AG2003/7212, Transcript of Proceedings [2003] AIRCTrans 4153 (19 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

AG2003/7212

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by New South Wales Sugar Milling Co-operative Limited
and Another for certification of the Sunshine Sugar
Australian Workers Union Certified Agreement 2003

BRISBANE

10.30 AM, THURSDAY, 4 SEPTEMBER 2003

PN1

THE COMMISSIONER: All right. We're starting the conference now and I'll start with taking the appearances. Would you like to start?

PN2

MR W. SYME: Yes, thank you. If it pleases the Commission, my name is Syme, initial W. I appear on behalf of the New South Wales Sugar Milling Co-operative Limited. We're an applicant in this matter.

PN3

THE COMMISSIONER: Thank you, Mr Syme. All right. The AWU?

PN4

MR R. TRIPODI: Yes. May it please the Commission, my name is Tripodi, initial R., and I have with me MR LYONS, initial D., for the Australian Workers Union.

PN5

THE COMMISSIONER: Thank you, Mr Tripodi and Mr Lyons. All right. The other parties?

PN6

MR T. ROBERTS: Tom Roberts from the CFMEU in Sydney, Commissioner.

PN7

THE COMMISSIONER: All right. And you're seeking leave to intervene in this matter?

PN8

MR ROBERTS: I am, yes.

PN9

THE COMMISSIONER: All right. And the other parties that are seeking leave to intervene?

PN10

MR I. MORRISON: Yes, Commissioner. It's Morrison, initial I., and I appear on behalf of the Australian Manufacturing Workers Union. I also believe that MR NICHOLLS, initial D., the convenor of the unions in the sugar mills, is also on the line.

PN11

THE COMMISSIONER: Mr Noel, is it?

PN12

MR MORRISON: Noel, yes.

PN13

THE COMMISSIONER: Yes. Mr Parkin is not with you?

PN14

MR MORRISON: No. Mr Parkin is not with me.

PN15

THE COMMISSIONER: All right. And, Mr Roberts, you've got MR MULCAHY with you?

PN16

MR ROBERTS: I do. I apologise for that, Commissioner.

PN17

THE COMMISSIONER: That's all right. And Ms Mifsud from the ETU?

PN18

MS R. MIFSUD: Ms Mifsud. If it pleases the Commission, I seek to intervene in the matter on behalf of the Communications, Electrical, Plumbing Union.

PN19

COMMISSIONER: All right. Well, it might be that those matters for intervention actually perhaps have to be dealt with first of all. Mr Syme and Mr Lyons, do you have any objection to that course?

PN20

MR TRIPODI: Yes. We oppose the intervention, Commissioner, for the AWU. These unions have had more than an adequate opportunity to become parties to the agreement. They have shown no interest in making the agreement and now they appear to try to obstruct the agreement. We say that there are no grounds for intervention and the application for intervention should not be granted.

PN21

THE COMMISSIONER: All right. Mr Syme, do you wish to say anything at this stage?

PN22

MR SYME: We would support that, Commissioner.

PN23

THE COMMISSIONER: All right. Well, perhaps - Mr Roberts, would you like to set out what provision you're making your application under and on what basis? I should say at the beginning I have received late yesterday afternoon, which I actually received this morning, some documentation from Mr Roberts of the CFMEU. I'm not sure, Mr Roberts, whether that was sent to any of the other parties.

PN24

MR ROBERTS: Commissioner, a copy of the unsworn statement of Mr Mulcahy was faxed to, I hope, all the other parties yesterday afternoon. There was also some correspondence to you which made reference to a number of authorities that I may refer to this morning.

PN25

THE COMMISSIONER: All right. And I was the only one to receive those, was I?

PN26

MR ROBERTS: You were the only one that received a list of authorities. All the other parties and yourself should have received the unsworn statement.

PN27

THE COMMISSIONER: All right. Well, we'll see if we get to that. Mr Roberts, do you wish to start in relation to the matter of intervention?

PN28

MR ROBERTS: Yes, thank you, Commissioner. This is a fairly significant matter in our view because not only does it potentially represent a departure from a long and established history of industrial regulation of these three sugar milling operations, but I think that on the material that we've seen and that the Commission has that we're entitled to say that if the Commission proceeds with this application and proceeds to approve the application, then the potential is for a significant, if not a majority, of employees at these three sugar mills to have an agreement certified which affects their interests and in fact regulates their terms and conditions of employment without having had an opportunity to vote in the decision whether or not to approve this agreement that you have before you. I'll come to all of those points in turn, but on the question of intervention, I would assume that although neither the employer or the AWU have raised section 43(2) in opposition to our application for intervention - - -

PN29

THE COMMISSIONER: Well, in fairness, they have to hear what the application - - -

PN30

MR LYONS: Oh, come on - we haven't even had a chance. I mean, they shouldn't even be - oh, it's a joke.

PN31

MR ROBERTS: We will address that, but we'd like to hear their arguments.

PN32

THE COMMISSIONER: Well, you're making your application for intervention, Mr Roberts.

PN33

MR ROBERTS: Yes. Well, I'll do that, if I can.

PN34

THE COMMISSIONER: And then I'll ask them to respond.

PN35

MR ROBERTS: We say that there's now a - I'm dealing now with section 43(2) and we say that there's now a very well established principle in this Commission that the provisions of 43(2) and, in particular, the limitations on intervention in 43(2)(b) have no application in a situation where there is no valid application under Division 2 or 3 of Part VIB for certification of an agreement before the Commission. And that's been made clear on at least two occasions, the first of which was in the matter of Maintenance Resource Engineering, a decision of his Honour, Senior Deputy President Williams, and, more recently, a decision of his Honour, the Vice President, Vice President Ross, in Re Grocon Proprietary Limited Enterprise Agreement. And I've given the Commission the references to those decisions and I'll give them to the other parties now. The first one is PR920151 and the second is PR927 - - -

PN36

THE COMMISSIONER: All right. Well, I think consistent - I'm just thinking about procedure here and asking the parties to respond. Consistent with those decisions, certainly I know SDP Williams asked the applicant party to specifically set out their submissions and any evidence that they would be relying on for intervention and adjourned the matter to allow that to be done so that the parties could appropriately respond because it is difficult, certainly for Mr Syme and Mr Lyons, to be asked - when they haven't received any notice of those particular cases to be asked to respond to a significant intervention application such as this. So, as I understand it, you're foreshadowing what you'll be relying on in your application for intervention, Mr Roberts?

PN37

MR ROBERTS: Yes, I am, and what we're saying essentially, Commissioner, is that this matter falls squarely into that category in that we say there is no valid application for certification before the Commission that the Commission can act on and we say that for a number of reasons. And at the end of the day, what we're wanting to put, Commissioner, is that the most appropriate course in the circumstances today - - -

PN38

THE COMMISSIONER: Yes.

PN39

MR ROBERTS: - - - would be for the application to be adjourned for a short period - - -

PN40

THE COMMISSIONER: Yes.

PN41

MR ROBERTS: - - - to a date to be fixed by the Commission and to a venue where all parties can appear and put proper submissions to the Commission and call and present and cross-examine people if that's what's necessary to have the matter determined. But that's what we'll be putting at the end of today's proceedings.

PN42

THE COMMISSIONER: All right. And Mr Roberts, in terms of the adjournment that you'd seek to put your submissions together and any necessary evidence - I know that you have given some flavour of that to the Commission in written documentation and some of it to the other parties. What sort of time-frame would you be anticipating?

PN43

MR ROBERTS: Well, Commissioner, we're not interested in unduly delaying this, but we would say that two weeks would be a reasonable period. As we understand, the company and the AWU are already applying the terms of the agreement, so it's not a question of people missing out on anything because of any delay. But we think two weeks is not an unreasonable period for us to get our submissions together and put on evidence in a sworn form and to have a proper hearing face to face where the parties can be heard and the evidence tested and submissions made.

PN44

THE COMMISSIONER: All right. And in relation to the location of that hearing, you're suggesting somewhere in northern New South Wales - Ballina? I think the courthouse there, we normally endeavour to get - or somewhere in that region?

PN45

MR ROBERTS: Well, I'm entirely in the Commission's hands on that issue.

PN46

THE COMMISSIONER: But you're located - - -

PN47

MR ROBERTS: We would have a preference for the matter to be heard close to the work sites because - - -

PN48

THE COMMISSIONER: Yes.

PN49

MR ROBERTS: - - - we obviously think it's in people's interests.

PN50

THE COMMISSIONER: Yes. I just wanted to check because I think you're in Sydney, aren't you?

PN51

MR ROBERTS: I am, yes.

PN52

THE COMMISSIONER: Yes. But you would be comfortable with the matter somewhere in northern New South Wales close to, as you say, the workplace?

PN53

MR ROBERTS: Yes, comfortable - - -

PN54

THE COMMISSIONER: All right.

PN55

MR ROBERTS: - - - with that. Thank you.

PN56

THE COMMISSIONER: All right. Perhaps then, Mr Morrison?

PN57

MR MORRISON: Yes, Commissioner. Look, it would be unnecessary for me to repeat what Mr Roberts has said. We have very similar concerns: that there's no valid application before the Commission. We would also be relying on those matters that have obviously been represented to you, and I think we would be supporting Mr Roberts' request for a short delay in - and if so if it can be done formally before - with the ability to question and to cross-examine. And two weeks is, I think, an adequate time.

PN58

THE COMMISSIONER: All right. I might just - Mr Roberts or - you or Mr Syme might be able to help me just in terms of trying to give the parties some directions while we're on the line today. I know that the CFMEU and New South Wales Sugar have a matter that's set down in that area before Commissioner Hoffman, so I would be wanting to avoid those dates. I'm not quite sure of those dates, Mr Syme.

PN59

MR SYME: Yes. There's 30 September and 1, 2 and 3 October, Commissioner.

PN60

THE COMMISSIONER: All right. And obviously, I'll hear from you, Mr Syme, in terms of the adjournment as to whether the - I know that there's some significant preparation to be done in terms of the directions for that matter as to what your view of the time for the adjournment and the responding would be as well.

PN61

MR SYME: Yes, thank you. Did you want me to respond to that - - -

PN62

THE COMMISSIONER: I'll just hear from - finish with Mr Morrison and Ms Mifsud, and then I'll ask for you and Mr Lyons to respond insofar as the procedure that's been put in place.

PN63

MR SYME: Thank you.

PN64

THE COMMISSIONER: Mr Morrison, sorry for the interruption.

PN65

MR MORRISON: Well, I don't really think I need to say anything, - - -

PN66

THE COMMISSIONER: All right.

PN67

MR MORRISON: - - - Commissioner, except we're supporting Mr Roberts' submission and, similarly, his timetable that he's proposed I think is quite achievable from our point of view.

PN68

THE COMMISSIONER: All right. And in terms of the evidence, do you see the AMWU - just in terms of trying to program as to the amount of time that we'd need at a courthouse down there, do you have any idea of the amount of evidence you'd be bringing?

PN69

MR MORRISON: Well, bearing in mind that we - I think we have a substantial amount of evidence. I would - without knowing the other parties, I would say that it safely would be an entire day we'd need, at least, to be allocated from our point of view.

PN70

THE COMMISSIONER: For the AMWU?

PN71

MR MORRISON: No, no - for all parties, sorry, is my anticipation.

PN72

THE COMMISSIONER: All right. Mr Roberts, did you have any view? Did you think an entire day - one day would be enough on the basis of the evidence that you have to bring?

PN73

MR ROBERTS: I think a day would be a good estimate, Commissioner.

PN74

THE COMMISSIONER: All right. The ETU?

PN75

MS MIFSUD: We would support the submissions of both the AMWU and the CFMEU in this matter. We would see an adjournment of the proceedings to allow the parties to get some evidence together as a reasonable course of action, and setting one day aside would be appropriate under the circumstances.

PN76

THE COMMISSIONER: All right. Mr Syme? So - - -

PN77

MR SYME: Well, Commissioner - - -

PN78

THE COMMISSIONER: What's being suggested is that, in terms of procedure, these parties have sought to intervene - I don't think it's realistic to expect - well, they haven't put their case in full, obviously, and it is the norm in relation to significant intervention matters to expect the parties to put that in writing and to put the evidence in writing and to allow the applicant in the party who - the other party to the agreement - to consider that documentation and to be able to respond to that in a procedurally fair manner. So I had anticipated I might be able to give some directions on the phone, but we'll be subject to when we can get court availability.

PN79

But I don't think this matter should be delayed significantly, so I would be expecting the union parties to provide a written outline of their submissions and any evidence that they intend to rely on, and that evidence would be taken as evidence-in-chief and if they expected to expand on that, they would have to seek leave specifically as to - and whether that leave would be granted - to ask any other questions in evidence-in-chief. So it would only really be the cross-examination and re-examination I would be expecting on the day. And we would factor in some time for your response after seeing what the full terms of the application for intervention are from Mr Lyons and you, Mr Syme.

PN80

MR SYME: Yes, Commissioner. So what you're saying is that the evidence would be provided at that day that you're looking to set down - - -

PN81

THE COMMISSIONER: Well, what I'm saying is that directions would be set so that the submissions and any authorities that are being relied on and any evidence would be provided, as Mr Roberts has set out in sworn witness statements, so that both - and then directions would also be set so that anything in response that wished to be provided by the Co-operative or the AWU - so that prior to the matter being set down for hearing, both parties have got a full understanding of the application and any response to that.

PN82

MR SYME: Yes, Commissioner. I - - -

PN83

THE COMMISSIONER: So I'd be suggesting that there would be, in terms of the unions' lead, a two week period to allow them to provide their materials to the Commission and then an ample time for you to respond and the matter would be set down for hearing for those particular matters. So there would be a hearing of the intervention application and whether that, in fact, affects the substantive application for certification.

PN84

MR SYME: Yes. I think, Commissioner, we would need at least - if there's substantial issues that are going to take, you know, the majority of a day for all parties, none of which have been raised to date, I think we're going to require at least a couple of weeks after that to seek legal advice, if that's the amount of information that's going to be conveyed. So I'll just put that on - - -

PN85

THE COMMISSIONER: Well, that's - certainly I'd give you the equal time to the - so we're looking at directions and that certainly, Mr Roberts, as you'd know, was the type of adjournment that was provided by SDP Williams in those matters: two weeks and two weeks in response for the other parties. And I suppose it would be a further week, then, for the matter to be set down.

PN86

MR ROBERTS: Yes. We think that's very appropriate, Commissioner.

PN87

THE COMMISSIONER: So Mr Syme - the normal directions as to two weeks, two weeks and then a further week prior to a hearing date. But what I would do is, I won't try and put any of those dates in place now because we'll endeavour to see what courtrooms are available and my associate will endeavour to contact the parties when we have that information to see what we can put in place. If you have any dates round about - it would, I think be - we're looking probably at the week commencing 13 October - towards the end of that week, actually, or the following week, the 20th. So if parties know now that they have any dates that they're unavailable, say, for 15, 16, 17 October or the following week, you might send an email or indicate now as to your unavailability.

PN88

MR TRIPODI: Commissioner, it's Mr Tripodi here.

PN89

THE COMMISSIONER: Yes.

PN90

MR TRIPODI: We would like to request a brief adjournment so that I can have discussions with both Mr Lyons and - before any directions are made - - -

PN91

THE COMMISSIONER: Yes.

PN92

MR TRIPODI: - - - so I can have discussions with Mr Lyons and Mr Syme - because before any directions are made, I just want to discuss the matter with them because we may not require for directions to be made. There are other ways this matter can proceed - - -

PN93

THE COMMISSIONER: Well - - -

PN94

MR TRIPODI: - - - or not proceed. I would like to just have a brief amount of time just to discuss the matter with them.

PN95

THE COMMISSIONER: Yes. Well, certainly I'm not going to stop any conciliation or, as you say, consultation that may be available to the parties. So what we might do in the next two days - Mr Syme, Mr Lyons, you'd be obviously open to those discussions?

PN96

MR SYME: Commissioner, I'd be open to those discussions, certainly. One thing I'm interested in is perhaps comment from you on just the process. I mean - - -

PN97

THE COMMISSIONER: Well, what I was going to say is that it will probably take us two days to consult the parties and to find courtrooms, so perhaps whilst we're putting these - if, in fact, those discussions were to fail - but those discussions can occur over the next two days, Mr Tripodi, while we're putting these directions in place so that no time is lost with the expeditious handling of the matter whilst those discussions are occurring.

PN98

MR TRIPODI: That's fine, Commissioner.

PN99

THE COMMISSIONER: Mr Syme, does that meet your requirements?

PN100

MR SYME: That's fine, Commissioner. I'm just interested in your comment on the fact that this agreement's being voted on following the statutory review period of the 14 days.

PN101

THE COMMISSIONER: Well, I don't intend to - I don't have any information before me that would allow me to comment.

PN102

MR LYONS: Commissioner, Mr Lyons from the Australian Workers Union. I know you don't have anything before you, but, I mean, you're now indicating that any unions who aren't party to agreements just can turn up at will, cause havoc and, you know, - - -

PN103

THE COMMISSIONER: Well, no - what I'm trying to do is follow the due procedure that's followed to hear the application for intervention, and I don't expect you or Mr Syme to have to respond to submissions on the run. So what will be heard is that you will be fully appraised in written documentation.

PN104

MR LYONS: Commissioner, I put to the other unions: do they want to be party to this agreement? Is that their problem?

PN105

THE COMMISSIONER: Well, perhaps, as Mr Tripodi has volunteered - or initiated - discussions, perhaps it might be incumbent on the AMWU and the ETU to have similar - - -

PN106

MR LYONS: Commissioner, I would like their answer now on transcript. Do they - - -

PN107

THE COMMISSIONER: Well, that's what I'm asking them, Mr Lyons. I'm putting to them whether they wish to have similar discussions on any basis in relation to the certification of this agreement or being involved in it. Mr Morrison, do you wish to have discussions?

PN108

MR MORRISON: Well, we come back to the original question then: is it - the agreement itself is not a valid agreement under the Act. That will be part of our argument.

PN109

THE COMMISSIONER: I understand that, and that is a matter that will be processed before the Commission. What Mr Lyons is raising is that is there - he's trying to identify your difficulties and whether you are wishing to have some discussions with the AWU or with the Co-operative to resolve this particular matter prior to this formalised process before the Commission going forward.

PN110

MS MIFSUD: Commissioner, as far as the CEPU is concerned, we're open to any and all discussions to resolve the matter.

PN111

THE COMMISSIONER: All right.

PN112

MR MORRISON: And similarly with us, the AMWU, Commissioner. We will not have a problem sitting down and having genuine discussions with the company if that's what we will be having.

PN113

THE COMMISSIONER: All right.

PN114

MR ROBERTS: Tom Roberts, Commissioner.

PN115

THE COMMISSIONER: Yes.

PN116

MR ROBERTS: We're in the same boat. We're open to discussions with all the parties for this and those discussions should take place as soon as possible and - as should the programming of the hearing of the matter.

PN117

THE COMMISSIONER: All right. Well, I don't know if that's answered your specific question - - -

PN118

MR LYONS: It hasn't answered the question, but that's the evasive tactics I would expect of the other unions - but anyway.

PN119

THE COMMISSIONER: All right. Well - - -

PN120

MR LYONS: Put it this way: I don't wish to have - the AWU doesn't particularly wish to have discussions with those three unions unless they want to be party to this agreement. It's as simple - - -

PN121

MR TRIPODI: I mean, I would imagine we'd cover, you know, a range of issues with the other unions, one of which is that which Mr Lyons has raised.

PN122

THE COMMISSIONER: Well, Mr Syme, it's your application. Are you in a position to convene those discussions, and would two days - after those discussions - and would two days be long enough to undertake those?

PN123

MR SYME: I'm not sure, Commissioner, to be quite honest. I find it astounding that none of these objections were raised during the statutory review period, and we come to the situation today where we're ready to certify an agreement and finally we find all these parties not party to the agreement who are intervening. I mean, if we'd known during the review period of 14 days, perhaps we could have avoided all this delay and intervention.

PN124

THE COMMISSIONER: Certainly.

PN125

MR SYME: I don't - and that's - I would have expected the parties seeking to intervene would have had to do so during that period. Now, I could be wrong, and I haven't got advice on it. I'm just speaking from an unprepared position, but I find it amazing - - -

PN126

THE COMMISSIONER: Well, I'm not asking you to respond because - for that exact reason: that I don't think that the parties have been asked to fully make out their application for intervention today, and Mr Roberts has certainly foreshadowed the basis of his intervention. But perhaps it would be incumbent on those parties seeking to intervene to have those discussions with Mr Syme and they can occur in tandem with the directions.

PN127

But, as I say, we won't set the directions down for at least two days, so those matters will be considered as to the basis of the applications for intervention and the validity of those as to what the reasoning is and what steps the parties have taken to overcome any difficulties that they have with the situation that has arisen. That's only part of the assessment of an application for intervention, obviously. There's also the matters that - as Mr Roberts has foreshadowed. But Mr Morrison, Mr Roberts, Mr Tripodi and Ms Mifsud, you will - I'm sorry, Mr Tripodi. You're not involved in that. You will initiate those discussions with Mr Syme?

PN128

MR ROBERTS: Certainly, Commissioner.

PN129

MR MORRISON: Yes, Commissioner.

PN130

THE COMMISSIONER: All right. Well, I'll set the directions after a period of two days, and I'll expect - so that Mr Lyons and Mr Syme have a full picture of the difficulties that the unions have with this particular document in terms of the overall manner in which the agreement has been struck and any technicalities, and so the Commission is aware as well, and full evidence in sworn statements to be provided. If there are any developments that occur along the way that may resolve these particular issues, then I will expect the parties to notify my office.

PN131

MR SYME: Yes, Commissioner. Commissioner, I'd just put on the record that the Co-operative has entered into this in good faith, and we will continue to apply the agreement until some Tribunal or other legal process do so - just so that Mr Tripodi and Mr Lyons are clear that their members - that those who have agreed to this in good faith will continue to be paid accordingly.

PN132

THE COMMISSIONER: All right. Well, the record would reflect that. And as I said, at this point we'll adjourn on the basis of the directions and if there is any developments - whether any party is seeking to withdraw from this matter, then you will advise and my associate will contact you as to the directions that will be set and the hearing dates. All right? Anything further at this stage?

PN133

MS MIFSUD: No, Commissioner.

PN134

MR SYME: No. Thank you.

PN135

THE COMMISSIONER: All right. We'll adjourn. Thank you.

ADJOURNED INDEFINITELY [11.00am]