C2003/660, Transcript of Proceedings [2003] AIRCTrans 416 (7 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT10174

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2003/660
C2003/661

RESTRICTIONS IN TORT

Applications under section 166A of the Act
by Skilled Engineering Limited re action
against Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia in relation
to industrial action at the Pilkington Geelong
North site and the Godfrey Hirst Geelong South
site

MELBOURNE

9.05 AM, FRIDAY, 24 JANUARY 2003

Continued from 21.01.03

PN161

THE COMMISSIONER: Yes, Mr Burchardt?

PN162

MR BURCHARDT: Good morning, Commissioner. We did file some shortened submissions which I hope have been forwarded to you.

PN163

THE COMMISSIONER: Yes, perhaps if you formally tender those.

PN164

MR BURCHARDT: I will tender those now, if that is convenient, Commissioner.

EXHIBIT #A10 SHORTENED SUBMISSIONS OF MR BURCHARDT

PN165

THE COMMISSIONER: Thanks, and then Mr Borenstein can tender his in due course.

PN166

MR BURCHARDT: Yes. Commissioner, might I say that we are not sort of fanatical about this aspect of the matter.

PN167

THE COMMISSIONER: Yes.

PN168

MR BURCHARDT: Indeed, we are never fanatical. But it - - -

PN169

THE COMMISSIONER: And Mr Borenstein is not either so - - -

PN170

MR BURCHARDT: And he is essence of reasonableness also, Commissioner. It is really just a matter of what would be the appropriate course given the structure of the Act with this unusual provision in 166A(7) which, as it were, deems the matter to have been resuscitated in certain circumstances. Now, really the submissions we put in in writing, while short, do say most of what we would wish to say and, in the light of the submissions filed by the union, I would just make a couple of points if I may.

PN171

Firstly, the Commission will note, and it is not a matter I intend to make great moment of, but it is a fact that the underlying dispute that gave rise to the matter has not yet been resolved. Secondly, you will have noted from the materials that the two agreements which I notice were exempted from industrial action themselves expired within about a couple of months. Now, that just makes the point that it is not as if everything has been concluded between the parties.

PN172

Next, although in this instance the issue of serving the union again should that be required, and I am really referring to paragraph 5 of our submissions here, Commissioner - - -

PN173

THE COMMISSIONER: Yes.

PN174

MR BURCHARDT: The necessity for further service doesn't in this case provide any major forensic difficulties because we would only have to serve the union, but imagine if you a will a very common, unfortunately common situation where either union officials, individuals or individual members have been served, it makes a mockery of the kind of speedy process that this certificate process involves with its 72 hour limit if you have got to go back and play catch as catch can with people who seek to evade service in the event that industrial action stops, but then starts again in the manner posited by 166A(7).

PN175

In other words, imagine if you will that, say, and I emphasise I am not talking about this particular case, but imagine if you have got 10 or 20 people who you have served and you have got your application in for a certificate, they stop for a day, they then start again and say, "No, you have got to spend another two or three days trying to serve us all." It doesn't really make sense. In paragraph 7 we did make a submission about the ordinary order that would be appropriate, and I note that the other side has said it is inappropriate to set a precedence. All I would say there, Commissioner, is we are not asking you to make some sort of universal rule, it is just a general proposition we put.

PN176

Could I say finally, Commissioner, there is nothing in the legislation about what happens when the industrial action stops within 72 hours. There is no prescriptive the Commission must decline to issue a certificate, the Commission must dismiss that. There is only the prescriptive you must issue the certificate if it hasn't stopped. You have all the powers under section 111 ordinarily open to you which include the one we are seeking that you exercise. Secondly, the submission that in some way adjournments will clog the system, in my respectful submission, is misconceived.

PN177

THE COMMISSIONER: Well, I am most grateful to Mr Borenstein for being so concerned with the processes and the burdens placed on the Commission, Mr Burchardt.

PN178

MR BURCHARDT: Yes. That is just what I was going to say. Thank you, Commissioner. And finally, sir, we accept that the Commission will not in these circumstances issue a certificate and that is really what the bulk of their submissions are about. We start from that premise.

PN179

THE COMMISSIONER: Well, what you are saying to me is that at this stage you are not seeking the issue of a certificate.

PN180

MR BURCHARDT: Precisely, but - - -

PN181

THE COMMISSIONER: No evidence has been adduced to me of a formal nature. I have submissions but there is no evidence before me of a sworn nature, I think I am right in saying, as to the status of the dispute. What you are saying to me is, you are not pressing the issue of a certificate at this stage, but you would like the matter adjourned indefinitely in the event that a situation arises where you do wish to press for the issue of a certificate.

PN182

MR BURCHARDT: Yes, and in - - -

PN183

THE COMMISSIONER: And I think you accept, Mr Burchardt, do you not, that if that were to happen the Commission, however constituted, in dealing with that matter would have to look objectively at what the situation was; was this the original matter or was this a new matter?

PN184

MR BURCHARDT: Of course, I accept that.

PN185

THE COMMISSIONER: Yes. And it would be open to the Commission to conclude that, in fact, what was before it was a new matter. You would wear the risk then that - - -

PN186

MR BURCHARDT: That you hadn't served - yes, of course you would, yes.

PN187

THE COMMISSIONER: Yes, that is right, yes, yes.

PN188

MR BURCHARDT: Yes, I accept that.

PN189

THE COMMISSIONER: And the situation is also that this doesn't hang over the head of any named individual, it hangs solely over the head of the union as an organisation because it is the only party which has been a named respondent to the proceedings.

PN190

MR BURCHARDT: Precisely.

PN191

THE COMMISSIONER: So no individual would need to lose sleep overnight at the prospect of tortious proceedings.

PN192

MR BURCHARDT: That is right, Commissioner. So that is really what we would wish to put.

PN193

THE COMMISSIONER: Yes. Thank you very much, Mr Burchardt. Yes, Mr Borenstein.

PN194

MR BORENSTEIN: Thank you, Commissioner. I seek to tender the submissions that were filed last - - -

PN195

THE COMMISSIONER: Yes, thanks. And you had not tendered anything before so I can mark that R1, Mr Borenstein. Thank you.

PN196

MR BORENSTEIN: No, I haven't.

EXHIBIT #R1 SUBMISSIONS OF MR BORENSTEIN

PN197

MR BORENSTEIN: The submissions that we make basically detail all that I really want to say.

PN198

THE COMMISSIONER: Yes.

PN199

MR BORENSTEIN: Section - we say the scheme of the Act doesn't - is not there so that a notice, filed by the applicant to the Commission seeking a certificate, can just be adjourned indefinitely. There is no date on which it will be brought back on, and the scheme of the Act certainly doesn't provide for that expressly.

PN200

THE COMMISSIONER: It doesn't preclude it either, does it?

PN201

MR BORENSTEIN: It doesn't preclude it, but we would say that to give the section the proper operation where it seems to talk in respect to the Commission hearing these things quite promptly and either making a decision quite promptly within the 72 hours or just after the 72 hours. In respect of subsection (7) we would say, as I understand it, that is dealing with a situation where someone may file the notice and within that 72 hours stops the conduct in the notice, and then maybe for an hour or so, and then starts a new piece of industrial - or a new piece of conduct and, therefore, it comes around the certificate. And that is not what has happened here.

PN202

THE COMMISSIONER: Yes. But you have heard what I have said to Mr Burchardt; of course, if the matter came up again before me or another Commissioner, it would be a matter for submission then whether this was the former conduct or a new conduct, in which case a new 166A application. I mean, that is the risk that the applicant takes in pressing what it presses that it may come before the Commission and find trying to revitalise the current 166A and gets told by the Commission that, in fact, they have got to go back and start again.

PN203

MR BORENSTEIN: Yes.

PN204

THE COMMISSIONER: So there is a risk for the applicant.

PN205

MR BORENSTEIN: That is correct.

PN206

THE COMMISSIONER: But I am sure they understand that and they are prepared to wear that risk. The union in this matter would be protected by the need for the Commission to consider that at any future time.

PN207

MR BORENSTEIN: That question, that threshold question.

PN208

THE COMMISSIONER: Yes, yes.

PN209

MR BORENSTEIN: That is correct. It is an argument that we would prefer not to have.

PN210

THE COMMISSIONER: Sure.

PN211

MR BORENSTEIN: And to have it of such an indefinite nature, even though there is that threshold question, we would say that, you know, it is not the way that the section was intended to operate. It is sort of similar to the situation where in the CSIRO case which was an application for certificate, an application was made before the vote was taken and, even though the vote was passed, the Commission came to the conclusion that, well, we don't want people applying for certification of agreements where the vote hasn't finished.

PN212

THE COMMISSIONER: Yes.

PN213

MR BORENSTEIN: And the operation of this, we would say, is that when you file a notice, the Commission acts promptly, it has tests that it applies, and it has section 166A(7) to get around technical actions by the respondents to these actions. In this case, given there has been an indulgence of three further days since the hearing, nothing has happened, we have acted in good faith and we submit that we should be rewarded for that.

PN214

THE COMMISSIONER: Yes. Anything further, Mr Borenstein?

PN215

MR BORENSTEIN: No.

PN216

THE COMMISSIONER: Mr Burchardt, is there - would your client be prepared to consider placing an outer limit on this perhaps to 28 February?

PN217

MR BURCHARDT: Could I get some instructions?

PN218

THE COMMISSIONER: Yes, sure.

PN219

MR BURCHARDT: Thank you for the time, Commissioner. I am instructed to seek the order in the terms that we posited.

PN220

THE COMMISSIONER. Yes. Good. Thanks very much. I was looking for some room for compromise, Mr Borenstein. Thanks very much. Gentlemen, thank you very much for your submissions. I think it is very good that progress has actually been made in this matter this week, and I am reluctant to leave the respondent union feeling aggrieved that the matter hangs over its head. But I note that (a) it is only the union, it is no named official, it is no member of the union who is a respondent, it is solely the union as an organisation which is the respondent in the matter. And, therefore, I think no individual is going to lose sleep overnight wondering whether they, as a named individual, are going to be the subject of proceedings in tort.

PN221

I note that the applicant would face a real obstacle in seeking to revitalise the matter before the Commission because it would have to show that it was a continuation of the original conduct rather than fresh conduct but, in all the circumstances and taking into account the submissions of Mr Burchardt and Mr Borenstein, I am prepared to grant the application of the applicant for the matter to be adjourned sine die, and I do so. But what I ask, because to be frank, it is a thorough nuisance having files sitting around a Commissioner's chambers for months and months and months when they actually have no future life in them, so I do ask, Mr Burchardt, that as soon as your client is satisfied that the conduct isn't continuing that it actually withdraw the application by contacting my associate and we can then notify the union.

PN222

MR BURCHARDT: Yes. Mr Fitzgerald is here and has heard what you say, Commissioner, and I will pass it - I will discuss that with him in an appropriate scene.

PN223

THE COMMISSIONER: Yes, yes. It may not seem an inconvenience to others, but Mr Borenstein has properly raised a matter which is of concern to Commissioners, and that is that they not end up with thousands of files that have no life in them, but they just don't really know what to do with them because no-one can be bothered contacting us and telling us that the matter is dead.

PN224

MR BURCHARDT: I am sure my client will treat the matter with an appropriate courtesy.

PN225

THE COMMISSIONER: Yes, all right. Thank you very much, yes, and I now adjourn sine die.

ADJOURNED INDEFINITELY [9.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A10 SHORTENED SUBMISSIONS OF MR BURCHARDT PN165
EXHIBIT #R1 SUBMISSIONS OF MR BORENSTEIN PN197