C2003/2457, Transcript of Proceedings [2003] AIRCTrans 4626 (16 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/2457

FINANCE SECTION UNION OF AUSTRALIA

and

GIO AUSTRALIA LIMITED AND ANOTHER

Application under Section 170LW of the Act
for settlement of dispute re dispute/grievance
resolution procedure

SYDNEY

3.40 PM, WEDNESDAY, 1 OCTOBER 2003

Continued from 19.9.03

PN674

THE VICE PRESIDENT: I note the appearance of MR S. PENNING for the FSU with MS D. HANNAN and the two work place representatives, MR A. BEVAN and MS HUTCHINSON. Appearances for Suncorp?

PN675

MS H. DAVIS: I appear for Suncorp, your Honour.

PN676

THE VICE PRESIDENT: Now as I understand it the parties are unable to agree about what ought happen in relation to the hearing dates in this matter. I understand Ms Davis that your counsel, Mr Herbert is unavailable on the dates that were provisionally set aside. Ms Hannan I understand that your legal representatives are available on those dates and that you press for those dates to remain.

PN677

MS HANNAN: Your Honour, Mr Herbert is unavailable on those dates that were set at the last conciliation conference but there's also been a further development in the sense that the further conciliation conference before Commissioner Smith has had to be re-scheduled as well and will now not take place until 6 November, which tends to, well it makes the earlier directions, I submit, obsolete.

PN678

THE VICE PRESIDENT: I don't know that it makes them obsolete, Ms Davis but it means that the parties may be put to unnecessary expense in following a timetable for the preparation of a hearing when the matter might settle on 6 November.

PN679

MS HANNAN: That's exactly right, or that some issues may be resolved, your Honour, on 6 November and some left open and preparing - - -

PN680

THE VICE PRESIDENT: Okay, can I just check to confirm that Mr Penning is there?

PN681

MR PENNING: Yes I am, your Honour.

PN682

THE VICE PRESIDENT: Yes. Mr Penning, do you press for the retention of these hearing dates or are you prepared to accommodate a change of dates so that the convenience of the legal representatives can be accommodated.

PN683

MR PENNING: Your Honour, we're not seeking to press some form of unfair advantage. If Mr Herbert had been briefed in this matter and was not available, that's unfortunate. That wasn't identified previously but nevertheless our principal concern is that we don't have undue delay in the matter, so we have proposed alternate dates which we understood were mutually available to Mr Herbert and we understood, to your Honour - - -

PN684

MS HANNAN: Which is the 21 - - -

PN685

MR PENNING: The dates that we proposed to begin with were 21 and 26 November.

PN686

MS HANNAN: And those dates were agreed.

PN687

MR PENNING: And we understood those dates were agreed.

PN688

THE VICE PRESIDENT: Are those dates suitable, Ms Davis?

PN689

MS HANNAN: I understand they are still suitable, your Honour but I just come back to my earlier issue raised in relation to the previous directions and the fact that conciliation will now not be completed until 6 November. It just raises some concern about less than three weeks, two weeks of preparation of material by both parties.

PN690

THE VICE PRESIDENT: Well, - - -

PN691

MR PENNING: Your Honour we would still propose that the preparation of material go ahead. We don't see that that would disadvantage the conciliation, if anything the position we put previously and we re-submit would apply here is that that will assist to focus the parties attention and will help better define the issues. The great concern we would have would be that if no preparation began until after 6 November that we would not get a hearing this year and then we'd be going over to January or February some time next year which would be completely, we would think, unacceptable to all and not advantageous to all parties and certainly disadvantageous to all the employees who are affected by this matter.

PN692

THE VICE PRESIDENT: Yes. Ms Davis I must say, whilst I'm more than supportive of the attempts to settle this matter by conciliation and have prevailed upon Commissioner Smith to make his time available to that end, I don't see any particular reason why we should postpone preparation of the hearing simply because the next available date for conciliation is 6 November. The two things can happen in tandem, can they not?

PN693

MS HANNAN: Well, your Honour, with respect as you made the comment before, it will put the parties to considerable expense in terms of preparation on matters that may not even end up going to arbitration. The ordinary process of matters as I understand them would be that you would exhaust all efforts at conciliation before actually having to comply with submitting affidavit evidence and the like.

PN694

THE VICE PRESIDENT: Is there any reason, Mr Penning, why Suncorp shouldn't have until, say, a week after 6 November to put on its first set of material?

PN695

MR PENNING: So, some amendment to the timetable your Honour?

PN696

THE VICE PRESIDENT: Yes.

PN697

MR PENNING: Well, that's right. In the first instance, the onus and the cost is on us.

PN698

THE VICE PRESIDENT: Yes.

PN699

MR PENNING: Because even on the current directions, we're to file our material first by 24 November - - -

PN700

MS HANNAN: 24 October.

PN701

MR PENNING: 24 October. Possibly that could be re-scheduled slightly and possibly the Suncorp evidence could be put back a week. Yes. They're currently to file their evidence by 7 November.

PN702

THE VICE PRESIDENT: Yes.

PN703

MR PENNING: We wouldn't see a major disadvantage in that provided that timetable is complied with.

PN704

THE VICE PRESIDENT: Yes and I understand that. Well, I mean, we cross those bridges when we come to it but any party that doesn't comply with directions exposes itself to a range of sanctions which would include some way up the line not being permitted to rely upon material that hasn't been filed in accordance with directions. I don't think we need to worry about non-compliance at the moment. Well, Ms Davis, what I'm disposed to do is to adjust the directions and timetable so that you don't have to put on any material until the week after the conciliation on 6 November.

PN705

MS HANNAN: Your Honour, if I may, we earlier indicated that we would require at least three days, possibly four days, for the hearing. If we were to settle on the basis that it was three days - - -

PN706

THE VICE PRESIDENT: No, I understand that and what I propose to do is to list additional days at the moment, but at the moment Ms Davis, you are in the position of seeking the indulgence of a variation to what's presently been set in terms of directions. I'm disposed to grant that but I'm very reluctant to adjourn this matter into next year and indeed, I'm not prepared to do so - - -

PN707

MS HANNAN: Okay, your Honour, so if the matter isn't - - -

PN708

THE VICE PRESIDENT: But I'm seeking to accommodate your concern in relation to not incurring unnecessary expense by adjusting the timetable so that you have a week after 6 November to put material together, which ought go some way towards limiting expense.

PN709

MS HANNAN: So would that be the 13th?

PN710

THE VICE PRESIDENT: That would make it the 14th. Friday, 14 November.

PN711

MS HANNAN: Okay and could we have the additional one week on the 24th?

PN712

THE VICE PRESIDENT: Yes. So Friday, 31 October for the Union; 14 November for Suncorp; and Thursday, 20 November for the reply material.

PN713

MR PENNING: Yes, your Honour.

PN714

MS HANNAN: Good.

PN715

THE VICE PRESIDENT: And then the hearing dates of, and I'll vacate the present hearing dates. Now, there's some suggestion that the 20th might be a suitable date.

PN716

MR PENNING: I think we proposed the 21st, your Honour, as being a common date.

PN717

THE VICE PRESIDENT: And the 26th.

PN718

MS HANNAN: Correct.

PN719

MR PENNING: 21st and the 26th, yes.

PN720

THE VICE PRESIDENT: Right, now what about dates after that? What's Mr Herbert's availability, Ms Davis?

PN721

MS DAVIS: It is somewhat limited, your Honour. If you can just bear with me I'll just check that. He would be available after 11 December.

PN722

THE VICE PRESIDENT: Okay, well what I'll do is list the matter at the moment for the 21st and 26th and for 12 and 15 December. 21 and 26 November and 12 and 15 December. That provides the four days. Obviously if it can be finalised in a shorter time, so much the better, and as I understand it the parties are not a long way apart in terms of where the conciliation had reached.

PN723

MS DAVIS: No - - -

PN724

MR PENNING: Your Honour, I'm certainly fine and available for 12 December. I've got another matter on Monday the 15th, which I'd have difficulty changing. Is there another - - -

PN725

THE VICE PRESIDENT: The 16th?

PN726

MR PENNING: - - - day that's available that week?

PN727

THE VICE PRESIDENT: The 16th?

PN728

MR PENNING: Yes, I'm fine for the 16th.

PN729

THE VICE PRESIDENT: Is Mr Herbert available on the 16th?

PN730

MS DAVIS: Yes, I believe so, your Honour.

PN731

THE VICE PRESIDENT: And what about the 17th? Is he available on the 17th?

PN732

MS DAVIS: I understand that he is.

PN733

THE VICE PRESIDENT: You, Mr Penning on the 17th?

PN734

MR PENNING: Yes, both your Honour.

PN735

THE VICE PRESIDENT: Well, let's make it, forget about 12 and 15 December and make it 16 and 17 December. I think consecutive days is desirable.

PN736

MR PENNING: Yes, thank you your Honour.

PN737

THE VICE PRESIDENT: Okay, fine well I - - -

PN738

MS DAVIS: That is appreciated, your Honour.

PN739

MR PENNING: Yes, thank you your Honour.

PN740

THE VICE PRESIDENT: Fine, well I'll vacate the directions made on 19 December and instead direct that:

PN741

1. On or before 4 p.m. on Friday, 31 October 2003 the applicant is to file and serve an outline of submissions and any witness statements it intends to rely upon.

PN742

2. At or before 4 p.m. on Friday, 14 November 2003 the respondent is to file and serve an outline of submissions, any witness statements it intends to rely upon.

PN743

3. On or before 4 p.m. on Friday, 20 November 2003, the applicant is to file and serve an outline of submissions in reply and any witness statements in reply it intends to rely upon. The matter is listed for hearing on 21 and 26 November and 16 and 17 December 2003.

PN744

Anything further required from you Mr Penning?

PN745

MR PENNING: Your Honour, not in respect of the arbitration. There is an issue that I wish to raise in respect of the conciliation.

PN746

THE VICE PRESIDENT: Well, I think that ought to be done with Commissioner Smith ought it not?

PN747

MS HANNAN: Just in response to his Honour's observation about how far the parties were apart, we're still expecting a reply position from Suncorp.

PN748

MR PENNING: If - - -

PN749

THE VICE PRESIDENT: Okay, well I heard Ms Hannan there. Ms Davis, you presumably heard that as well. Is there a reply position coming?

PN750

MS DAVIS: It certainly is, your Honour. There's been a number of illnesses and absences both at Suncorp and McCullough Robinson that has meant that's been unfortunately delayed but it is certainly in train.

PN751

THE VICE PRESIDENT: Okay. Any expectation as to when it will be available?

PN752

MS DAVIS: I hope it will be next week. I'm just waiting for one person to come back from leave, from Suncorp who'll be back next week.

PN753

MR PENNING: That was previously to be forwarded by Monday, 22 September. Yes, but given that Commissioner Smith's not available until 6 November, there's no question of an inability of the union to deal with the material, is there?

PN754

MS DAVIS: Well, we're comforted by your Honour's observations that we expect the matter next week so we can circulate it with the affected members, your Honour.

PN755

MS HANNAN: Thank you.

PN756

THE VICE PRESIDENT: Yes. Okay. Fine. Anything you wanted to put on the record, Ms Davis?

PN757

MS DAVIS: Nothing further, thank you your Honour.

PN758

THE VICE PRESIDENT: Fine. Well, then the matter's adjourned to 21 November 2003 and formal amended directions will be issued and sent to the parties. The matter is now adjourned.

PN759

MS DAVIS: Thank you, your Honour.

PN760

MR PENNING: Thank you, your Honour.

PN761

MS HANNAN: Thank you, your Honour.

ADJOURNED UNTIL 21 NOVEMBER 2003 [4.00pm]