AG2002/6709, Transcript of Proceedings [2003] AIRCTrans 252 (29 January 2003)

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 VT10147
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2002/6709

APPLICATION TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Application under section 170MH of the Act
by Export Meat Processors Pty Limited for
termination of the P & R Meats and the
Australasian Meat Industry Employees'
Union Victorian Meat Industry Boning
Agreement 1998

MELBOURNE

10.17 AM, MONDAY, 13 JANUARY 2003

PN1

MR J. D'ABACO: I seek leave to appear on behalf of Export Meat Processors Proprietary Limited.

PN2

MR H. BORENSTEIN: I seek leave to appear with MR L. ARMSTRONG for the union.

PN3

THE COMMISSIONER: Yes. I take it there is no objection? Leave is granted in both cases, thank you. Yes, Mr D'Abaco.

PN4

MR D'ABACO: Commissioner, I understand an application pursuant to section 170MH(1) for the termination of the P & R Meats and AMIEU Meat Industry Boning Agreement 1998 has been provided in the Commission. Do you have a copy of that information?

PN5

THE COMMISSIONER: Yes, that is the matter that is listed.

PN6

MR D'ABACO: Sir, I understand that the matter is listed for mention and programming today.

PN7

THE COMMISSIONER: That is correct.

PN8

MR D'ABACO: On 6 January my instructors forwarded to the union a copy of the proposed orders in relation to the filing of witness statements and an outline of submissions. And perhaps if I can take the Commission to that.

EXHIBIT #D1 OUTLINE OF SUBMISSIONS FOR EXPORT MEAT PROCESSORS PTY LTD

PN9

MR D'ABACO: My instructors haven't received a reply to that as of this morning's date, Commissioner, but subject of course to the availability and the convenience of the Commission we would suggest that this would be an expeditious manner of dealing with the application. As the Commission will be aware solicitors on behalf of the union on Friday afternoon filed an application with the Commission pursuant to section 111(1)(g) of the Act essentially seeking the Commission not deal with this matter in terms of the public interest.

PN10

And what I would suggest would be that in respect of the directions which have been proposed by my client that there also be provision, then, for the directions for the union to file and serve witness statements and an outline of submissions in relation to its section 111(1)(g) application. And my suggestion, subject of course, to the convenience of the Commission would be perhaps to use each of the individual steps which my instructors have outlined in that letter in respect of any material which the union wishes to put on in respect of its application. So that perhaps if we look at the paragraph numbered 1 by 7 February the AMIEU - - -

PN11

THE COMMISSIONER: Look, I wonder if I can short circuit some of this and that is, simply, to adjourn proceedings to allow you to have discussions and see whether you can come to some agreement about the process.

PN12

MR BORENSTEIN: There are some submissions we want to make if you don't mind, Commissioner. And depending on what you say about what we want put to you we are more than happy to talk about those sort of steps with Mr D'Abaco. But perhaps it might be convenient for me to just indicate our attitude to the application for the matter to be programmed.

PN13

THE COMMISSIONER: Well, I don't want to cut Mr D'Abaco short but it may be that that would be appropriate but I don't know. Mr D'Abaco, do you - - -

PN14

MR D'ABACO: I am in Mr Borenstein's hands, sir, if he wishes to put some submissions. I don't have any objection to that.

PN15

THE COMMISSIONER: Okay. Well - - -

PN16

MR BORENSTEIN: I had the impression Mr D'Abaco had really come to the end of what he wanted to say.

PN17

THE COMMISSIONER: Well, he was getting close to it, yes, I accept that.

PN18

MR BORENSTEIN: The union's position, Commissioner, is that neither of these two applications should be programmed today. That both of them should be adjourned to a date in April because the need for them is presently uncertain and in fact may disappear. Now, I have to refer you to some matters which Mr D'Abaco hasn't mentioned to you and which bear directly on these proceedings and the course which the Commission would take and the matters which the Commission would need to take into account.

PN19

Critical to this whole matter is the fact that there is before the Federal Court of Australia an application which was issued last year by the union against this particular employer relating to a purported dismissal of the entirety of this employer's workforce on the 19 November. The indication which was given to the workers on that day by the employer was that there was no work for the employees and that the operation was no longer viable and they were all dismissed.

PN20

Now, the union issued proceedings in the Federal Court complaining that that conduct was in breach of part XA of the Act which is the freedom of association provisions as you are no doubt aware. And it was complained that the prohibited reason which lay behind the termination was either the fact that these people were union members or, alternatively, and perhaps in addition that they were entitled to the benefits of this particular enterprise agreement that is the subject of this morning's application.

PN21

That arose against a background of which you may or may not be aware where the employer had started up a second shift in the afternoon at its workplace and had obtained a workforce through a labour hire company so that it was not the employer. And shortly prior to the termination of employment had moved that workforce from the location at Brooklyn to another location which was operated through a number of companies directly linked with this company so that a substantial part of the work was no longer being done at the particular workplace in Brooklyn but was being moved to another workplace and was said to be being performed by another corporate entity.

PN22

Now, when the matter came to court an application was made by the union for interim orders, or interlocutory injunctions rather, against this particular company. That application was heard by North J in the Federal Court in December and on 13 December he made an order, an interlocutory injunction against this company, the effect of which was that the company was required to re-employ and to continue to employ its workforce that had been terminated in November upon the terms and conditions prescribed in this enterprise agreement. And that situation was to continue until the final determination of the matter in the Federal Court.

PN23

So, presently, what we have is that this company is employing its former workers pursuant to the order of the Federal Court upon the terms that - the terms of an injunction that the conditions of the particular enterprise agreement apply. Now, that is the present situation and that is, of course, quite significant in terms of an application to you to set aside the enterprise agreement when the judge has said in the Federal Court: These are the conditions that should apply until the trial. Now, let me go to the next phase. Having made those orders - - -

PN24

THE COMMISSIONER: But regardless of that, that order would continue to apply wouldn't it?

PN25

MR BORENSTEIN: But it raises a significant question about public interest in terms of whether you should do it.

PN26

THE COMMISSIONER: Yes, I understand that.

PN27

MR BORENSTEIN: But I just draw that to your attention - - -

PN28

THE COMMISSIONER: I was just looking at the other - - -

PN29

MR BORENSTEIN: I draw it to your attention because it is a relevant fact in terms of when and how you program this matter. The next stage in the consideration is that his Honour gave directions for the parties in the Federal Court to exchange submissions and affidavits and what-have-you and those directions take place between, or have been taking place between 6 January and will continue on until 11 March. Now, the judge has indicated an inclination to list the matter for trial on 11 March or shortly after 11 March. I am not sure how familiar you are, Commissioner, from your contact with these parties in the past about the various corporate entities that are connected in this group.

PN30

THE COMMISSIONER: Only that there are a number.

PN31

MR BORENSTEIN: Yes. Well, one of them is a company called Belandra, of whom you may have heard. And on 11 March there is a Federal Court action by the union against Belandra that is part-heard and going to continue arising out of similar conduct by Belandra that took place a little bit earlier last year, again complaining about the dismissal of the workforce for the same reason that they were entitled to an enterprise agreement. That matter is part-heard. The judge is going to continue that on 11 March.

PN32

But he has indicated on 13 December that he has a view that it may be appropriate that this matter also be heard immediately following the other one because of the connection between the two companies and the arrangements that have been put in place to perform the work that was previously done by EMP. So there is a prospect, or an indication from the judge that that is his view. Now, between now and then the parties will be engaged in preparing their material for the prospect of a trial on 11 March.

PN33

And that is significant because if you have a look at the proposed directions which are in exhibit D1 you see that they directly overlap with all of that. There are statements and submissions to be filed by 7 February. Then the union is to file statements and outlines by 7 March, which is the Friday before the trial is to commence. And then the applicant is to file by 21 March so it is preparing its material during the period of the trial. The trial is fixed for two weeks starting on 11 March.

PN34

So in the middle of the trial they are going to be sitting down, they tell us, preparing all of the material here and that is just a quite bizarre situation to be in. Now, with all of that information we say that a real question arises about the utility of taking any further steps in these proceedings at all for these reasons. EMP says - this company says or said to its workers and said to the court that it dismissed all of its employees, it doesn't employ any employees since 19 November and it doesn't engage in boning work any longer, that all of it is being done by someone else.

PN35

Now, if at the trial in March the court upholds EMP's position and it says that they validly dismissed all their workers, it accepts that they don't engage in this industry any longer, then that is a critical consideration for you in relation to any application of the kind that is before you this morning. And indeed it would be a critical situation for the parties. It may well be that EMP would say: Well, we don't need to bother about all of this because we are not in the business any more, we don't need to spend time and trouble and money fighting a case to terminate an agreement if we are not in the business any more.

PN36

And on the other side the union might say: Well, if the court has said that they have disposed of their workforce lawfully and that they are no longer an industry, there may be no opposition if the matter does proceed. On the other side if the court upholds the union's position and it says that the conduct that EMP engaged in last November was unlawful and the court orders that the employees be re-employed on the terms of the agreement in the same way that it is done in the interlocutory application, then again that is a very substantial and significant consideration for the Commission.

PN37

And it may be that in those circumstances the employer would say: Well, there is no point going ahead with this application because the court has spoken. Or, alternatively, the employer might decide that it is going to then negotiate in a context which has been determined by the court and which is not presently in place. So you will see and it is our submission that the outcome of the Federal Court proceedings are critical whichever way they go to the utility of this whole proceeding that is before you.

PN38

On the one hand the proceeding may have no utility at all, on the other hand the proceeding may go away or may be resolved by agreement, or it may yet proceed but in a different context, a context where all of the parties and the Commission will have to approach it, will have to formulate their evidence and formulate their submissions against the background of what the court has said and found. Now, for all of those reasons it is premature, in our respectful submission, for anybody to be sitting down today or in the next couple of weeks preparing submissions, turning a blind eye to the fact that the court is seized of this matter and going to deal with it shortly and then be confronted with a situation where, even on our friend's timetable this matter won't be fixed for hearing before the end of the court case.

PN39

And then having to do it all again when the judge has given his judgment and everybody has to take account of what the judge has said. It makes no sense, it is a waste of resources and time of everybody including the Commission to do anything at this stage. And we would submit that it imposes an unfair, onerous burden on us where we are in the process of preparing for this litigation in March and our friends come along and say: Well, we want you to prepare for this thing as well, even though it is clear that all of the preparation will most likely have to be done again or at least reviewed once we hear what the judge has had to say in his judgment.

PN40

So we say that it is entirely premature to deal with this matter at the moment any way and that it should be adjourned until a date in April which follows the trial of the matter in the Federal Court and allows a reasonable time for the court to prepare its judgment. And we say that in those circumstances no direction should be made in either of the two matters. The matters that we have raised in the section 111(1)(g), in a sense, will go away altogether once the court case is determined because in large part they are put forward on the basis that there is a court case in prospect and that it is inappropriate to deal with this matter while the court case is being finalised, especially when it is only a few weeks away. So the 111(1)(g) will, effectively, go away, so that will be one less matter that you will have to deal with and - - -

PN41

THE COMMISSIONER: Well, that only relates to points 3 and 4 of that application, doesn't it? I presume the - - -

PN42

MR BORENSTEIN: Well, the other matters in a sense overlap the defences which one would run in the MH case so we would - our position would be that if the matter doesn't come on before the court case is determined that, really, we would see the arguments that we have put in the other paragraphs being, really, arguments in the MH case. We wouldn't see that as being a separate piece of litigation that the Commission would have to go to.

PN43

THE COMMISSIONER: And I think you are promising me, aren't you, that if the matter were to go ahead in the sort of timetable that is being proposed, all of these arguments would be canvassed again and there would be a need for a decision on them.

PN44

MR BORENSTEIN: They would have to be. And we would be, in fact, urging that they should be canvassed ahead of time before you go to the substantive matter.

PN45

THE COMMISSIONER: Yes, yes. Well, that is - - -

PN46

MR BORENSTEIN: So they are the submissions we put in support of our argument that the matter should be adjourned. We also do draw attention to the fact that if one were slightly cynical one might question the timing of this application coming, as it does, not in the course of last year, not before the dismissals took place but, rather, shortly after the judge has ordered this company to employ these people on the terms in the enterprise agreement. We would say there are real questions about the genuineness of the application that arises and that one might infer from the timing of it.

PN47

We, certainly, our client is of the view that this is being done to hinder the union in the preparation of the trial and perhaps to try and pre-empt the decision of the Federal Court in terms of the orders which it might be inclined to make at the trial. So we would submit all in all that the matter should be adjourned - - -

PN48

THE COMMISSIONER: I don't detect you asking me to make a finding on that are you? It was just a - you are saying if one were cynical that was - - -

PN49

MR BORENSTEIN: No, no, no. I am just pointing out that we would say this is one of the considerations we would wish to advance. But we say that the matter should be adjourned. There is a court order in place. These people are going to have to be employed under the terms of the agreement until the court case is concluded in any event. So nothing that you can do between now and then will relieve the employer of that obligation. And finally and perhaps most significantly, the employer itself doesn't press for a trial before the court case. And in circumstances where the court case is going to change the terrain, possibly quite dramatically, it makes no sense to be committing to evidence and submissions which may well have to be changed.

PN50

THE COMMISSIONER: Yes. Mr D'Abaco.

PN51

MR D'ABACO: Thank you, sir. As I apprehend my learned friend's arguments, sir, they really centre upon two issues. The first is that it would be onerous upon the parties to be preparing material in respect of this application in circumstances where the parties will already be occupied preparing other material for the proceeding in the Federal Court. And the second item, perhaps the more substantive one, is that ultimately, given the ultimate decision which is held by North J in the Federal Court, this application may ultimately be irrelevant, as it were. If I could deal with the first point.

PN52

THE COMMISSIONER: Sorry, what was that last point?

PN53

MR BORENSTEIN: This particular application may well be irrelevant given what may fall from the Federal Court in terms of its decision.

PN54

THE COMMISSIONER: Well, I think his point was - I took it that that was a possibility but more fundamentally, to use Mr Borenstein's words, it would change the terrain of the debate potentially. Not just making it - I mean, the application may still be relevant but the terrain in which the debate is taking place would be altered.

PN55

MR D'ABACO: I think that is correct. Perhaps I can deal with the first aspect in terms of the burden upon the parties. Mr Borenstein and Mr Armstrong are aggrieved in the Federal Court proceeding as I am as well, certainly in respect of the TGS Belandra issue and the directions which are being formulated have been formulated with a view to accommodating the fact that the parties will be in court albeit for different parties at that period.

PN56

Mr Borenstein will be well aware that it is part of counsel's role to often be handling, as it were, more than one matter during the conduct of trials and in my submission the onerous nature, as it were, of these directions are directions which would fall equally upon both parties. It is not as if the union is being disadvantaged, it is a burden which would fall upon both parties. The second point with respect to that, Commissioner, is that while I do not appear in the Federal Court proceedings involving Export Meat Processors my understanding, and it was simply an off-the-cuff comment from North J during the course of the proceeding, was to ask the question: Why was it not that Export Meat Processors have not filed, perhaps, an application pursuant to section 170MH, such as this particular application?

PN57

The reason I put that to you, Commissioner, is for this reason. As I apprehended my learned friend's argument, part of that argument is that this application, as it were, somehow seeks to traverse the interlocutory order which was made by North J, i.e. that the EMP workers be reinstated to their former employment on terms and conditions which included the terms of this particular certified agreement. In my submission, sir, what North J was doing in terms of that particular interlocutory order was no more than returning to the status quo as it existed at 19 November.

PN58

In my submission it is stretching North Js order to say that between the date of the order and the date of the ultimate hearing of the proceeding Export Meat Processors, as it were, is required to employ those people upon the terms of this particular certified agreement and indeed can take no action whatsoever to apply to terminate that agreement. This application is one which the parties - or my client is entitled to make pursuant to section 170MH of the Act. The application has been made and indeed it was an application which North J acknowledged could be made.

PN59

Now, the arguments which Mr Borenstein has put to you are ones which could be agitated in the Federal Court in the event that his client believed that this application is somehow misfounded or should not be brought at this particular point in time. North J, when handing down his orders, indicated that there was liberty to apply to the parties upon short notice in the event that they believed it was necessary to seek further orders. And indeed the application - or Mr Borenstein's client's application has been listed for further directions on 3 February.

PN60

And that may be an appropriate time when Mr Borenstein may well wish to seek some form of order in relation to the progress of this matter. But my submission to the Commission is that this is an application which Export Meat Processors is entitled to make pursuant to the terms of the Act and in those circumstances the application is pressed. If I could turn, sir, to the grounds which Mr Borenstein outlined to you in respect of utility of the proceedings. My submission, sir, is that many of those grounds in our submission would ultimately not go to the public interest.

PN61

They go to factors which are germane and relevant to the parties to the application but not to the question of public interest. That ultimately, of course, is a matter of argument and they are arguments which can still be had during the course of this application without in any way, as it were, undermining the utility of the application which is being brought. Now, what Mr Borenstein is saying is that his client would prefer that perhaps the timetable be pushed out to a certain extent. We are more than happy to go off the record and see whether his client's concerns can be accommodated.

PN62

But in my submission it is inappropriate for this application which is lawfully brought and which my client is entitled to bring under the Act to be adjourned, as it were, off into the never never, what could be a substantial time until when and if the Federal Court pronounces in relation to the Export Meat Processors application before North J.

PN63

THE COMMISSIONER: Yes. Yes, Mr Borenstein.

PN64

MR BORENSTEIN: Commissioner, can I just say a couple of things briefly? I don't want to take up too much time. Mr D'Abaco referred to the judge reserving liberty to apply to the parties. Liberty to apply was reserved to allow the parties to come back if there were problems about the working out of getting people back to work and what sort of work they will do and so on. It didn't go to issues such as this.

PN65

And insofar as my friend is suggesting that the proper course for us to take is to go to the court and ask the court to issue an injunction against the Commission proceeding with this matter, we would submit that that is an entirely inappropriate course. We are before the Commission, the Commission is well able to decide whether it is appropriate to proceed or not and that is why we make this application.

PN66

The only other matter that I wanted to respond to was the submission that was made that the matters that will be raised in the Federal Court and the outcome of the Federal Court proceedings won't bear on the public interest matters that the Commission has got to consider under MH. The ground upon which this application appears to be made, the application here is that negotiations for a new enterprise agreement have been attempted and have failed.

PN67

In the Mount Thorley decision Boulton J expressed particular concern about the possibility that the Commission's intervention may prevent the parties from continuing negotiations and perhaps arriving at an agreed outcome. We say that, among other things, one of the things which the court decision will do is it will indicate whether or not EMP is bound to continue to employ these employees and it will indicate whether, or on what terms, or it may indicate on what terms they are to be employed.

PN68

As I said to you earlier, that will set a particular terrain for the parties to work with. That terrain, being different from what obtained prior to the dismissal because it has the sanction of the court, is one which may well prompt the employer to perhaps be somewhat more amenable to the negotiation of a new enterprise agreement. The union has sought in the past to negotiate an enterprise agreement and the negotiations took place but stalled at a particular point in time for reasons we don't need to canvass.

PN69

But it is clear, if nothing else, that the decision of the court will, if it is in favour of the union, put on the table a new factor which all the parties will have to take into account in terms of resolving the conditions of employment of the employees into the future by negotiating a new enterprise agreement. A situation which doesn't obtain presently. But the other point which Mr D'Abaco didn't address is the point which is really in his favour that if the court rules that we are wrong and that what the company has done is completely lawful and legitimate, then it again changes the whole need or the whole basis of this application.

PN70

And we don't want to be spending time and trouble and effort preparing for something that may not be necessary where we may come along and just tap the mat and say: Well, the court has said that we are all sacked. The court has said that: You are not in the industry any longer, we have no interest in this agreement any longer. So whichever way you go, what the court decides will be relevant in terms of the considerations of the Commission.

PN71

Apart from anything else it must be a matter of public interest to be taken into account if the court finds that this company has contravened the Workplace Relations Act in a significant way for the very reason to do with this enterprise agreement. There must be a public interest consideration as to whether the Commission, being confronted with a finding like that by the court, would say that in those circumstances the party that has offended the Act should be entitled - should be rewarded as a matter of public interest. And what message as a matter of public interest that sends to the community generally.

PN72

So we say that there are many arguments that can be advanced hypothesising on what the court might or might not find that would bear on the Commission's deliberations in terms of public interest. So we say that it is quite wrong to say that the court's decision will make no difference to the proceedings in this case.

[10.48am]

PN73

THE COMMISSIONER: Who are the parties to the agreement, Mr Borenstein?

PN74

MR BORENSTEIN: The parties to the agreement are the union and a company called P & R Meats Proprietary Limited and EMP is a successor.

PN75

THE COMMISSIONER: So the employees aren't bound by it?

PN76

MR BORENSTEIN: The employees aren't. I will have to just check that, Commissioner. Yes, the employees are bound. The clause reads:

PN77

The agreement is binding on the union and shall apply to its officers, members, the employer and the employees of the employer employed in Victoria who are eligible to be members of the union.

PN78

THE COMMISSIONER: Well, it raises a point, Mr D'Abaco, that I want to put to you squarely. The heading talks of - section 170MH talks about terminating an agreement in public interest after a nominal expiry date but the terms of that section require the Commission:

PN79

...to take steps to obtain the views of persons bound by the agreement about whether or not it should be terminated.

PN80

And then:

PN81

If it is not contrary to the public interest the Commission shall terminate it.

PN82

Now, implicit in that is some regard, and clearly the amount of regard is a matter for submission and decision by the Commission, some regard must be had to the views of the persons bound by the agreement about the proposal to terminate it. Now, I think that a very strong case has been put that the circumstances in which the agreement would be applicable hinge, very greatly, on the outcome of the court's consideration of the application that is before it and thus the views of the persons bound by the agreement may in fact be quite tentative at this stage and dependent upon, or contingent upon - is there a difference? But anyhow, certainly, dependent upon the outcome of the case before the Federal Court.

PN83

MR D'ABACO: Yes.

PN84

THE COMMISSIONER: And given the - well, what do you say about that, because it seems to me to be a pretty substantial point?

PN85

MR D'ABACO: Yes. Well, if we deal with what Mr Borenstein referred to as my client's best point, that is, that in the event that the court pronounces that the termination of employment which took place on 19 November was completely lawful and there is no requirement by my client to employ people. The Commission may recall that there is another application pursuant to section 170MH of the Act to be brought by a related company, Export Meat Packets, and the Commission may also recall that part of the evidence, or certainly the application indicated that that particular company has not been operating since June - 20 June 2001 and there is no intention for it to operate or for it to employ any employees.

PN86

Notwithstanding that particular position, the position which has been taken by the union, certainly to date, is that it will still be opposing that application and indeed it has conceded that directions which have been issued by your good self will enable it to put its case. Now, although that is the union - - -

PN87

THE COMMISSIONER: And there I would be getting the views of the only persons bound by that agreement because there would be no employees.

PN88

MR D'ABACO: Yes. Well, certainly the union has the authority and the standing to put the views of those employees who would be affected. That is clear.

PN89

THE COMMISSIONER: Oh, but here we don't know what - but, see, the point is here the employees - I mean, leaving aside the parties who are immediately here, that amongst the people who are bound by the agreement are some individuals whose view about whether the agreement be terminated or not would be highly dependent upon whether or not they are still employees. I mean, I am not interested in their views if they are not employees because they are no longer bound by the agreement. Well, I am not even sure what the present situation is at the present time because it is an interlocutory order, it is not a final determination.

PN90

I mean, there is that degree of uncertainty there that certainly strongly favours, in my mind, the sort of proposition that is being put by Mr Borenstein because if I ask you who is it that I have to determine - who is it that I go to to obtain the views of the persons bound by the agreement. Now, you may say it is enough to go to the union. It would be an interesting submission from an employer but - - -

PN91

MR D'ABACO: That submission is put on the basis of authority, sir. There was a decision of Senior Deputy President Polites involving BP Kwinana - I am sorry, I can't bring the citation to you - where the Senior Deputy President found that in circumstances where there was a high level of union membership and where the union was a respondent to the agreement it was fit and proper for him to accept that the view expressed by the union was one which it was expressing after having consulted its members. So it is for that reason I am putting that to you. In terms of perhaps, I think, the substantive - - -

PN92

THE COMMISSIONER: Well, then, I am getting the view, then, that if that is the case, then the view that is being put by them is that they don't want to express a view until the outcome of the court case is determined.

PN93

MR D'ABACO: Well, that is not what Mr Borenstein, with respect, has put to you this morning.

PN94

THE COMMISSIONER: But it is implicit in what he has put.

PN95

MR D'ABACO: Well, let us deal with it in this way, sir. Essentially, what Mr Borenstein is saying is that in three months time, six months time, twelve months time, we don't know, because ultimately it depends upon the decision of the court. The court may make a pronouncement which either means that these people will not be employed or that they will be employed. Now, that is a situation, sir, which can take place in industry at any point in time. In any of these applications it may well be that three months down the track, six months down the track individual employees may no longer be employed. Correspondingly, no-one may be employed because the employer closes its operations for whatever reason which may transpire.

PN96

THE COMMISSIONER: No, no, but there would not be a circumstance like there is at the moment where the issue of whether these people are employed at this point in time is the subject of court consideration. And it is going to be resolved. See, the position, as I understand it, is that there is a dispute between you as to whether or not EMP - I will be more precise - Export Meat Processors is obliged to continue these people in employment and it clearly is obliged. The interlocutory orders aside, whether there is an obligation on Export Meat Processors to continue these people in employment. And that is not going to be resolved until the matter is concluded.

PN97

Now, that is the difference between what happens in real life where people may or may not be employed. But at a particular point in time whether they are, interlocutory orders aside, employed by Export Meat Processors or not is a matter that is still to be determined. So it is uncertain in my mind, at least, whether I need to consult - sorry, "consult" is not the word - take steps as it considers appropriate - - -

PN98

MR D'ABACO: To ascertain the views.

PN99

THE COMMISSIONER: - - - to ascertain the views of the employees because there is nothing before me about the level of union membership by EMP. I mean, you say it is high, it may be and it may be that - but whether the circumstances are - I mean, I hear what you are saying about the BP Kwinana or BH?

PN100

MR D'ABACO: BP Kwinana, yes, sir.

PN101

THE COMMISSIONER: Yes. About the BP Kwinana case but, you know, those things are all determined on their own facts and - - -

PN102

MR D'ABACO: I am drawing it, sir, simply in terms of affidavit material which was filed by the union in respect of the Federal Court proceedings where there was some evidence given from Mr Davey, I believe from memory, in relation to the level of union membership which the union has traditionally held at Export Meat Processors and which it held at the time of the orders being sought.

PN103

THE COMMISSIONER: Yes. But the extent to which that is applicable even is another matter. I mean, I - no, I won't take it any further. I am not even sure that there is any significant prejudice to you if the matter is adjourned in the manner in which it is put because you are saying that the matter - I mean, even on your own terms I think I had already indicated that there is some difficulty about early April for the Commission and I wonder whether we aren't - whether the impact is going to be not so much on the final hearing, I mean, we are in the court's hands to some extent but if what Mr Borenstein is accepted by me, but we are looking at late April in any event.

PN104

MR D'ABACO: Commissioner, in my submission whether or not a party is prejudiced in relation to an application being listed for mention and programming, it is really not a relevant factor. Ultimately, the Act does provide for applications such as these to be brought. It is an application which indeed North J - - -

PN105

THE COMMISSIONER: But it was in that context that I was saying that the prejudice issue arises, not in terms of the mention, but you have got a right to have your application dealt with and dealt with consistent with the Commission's normal procedures but - - -

PN106

MR D'ABACO: The prejudice may come at this point in time - - -

PN107

THE COMMISSIONER: Subject to the argument that is being put on the other side.

PN108

MR D'ABACO: The prejudice may come at this point in time, Commissioner. As Mr Borenstein has indicated, North J has indicated a disposition - it is no higher than that - but a disposition to listing the Federal Court proceeding involving my client immediately after the conclusion of those proceedings involving Belandra which is at the end of March. Now, the situation may become clearer after 3 February when that matter is listed for a directions hearing, something more definitive may fall from the court in terms of hearing.

PN109

But let us just say on best case scenario the matter is listed for hearing in March. It may be one month, it may be three months, it may be longer before the court pronounces upon that particular proceeding. At that point in time, sir, my submission would be that certainly there is substantial prejudice being suffered by my client because the sort of factors which Mr Borenstein has outlined to you - - -

PN110

THE COMMISSIONER: No, I understand that and I don't need you to take it any further. So we come back to that issue of - and I think it becomes a question of how high one puts, in consideration of 170MH, the views of the person bound by the agreement about whether it should be terminated and that is a matter, in a sense, for later but I would have thought that it is not just an issue. I mean, you take those views - you have regard to the views and then if it is not contrary to the public interest you terminate it.

PN111

Now, if those views have got the potential to change because of court proceedings it seems to me that that is a matter that I should have some regard to in setting the matter down. And it is not simply a matter of saying: Well, look, we have got the right to make this application and those issues are side winds in a sense. I don't want to characterise your submission quite like that but I think - I don't want to be unfair to you in the characterisation of your submission.

PN112

MR D'ABACO: No, no, but in terms of the views of those people who would be affected, i.e. the employees, the question which would be asked of them is actually - - -

PN113

THE COMMISSIONER: No, and the employer.

PN114

MR D'ABACO: And the employer. Well, certainly the employer will put its submission.

PN115

THE COMMISSIONER: Is taking a view at the moment, yes, that is right.

PN116

MR D'ABACO: Yes. Is essentially a simple, two-fold question. The question is (a) if the Federal Court maintains that you ought continue to be employed by Export Meat Processors, what are your views in relation to the termination of that agreement? Yea or nay? The second part of the question is, if the court were to find that the dismissal which took place on the 19 November of last year was lawful and you are no longer going to be employed - - -

PN117

THE COMMISSIONER: I am not interested in your views.

PN118

MR D'ABACO: Correct. Now the - - -

PN119

THE COMMISSIONER: See, that is the uncertainty about who I talk to. See, the views of the people bound by the agreement is dependent upon who is bound by the agreement and that is a matter that is not going to be finally determined until that court hands down its decision. And I don't know that I can go to the people who are bound by it by virtue of the interlocutory proceedings to - it begs the question, doesn't it, in the very strict sense?

PN120

MR D'ABACO: I can't take it any further, Commissioner.

PN121

THE COMMISSIONER: Yes. No, no, I - but I had to raise that difficulty with you because it seems to me to be a pretty big one. Yes, is there anything further you wish to put?

PN122

MR D'ABACO: No, sir.

PN123

THE COMMISSIONER: Mr Borenstein?

PN124

MR BORENSTEIN: No.

PN125

THE COMMISSIONER: Look, I would like a few moments to consider what has been put and we will adjourn for 15 minutes.

SHORT ADJOURNMENT [11.03am]

RESUMED [11.15am]

PN126

THE COMMISSIONER: Just one matter. The proceedings before the Federal Court, are they the proceedings identified in the section 111(1)(g) application as V828 of 2002? Yes, thank you. The matter before me is a section 170MH application to terminate the agreement known as the P & R Meats and the Australasian Meat Industry Employees Union Victorian Meat Industry Boning Agreement 1998. The matter was initially listed for mention and programming today and a proposal for the disposition of the matter was put forward by Mr D'Abaco on behalf of the company, Export Meat Processors Proprietary Limited, that is contained in exhibit D1.

PN127

The AMIEU, through its counsel, Mr Borenstein, has made application for an adjournment of the matter and if I understand that application correctly it is an application for the matter to be adjourned pending the outcome of the proceedings in the Federal Court of Australia in matter V828 of 2002. The proposed directions by Export Meat Processors Proprietary Limited would have had the parties conclude all of their pre-hearing matters, that is witness statements and outline of submissions and replies, by 21 March this year, which is some time prior to when there is an expectation of even a hearing much less a final outcome of the proceedings in that Federal Court matter.

PN128

The proceedings in the Federal Court, as I understand, go to - and they may go to other things but they go, at least relevantly, to these proceedings to the lawfulness of the decision of Export Meat Processors Proprietary Limited to dismiss its workforce in November 2002. Those employees, as I understand it, are currently maintained in employment by virtue of interlocutory orders by North J in the Federal Court.

PN129

There were two general bases for adjournment advanced. The first, that the ongoing litigation and preparation of submissions, affidavits, etcetera, for the Federal Court proceedings are proceeding at the same time as those proposed in exhibit D1. And, more substantially, the utility of taking further steps in this matter as the outcome of the Federal Court proceedings will be a critical consideration for the Commission and the immediate parties. I don't think I do any injustice to those submissions.

PN130

Can I just say that in regard to the extent that it was put as a ground for an adjournment the fact that parties are required to prepare documentation for proceedings in this Commission at the same time as they are doing other things, whether they be preparation of material for the Federal Court or something else, would not be a very strong argument for an adjournment.

PN131

Section 170MH generally requires the Commission to obtain the views of persons bound by the agreement. Here, the agreement provides that the employees are bound, but a matter very seriously at issue in the proceedings before the Federal Court is whether they are lawfully employees. If they are not, then only the union and the company are the parties to the agreement.

PN132

Taking that matter into account, that is the need to obtain the views of the parties to the agreement and the uncertainty as to who they might be, pending the outcome of the Federal Court proceedings, together with the likely effect of a final decision in the court on the views of the immediate parties and indeed if the employees remain parties on them as well, I consider it would be premature at this stage to deal with the application under section 170MH.

PN133

Accordingly, I propose to grant the adjournment sought and the matter will be re-listed on application by the applicant as soon as possible after the finality of those proceedings in the Federal Court. If there is nothing further, these proceedings are adjourned on that basis.

ADJOURNED ACCORDINGLY [11.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 OUTLINE OF SUBMISSIONS FOR EXPORT MEAT PROCESSORS PTY LTD PN9