C2002/293, Transcript of Proceedings [2003] AIRCTrans 283 (3 February 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N WT05798

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/293

SECURITY OFFICERS (WESTERN AUSTRALIA)
AWARD 2002

Application under section 113 of the Act
by Chubb Security Australia Pty Limited
to vary the above award

PERTH

9.10 AM, FRIDAY, 17 JANUARY 2003

Continued from 19.12.02

PN38

MR J. UPHILL: I appear on behalf of the applicant, Chubb Security Australia Pty Limited and with me MR S. CONNELL.

PN39

MR D. CLARKE. I appear on behalf of MSA Security with me MR G. DRURY, from MSA Security.

PN40

MS F. BENNETT: I appear on behalf of the Australian, Liquor, Hospitality and Miscellaneous Workers Union and with me MR D. KELLY.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Uphill?

PN42

MR UPHILL: Thank you, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Before you begin, could I just indicate that I have received a written communication from EMA Consulting saying that they act on behalf of Group Four Securitas and advised that they don't object to the variation of the award sought by the union. And furthermore they've considered the WACCI draft order and Group Four agrees with and supports the WACCI draft order.

PN44

MR UPHILL: Thank you, your Honour. I don't know whether you wished to include that as an exhibit.

EXHIBIT #GROUP FOUR 1 COMMUNICATION FROM EMA CONSULTING

PN45

THE SENIOR DEPUTY PRESIDENT: It sounds a bit odd, sounds like 41, doesn't it, four dash one. Yes, Mr Uphill?

PN46

MR UPHILL: Moving forward to consider our application to amend the award, what I intend to do is to put some submissions and then call evidence and if that - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Can we deal with the issues of service first so that I can mark those documents?

PN48

MR UPHILL: Yes, certainly. Can I tender to you a declaration of service?

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

EXHIBIT #CHUBB 1 DECLARATION OF SERVICE DECLARED ON 15/01/2003

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. And I will just record that as attached to a schedule of a number of entities including the Australian Liquor Hospitality and Miscellaneous Workers Union.

PN51

MR UPHILL: Thank you. If there are no other preliminary matters, your Honour, I would move on to - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Well, have you had any communication from any other of those people?

PN53

MR UPHILL: I haven't.

PN54

THE SENIOR DEPUTY PRESIDENT: No. Very well. Yes, sorry.

PN55

MS BENNETT: Sir, if I could intervene? We were served our application, we were only served on 14 January. We believe the matter is complicated because we are still awaiting your decision in relation to matter 253 of 2003 which is dealing with the redundancy issue. This matter should be adjourned until first of all the decision in matter 253 of 2003 is handed down and also there has been an opportunity for conciliation in this matter. We believe that there needs to be an application under section 107 for this matter for the President to determine whether or not the matter needs to be dealt with by a Full Bench. Because this application proposed today by the applicant is not a test case standard.

PN56

THE SENIOR DEPUTY PRESIDENT: Have you had an discussions with Chubb at all about the proposed change?

PN57

MS BENNETT: Not in this application, sir, no. We only received notification via our national office this morning in relation to the Group Four correspondence as well.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, I think it was only passed on today, wasn't it? It was forwarded to my chambers on 16 January, yesterday was it?

PN59

Mr Uphill, what do you say first of all about the issue of conciliation? I do have a duty under the Act of course, to seek to resolve the matter by conciliation.

PN60

MR UPHILL: Yes, your Honour. I'm certainly aware of that obligation and what I would say in response to that, your Honour, is that the opportunity for discussion and consultation is something that we say took place in regard to the union's application for the insertion of redundancy provisions. This application is fundamentally the same subject matter and detail as to what was canvassed between the parties in terms of the union's original application and the counter proposal which we made the union aware of previously.

PN61

There has been ample opportunity for the union to respond if they wish to, agreeing to our award amendment or counter proposal and we have not heard such a concession from the union. And we think that further discussion or consultation is really not going to assist in resolving the matter. We believe that the only way the matter can be resolved is via arbitration. We are opposed to the adjournment of the matter in a way that would prevent arbitration of the issues in our award amendment today. We note Ms Bennett's reference to section 107 and the need for an application to be made. We don't share that view, we don't see that there needs to be as a requirement, an application under section 107. They are the remarks I would make in response to the union's comments, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Bennett, do you perceive any ground for an expectation of a fruitful outcome from discussion?

PN63

MS BENNETT: Yes, sir. We would be maintaining that we would like a conciliation conference, we also believe that the decision that we are still waiting on in our matter, 253 of 2003 would be pertinent to this matter and therefore also pertinent and relevant to holding a further conciliation. Further, sir, in relation to Mr Uphill's position in relation to the 107 the union does maintain that an application will need to be made.

PN64

THE SENIOR DEPUTY PRESIDENT: Well, what is to stop you from making the application if you think it is a matter that an application for which an application is required? I have to say and I think I made the comment on the last occasion where there was some dispute about who should make the application. But the Commission's principles are not all that clear on that aspect about who should make the application but just looking at, for example, those principles since the last occasion the matter was - where your matter was before me, it does seem to me that the intention was that the party opposing the application is the party responsible for making the 107 application which in this case would be the ALHMWU. Did you want to say any more about that?

PN65

MS BENNETT: Yes, sir, if that is your view and understanding of the principle then we will make application.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Clarke, did you want to say something?

PN67

MR CLARKE: Thank you, your Honour. At the matter with 253 I raised the issue of this and the union rejected it. Now they've turned around and said that we need it now. They are well aware of the matters.

PN68

THE SENIOR DEPUTY PRESIDENT: Sorry, what is "it" when you say you raised "it"?

PN69

MR CLARKE: Conciliation.

PN70

THE SENIOR DEPUTY PRESIDENT: Oh, right.

PN71

MR CLARKE: At the hearing and they - - -

PN72

THE SENIOR DEPUTY PRESIDENT: We had conciliation. MSA hadn't appeared though in the conciliation.

PN73

MR CLARKE: No.

PN74

THE SENIOR DEPUTY PRESIDENT: Chubb and ALHMWU were involved or engaged in conciliation.

PN75

MR CLARKE: That is right, your Honour. And I just think it is - that they are well aware in supporting Mr Uphill's submission, they are well aware of the matter. And they have had ample opportunity to turn around and we say, look at it. There is no element of surprise yesterday or today, the matter pertaining to what was outlined in 253 is certainly before the Court today. Thank you, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: What do you say about the 107 application?

PN77

MR CLARKE: I don't believe the merits of the 107 really need to be made at this stage.

PN78

THE SENIOR DEPUTY PRESIDENT: Once the application is made I don't have any discretion, I must go and talk to the President about it which I propose to do in a short while subject to what Mr Uphill says to me.

PN79

MR CLARKE: Okay. If that is the position then certainly so long as we can attempt to proceed today, if that is possible. Thank you, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Uphill, you don't dispute, do you, the fact that once the 107 application is made I have no discretion I must - - -

PN81

MR UPHILL: Oh look, I think that is right. Once an application is made then it is obligatory for the President to be involved in deciding what should happen from there on.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, well I propose to adjourn this matter briefly, speak to the President if he is available and it would require me, of course, to give something to him in writing and for him to make a determination about that.

PN83

MR UPHILL: Your Honour, I note that comment. It may be worth while me adding to my submissions about the 107 application by reference to principle 4 in Test Case Standards. And in the middle sentence it talks about:

PN84

Where disagreement exists as to whether a claim involves a test case standard.

PN85

We are not seeking - we don't suggest that our application involves a test case standard.

PN86

THE SENIOR DEPUTY PRESIDENT: Sorry, you don't suggest?

PN87

MR UPHILL: We don't suggest that it involves a test case standard. We acknowledge that it involves a departure from test case standards. So we don't think principle 4 is relevant to our application, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: You say it involves - it doesn't involve a test case standard?

PN89

MR UPHILL: It does not involve a test case standard.

PN90

THE SENIOR DEPUTY PRESIDENT: No, and in those circumstances if it goes beyond a test case standard isn't it then required to be referred under 107?

PN91

MR UPHILL: I don't see in principle 4 that being required.

PN92

THE SENIOR DEPUTY PRESIDENT: Just tell me what it says again?

PN93

MR UPHILL: Principle 4 or - - -

PN94

THE SENIOR DEPUTY PRESIDENT: Yes.

PN95

MR UPHILL: It says:

PN96

Where disagreement exists as to whether a claim involves a test case standard or a non-allowable award matter a party asserting that it does must make and justify an application pursuant to section 107. It will then be a matter for the President to decide whether the claim should be dealt with by a Full Bench.

PN97

If it helps, what we say, your Honour, is that we are making an application which doesn't activate principle 4. What we say is that it activates other principles.

PN98

THE SENIOR DEPUTY PRESIDENT: Principle 11 or 10, is it?

PN99

MR UPHILL: That is right, yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes. Well, in either event isn't it a matter for me then to refer the matter to the President?

PN101

MR UPHILL: There is a need, your Honour, to refer the matter to the President to effectively decide whether it ought to be continued to be dealt with by yourself or perhaps a Full Bench constituted.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, but I mean, that may take 10 or 15 minutes or it might take two weeks depending on the President's commitments.

PN103

MR UPHILL: Yes.

PN104

THE SENIOR DEPUTY PRESIDENT: What I was proposing to do was to stand the matter down, endeavour to speak to the President about the matter and see, assuming the President is available, to ascertain whether the matter is to go to a Full Bench or not?

PN105

MR UPHILL: Very well.

PN106

THE SENIOR DEPUTY PRESIDENT: But you say it goes beyond the test case standard. What do you say about the necessity for it to be dealt with by a Full Bench?

PN107

MR UPHILL: Your Honour, we say that the application involves a departure from the award safety net and therefore principle 10 is relevant. And principle 10, of course, allows one of two options.

PN108

THE SENIOR DEPUTY PRESIDENT: Above or below, yes.

PN109

MR UPHILL: Either the Full Bench or a single member to decide the matter and that is as far as principle 10 I think takes the matter.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. But do you say that the matter can be adequately dealt with by a single member or should it go to a Full Bench?

PN111

MR UPHILL: No, we say it can adequately be dealt with by a single member. If you look at the history of variations to TCR provisions we say it is clear from decisions that have been handed down that by and large, the variations of the type that we are seeking have been dealt with by single members of the Commission.

PN112

THE SENIOR DEPUTY PRESIDENT: And the very point that you are seeking, I think, here is part and parcel of a proposed test case to be conducted, I think in June or July of this year?

PN113

MR UPHILL: There have been proceedings on foot for some time to vary the TCR provisions. I'm not sure specifically whether issues that we canvass now are part of that review. I'm broadly aware of some of the other subject matters that are going to be dealt with but I'm unsure about whether the specifics of our situation are part of that wide review.

PN114

THE SENIOR DEPUTY PRESIDENT: Did you want to say anything more about it in the context of referring the matter to the President?

PN115

MR UPHILL: I don't think so, your Honour, I think I have made the submissions I need to.

PN116

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Mr Clarke, what is MSAs view about the matter being dealt with by a single member or a Full Bench?

PN117

MR CLARKE: Yes, I basically concur with everything that Mr Uphill has had to say thus far. And certainly I believe a single member can hear the matter, your Honour, and without repeating everything that Mr Uphill has stated I basically concur with what he has had to say. And certainly if the President gives such directions on what should happen then we will certainly go with what the President directs us to do. Thank you, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: All right. Ms Bennett, what do you say about who should deal with the matter?

PN119

MS BENNETT: Sir, we would still be seeking an adjournment awaiting the decision in matter 253 of 2003. We would also still would be requesting conciliation in this matter. The union would be seeking more time to enable us to provide more information and submissions to the President to justify the matter being determined by a Full Bench and we would give an undertaking to provide that by close of business Monday 5 pm.

PN120

THE SENIOR DEPUTY PRESIDENT: But the union must have a view about whether or not the issue is one that could be adequately dealt with by a single member or a Full Bench.

PN121

MS BENNETT: We believe, sir, that it should be dealt with by a Full Bench. Up until this morning we thought they were relying on principle 4.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes. Anything else you want to say about it at this stage?

PN123

MS BENNETT: No, thank you, sir.

PN124

THE SENIOR DEPUTY PRESIDENT: Very well. I will stand the matter down until 10 am to first of all confer with the President if he is available and secondly to consider the application for an adjournment and the issue of conciliation.

SHORT ADJOURNMENT [9.32am]

RESUMED [10.08am]

PN125

THE SENIOR DEPUTY PRESIDENT: I have in the course of the adjournment conferred with the President about the application under section 107. The President has given a decision in which his Honour says:

PN126

In proceedings before Senior Deputy President Lacy on 17 January 2003, the ALHMWU made an application that the above matter be referred to me to consider whether it should be dealt with by a Full Bench. I have conferred with Senior Deputy President Lacy about whether the application for section 107 reference should be granted. I am not of the opinion that in the public interest a Full Bench should be constituted to deal with the application.

PN127

A copy of that will be made available to the parties. Now, Mr Uphill, is Chubb proposing to call any evidence in this morning's application?

PN128

MR UPHILL: Yes, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: What is the nature of that evidence?

PN130

MR UPHILL: The evidence will go to the custom and practice in handling situations where contracts are lost or cease.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Clarke, is MSA proposing to call any evidence in relation to the matter?

PN132

MR CLARKE: Yes, we are, your Honour.

PN133

THE SENIOR DEPUTY PRESIDENT: What is the nature of that evidence?

PN134

MR CLARKE: To do with the custom and practice when contracts are lost or ceased.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes.

PN136

MR CLARKE: And deal with the custom and practice as per the application. Thank you, your Honour.

PN137

THE SENIOR DEPUTY PRESIDENT: All right. In those circumstances then in dealing with the application of the ALHMWU for an adjournment I note that the ALHMWU advances as its grounds for an adjournment that it was only served with the application on 14 January 2003. And secondly that the ALHMWU application for a variation of the award to insert a redundancy provision has not been determined and that it would be prejudiced in its application if this matter was dealt with before it is determined.

PN138

Normally the question of recent service would be good grounds for an adjournment but I note that the ALHMWU in this case has been aware of the application to be made by Chubb or at least its terms since 19 December 2002. The ALHMWU was also aware of Chubb's intention to pursue the application. The fact that I have not determined the ALHMWU application for a variation does not ground an application for an adjournment in my view.

PN139

The ALHMWU application will be determined on its own merits and in accordance with the priority in which it was received. That is it would be determined first. It may necessitate some further variation to the application that is being made by Chubb in the event that I agree or grant the ALHMWU application. However that could be accommodated in the course of the proceedings. So I see no prejudice to the ALHMWU in dealing with this matter now in advance of a determination of its application. However I do see the possibility of some prejudice to the ALHMWU in the situation where no directions have been given for filing of witness statements or other material to be relied on.

PN140

So what I would propose doing is to deal with the - not adjourn the matter at this stage, to deal with the evidence of Chubb and MSA but at the conclusion of their evidence I will entertain an application for the ALHMWU for a brief adjournment of, when I say a brief adjournment, of some days or weeks, of not too long a duration to adduce any evidence that it wishes to call, that is if it wishes to call any evidence. I agree however that there should be a brief, at least attempt to conciliate the matter because that is one of the duties I have under the Act. And on that basis I propose standing the matter down to see whether there is any proper basis upon which a conciliated resolution can be achieved. Is there anything anyone wants to say about any of those matters? Right. I will adjourn into conference.

OFF THE RECORD [10.13am]

RESUMED [11.38am]

PN141

THE SENIOR DEPUTY PRESIDENT: During the course of the adjournment I have in consultation with the parties considered some aspects that may be appropriate for resolution by conciliation. I have subsequently allowed the parties an opportunity to have discussions amongst themselves and it has been the joint position of all parties that the matter should be adjourned to allow the ALHMWU 14 days to consider its position in relation to the proposals that have been advanced by the security companies. On that basis I have agreed to adjourn the matter subject to notification by parties about the outcome within 14 days of the discussions between them. Anything else? Very well, the matter is adjourned.

ADJOURNED INDEFINITELY [11.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #GROUP FOUR 1 COMMUNICATION FROM EMA CONSULTING PN45
EXHIBIT #CHUBB 1 DECLARATION OF SERVICE DECLARED ON 15/01/2003 PN50