re the alleged failure of the Council to
meet obligations of retrenchment and redundancy
provisions

MELBOURNE

2.30, FRIDAY, 9 MAY 2003

Continued from 24.3.03

PN272

THE COMMISSIONER: Yes, are there changes to appearances in this matter?

PN273

MR P. BURCHARDT: I seek leave to appear on behalf of the respondent, the Hume City Council. I understand that my instructors faxed the Commission and the union on 29 April foreshadowing that there would be representation.

PN274

THE COMMISSIONER: Yes. Any objection?

PN275

MR SMALLBONE: No, Commissioner, barring the fact that we did not receive any notification that counsel would be representing Hume today. We just merely note that fact.

PN276

THE COMMISSIONER: No, I don't think we did, either.

PN277

MR BURCHARDT: My instructor has the message plus the facsimile records and it is not unknown that these things don't happen, but it was certainly sent. I can hand those up, if it helps you, sir.

PN278

THE COMMISSIONER: The notice is, as I understand it, that - - -

PN279

MR BURCHARDT: There is a letter from Maddocks dated 29 April.

PN280

THE COMMISSIONER: Your instructing solicitors advise that they would be seeking leave to appear.

PN281

MR BURCHARDT: Yes, that is correct. It doesn't say that we will be instructing counsel. I would have to concede that.

PN282

THE COMMISSIONER: And it would appear that a copy was sent to Mr Cochrane.

PN283

MR BURCHARDT: Well, that is what my instructor says, yes.

PN284

MR SMALLBONE: In the same week I received notification from Maddocks in relation to another matter which is listed before the Commission, but I have not sighted anything, Commissioner, in relation to this matter.

PN285

THE COMMISSIONER: I don't know that anything turns on it. There is no objection. Leave is granted.

PN286

MR BURCHARDT: If the Commission pleases.

PN287

THE COMMISSIONER: Yes, Mr Smallbone.

PN288

MR SMALLBONE: Commissioner, we are I believe slightly - the parties are at cross purposes here today. Following our last appearance here, we had some further discussion with Hume City Council following the conciliation hearing and received an indication from Mr Russell Joyner that Hume City Council were opposing the granting of the redundancy. We had hoped to come here today to find out whether the matter still - there was any prospect of the matter being resolved through conciliation and to exhaust that avenue.

PN289

If that were not to be the case, then we would seek to have programming for a full arbitration. We are quite happy to run a full arbitration, but we were expecting that there would be a programming of that matter. I understand that Hume have come here armed with witness statements, etcetera, in the full expectation of the matter being heard. I have received just within the last few minutes a witness statement from Mr Gavin O'Keefe numbering some 12 pages and speed reader that I am, Commissioner, I find it a little bit difficult to absorb all of that.

PN290

We would, in the event of this matter going to arbitration, should we not be able to settle it through a process of conciliation today, also be seeking to call witnesses and would, of course, need to provide witness statements to council, so we would be seeking to get, if we cannot today, get some kind of agreement from council. I am still yet to have an answer as to what their reasoning was.

PN291

At the conciliation hearing, we ran through a series of arguments in relation to the matter. I thought that those had been dealt with. I understand that a recommendation was made through Mr Frank Dixon, the Executive Director of Hume City Council to the CEO that the redundancy be paid. I have not heard anything back from that to date. That is my understanding of the matter, Commissioner.

PN292

THE COMMISSIONER: Wasn't that prior to our conciliation?

PN293

MR SMALLBONE: No, after our conciliation, Commissioner, I understand and I think I am correct in saying that a recommendation went back through the executive management team. I am not exactly sure of its status. My understanding from Mr Joyner was that they were saying no at this stage. We wanted to actually see whether was any final prospect before the Commission to resolve this matter through a process of conciliation. If the Commission pleases.

PN294

THE COMMISSIONER: Yes, Mr Burchardt.

PN295

MR BURCHARDT: Commissioner, obviously I wasn't here on the last occasion when the matter was before you.

PN296

THE COMMISSIONER: But those instructing you were.

PN297

MR BURCHARDT: Sorry?

PN298

THE COMMISSIONER: Those instructing - maybe not your instructing solicitors, but the people behind them.

PN299

MR BURCHARDT: I am about to explain the understanding I have based on their information which is that it was our understanding that the parties had clearly reached a position where they were unable to resolve the matter by conciliation and that remains the case and, indeed, my presence here today reflects the fact that they thought that there was going to be a hearing to resolve the matter by way of recommendation from the Commission which we would certainly undertake in advance to accept, whether it be favourable or it will not. I had understood, Commissioner, that the idea was that you would determine whether in the light of the terms of the various relevant agreements and any relevant flaw and the relevant facts that the parties put before you, whether a payment is appropriate to be made and that is really what I was here to argue about.

PN300

THE COMMISSIONER: My recollection is that we went into conference after some time on record and really what happened on record was that people just set their positions.

PN301

MR BURCHARDT: Well, I have read the transcript, Commissioner, and it struck me that the parties had set out at least in some detail what their formal positions were.

PN302

THE COMMISSIONER: Yes, I think that is right. I have no, appropriately, I think, no recollection of what occurred in conference. I mean, I am sure people will remind me, but I can neither agree nor disagree with either of your submissions. I know that is an unfortunate position to be in.

PN303

MR BURCHARDT: Well, that presents a bit of a difficulty with the decision-maker, Commissioner.

PN304

THE COMMISSIONER: Mr Smallbone is saying, well, he thought that there was still scope for conciliation. You are saying that the matter concluded on the basis that there was no scope for conciliation. I think Mr Smallbone in support of his position says, well, he understood that a recommendation subsequently went within the organisation. I pay no attention to the nature of that recommendation.

PN305

MR BURCHARDT: It doesn't alter the fact that there is, like so many of these things, bits and pieces to it, Commissioner, but it doesn't for one instant change the position of the parties.

PN306

THE COMMISSIONER: No, no, I don't think I can impose on Mr Smallbone a requirement, can I, that he proceed with an arbitration now in the light of what he has put?

PN307

MR BURCHARDT: Well, Commissioner, it is always unsatisfactory for both parties when these kind of situations obtain. Obviously, my side was ready to proceed and I just had a few questions for the applicant and the reason why we put in a witness statement was because we figured it would help on a Friday afternoon to shorten things a bit, especially since we had anticipated that the contents of that statement would be uncontroversial.

PN308

THE COMMISSIONER: I don't think Friday afternoons are different from any other afternoons.

PN309

MR BURCHARDT: Well, Commissioner, you have the advantage of the rest of us. You are more diligent and hard-working than we are. It is notorious at the Bar that Friday tends to be a bit of a poet's day, but be that as it may - - -

PN310

THE COMMISSIONER: That is the Bar. You are the only representative of the august institution here, I think.

PN311

MR BURCHARDT: I might be said to be in a minority, of course. Be that as it may, Commissioner, could I just have a minute to take instructions?

PN312

THE COMMISSIONER: Yes. Look, I really do say more seriously that I accept what Mr Smallbone is saying. We have got two problems, haven't we? One is that Mr O'Keefe's witness statement has only just recently arrived and it has only just been made available I understand to the other side.

PN313

MR BURCHARDT: Well, it was faxed earlier, but it hasn't reached him until now, yes.

PN314

THE COMMISSIONER: Yes, but even earlier - - -

PN315

MR BURCHARDT: Earlier is only 10.30 this morning, Commissioner.

PN316

THE COMMISSIONER: 10.30 this morning really doesn't - I mean, even the Bar has other things to do and I am sure union officials most certainly do, so that of itself creates problems, but, look, you are going to seek instructions. It seems to me - I am just indicating now that our time might be better spent, subject to what your instructions are, in timetabling what we are going to do in the future.

PN317

MR BURCHARDT: Yes, could I have a moment?

PN318

THE COMMISSIONER: Certainly. We will go off record.

OFF THE RECORD

PN319

MR BURCHARDT: Commissioner, thank you for that time. I can formally indicate that albeit that my client is disappointed in the outcome, in practical terms, the only sensible way to proceed is to move to timetabling.

PN320

THE COMMISSIONER: All right, we might go off the record to discuss timetabling.

OFF THE RECORD

PN321

THE COMMISSIONER: In the circumstances, I think it is appropriate that this matter be adjourned until 10.15 on Monday, 26 May. I direct that the ASU provide any witness statements on which they seek to rely by the close of business on Friday next, 16 May, and any further witness statements that the respondent, Hume City Council, wishes to rely on should be provided by close of business on Wednesday, 21 May. The provision of those statements, they are to be filed in the Commission and served on the other party by those times. The filing may be effected by e-mail, facsimile or hand delivery, or any other form of delivery, but I would encourage the parties to do it by e-mail, so that we have electronic versions. If there is nothing further, I thank you for your attendance and the proceedings are adjourned.

ADJOURNED UNTIL MONDAY, 26 MAY 2003 [2.45pm]