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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 5145
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LACY
C2003/6035
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by The Australian Workers' Union for an order
to stop or prevent industrial action
MELBOURNE
3.35 PM, TUESDAY, 28 OCTOBER 2003
Continued from 27.10.03
PN91
THE SENIOR DEPUTY PRESIDENT: Is there any change in appearances?
PN92
MR M. RINALDI: Yes. I understand leave was granted to my colleague, Mr Angelopoulos, yesterday who I understand indicated to the Commission that he wouldn't be available today.
PN93
THE SENIOR DEPUTY PRESIDENT: Yes.
PN94
MR RINALDI: I have been briefed overnight in relation to the matter and I to the extent necessary seek leave to appear in my own right today.
PN95
THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Rinaldi.
PN96
MR RINALDI: Thank you, your Honour.
PN97
THE SENIOR DEPUTY PRESIDENT: What was the hold-up this afternoon?
PN98
MR RINALDI: From our point of view, your Honour, I am instructed we received a telephone call from my learned friend's instructors this afternoon because an AWU official couldn't be here until 3.30, a fax and we faxed back and would we consent to an adjournment to 3.30 and my instructor faxed back saying, yes, if the Commission agreed to such an adjournment and we didn't hear anything further, which is why we attended at 3.30:
PN99
Please advise as to the Commission's position. We received no advice.
PN100
We assumed in the lack of being told otherwise that 3.30 was all right. That is our position.
PN101
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Rinaldi. Ms O'Neill, what is the situation? Somebody I think from your instructing solicitor's office called to seek an adjournment to 3.30 and I think they were told that if you could get consent from the other side, that would be granted, but there was no further communication with my office.
PN102
MS O'NEILL: Yes, your Honour, and I am at the heart of this situation in that I requested that an approach be made to your chambers to request a delay in start in the hearing as I was before another member of the Commission in proceedings. At 1.03 pm, the fax was sent from our office to the solicitors for the respondent requesting consent to an adjournment to 3.30 pm and as at three pm at least, your Honour, we are not aware of any response to that, so we had nothing to inform your Honour of in relation to consent to the adjournment.
PN103
THE SENIOR DEPUTY PRESIDENT: All right. Well, look, in future parties ought to be clear with each other about the situation regarding adjournments because perhaps apart from disrupting the lives of the other counsel and the other members that are involved in it, it also disrupts the arrangements for Court reporting and other people that are associated with the conduct of the hearing, as well that parties ensure that there is clear definition of what you are doing in these sorts of circumstances. First of all, Mr Rinaldi, Mr Angelopoulos yesterday gave some indication of some jurisdictional objection.
PN104
MR RINALDI: Yes, and not being here, I am not quite sure. I haven't seen the transcript. In fact, I think I was on a plane back from Perth while that was happening, but certainly I would like to address the Commission in relation to questions or jurisdiction and my understanding from Mr Angelopoulos is that the Commission indicated it would be minded to hear those submissions today and depending on the outcome of the determination or consideration of those matters, the matter may proceed to the substance of a section 127 application.
PN105
THE SENIOR DEPUTY PRESIDENT: Well, are they purely arguments of law, or is there evidence required?
PN106
MR RINALDI: Your Honour, I think it is fair to say that they are purely arguments of law. I don't anticipate there being any need for evidence in relation to them. One issue, which I think has been flagged by Mr Angelopoulos, that there is no industrial dispute as there is no industrial dispute relating to the relationship between the employer and employees, this being a matter concerning one employee only. To the extent that Mr Lee's proposed witness statement and I am not quite sure of the status of that at the moment, I think a copy was handed to Mr Angelopoulos yesterday in the hearing - I don't know whether the Commission has a copy.
PN107
THE SENIOR DEPUTY PRESIDENT: Yes. I can indicate, in fact, that it did arrive in my chambers today and had been sent to Commissioner Harrison in Sydney. I should indicate that Senior Deputy President Harrison is the acting panel head at the moment. Perhaps it went to Commissioner Harrison in error for Senior Deputy President Harrison.
PN108
MR RINALDI: There is in that affidavit a reference to concern of other employees, so to the extent that there is an attempt to broaden, if you like, the matters from a single employee to other employees, evidence might become relevant later. There is obviously no evidence before the Commission as such at the moment, even though that draft witness statement has been forwarded to the Commission, so subject to that matter, your Honour, as I apprehend it at the moment, there are no questions of fact or evidence that will impact on the threshold submissions that I wish to make.
PN109
THE SENIOR DEPUTY PRESIDENT: So it only goes to the one issue of there being no industrial dispute as between employers and employees?
PN110
MR RINALDI: No, your Honour, that is one of the issues. That is the only one that I think might potentially lead to a requirement for some evidence.
PN111
THE SENIOR DEPUTY PRESIDENT: I see.
PN112
MR RINALDI: Although in my respectful submission, it wouldn't in the context of the Act and I will seek to address you in relation to that.
PN113
THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps I will just clarify with Ms O'Neill first of all. Ms O'Neill, does the reference in the affidavit seek to expand the ambit of the dispute to other employees or is that simply a reference to other people being upset, in sympathy if you like?
PN114
MS O'NEILL: I am sorry?
PN115
THE SENIOR DEPUTY PRESIDENT: People being upset in sympathy with the situation.
PN116
MS O'NEILL: Indeed. I am just a little uncertain, your Honour, in that I hadn't understood that the witness statement of Terence Lee dated 27 October 2003 had been provided to the Commission at all at this point.
PN117
THE SENIOR DEPUTY PRESIDENT: I am sorry, I didn't know you were talking about Terence Lee. I thought you were talking about - - -
PN118
MS O'NEILL: Ms Emma Walters.
PN119
THE SENIOR DEPUTY PRESIDENT: Yes.
PN120
MS O'NEILL: Indeed, that is as I understood it, your Honour, so there is - we do propose to call some brief evidence from the AWU organiser involved down at the site with a view to establishing a jurisdictional issue in relation to the existence of an industrial dispute and Mr Lee is present and available to give evidence briefly in relation to that.
PN121
THE SENIOR DEPUTY PRESIDENT: And you have a statement from him. Has that been served?
PN122
MS O'NEILL: Yes, I gave a copy to Mr Angelopoulos yesterday. Briefly, he indicated that he would advise whether they required Mr Lee for cross-examination in relation to that, but we have had no advice on that point, so Mr Lee is here to give that evidence.
PN123
THE SENIOR DEPUTY PRESIDENT: All right. Perhaps I had better hear Mr Lee's evidence, Mr Rinaldi, if that is an issue that is raised by him in his witness statement.
PN124
MR RINALDI: Yes. I suppose I am in the Commission's hands. As I have indicated, we seek to make submissions as to the lack of jurisdiction in our submission under section 127(1) in any way and I will seek to address each of the limbs of section 127(1). They are, as I have said, legal arguments in answer to your Honour's question subject to the potential argument being put against us that there is an industrial dispute notwithstanding that the direct matter before the Commission only involves one employee.
PN125
To that extent, Mr Lee's evidence may be relevant and the reason I say I am in the Commission's hands is it is a question perhaps for the Commission as to the approach it wishes to adopt, as to whether it is more beneficial to hear the arguments first and then go to that evidence if required or whether it wishes to hear that evidence first which I assume would then involve cross-examination and then go to the arguments.
PN126
THE SENIOR DEPUTY PRESIDENT: I think I should hear the evidence first and then you can put the arguments.
PN127
MR RINALDI: Your Honour, might I ask, I believe there was some indication from your Honour yesterday, as I said in my initial remarks, that today we would be dealing with these jurisdictional objections, if I might describe them that way and that if the matter goes further, it would go on again tomorrow.
PN128
THE SENIOR DEPUTY PRESIDENT: Yes.
PN129
MR RINALDI: Did your Honour have a particular time frame for today by which you wish to adjourn?
PN130
THE SENIOR DEPUTY PRESIDENT: Well, I don't have. I mean, I am content to sit to hear the jurisdictional argument to a conclusion of that argument, in any event.
PN131
MR RINALDI: If your Honour pleases. Thank you.
PN132
PN133
MS O'NEILL: Mr Lee, could you please inform the Commission of your full name and occupation and address, please?---Terence John Lee. I am an elected official of the Australian Workers' Union and I reside at 37 Earls Road, Yarragon South.
PN134
Thank you, and have you in consultation with your legal advisers prepared a witness statement in this matter?---Yes, I have.
PN135
Do you have a copy of that witness statement with you?---Yes, I do.
PN136
I will provide a copy to your Honour, and is that a two-page document dated 27 October 2003?---Yes.
PN137
And do you have any corrections or changes to this statement?---I am not so sure on the use of the same equipment that the previous contractor - - -
PN138
Is there a particular paragraph?---Sorry, in paragraph 6.
PN139
And that is in the second line, so shall we delete the words use the same equipment?---Yes.
PN140
Subject to that correction, are the contents of the statement true and correct?---Yes, they are.
PN141
**** TERENCE JOHN LEE XN MS O'NEILL
PN142
MS O'NEILL: Mr Lee, you were at the hearing of this matter in the Commission yesterday and you will recall that at the conclusion of that hearing, his Honour, Senior Deputy President Lacy, proposed that there be some discussions with the company, between the company and the union. Is that the case?---That is the case. I was present and I listened to the directions.
PN143
And have you prepared a subsequent statement arising from yesterday's hearing?---Yes, I have.
PN144
Do you have a copy of that with you?---I left it at my seat there.
PN145
And do you have any corrections to this statement?---No, I have no corrections to that statement.
PN146
Your Honour, I seek to tender that statement.
PN147
MR RINALDI: Your Honour, I have just been given that statement. I haven't yet read it. I wonder if I might have the opportunity to do so?
PN148
THE SENIOR DEPUTY PRESIDENT: Yes.
PN149
MR RINALDI: Well, as ever, your Honour, I am concerned by the attempt to adduce evidence that would appear to be an attempt to unilaterally waver the without prejudice privilege in paragraph 5.
PN150
MS O'NEILL: Your Honour, if it assists, I am happy to not rely on paragraph 5.
**** TERENCE JOHN LEE XN MS O'NEILL
PN151
MR RINALDI: It seems to have been an approach adopted by the applicant in this case in relation to Ms Walter's affidavit as well and it is regrettable in my respectful submission that such matters are placed in affidavits. It may as indeed appears from my understanding of the matter to be correct as a matter of fact, but it ought not to be in the affidavit and I would ask your Honour not to have regard to paragraph 5 and I hear what my friend has said.
PN152
THE SENIOR DEPUTY PRESIDENT: I will ignore paragraph 5.
PN153
MR RINALDI: Subject to that, other than we have been given no notice of this and therefore I can't confirm its contents with Mr Christie, I am not in a position to object to it otherwise.
PN154
PN155
THE SENIOR DEPUTY PRESIDENT: I note that the counsel for the AWU does not seek to rely on paragraph 5.
PN156
MS O'NEILL: Thank you, your Honour, and I take it your Honour has had an opportunity to read both statements.
PN157
THE SENIOR DEPUTY PRESIDENT: I have. Thank you.
**** TERENCE JOHN LEE XN MS O'NEILL
PN158
MS O'NEILL: Mr Lee, taking you to your first statement, your evidence is that the AWU has a concern in relation to Skyway's conduct in not allowing Karen Ester to return to work. Can you just elaborate or give any examples to the Commission of why the AWU has that concern?---The view of the AWU is that this has been through the proper process and right at this moment there is an order of the Commission that Karen Ester ought to be at work and working. We are concerned that if this isn't corrected, then other contractors - or it could be used as an example for other contractors to do the same thing.
PN159
And why would that be of concern to the AWU?---Well, the last thing we want to be doing is running around down at the Longford site when you have got an order of the Commission to try and get people back to work. I mean, it should be the end of the story. They have their right to appeal and that is happening, but in the interim, in this case, in our view it is just not good enough to pay someone and sit them at home because they miss out on being part of that community that is the workplace.
PN160
Do you have a view about how such a precedent could affect other employees, a precedent of an employer paying somebody to be at home rather than at the workplace?---Could you just repeat the question again, sorry?
PN161
Sure. Do you have a view about there being - do you have a view about the possible ramifications of Skyway's conduct in this case of not allowing employees to attend work, but, rather, have them home and paid, any implications beyond Ms Ester?---Well, if I was a worker, working for Skyway's right at the moment, I would be asking myself, well, gee, if I put a foot wrong, are they going to do this to me and that is not a good situation for a workforce to be in and, of course, there are a myriad of other contractors on the site, not so much in the cleaning area, but the word will get out sooner or later with those people.
PN162
I have nothing further, your Honour.
PN163
**** TERENCE JOHN LEE XXN MR RINALDI
PN164
MR RINALDI: Thank you, your Honour.
PN165
Mr Lee, it is within your knowledge, isn't it, that the respondent to this application, namely Skyway Executive Pty Limited, is not bound by the award which I think it called - excuse me while I check - the Building Services Victoria Award 1994?---I heard counsel for the company yesterday say that to the Commission, but that is the extent of my knowledge as to their respondency.
PN166
So you don't know whether they are or they are not?---No, I don't.
PN167
If I suggest to you that they are not a respondent to that award and they are not bound in any other way to that award, you can't disagree with me in relation to that?---No.
PN168
It is also the case, isn't it, that when you say in paragraph 3 of your first statement, AWU1, that Skyway's took over the contract from Tempo, that is not correct, is it?---That is correct.
PN169
Isn't it the case that Tempo's contract was terminated by Esso and a new contract was entered into by Esso with Skyway's?---I don't know whether Tempo's contract was terminated. It is possible, but I can't say definitively.
PN170
And you also can't say definitively that Skyway's took over Tempo's contract, can you, because from what you just said, you do not know?---Maybe in the way I have expressed it, but Tempo were there one day, gone the next and Skyway's were there.
PN171
So you agree with me that you can't positively say to the Commission that Skyway's took over Tempo's contract? You can only say what you have just said, which is that they replaced them in terms of their presence on site. Is that right?---Well, I don't know whether it is the way I expressed it, but they employed the employees, they clean the same area, there are the same number of employees, the same employees.
**** TERENCE JOHN LEE XXN MR RINALDI
PN172
You agree with me, though, that you can't comment on the contractual arrangement, because you don't know?---I don't know, no.
PN173
And you have said today, before this statement was tendered, that you can't in fact say for sure that they use the same equipment as Tempo had used. Is that right?---That is correct.
PN174
How do you know that the Skyway's employees, as you put it in paragraph 6, worked exactly the same hours as worked for Tempo?---Because I am their industrial representative and a reduction or in particular a reduction in hours is something that I would be contacted about. I had a conversation with the employer when they took over these employees, which was Mr Christie, and the hours and so forth were to remain the same.
PN175
You don't know what hours they have actually worked for Skyway's?---Not for each employee, no.
PN176
So how is it that you can say in the first sentence of paragraph 6 that they work exactly the same hours as they worked for Tempo?---Because I was assured by Mr Christie that they were to work those hours and I know certainly in - I know in respect of Karen Ester that her hours never changed.
[4.00pm]
PN177
But you don't know in respect of anyone else, is that right?---That is correct, other than Mr Christie's assurances and he has been true to his word so far and paid the same money in the agreement.
PN178
You say that he said that he would apply the terms of the Tempo agreement. You say that in paragraph 4?---The Tempo certified agreement?
**** TERENCE JOHN LEE XXN MR RINALDI
PN179
Yes?---Yes.
PN180
And you have said a moment ago that he has done that, is that right?---Yes, he has.
PN181
And you also say in paragraph 5 that he treated it as though the Tempo agreement remained in force until its expiry date in June 2003. Is that still your evidence?---Yes.
PN182
When did you have those discussions?---It was very early after Skyway's had been informed that they were to start work or they were to take over from Tempo.
PN183
And when was that?---2001.
PN184
And where was that discussion, or was it more than one discussion?---It was the one discussion with Mr Christie and it was a telephone conversation and as best as I recall, I was in the Morwell office of the Australian Workers' Union and I am not sure where Mr Christie was.
PN185
Yes, and you say that it was on a mobile phone, do you? Is that why you say you don't know where he was?---Yes. Sorry, yes, it was his mobile.
PN186
Did he call you or did you call him?---I phoned Mr Christie.
PN187
Now, are you sure that the comments that you attribute to Mr Christie in paragraphs 4 and 5 were actually made by him?---Yes.
PN188
You couldn't be mistaken in that?---No.
**** TERENCE JOHN LEE XXN MR RINALDI
PN189
I suggest to you you might be mistaken in that?---No.
PN190
And if I could take you to paragraph 6, you state that the employees clean the same facilities. How do you know that? It is in the second sentence?---There are a number of areas that Esso have for years had cleaned by various cleaning contractors and apart from some additions whilst the construction, the reconstruction of the Longford gas plant have been there, they remain constant, the heliport, the control rooms.
PN191
And how do you know - well, I will first of all ask you, you said a number of areas that Esso has for years had cleaned by contractors for them. Are you able to put a time frame on how long they have had that happening?---I have been the organiser responsible for that site for - I am in my 14th year now.
PN192
THE SENIOR DEPUTY PRESIDENT: Fourteenth, did you say?---14th, yes. They have had contract cleaners for all of my time.
PN193
Thank you?---Whilst I didn't represent them for all of that time, I am there with the Esso employees.
PN194
Thank you, and so getting back to the question I asked before that one, I understand your answer to be in the broad sense that a number of areas have been cleaned by contractors for at least those 14 years, but as to your statement in paragraph 6, the second sentence, that those employees cleaned the same facilities, do you have any direct knowledge of what they cleaned?---They do toilets at - if you take the heliport, for example, toilets, floors, benches. There is a cafe bar and so forth for the passengers, they clean that, empty rubbish, same as the operators' control room. There is a lunch room attached to the operator control room, gas plant 3, that gets cleaned.
PN195
Now, what you have indicated I take it is within your knowledge as to what gets cleaned. Is that right? You have seen it being cleaned?---I haven't seen it being cleaned, no.
**** TERENCE JOHN LEE XXN MR RINALDI
PN196
How do you know it gets cleaned, then?---I represent the employees that clean those areas.
PN197
Yes, and how do you know?---In my representation of them, it comes up in discussions. There was - during the Tempo days, there was a reduction in hours and in order for me to represent them, I have had to ask them to describe their duties.
PN198
All right, and since Skyway has been performing this contract with Esso, have you spoken to the Skyway employees about the work they do and the cleaning they do?---Other than Karen Ester, I don't believe I have.
PN199
And you haven't observed the doing their cleaning work?---No. The best time for me to catch up with those employees is prior to work at the guard house.
PN200
So it is the case, isn't it, Mr Lee, that you don't know whether they clean, the current employees of Skyway's clean or cleaned the same facilities as they did when they were employed by Tempo?---I believe they do.
PN201
You believe it, but you can't state it as a fact, can you?---I know that they continue to clean the heliport. I know that they continue to clean the operator control rooms in gas plant 3. I know they clean the office area of the gas plant 2 and 3 workshop.
PN202
How do you know that?---From Karen Ester.
PN203
You said a moment ago that you know what Karen Ester was doing because you have discussed that with her, but you haven't discussed the duties that other employees were doing with those other employees. Is that right?---That is correct.
**** TERENCE JOHN LEE XXN MR RINALDI
PN204
You say in the latter part of the second sentence at paragraph 6 that they perform duties in the same capacity as they had for Tempo. How do you know that?---Because the agreement with the company was for the same conditions of employment in terms of the wages and so forth contained in the agreement were to apply.
PN205
I understand that, but you were making a statement to the Commission in this paragraph about the capacity in which it appears each of the employees has worked when employed by Skyway's being the same as when they worked for Tempo and you don't have that knowledge, do you, so it is not the terms and conditions, it is the capacity?---Well, when I say capacity, I mean those who were permanent part-timers when this company took over the employees stated at that. Theirs hours were the same, they were paid the same.
PN206
How do you know that?---Because I have the company's assurances back at the change of the employer.
PN207
I understand. I just want to understand the way you put it, so everything you have asserted in relation to paragraphs 4, 5 and 6 is based on the statements in paragraph 4 and 5 that you say Mr Christie made. Is that right?---And my own knowledge.
PN208
And your own knowledge comes from the statement that Mr Christie made to you and your belief that he would fulfil that statement? Is that right?---No, no, not only the conversation with Christie.
PN209
All right, apart from that, also a conversation with Karen Ester?---Karen Ester.
PN210
About her work?---And work of others. I mean, this has been a fairly significant case in the Commission and there has been lots of discussions.
**** TERENCE JOHN LEE XXN MR RINALDI
PN211
Conversations with any other employees or just with Karen about those employees?---Predominantly Karen about the employees. There was a change of workplaces amongst the group for whatever reason and Karen Ester was transferred from the cleaning duties at the heliport to the gas plants 2 and 3 workshop area and the gas plant 3 control room.
PN212
So, in fact, Karen is the example of an employee who cleaned different facilities with Skyway's than she had with Tempo, is that right?---Well, different facilities at the site, yes, but that could have happened over the years to any of the employees.
PN213
And you agree with me that from what you have just said she in fact performed her duties in a different capacity to that which she had for Tempo?---No, same capacity. She just applied her skills to a different vinyl floor.
PN214
Did you have any input into the drafting of this first witness statement, Mr Lee?---Yes.
PN215
And what was that input?---I was asked to make sure it was correct.
PN216
But you never observed the employees, now that they are employed with Skyway's, since 2001 actually doing their cleaning work, is that right?---I don't believe so. I may have seen them at the heliport in '92, but I wasn't there to watch them clean. I was there to meet an off-coming drill crew.
PN217
And is it within your knowledge that there was no change to the workforce when Skyway's as you put it took over the cleaning contract?---I think there was some - Skyway's introduced some new casual employees shortly after they took over from Tempo.
**** TERENCE JOHN LEE XXN MR RINALDI
PN218
So, in fact, there was a change to the workforce?---Well, there was a change insofar as there were some new casual people that they called on. As Tempo did before, they used casuals to fill in for their permanent part-time people who get ill or take leave. There was certainly a new area manager, but that is not my - I don't get involved in that. I am only looking after the people on the site.
PN219
So the position is that you agree that there were some new casual employees engaged shortly after Skyway's commenced?---Yes, some time after. It wasn't very long.
PN220
And you agree with me that that is a change to the workforce?---When I talk about the workforce, I am talking about the core of the workforce, the nucleus.
PN221
All right, so in fact your statement in paragraph 6, AWU1, should read there was no change to the - what is it, core workforce or permanent workforce, in that third sentence?---Well, core would be - - -
PN222
And what do you mean by core?---I think there is eight employees that are permanent part-time as described in the award and they have defined hours a week, their hours are defined that they work and there was no change to those at the time of Skyway's taking over that work.
PN223
Okay, who spoke to you about checking the correctness of this affidavit? Was it Ms O'Neill or somebody else?---Ms O'Neill handed it to me yesterday.
PN224
Was that the only opportunity you got to comment on its correctness?---Yes.
PN225
And you say that it was correct?---Yes. I raised with Ms O'Neill the - - -
PN226
The issue about the equipment?---The equipment, yes.
**** TERENCE JOHN LEE XXN MR RINALDI
PN227
But you would in fact alter that third sentence in paragraph 6 to read there was no change to the core workforce by which you mean the eight permanent part-time people with defined hours?---Yes, the core workforce.
PN228
And those people that you have said had defined hours and typically didn't work overtime?---There is the opportunity to work overtime from time to time. There is no set hours, but there is the opportunity to do that. If there is an up-turn in the construction activity on the site or if there is a shut-down turn-around at the plant, then there are extra portable sheds brought onto site, extra toilets to cater for the extra workforce and from time to time that that occurs, Tempo in the past and Skyway's have been asked to clean that and that is often covered by extending the employees' allotted hours.
PN229
And how do you know that it is often covered by extending the employees' allotted hours or do you know?---Because the employees have told me.
PN230
And which employees have told you that?---Employees of Skyway's.
PN231
Is that all of them?---Not all of them, Melitza, she is like the leading hand, has spoken to me about the extra hours that they do from time to time.
PN232
Is she the only person who has spoken to you about that?---Margaret Glennon spoke to me about it in about March this year, not that direct subject, but because of the transfer from the main site to the heliport that she had undertaken, she missed out on - she was missing out on overtime in the Worley ABB compound that she used to do prior to the change, prior to her change.
PN233
All right. Now, anyone else that you have spoken to about that issue?---No.
PN234
So you haven't spoken to Ms Ester about it?---No.
**** TERENCE JOHN LEE XXN MR RINALDI
PN235
And I put it to you that the fact is that Ms Ester typically did not work overtime?---I can't be sure.
PN236
And I suggest also that her contract of employment didn't make any provision for working of overtime. Do you agree with that, or can you not answer?---I don't know.
PN237
You haven't seen her contract?---Look, I have at the start of this whole exercise, but I can't recall, but nevertheless, the agreement provides for overtime.
PN238
That is the Tempo agreement you are talking about there, is it?---Yes.
PN239
That is the Tempo certified agreement?---Mm.
PN240
All right, and there is nothing in Ms Ester's employment agreement requiring the employer, Skyway Executive Pty Limited, to permit her attendance at work, in other words to allow her to actually work as opposed to being paid without needing to attend?---I don't know.
PN241
You say in paragraph 7 of your first witness statement that you understood from the circumstances, although they are slightly different to what you have put in paragraph 6, because you are only talking about the core workforce as I understand it, that a transmission of business had occurred. Can you tell the Commission how you understood that?---Skyway's took over as I put it, Skyway's took over the cleaning of the Esso facilities from Tempo, took over the employees. The company agreed that they would use the same agreement and in my view, that constituted a transmission of business.
PN242
All right, and is that why you agreed to it being in your witness statement, because that was your view?---Yes.
**** TERENCE JOHN LEE XXN MR RINALDI
PN243
And are you basing that on the discussion with Mr Christie, the one discussion with Mr Christie that you have referred to on his mobile telephone?---Yes.
PN244
Mr Lee, do you hold any legal qualifications?---No, I don't. I have completed a graduate diploma of labour law at Melbourne Uni, but I don't hold a degree.
PN245
Thank you. In relation to paragraph 8, it is the case, is it not, that whilst Skyway's have not agreed to Ms Ester returning to the site to work, they have been paying her her full entitlements?---I believe that to be correct, yes.
PN246
And if I can just clarify, in relation to paragraph 9 of that first statement, you say the AWU is very concerned. Is that the position of the AWU or is that your own personal concern that you are referring to there?---Certainly my concern that I have raised with the union, with the Victorian and national secretary.
PN247
And is that person concerned, do you know?---Concerned enough to agree to fund the - pay for Karen's legal representation.
PN248
That is Mr Shorten, is it?---Yes, Mr Shorten.
PN249
All right, and I think in answer to my question a moment ago, you didn't disagree that Ms Ester typically did not work overtime. That is right?---I just can't say.
PN250
Was there any discussion with Skyway Executive Pty Limited or its representatives prior to the lodgment of this application, the funding of which Mr Shorten approved, about the AWUs concern that you have referred to there?---Not by myself.
PN251
Anyone else?---I don't know. It is unlikely. I mean, I am the responsible officer for it.
**** TERENCE JOHN LEE XXN MR RINALDI
PN252
So to the best of your knowledge, there was no discussion with Skyway and I will just refer to them as Skyway for shorthand purposes, about this concern that you raise in the last paragraph of your first witness statement prior to the lodgment of the section 127 application?---Not by myself.
PN253
And any such discussion would be unlikely given that you are the relevant organiser?---It is not likely.
PN254
Has there ever been any demands or logs of claims put to Skyway about requiring employees to be entitled to physically attend for work?---No.
PN255
Mr Lee, are you aware of why this section 127 application has been lodged?---Am I aware why the 127 - to get Karen Ester back to work.
PN256
Now, that is in the context of there being a reinstatement order by Commissioner Lewin, correct?---Yes.
PN257
That is the background, and Karen is getting paid all of her entitlements? That is correct?---Yes.
PN258
But the union wishes to have her physically back at work at the site?---Yes.
PN259
And do you know why the union didn't seek to enforce that order pursuant to the provisions of the Workplace Relations Act that provide for enforcement of unfair dismissal orders in the Federal Court?---It is our view that this is a more expedient process.
PN260
You say that is our view. Whose view?---My view.
**** TERENCE JOHN LEE XXN MR RINALDI
PN261
Your view? So were you the person who, if you like, authorised the commencement of this proceeding rather than a proceeding pursuant to section 170JC in the Court?---In conjunction with - I can't just run off and ask lawyers to do things. I need to get approval. The approval that I need to get, or the person I need to get that approval from is the State secretary in this case.
[4.30pm]
PN262
And what happened in this case? You got approval from Mr Shorten?---That is correct.
PN263
To commence this application?---That is correct.
PN264
And did you have any discussion with him about seeking to enforce the order in the Court?---No.
PN265
Have you discussed that matter with anyone else?---No.
PN266
Thank you, Mr Lee. Thank you, your Honour.
PN267
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rinaldi. Any re-examination, Ms O'Neill?
PN268
MS O'NEILL: No, your Honour.
PN269
THE SENIOR DEPUTY PRESIDENT: Do you wish Mr Lee to be excused?
PN270
MS O'NEILL: Yes, your Honour.
**** TERENCE JOHN LEE XXN MR RINALDI
PN271
PN272
THE SENIOR DEPUTY PRESIDENT: Did you want to call any further evidence in relation to the jurisdictional issue?
PN273
MS O'NEILL: No, your Honour. Of course, the AWU has an onus to satisfy your Honour that there is jurisdiction in this matter, but there is no further evidence. The rest is in relation to submissions.
PN274
THE SENIOR DEPUTY PRESIDENT: All right. Thank you. I will hear from Mr Rinaldi, then. Did you want to call any evidence, Mr Rinaldi?
PN275
MR RINALDI: I was just canvassing that issue, whether there is any need. It is a matter for us, obviously. Mr Christie I am instructed is in Portland and will be there I am not sure for how long - a week, I am instructed and it is probably not I think sufficiently important to have him rebut some of the things that Mr Lee has asserted in his evidence, to warrant video links and the like, your Honour, so I think we are content to rest with the material that we presently have before the Commission and that is presently before the Commission from the other side. I am not sure, your Honour, perhaps it would be worthwhile to clarify the status of Ms Walters.
PN276
THE SENIOR DEPUTY PRESIDENT: Well, that is not before me, not formally before me.
PN277
MR RINALDI: No. I wasn't sure if that was an affidavit, but I see it is a witness statement.
PN278
THE SENIOR DEPUTY PRESIDENT: Yes.
PN279
MR RINALDI: All right, and there is no need for that to - - -
PN280
THE SENIOR DEPUTY PRESIDENT: Well, Ms O'Neill said she doesn't seek to call any further evidence at this stage.
PN281
MR RINALDI: Yes. I just wanted to clarify that that was the position and if so, I am happy to proceed to the submissions in relation to the jurisdictional issues.
PN282
THE SENIOR DEPUTY PRESIDENT: You confirm that, do you, Ms O'Neill?
PN283
MS O'NEILL: I am just having one final check, your Honour.
PN284
THE SENIOR DEPUTY PRESIDENT: Yes. Would you like a five minute break to just have a look at it?
PN285
MS O'NEILL: I don't think that is necessary, your Honour. Can I say the primary role of Ms Walters' witness statement that will propose to put before the Commission goes to the exercise of the Commission's discretion, having been satisfied of jurisdiction. There are, however, some preliminary matters such as the fact that the respondent is not permitting Ms Ester to perform work at the moment which are matters contained in the evidence of Ms Walters, but I don't understand that there is any contest about such matters.
PN286
THE SENIOR DEPUTY PRESIDENT: I don't think that is in dispute.
PN287
MR RINALDI: Not that matter, anyway, your Honour. I don't know whether the other matters may be.
PN288
THE SENIOR DEPUTY PRESIDENT: So it is not disputed that the respondent is refusing Ms Ester the admission to the workplace and to do the work?
PN289
MR RINALDI: No issue taken about that. That is correct. That is the fact and as I understand it, indeed, you have heard from Mr Lee, no issue that she is, however, being paid all of her entitlements.
PN290
THE SENIOR DEPUTY PRESIDENT: Yes.
PN291
MS O'NEILL: Your Honour, aside from that matter, then the only matter that is touched on in Ms Walters' statement is she seeks to provide a copy of a written employment agreement with Skyway's and secondly exhibits a copy of the Tempo certified agreement 2001. The way to deal with that, your Honour, may be that for the purposes of the jurisdictional matters, we can tender that document separately and not rely on Ms Walters' evidence at this point.
PN292
THE SENIOR DEPUTY PRESIDENT: It is a matter of the public record, isn't it, the certified agreement?
PN293
MS O'NEILL: Certainly the certified agreement is. The contract of employment I don't understand to be in dispute either, but I just wanted to raise those matters.
PN294
THE SENIOR DEPUTY PRESIDENT: It is not an AWA, is it?
PN295
MR RINALDI: No, your Honour, and I think that is appropriate. It is something that the Commission will have to have regard to, I think, even in relation to - well, maybe not in relation to the jurisdictional issues, but may need to have regard to and if we can perhaps just tender that by consent. The employment agreement itself which is exhibit 10 to Ms Walters' affidavit and it may be just convenient for the Commission to - - -
PN296
THE SENIOR DEPUTY PRESIDENT: Exhibit 10, did you say?
PN297
PN298
THE SENIOR DEPUTY PRESIDENT: The certified agreement I will mark as well. What exhibit number is it?
PN299
PN300
MR RINALDI: Thank you, your Honour. Your Honour, in relation to the question of jurisdiction, if I might take your Honour to section 127 of the Act which provides that:
PN301
The Commission may by order give directions that industrial action stop or not occur.
PN302
And obviously the second issue or latter issue that will arise if the Commission is of the view that there is jurisdiction is whether the Commission ought to exercise that jurisdiction. I won't address you on that now, but I will seek to later if it gets to that stage, but there are three jurisdictional bases, if you like, upon which the Commission may exercise that jurisdiction. They are all predicated on the existence of industrial action which then must be happening, threatened, impending or probable in relation to three different matters, A, B and C.
PN303
The first question, therefore, your Honour, is whether what is happening at present is industrial action. As I understand it, the submission of the AWU and I don't know whether this was put expressly yesterday, but certainly it is the basis it appears upon which the application is made, that there is industrial action by the employer and obviously there have been cases where section 127 has been applied for such contexts.
PN304
It seems, in fact, from the section 127 application, form R9, and the grounds, in particular ground 5, that the applicant here relies on the industrial action being one of two types, (a) threatening to prevent, restrict or limit the performance of work by Karen Ester under the award, order or agreement and, (b) a ban, limitation or restriction on the offering for work in accordance with the terms and conditions prescribed in a certified agreement or otherwise by or under any law of the Commonwealth.
PN305
In my submission, your Honour, whatever superficial attraction and I should probably note that it is a fairly ingenious argument, but whatever superficial attraction that may have doesn't bear closer scrutiny because the entirety of the industrial action part of the Act and the provisions of the Workplace Relations Act relating to industrial action are directed at a collective action and action in relation to work which is carried out by employees.
PN306
That is the reason why the definition of industrial dispute, to jump to that for a moment, your Honour, in section 4, is one that is expressly - and we don't need the interstatedness requirement in this State any longer, but expressly about matters pertaining to the relationship between employers and employees. It is a collective concept. It is not about action that an employer might take against a single employee, it can be said to be against an employee to pay them for not attending work and that is the clear purpose and intention, legislative intention of the Act and having regard to the provisions of the Acts Interpretation Act, an interpretation of the Act which will give effect to the purpose is to be preferred over one which will not and there need not be ambiguity for that.
PN307
THE SENIOR DEPUTY PRESIDENT: What is the constitutional powers underpinning the provision of section 127, do you know?
PN308
MR RINALDI: Sorry, I didn't catch the last word, your Honour.
PN309
THE SENIOR DEPUTY PRESIDENT: The constitutional powers underpinning section 127, is it the industrial power, conciliation and arbitration power, or is it in fact a corporations power?
PN310
MR RINALDI: 127, your Honour, is as I understand it based on the industrial relations power, not the corporations power. There is no requirement that there be a constitutional corporation involved.
PN311
THE SENIOR DEPUTY PRESIDENT: Yes.
PN312
MR RINALDI: And it is in the context of the entire Act, as all of the authorities say one must look at the provisions of a statute, that the Commission should look at it in this case and central to that is the fact that there is an entire division, division 3 of part VIA of the Act, dealing with termination of employment. Now, that is a discrete division of the Act dealing with a discrete subject matter. It is in the nature of a code and it provides the remedies for an aggrieved employee whose employment has been terminated and it provides relevantly for this case in section 170JC the remedy for an employee - - -
PN313
THE SENIOR DEPUTY PRESIDENT: But the employee has been reinstated in this case.
PN314
MR RINALDI: That is right.
PN315
THE SENIOR DEPUTY PRESIDENT: You don't assert that the employee has not been reinstated.
PN316
MR RINALDI: No, there is an order for reinstatement made by the Commission and if an employee and it is interesting, in fact, that it is only an employee who seems to have this right under section 170JC, wishes to enforce and specifically subsection 3, your Honour - - -
PN317
THE SENIOR DEPUTY PRESIDENT: Well, there is another course open to the employee under JC, isn't there? It is to come back to the Commission and ask for the order to be varied.
PN318
MR RINALDI: Certainly under JD.
PN319
THE SENIOR DEPUTY PRESIDENT: JD, sorry.
PN320
MR RINALDI: Yes, your Honour, that is true.
PN321
THE SENIOR DEPUTY PRESIDENT: Well, why couldn't the employee come back and ask the Commission to vary the order so that the order for reinstatement includes a direction that the employer continue the employee in the workplace?
PN322
MR RINALDI: The employee could seek to do that, your Honour, and if the employee did that, there would then be a debate about whether the power of the Commission to order reinstatement pursuant to section 170CH included a power to order the employer to permit the attendance at work as opposed to reinstatement in the ordinary employment sense and in my submission, the answer to that or the outcome of that debate would be that which was decided upon by the Full Federal Court in the decision of Ramsey Butchering Services Pty Limited v Blackadder which is (2003) FCAFC 20.
PN323
THE SENIOR DEPUTY PRESIDENT: But that case didn't go so far as to say that the Commission couldn't order, did it, that an employer provide an employee with work? Wasn't that the nub of that case, that that was not the terms of the order?
PN324
MR RINALDI: The nub of that case, as I apprehend it, your Honour, is unless there is an express entitlement of the employee or obligation of the employer to provide actual work in the sense of attendance at work, then there is no right upon the reinstatement order for the employee to insist upon that.
PN325
THE SENIOR DEPUTY PRESIDENT: You mean a right independent of the order itself?
PN326
MR RINALDI: Or no right given by the order itself and as I apprehend their Honours' judgment and as you will recall, your Honour, it was a two/one majority, Tamberlyn and Goldberg JJ in the majority and Moore J in a strong dissent, but notwithstanding that, that is the Full Court authority which governs the issue at the moment and as I understand the case, it is authority for the proposition that a reinstatement order can't go so far as requiring attendance at work or provision of work as opposed to requiring reinstatement to the employment or the position, unless - - -
PN327
THE SENIOR DEPUTY PRESIDENT: In any event, that is not the application that is before me. I am just saying you were referring to JC as a means of enforcing or dealing with an order after it has been made under division 3 of part VIA.
PN328
MR RINALDI: Yes.
PN329
THE SENIOR DEPUTY PRESIDENT: But my point in any event was, well, that is not the application before me. The application before me assumes that there has been reinstatement, as you have asserted there has been because the employee is being paid, but it is saying that there is industrial action in the sense that the employer is refusing to allow the employee to work.
PN330
MR RINALDI: Yes, and I will come to that in more detail in a moment, but my preliminary submission, your Honour, that I am making is that whether or not there is such industrial action, whether what the employer is doing in this instance constitutes industrial action, has to be determined or decided by having regard to the entire context of the Act and that the context of the Act militates very strongly in favour of a purposive interpretation, that which is mandated by the Acts Interpretation Act, section 15AB I think it is, your Honour, to give effect to the purpose and that purpose is clearly if you are a single employee with a grievance about the way your employment was terminated, you can go to the Commission and seek an order pursuant to section 170CE.
PN331
That has happened in this case. An order has been obtained. If you are then unhappy with the compliance with that order, then you can apply under section 170JC. You can, as your Honour has pointed out, also seek a variation under 170JD, but in answering your Honour's question, if that variation sought to include a requirement that the employer provide actual work or permit attendance at the site for the purpose of actually working, then that variation would be beyond power in my respectful submission and that part of the order would be struck out as it was in Blackadder.
PN332
THE SENIOR DEPUTY PRESIDENT: Did the order in Blackadder include a term to that effect?
PN333
MR RINALDI: Well, the way that the order in Blackadder was made - perhaps I should hand a copy of that to your Honour.
PN334
THE SENIOR DEPUTY PRESIDENT: Yes, that would be helpful.
PN335
MR RINALDI: It is one of those matters where it sort of comes at the beginning and the end of the case, your Honour, because ultimately this matter goes on - I will be submitting that, really, Blackadder ought to determine the way the Commission exercises its discretion if indeed there is any and in other words, if the jurisdictional arguments fail, but it is relevant to how the jurisdiction ought to be interpreted and how industrial action ought to be interpreted.
PN336
You will see at paragraph - the very last paragraph, your Honour, 84 of the joint decision of Tamberlyn and Goldberg JJ, that there was a deletion of the requirement that the person be reinstated to a position, namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room, so it was quite descriptive and it actually required that the employee be permitted to perform work of a particular type in a particular place.
PN337
And their Honours' rationale which obviously followed a fairly lengthy judgment, but is summed up in paragraph 81, which is that to which I have referred, being that there really needs to be a term in the contract of an entitlement, giving an entitlement to the employee to be permitted to be at work or be given work rather than just to be given the benefits of employment and perhaps again just working back, your Honour, that then links back to paragraph 78 of their Honours' judgment, where they say:
PN338
In our opinion, where a person is reinstated by appointment to a position in which he or she was acting at the time of dismissal pursuant to section 170CH(3)(a) ...(reads)... which the person did not previously have under the relevant terms of the person's employment.
PN339
And then as they have gone in paragraph 81 to say, in that case there was no entitlement to be given actual work. Therefore, it is an additional entitlement, therefore it went beyond the reinstatement power. That is the position here in my respectful submission.
PN340
THE SENIOR DEPUTY PRESIDENT: Yes, but how does that relate to your point about industrial action?
PN341
MR RINALDI: Well, how that relates is that I am taking the big picture at the beginning, your Honour, and that is we have an Act which has a scheme. The scheme is quite clear that there is a demarcation or a division of two streams, if you like, of regulation of the individual employment relationship and particularly the termination of that relationship which is all covered in, as I have mentioned, part VIA, division 3 of the Act, which is in the nature of a code. That code provides the remedy for a person who is not satisfied that the employer in this instance has complied with the order.
PN342
That remedy is - one possible remedy is, as your Honour has said, to seek a variation, but that would not avail the employee in this case. For the same reasons, if the employee sought to utilise section 170JC(3) to enforce the order in the Court by injunction, the employee would come up against Blackadder and would have the same result in her case and that is simply the law of reinstatement as it currently stands, your Honour. The employee could not enforce this order successfully, enforce the order by injunction - she could certainly try - unless a later Full Court departed from the decision in Blackadder or was overruled by the High Court.
PN343
THE SENIOR DEPUTY PRESIDENT: Spender J in another decision expressed the same view as Moore J.
PN344
MR RINALDI: Yes, well, that may well be the case. I have a vague recollection of something along those lines, your Honour.
PN345
THE SENIOR DEPUTY PRESIDENT: It was about a prison officer, I think.
PN346
MR RINALDI: Yes, and I have a feeling that that case did turn on its own circumstances because of the prison officer, but even if you were to take a straw poll of the Federal Court, you might get a different majority. The fact is, of course, there is a current Federal Court Full Court decision, so unless and until that is overruled, that is the law and the reason I say it is ingenious or perhaps it is just a coincidence given Mr Lee's evidence, for the applicant to proceed in the way it is done is that it is, as it appears to me in my respectful submission an attempt to circumvent the Blackadder decision and to come to the Commission seeking to frame the non-compliance with the order, if it be called that, which is obviously what the applicant calls it, as industrial action, but, of course, the Federal Court would say it is non-compliance, anyway, according to the Blackadder decision.
PN347
THE SENIOR DEPUTY PRESIDENT: Well, I don't know - the same situation arose, albeit with more than one or more than an individual employee in a matter that went before a Full Bench of the Commission. I can't remember the name of it, but Vice President McIntyre was the presiding member and in that case, it was argued that because there was some reference to an order, what was in effect being sought was to enforce the order and the Full Bench said, no, that wasn't the effect of what they were doing. They were actually seeking, genuinely seeking a 127 order to stop the employer from carrying out industrial action. I can't remember what the industrial action was in that case.
PN348
MR RINALDI: Yes. Well, that may be right, your Honour. I don't know the case to which you refer, but that is my point here, that that would have been a case, as I understand from your Honour, relating to action against a group of employees, if you want to put it that way.
PN349
THE SENIOR DEPUTY PRESIDENT: As I recall, it was, yes.
PN350
MR RINALDI: And that is the very point, the nub of my first submission, which is that there cannot be in truth industrial action against one employee. The remedy of a single employee and certainly not industrial action of this type by allegedly failing to fully comply with a reinstatement order of the Commission, the remedy for that employee is under section 170JC such as it is and that then leads me, your Honour, to the next point which is that the meaning of the word work in the definition of industrial action in section 4 in my respectful submission is again directed at a collective notion of work, work that is going on at a workplace, work that is carried out by a company, a business, an employer which is carried on usually by a number of human agents, the employees.
PN351
It is not one person's work, one person who has brought an unfair dismissal claim and sought a remedy and obtained a remedy and is not happy with - that that order has been complied with. As I have said, the remedy for that person is to make application to the Court to enforce the order. Work in the context of industrial action in section 4 is clearly in my submission directed at a broader notion of work and all of the uses of the word work in the industrial action definition are consistent with that. It is about terms and conditions of the work being prescribed by an award, by a certified agreement or an AWA. It is about practices in relation to work, the manner in which work is customarily performed. These are all expressions which are not apposite to the work of a single employee.
PN352
THE SENIOR DEPUTY PRESIDENT: Well, I mean, the reality is the way in which or the manner in which the work is customarily performed by this individual is for that individual to go to work, isn't it?
PN353
MR RINALDI: Yes, and that is what I have described as the superficial attraction of the argument, but the whole thrust and legislative purpose behind the industrial action definition, taken in the context of the definition of industrial dispute to which I have referred, taken in the context of section 127 which is clearly part of the collective stream of the Act, if you can call it that and the context of the individual stream about terminations, division 3 of part VIA, that superficially attractive, simplistic in my respectful description view is not the right answer.
PN354
Yes, the person normally works by going to work, but that is not the adoption of a practice in relation to the performance of work different to which it is customarily performed. In fact, it is not permitting work at all, so it doesn't fall within part A of the definition and perhaps this is where it ties in with the Blackadder reasoning, your Honour, that as you will see from exhibit AWU3, there is no entitlement to be provided work as opposed to other employment entitlements, so the performance of work under the contract doesn't require actual physical work at the site and this is where these sorts of concepts can become confusing because they are used in different contexts and that is why in my submission work ought to be interpreted as a broader collective notion of work at a work site or workplace and that is in speaking in the context of the industrial action definition.
[5.00pm]
PN355
THE SENIOR DEPUTY PRESIDENT: Well, what about the involvement of the AWU?
PN356
MR RINALDI: Well, that is the other thing, your Honour. The AWU is obviously not a person who can take what I have submitted is the relevant remedy, that is, under section 170JC. It is not the employee. It is not the subject of the order.
PN357
THE SENIOR DEPUTY PRESIDENT: Why can't it be agreed because of the way in which the employee has been excluded from the workplace?
PN358
MR RINALDI: It might on a conceptual level be aggrieved in that way. The evidence from Mr Lee is that he is concerned about it and that Mr Shorten is concerned to the extent that he is willing to fund this application. It is really an inference that he is drawing there, but that doesn't alter the fact that the alleged industrial action doesn't relate to work in the true sense, as to which I am submitting that the Commission ought to regard that concept. The fact that the AWU is concerned about one person's work being performed in a different manner, if it be put that way - - -
PN359
THE SENIOR DEPUTY PRESIDENT: Well, about one of its members being excluded from the workplace.
PN360
MR RINALDI: Being prevented, limited or restricted from performing work is the way it is put in ground 5A.
PN361
THE SENIOR DEPUTY PRESIDENT: Right.
PN362
MR RINALDI: Doesn't make that within the concept of work for which I am contending and I accept that if you are against me on that concept of work and how that word is to be interpreted, then this jurisdictional objection doesn't succeed. But in my respectful submission that is the proper interpretation to be given to work. I expect there may well be a lot of learning on this, but unfortunately since last night/this morning I haven't had an opportunity to fully prepare the matter as I would like and I do apologise that I haven't prepared a written outline for the same reason.
PN363
But it does seem to me and I do submit, your Honour, that that is the whole scheme of the Act and the context of the Act is all important in the light of the purpose of interpretation that is mandated by the Acts Interpretation Act and that all of these definitions of industrial - - -
PN364
THE SENIOR DEPUTY PRESIDENT: Well, is there any authority that has dealt with the definition of work in the - or concept of work as you are arguing it?
PN365
MR RINALDI: Yes. Well, that is what I imagine there probably is. Unfortunately time in the last six or seven hours hasn't permitted me to uncover that.
PN366
THE SENIOR DEPUTY PRESIDENT: I see.
PN367
MR RINALDI: I suppose as a general observation, this is a - well, it is obviously a bit different to your average section 127. It is certainly not industrial action in the ordinary traditional sense that is alleged. But we have an employee who has for some time now been in the same position. The status quo is being maintained. There is no economic loss and it may be that the matter would benefit from a slightly longer time frame as to how it is dealt with. Certainly we would be in a position to more fully assist the Commission in relation to those authorities that may be out there.
PN368
But going from first principles, that is the submission I make, that it is a purpose of approach, that it is work is to be construed as a collective concept, not an individual one, and that that is consistent with the scheme of the Act, providing remedies for the individual under section 170JC, but that as I have said, that remedy on the current state of the law with Black Adder decision the answer is that a reinstatement order could not be made in the form that is effectively sought in a round about way in this application and that section 127 does not therefore have application to this application to this matter because it is really a - it is tantamount to an abuse of process.
PN369
It is another person coming along, the AWU, trying to get around the Black Adder decision and get the Commission to make a section 127 order where what in reality is complained of is alleged non compliance with an order made under section 170CH. It is not therefore, your Honour, in my submission, a ban on the acceptance of work, or acceptance of, or offering for work. It is not a lock-out, which obviously would be contemplated within section 127.
PN370
It is relating to one employee only and that is again the thrust of my submission in this regard. It has to be collective, not individual, in order to give effect to the apparent legislative purpose of the Act. I don't think paragraph C of the definition of industrial action has any relevance unless it is sought to suggest that the industrial dispute pertains to other employees as well, or the relationship between the employer and other employees.
PN371
The AWUs concern that was referred to in the last paragraph of exhibit AWU1, Mr Lee's first statement, does not mean that there is such an industrial dispute. There is no evidence of concern of other employees other than Ms Ester. Indeed there is no evidence from Ms Ester in this application. But the AWU being very concerned, as stated in paragraph 9, doesn't amount to a concern on behalf of other employees or on the part of other employees and it can't bring it within the sort of range ..... industrial dispute concept in my respectful submission.
PN372
It was apparent from Mr Lee's evidence that no other employees have raised the concern with him and it is also apparent from his evidence that there was no - - -
PN373
MS O'NEILL: With respect, your Honour, that matter wasn't put to Mr Lee about concern from other employees around Ms Ester being refused performance of her work. It was in Mr Lee's evidence-in-chief and it wasn't put to him in cross-examination.
PN374
THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps you can address it in your address. Yes, Mr Rinaldi.
PN375
MR RINALDI: I can't recall whether that was specifically put. I thought it was, but I don't think it is in his evidence-in-chief. It is just the AWU, your Honour.
PN376
THE SENIOR DEPUTY PRESIDENT: Just excuse me a moment. Yes, just excuse me. Yes, go on.
PN377
MR RINALDI: It was just the AWU and I asked whose concern was that and it was his own and to the extent that he authorised the funding, it was Mr Shorten's. There is no suggestion that any other employees raised that concern with the AWU. Paragraph D of the definition of industrial relations is not relevant here, your Honour, and the exclusions aren't relevant either.
PN378
So getting back to section 127(1), for those reasons, your Honour, it is submitted that there is no industrial action properly so called, happening, threatened, impending or probable. If, for example, an employer were to say if Mr Ester comes back, or insists on coming back, we are going to lock you all out, then that would be clearly within section 127. If it became collective in nature, but that is not the case. It is not, as I have already touched on, your Honour, an industrial dispute within the meaning of the definition. It does not concern employees. It only concerns an individual employee and the only evidence of any expansion of that concept is the alleged concern of the AWU which effectively seems to be limited almost entirely to Mr Lee.
PN379
It is not in relation to the negotiation or proposed negotiation of an agreement, so sub-paragraph (b) does not apply. I should also note, your Honour, that in the application itself there are three dot points mentioned at the beginning of the application and they relate to first, work that is regulated by the order of the Commission made on 2 October 2003. That is not a relevant matter in my respectful submission, except to point to the distinction which I have already raised, that the remedy for that is non compliance alleged with that order is under section 170JC.
PN380
What is required under paragraph (c) of section 127(1), your Honour, is that there be work industrial action relates to work that is regulated by an award or a certified agreement. Now, the definition of award in section 4 expressly does not include an order made by the Commission in a proceeding under subdivision (b) of division 3 of part VIA, and that of course is the unfair dismissal subdivision. So there is another - I am trying to think of the right word - expression of legislative intention that awards in the context of provisions such as section 127(1)(c) is a collective notion, just as, as I have submitted, work is in relation to industrial action.
PN381
It is not an individual's remedy by way of an order pursuant to section 170CH. It is expressly not such an order. So the first dot point is a red herring in my respectful submission. The industrial dispute I have already dealt with. It is not an industrial dispute when it relates only to one employee. That is the second dot point in the application. Then the third one is that to which section 127(1)(c) relates and that is that the work is regulated by an award or a certified agreement.
PN382
Now, I am going on what Mr Angelopoulos told me about what occurred yesterday, but my understanding is that it is conceded by the applicant through its counsel yesterday that my client is not - - -
PN383
THE SENIOR DEPUTY PRESIDENT: Not a named party to any of the award - - -
PN384
MR RINALDI: Not a party to the award, yes.
PN385
THE SENIOR DEPUTY PRESIDENT: Not a named party.
PN386
MR RINALDI: Not a named party and I don't believe - well, I don't know if the point is taken that it is somehow respondent by being a member of an employer association or any other way, but certainly it is not a named party.
PN387
THE SENIOR DEPUTY PRESIDENT: I gather it is put on the basis of successorship or transmission.
PN388
MR RINALDI: Yes, and as I - - -
PN389
THE SENIOR DEPUTY PRESIDENT: Perhaps we will be told if I am wrong about that but I think that is - - -
PN390
MR RINALDI: Yes. It seems to be that it is relying on successorship to the agreement, but I should deal with both. But firstly the submission is my client is not bound by the award. The work of Ms Ester is not regulated by the award, or any award. Secondly, it is not regulated, the work of Ms Ester that is, by the Tempo Cleaning Services Esso Longford Site Certified Agreement 2001, or any other agreement. That agreement in its terms does not apply to my client. So that presumably the argument is put on the basis of succession or transmission.
PN391
Now, if that be so, then in my submission there is no succession, transmission or assignment as required by section 149(1)(d), or in relation to the certified agreement, section 170MB(1)(c), because the employer, current employer, Skyway, has not succeeded, has not taken a transmission or an assignment from the former employer, Tempo Cleaning Services. It is a case of, as appears fairly clear from Mr Lee's evidence, and nor has it taken that assignment, or transmission, or succession from Esso, where Esso has had contractors doing its work for at least 14 years. No reason to doubt that from our side and it is a simple case where Esso has changed its contractor.
PN392
Now, if Tempo was bound by the award or had a certified agreement, that is one matter, but it has not sold its business. It has not sold a part of its business. It has not outsourced its business to my client. My client has taken nothing at all from Tempo. No part of its business and for that reason, your Honour, it is submitted that there is no transmission, successorship or assignment. Perhaps it is appropriate to refer to PP Consultants, a decision of the High Court, which has been handed to your Honour.
PN393
In relation to the short decision of the majority in that case, your Honour, at paragraph 15 their Honours Gleeson CJ, Gaudron, McHugh and Gummow JJ refer to the general rule, which is really a restatement of the substantial identity test. If you look at the business that was carried on by the first employer and then you look at what is the business taken - sorry, the business carried on by the second employer, but that substantial identity test, which has been in place at least since Shaw v United Felt Hats in 1927, really is at a later stage of the inquiry in my submission.
PN394
There is an anterior question and that is what appears in the second line of paragraph 15 and that is, has the second employer, in this case Skyway, taken over the commercial activities of the other employer. The answer is, in this case, they haven't. That other employer is no doubt carrying on its commercial activities for other principals. There has been no transmission or transfer of any part of that employer's, that is Tempo's, business or commercial activities. So the anterior question requirement is not satisfied. There has been no taking over and that is why I asked Mr Lee about that.
PN395
It is imprecise, to say the least, to say that the contract has been taken over. There is a new contract that has been entered into between Esso and my client in lieu of that which previously existed with Tempo. There has been no taking over of Tempo's activity by my client. The other relevant phrase again in relation to the second step referred to in paragraph 15, in the sixth line of paragraph 15, are the words, "The transferred business activities". Again it is the same requirement.
PN396
There needs to be an actual transferred business activity, a transfer from one company X to company Y. In this case, from Skyway to - I beg your pardon, from Tempo to Skyway. The company that previously carried on similar activities to the latter company. There has been no such transfer in this case at all. It is just that the contractual relationship that Tempo had with Esso has been terminated and a new contractual relationship has been taken up by Skyway with Esso.
PN397
So that you don't get to the stage of looking at the substantial identity test. As to that test, even if you did get to that stage, your Honour, there is really no evidence before the Commission. Mr Lee can't state from his own knowledge what the employees are doing. He can't state exactly what duties they perform, whether the workforce has changed. He is really going on an assumption based on what he alleges Mr Christie said, plus the little he has found out from Ms Ester which chiefly seems to relate to herself, which is understandable.
PN398
So that is the way in which the majority of the High Court in PP Consultants dealt with the issue and they simply said, as they said in paragraph 19, there is no identity. But in that case there was at least the transfer of the same activities from the bank to PP Consultants. Here that is not the case. Callinan J dealt with it in some more detail in his decision. He made the probably incontrovertible statement at paragraph 29 that decisions on other factual situations are of little assistance and he then gave some scrutiny to section 149 of the Act and the history of it.
PN399
At paragraph 34 of his Honour's judgment he held that the effect of the amendment in 1992, I think it was, was to remove the reference - you will see it at the end of paragraph 34, your Honour?
PN400
THE SENIOR DEPUTY PRESIDENT: Yes.
PN401
MR RINALDI: To a party bound by an award. That does not appear in section 149(1)(d) any more.
PN402
THE SENIOR DEPUTY PRESIDENT: No.
PN403
MR RINALDI: And it is instead limited to the parties to the industrial dispute. Now, I don't think it is suggested that Skyway was a party to the industrial dispute in this case that gave rise to the award and on that basis, if on no other, in my submission the award, or the provisions regarding successorship to awards under section 149(1)(d), does not apply to Skyway in this case, so Skyway has not succeeded to the award.
PN404
There is some discussion of the way in which the matter may also be tested in paragraph 36 where his Honour refers to the lack of ability to assign. Due to the commercially confidential nature of the agreement we don't seek to put the agreement before the Commission in this case, but if it be a matter that the Commission wishes to be addressed on it may be that the extract could be provided on a confidential basis if required. But certainly my instructions are, and I have seen the contract, that it is not assignable by Skyway, and that is again just an example of how it is not a business that has been taken on which is of its own right saleable.
PN405
It is just a contract with Esso, and that was the point Callinan J was making in that case. As he concludes at paragraph 37:
PN406
The business of the bank had not past. A new form of business was created by the agreement that was carried on by a new operator as an agent.
PN407
In this case, a new contractor.
PN408
THE SENIOR DEPUTY PRESIDENT: Excuse me, Mr Rinaldi. Yes, sorry, Mr Rinaldi.
PN409
MR RINALDI: Yes. Other than, as my instructor points out, with the approval of Esso, which is usually the case in such cases. So it is not a case where a business is brought wholesale and you can run with it and assign it to whoever you like. It is purely a personal, if you like, insofar as a company can have a personal - - -
PN410
THE SENIOR DEPUTY PRESIDENT: It can be approved with the - - -
PN411
MR RINALDI: But only can be assigned with approval of Esso.
PN412
THE SENIOR DEPUTY PRESIDENT: Assigned with the approval of Esso.
PN413
MR RINALDI: Yes.
PN414
THE SENIOR DEPUTY PRESIDENT: Well, how do I know - well, I don't suppose there is any evidence before me to say whether there was an assignment in this case on Esso's approval?
PN415
MR RINALDI: Well, they are still doing work, your Honour.
PN416
THE SENIOR DEPUTY PRESIDENT: Who is still doing, sorry?
PN417
MR RINALDI: Skyway. So there hasn't been any assignment.
PN418
THE SENIOR DEPUTY PRESIDENT: No, but from the previous contractor?
PN419
MR RINALDI: Well, certainly there is no evidence other than - - -
PN420
THE SENIOR DEPUTY PRESIDENT: Presumably it had the same term in its agreement.
PN421
MR RINALDI: One would assume so and I suppose even that is a bit of an assumption. Perhaps a ..... but certainly an agreement - - -
PN422
THE SENIOR DEPUTY PRESIDENT: I think it is a reasonable assumption.
PN423
MR RINALDI: Yes.
PN424
THE SENIOR DEPUTY PRESIDENT: But I don't know that I can rely on it, that is all.
PN425
MR RINALDI: No. Certainly the contract with Esso, between Skyway and Esso was entered into - - -
PN426
THE SENIOR DEPUTY PRESIDENT: If there had been an assignment from the other contractor there wouldn't be a contract between Esso - - -
PN427
MR RINALDI: There wouldn't be a new contract, which there isn't, in 2001. There would be a deed of assignment or something of that nature. Now, as to - yes, that is Callinan Js analysis of section 149(1)(d) and the reasons why we say it doesn't apply here. Section 170MB, we rely on the - - -
PN428
THE SENIOR DEPUTY PRESIDENT: Well, you put the same arguments in relation to that.
PN429
MR RINALDI: The fundamental argument, yes, which it is not restricted to the parties of industrial dispute in the same way, but it is restricted to somebody who actually takes some sort of transfer, takes over.
PN430
THE SENIOR DEPUTY PRESIDENT: Take-over, yes.
PN431
MR RINALDI: Yes, in some way. So, your Honour, for those reasons in my submission there is no industrial action, there is no industrial dispute and the work is not regulated by an award or a certified agreement and therefore the power of the Commission under section 127 to exercise a discretion to give directions about industrial action doesn't arise. If the Commission pleases.
PN432
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rinaldi. Yes, Ms O'Neill.
PN433
MS O'NEILL: Your Honour, I would anticipate being less than an about but perhaps not too much less than that. Could I ask the Commission's indulgence and have the matter stood down for five minutes?
PN434
THE SENIOR DEPUTY PRESIDENT: Yes. What is the purpose of that, you just want to take instructions?
PN435
MS O'NEILL: Frankly, I want to go to the bathroom.
PN436
THE SENIOR DEPUTY PRESIDENT: I am sorry, yes. Sorry about that. Yes, all right. I will stand the matter down for five minutes.
PN437
MS O'NEILL: Thank you, your Honour.
SHORT ADJOURNMENT [5.30pm]
RESUMED [5.43pm]
PN438
THE SENIOR DEPUTY PRESIDENT: Yes, Ms O'Neill.
PN439
MS O'NEILL: Thank you, your Honour. The AWU prepared an outline of submissions which I will provide to the Commission.
PN440
THE SENIOR DEPUTY PRESIDENT: Thank you very much for that.
PN441
MS O'NEILL: The majority of this outline goes to jurisdictional matters but from paragraph 15 to 20 inclusive it goes to the exercise of discretion, so we would ask that you would ignore those submissions until the preliminary jurisdictional issue has been determined.
PN442
THE SENIOR DEPUTY PRESIDENT: Yes.
PN443
MS O'NEILL: Hopefully in our favour. The second matter, your Honour, is, and it is something that I perhaps should have done at the start but given the way the hearing has progressed it simply slipped my mind. We have prepared an amended application for the order. The effect of the amendment only goes in relation to the form of the order that has been sought should the application be granted. So it doesn't change the grounds or anything.
PN444
THE SENIOR DEPUTY PRESIDENT: No. Has that been provided though to - - -
PN445
MS O'NEILL: No, it hasn't, your Honour. I will just provide that now and you will see the amendments on it are marked.
PN446
THE SENIOR DEPUTY PRESIDENT: If there is anything arising out of that, Mr Rinaldi, you can address it in reply.
PN447
PN448
MS O'NEILL: You will see in that, your Honour, that the amendments are identified with markings on the right and it really simply - the amendment constitutes a proposed change to an order that has been sought by a further sub-clause in the proposed clause 3, industrial action to stop.
PN449
THE SENIOR DEPUTY PRESIDENT: Yes, all right.
PN450
MS O'NEILL: Your Honour, in terms of the jurisdictional basis for this application, as you are aware, it is an application made by the Australian Workers' Union that the respondent, Skyway's, stop engaging in industrial action. The Commission should in our submission be able to be satisfied that industrial action is happening, is threatened and impending or probable. The alleged industrial action arises from, or is compromised of the action of the respondent since 15 October 2003 in refusing to permit an employee, Karen Ester, to attend work and perform her duties, and that is a total ban.
PN451
As your Honour will be aware, on 2 October 2003 Commissioner Lewin determined that Ms Ester's employment had been terminated by the respondent in a manner that was harsh, unjust and unreasonable and pursuant to that decision Commissioner Lewin made an order reinstating Karen Ester to the employment - or to be re-appointed to the position in which she was employed by the respondent immediately prior to the termination of her employment and an order that she be made back pay from the date of termination up until the date of reinstatement.
PN452
The respondent lodged an appeal against the decision of Commissioner Lewin and sought an urgent stay of the reinstatement order. That application for a stay was heard by Senior Deputy President Acton on 13 October 2003 and that application was dismissed. The appellant raises a series of grounds in the appeal. To be fair, they relied predominantly on one ground in relation to the application for a stay order and Senior Deputy President Acton found that the appellant had not established an arguable case in relation to the grounds it argued before her.
PN453
Consequent upon the dismissal of the stay application, on 15 October 2003 Ms Ester attended for work at about 4.30 pm and was directed to go home and advised that she should stay at home until further notice and that remains the situation to date, your Honour, despite Ms Ester remaining, ready, willing and in fact anxious to perform her duties. It is submitted then that this refusal of the respondent to allow Ms Ester to attend work and perform her duties constitutes industrial action.
PN454
It is submitted that that action falls within each of paragraphs (a), (b) and (c) of the definition of industrial action as defined in section 4 of the Act. I note that Mr Rinaldi had made submissions to you that the definition of industrial action really only deals with collective action. In our submission there is just no basis for such a proposition. There is no such limitation found in the language of the section and I imagine that many employers in the country would be most concerned to find that employees provided that they took action on a single basis were not engaged in industrial action.
PN455
In our submission the refusal to enable Ms Ester to attend work constitutes the definition in section 4(1)(a) in that it is the adoption of a practice in relation to work, that being the work of Ms Ester, the result of which there is a restriction on the performance of the work where the terms and conditions of the work are prescribed partly by an order of the Commission. There is no basis in our submission to confine work - or to ascribe to the use of the word work in that definition to work of some collective nature or something other than the performance of work in this case - - -
PN456
THE SENIOR DEPUTY PRESIDENT: As I understand the submission, the work is the work of the employer, or in other words, the business of the employer, rather than the work of the employee, or the individual employee.
PN457
MS O'NEILL: Well, in our submission it can go both ways. The reference to work can be the work of the employer, in which case the respondent has adopted a practice, that is, not requiring at least one employee to perform work, or alternatively, it is the adoption of a practice in relation to the work of Ms Ester. In relation to paragraph (b) of the definition in section 4 it is submitted that the conduct of the respondent is a ban on the acceptance of or offering for work by Karen Ester in accordance with the terms and conditions prescribed by an award or order of the Commission by a certified agreement and by an award.
PN458
I will go to that in a bit more detail later on because that is obviously the question of what award or order is binding on the employer here where it is not submitted that Skyway is a named respondent to either the Building Services Award or the Tempo Certified Agreement. In relation to paragraph (c) of the definition it is submitted that the conduct constitutes a ban on the acceptance of or offering for work adopted in connection with an industrial dispute and in that regard we rely on the evidence of Mr Lee together with the general facts and circumstances before the Commission to evidence the existence of an industrial dispute, the parties to which are the Australian Workers' Union and Skyway in relation to the unilateral decision by the employer to not require an employee and potentially other employees to attend for work.
PN459
I make a reference in paragraph 11 of the outline to the decision of the Full Bench in Coal and Allied which notes that what may constitute industrial action is widely defined. We also rely on the fact that in previous matters the Commission has determined that a refusal to allow an employee and a single employee to return to work can constitute industrial action and I refer to the decision of Commissioner Whelan in the AMWU v Gunn and Taylor.
PN460
Your Honour will see from this decision of Commissioner Whelan that a section 127 order was issued on the application of the AMWU to the effect that industrial action, namely, the restriction of the performance of work by an individual employee, Belinda Vasandi, should cease. The nature of this application was that the employee had been absent from work due to a WorkCover injury. She had a medical clearance and sought to return to work. She sought to do so, having a certificate of capacity issued by a medical practitioner that she was fit to resume her duties and the employer refused to enable her to return to work.
PN461
In those circumstances Commissioner Whelan was satisfied that the refusal to allow Ms Vasandi to resume work did constitute industrial action and went on in the exercise of her discretion to issue the 127 order. There is a further decision of the Commission to the same effect, your Honour, in the CFMEU v Moranbah North Coal Management Pty Ltd and this is a decision of Commissioner Bacon.
PN462
THE SENIOR DEPUTY PRESIDENT: Do you have the Full Bench decision there also that refused leave to appeal?
PN463
MS O'NEILL: I am sorry, your Honour?
PN464
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the Full Bench decision that refused leave to appeal?
PN465
MS O'NEILL: Yes, I do, your Honour. I am afraid I don't have multiple copies but I will provide this one to the Commission. It is a Full Bench comprising Giudice J, Deputy President Leary and Commissioner Raffaelli.
PN466
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN467
MS O'NEILL: This is a similar position, your Honour, where the employer in this case refused to allow an employee to return to work until he could resume pre-injury duties and Commissioner Bacon was satisfied that that conduct constituted industrial action and namely, that they have - well, you will see at paragraph 17, your Honour, that Commissioner Bacon concludes that, and this is in the second sentence:
PN468
The actions of MNC do constitute industrial action as defined in paragraphs (a) and/or (b) of the definition contained in section 4 of the Act.
PN469
THE SENIOR DEPUTY PRESIDENT: Yes, right.
PN470
MS O'NEILL: I should in fairness point out something later in that paragraph, your Honour. You will see that - this is about the - it is the sentence two thirds of the way down starting, "During the hearing".
PN471
THE SENIOR DEPUTY PRESIDENT: Yes.
PN472
MS O'NEILL: It appears from this that the issue in this point was that the employee in question wasn't being paid and the CFMEU invited the Commission to, rather than make the order that he be returned to work, that he just be paid.
PN473
THE SENIOR DEPUTY PRESIDENT: Right.
PN474
MS O'NEILL: In our submission that doesn't change the nature of the finding that there was industrial action.
PN475
THE SENIOR DEPUTY PRESIDENT: The Full Bench didn't touch on that though, did it?
PN476
MS O'NEILL: No, your Honour.
PN477
THE SENIOR DEPUTY PRESIDENT: In fact the Full Bench appears to have considered there was some facility in the appeal basically and on that basis didn't - - -
PN478
MS O'NEILL: I think that is right, your Honour.
PN479
THE SENIOR DEPUTY PRESIDENT: Yes.
PN480
MS O'NEILL: In our submission therefore the conduct of Skyway's constitutes industrial action and that is the first matter that you must be satisfied of for jurisdictional purposes. The second is the requirements under section 127 itself where the industrial action must be happening in relation to either paragraphs (a), an industrial dispute, (b), the negotiation of an agreement, or (c), work regulated by an award or certified agreement.
PN481
We rely on paragraphs (a) and/or paragraph (c), your Honour. But I note in passing that you asked my learned friend what the constitutional basis was for section 127, without knowing the answer authoritatively, it appears given the reference in paragraph (b) there to negotiation of agreements under division 2 of part VIB, those being agreements with constitutional corporations, that a mix of the constitutional heads of power may be involved.
PN482
In the outline of our submissions firstly it is put that the reinstatement order of Commissioner Lewin is an award that regulates the work of Karen Ester.
PN483
THE SENIOR DEPUTY PRESIDENT: How can you say that given the definition of award with section 4?
PN484
MS O'NEILL: Well, my next sentence was going to be, your Honour, having heard my friend's submissions I think there is some force in that and I don't think we can take that any further in relation to that. Your Honour, it is submitted then that the certified agreement covering Tempo regulates the work in question and this is firstly on the basis that Skyway's is a transmittee of the business of Tempo, the previous contractor, and this arises both the argument in relation to transmission, relates back to both the definition of industrial action in section 4 as well as the requirements of section 127(1)(c) and similarly apply to both the question of the award and the certified agreement.
PN485
My friend has taken you to the decision of the High Court in PP Consultants. There is a decision of a Full Court of the Federal Court subsequent to that decision that refers to PP Consultants that I think is perhaps of some assistance and this is the decision in Gribbles Radiology v Health Services Union of Australia. I apologise, your Honour, the copy I have handed up has some underlining. I don't think it has any other notes on it.
PN486
THE SENIOR DEPUTY PRESIDENT: That might assist me.
PN487
MS O'NEILL: I am sorry?
PN488
THE SENIOR DEPUTY PRESIDENT: It might assist me.
PN489
MS O'NEILL: Yes, it might, or it might just be a red herring. I am sure your Honour has some familiarity with this judgment and so I won't take you to it in any detail particularly in light of the time. But in essence, it involved the provision of radiography services at a particular clinic in Moorabbin in circumstances where those services were previously being provided by one entity. That contract was brought to an end, was terminated, and a subsequent contract was entered into with a third entity.
PN490
There was nothing in the way of direct transfer of anything in the nature of the business or goodwill or matters of those sorts between the two entities that were providing the services. In our submission the situation here when you have a contract with one cleaning contractor, Tempo, who on the evidence of Mr Lee ceased in 2001 and Skyway's took over that contract - I think in fact in this judgment there is reference to the comments of the primary judge who in considering whether there had been transmission talked about, or referred to the use of the language of taken over as, without putting it too highly, some support for the notion of what in fact had happened and that there was a transmission of business.
PN491
The transmission of business in this case was sought for the express purpose of finding that the second entity was bound by - or pursuant to section 149(1)(d) of the Act of the relevant award that in turn provided for severance benefits to employees. You will note at paragraphs 19 and 22 that there was no evidence of any direct dealings between the two entities. So we rely on the decision in Gribbles, together with the evidence of Mr Lee to establish that for the purposes of section 149(1)(d) and for section 170MB of the Act, there has been a transmission of business form Tempo to Skyway's and accordingly Tempo's certified agreement, which is AWU2 I think, your Honour, is binding on the respondent and similar submissions in relation to the Building Services Award.
PN492
Furthermore, it is submitted that the certified agreement regulates the work of Karen Ester as a matter of contract. This arises, your Honour, on the basis of the evidence of Mr Lee of the representations made to Mr Christie and his evidence that as a matter of fact the terms of the Tempo agreement have been applied to the employment of Ms Ester and others. But perhaps of more force in relation to the award, the employment agreement of Ms Ester, which is exhibit - sorry, your Honour, I think it is exhibit AWU3. You will note that on the first page clause 2 provides that award conditions and entitlements will be met in full.
PN493
We rely on that as a foundation that the reference to award in Ms Ester's employment agreement is a reference to the Building Services Victoria Award 1994 and as such it regulates Ms Ester's employment as an express term of her contract of employment. I note, your Honour, that whilst Skyway's is not a named respondent to that award the predecessor, Tempo Services, is. Those are our submissions in relation to section 127(1)(c) of the Act. Alternatively and in addition it is submitted that the industrial action is happening in relation to an industrial dispute, and as I submitted earlier, we rely on the evidence of Mr Lee to establish that an industrial dispute does as a matter of fact exist between the parties.
PN494
THE SENIOR DEPUTY PRESIDENT: What is the industrial dispute?
PN495
MS O'NEILL: It is an industrial dispute between the AWU and Skyway's about the refusal of Skyway's to prevent Karen Ester from performing her duties and extends to a dispute over current or future attempts by Skyway's to prevent or obstruct the performance of work by other employees who are members, or eligible to be members of the AWU, and that is a paraphrasing of what is in paragraph 14 of the outline of submissions.
PN496
THE SENIOR DEPUTY PRESIDENT: Yes.
PN497
MS O'NEILL: Could I just have a moment, your Honour?
PN498
THE SENIOR DEPUTY PRESIDENT: Yes, sure.
PN499
MS O'NEILL: Subject to any matters your Honour wishes to raise, those are the submissions in respect of jurisdiction.
PN500
THE SENIOR DEPUTY PRESIDENT: Thank you very much, Ms O'Neill. I don't have any questions at this stage. Thank you for your helpful submissions. Yes, Mr Rinaldi.
PN501
MR RINALDI: Thank you, your Honour. I think I heard my learned friend submit in relation to paragraph 10 of her outline that - perhaps I was just reading paragraph 10(a), that my client has adopted a practice in relation to work, the result of which is a restriction on the performance of the work where the terms and conditions of the work are prescribed partly by an order of the Commission, and I think she was referring there to Commissioner Lewin's order. That certainly does not prescribe any of the terms and conditions of the work. So if that is the way - - -
PN502
THE SENIOR DEPUTY PRESIDENT: Well, I think Ms O'Neill in fact didn't press her claim in relation to Commissioner Lewin.
PN503
MR RINALDI: Yes. She certainly accepted the definition of award meant that didn't come within section 127. But I don't think she jettisoned paragraph 10(a) and if that was reliant upon - and that was some time earlier than that concession was made, if that paragraph relies on the order of the Commissioner, then in my respectful submission it does not in any way regulate or prescribe the terms and conditions of work and if it did, in the sense that if it provided for reinstatement to what might be called active duty, then for the reasons that I have already outlined, the Black Adder decision would render that liable to be excised.
PN504
So I just wanted to, if my understanding of that submission was correct, to rebut the suggestion that the Commissioner's order in any way prescribes terms and conditions of work. If our however it is on the transmission issue of the award and it doesn't appear to be that it is an award, otherwise the use of the word award would be expected in that part of the definition of industrial action, which it is actually an award or order. But the submission in paragraph 10(a) seems to be directed to order. It maybe that my friend would like the opportunity to clarify.
PN505
THE SENIOR DEPUTY PRESIDENT: Yes, but - no, but sorry, the definition in 4(1)(a) uses the word order.
PN506
MR RINALDI: It does. Award or an order.
PN507
THE SENIOR DEPUTY PRESIDENT: Yes.
PN508
MR RINALDI: And the submission is 10(a) only refers to award, so I am happy to extend to my friend the opportunity to clarify that matter.
PN509
MS O'NEILL: Sorry, your Honour, I thought I made it clear. The submissions in relation to the binding nature of the award, being the Building Services Award, and the certified agreement, the Tempo Agreement, are made in relation to both satisfying the definition of industrial action in paragraph 4(a)(i) and subparagraph (b).
PN510
THE SENIOR DEPUTY PRESIDENT: Well, subparagraph (b) of the definition of industrial action actually does incorporate or include the word order.
PN511
MS O'NEILL: Indeed, as does - - -
PN512
THE SENIOR DEPUTY PRESIDENT: By a certified agreement or AWA, by an award determination or order made by another Tribunal under the law. Sorry, prescribed by an award or an order of the Commission. So the use of the word order in that definition - - -
PN513
MS O'NEILL: But it also refers to an award.
PN514
THE SENIOR DEPUTY PRESIDENT: I appreciate that, but I thought you used order in the same sense that it is used there, that it is something beyond is meant by an award and the same in (a)(i), the word order is used there by an order of the Commission.
PN515
MS O'NEILL: I don't know if it is just the lateness of the hour, your Honour, but I am getting myself caught up with this.
PN516
THE SENIOR DEPUTY PRESIDENT: Yes. I don't think I would concede anything at this stage and let Mr Rinaldi make his point.
PN517
MS O'NEILL: Indeed.
PN518
MR RINALDI: All right. Well, yes, if there is a point to be made, I have made it, your Honour, I think in relation to that.
PN519
THE SENIOR DEPUTY PRESIDENT: Yes.
PN520
MR RINALDI: So as I apprehend it, the award or order that is said to be binding that might remain is the - - -
PN521
THE SENIOR DEPUTY PRESIDENT: You say it doesn't prescribe the conditions of work in any event.
PN522
MR RINALDI: Not his Honour's reinstatement - sorry, I beg your pardon. Not the Commissioner's reinstatement order.
PN523
THE SENIOR DEPUTY PRESIDENT: I understand.
PN524
MR RINALDI: But I understand the argument is put that the Building Services Victoria Award may do so by way of transmission and I will come to that. Well, I have already made submissions in relation to that.
PN525
THE SENIOR DEPUTY PRESIDENT: That is the last point that was made.
PN526
MR RINALDI: Yes. There was also a submission made that related to Ms Ester, this whole action by the employer, if we call it that, related not only to Ms Ester but I think the words were potentially other employees not being permitted to return to work and in my submission there is no evidence about that whatsoever and indeed there is no reason to imagine that other employees are not going to be allowed to work. This is purely and simply, and it comes back to my fundamental point, arising out of an unfair dismissal claim, a hearing and a determination which resulted in a reinstatement order being made.
PN527
It is only that one employee in relation to that reinstatement order that this concerns. There is no suggestion of any flow on to other employees and that is why it is not an industrial dispute. It is also why, in my respectful submission, your Honour, the two decisions referred to in paragraph 12 of my friend's outline are not relevant here. It may be that in those cases, certainly there seems to be, that the Commission has held that a refusal to allow an injured employee to return to work at a particular time might constitute industrial action.
PN528
I need not address you on that. They are not the facts of this case. Neither of those cases concerned the termination of an employee. Neither of those cases concerned any action relating to an unfair dismissal claim, or more particularly, an order under section 170CH of the Act, and that is again the nub of my submission, your Honour, that whatever else one might think about say the definition or the meaning of the word work in section 4, definition of industrial action where there has been an unfair dismissal claim and there is a section 170CH order made, then there is a code that deals with the remedies that flow or the enforcement of such an order and that is set out in division 3 of part VIA, particularly in section 170JC.
PN529
THE SENIOR DEPUTY PRESIDENT: Yes. Well, you have already taken me to that.
PN530
MR RINALDI: I have taken you to that, your Honour, and I just wanted to point out one extra thing that I neglected to mention and that is in my submission it adds weight to my previous submission to note that section 170JC(3) states:
PN531
In addition to any other right that an employee covered by an order under this part -
PN532
be it part VIA, the unfair dismissal part of the Act -
PN533
may have under part VIII -
PN534
that is the penalties and enforcement part of the Act, which includes section 178 and others -
PN535
the employee may apply to the court.
PN536
So there is clearly, if you like, a legislative turning of the mind to the remedies when one is not happy with compliance with an order made under this part of the Act and they are either for breach under part VIII or under this.
PN537
THE SENIOR DEPUTY PRESIDENT: Yes, but that is not the nature of this claim. The nature of this claim is there has been a reinstatement in compliance with the order but the employer is exercising some form of industrial action by restricting the person from performing their work. I know your point before about 170JC and the fact that it lends force to the point that you make that this isn't the appropriate provision of the Act to deal with these matters, but in circumstances where there is a reinstatement, or there is said to be a reinstatement, then it is not really an enforcement of the order because the order ordered reinstatement.
PN538
You are saying there has been compliance with the order in effect and what the union says, well, that may be so but now you are exercising some form of industrial action by limiting or restricting the employee in performing her work.
PN539
MR RINALDI: Yes, and I mean it is difficult to divorce the two because it is, in my respectful submission, difficult to see how that can be industrial action, certainly industrial action of an illegitimate type, to use the Coal and Allied v AFMEU case description.
PN540
THE SENIOR DEPUTY PRESIDENT: Yes.
PN541
MR RINALDI: But that is more about going to discretion.
PN542
THE SENIOR DEPUTY PRESIDENT: Yes, that is right. And I think another Full Bench has said, well, it doesn't necessarily have to be illegitimate in any event.
PN543
MR RINALDI: And obviously we will get to that if we get to that.
PN544
THE SENIOR DEPUTY PRESIDENT: Yes.
PN545
MR RINALDI: Anyway, I just wanted to refer to that reference to part VIII and to indicate again that in my submission that it is a code and whilst I take your Honour's point that it is a different type of proceeding that is brought here it is not - in my submission it lends weight to my other submission that the industrial action definition requires that collective notion of work because there are remedies for individuals who have been terminated and the two cases referred to by my friend in paragraph 12 are distinguishable from this because they weren't termination cases and they didn't include a reinstatement order or any other order under section 170CH.
PN546
THE SENIOR DEPUTY PRESIDENT: Well, your point there really is in effect that this application is enforcement by another means?
PN547
MR RINALDI: Yes, yes. And it is enforcement by a party who does not have the benefit of the order in fact. Now, I accept that that goes to your Honour's point that you have just made, that it is a different nature of application, but it all comes back to saying that it is really not industrial action, your Honour, in the first place, truly. My friend referred to and I perhaps should have anticipated this, but she referred to the argument that the certified agreement regulates Ms Ester's employment as a matter of contract because of what is alleged to have been said in hearsay evidence by the representative of the company whose name escapes me. Mr Christie.
PN548
Now, if that is so, that he has made such a statement, and indeed my friend rightly and I have just forgotten, referred to the clause of AWU3, being the employment agreement which states that award conditions and entitlements will be met in full. It is an interesting clause given that there is no award applicable to the employer, but if the contract in some way incorporates award provisions, and which isn't conceded, but if that were the case, which is the submission as I understand from Ms O'Neill, then that does not assist the applicant in this case because it doesn't bring it within 127 of the Act.
PN549
The work has to be regulated by an award or certified agreement. That is quite clear under section 127(1)(c). There is no provision dealing with a contract regulating the work. So that is again in my respectful submission an irrelevancy. The alternative submission as it was put by Ms O'Neill was made that the applicant relies on there being an industrial dispute therefore bringing it within section 127(1)(a) of the act between the AWU and Skyway.
PN550
Apart from the paucity of evidence other than Mr Lee's concern, that still runs into the fundamental difficulty in my submission that there is absolutely no evidence of any dispute between employer and employees. It is only the AWU that has this concern which it calls a dispute. There is no evidence of any employees sharing that concern and there is certainly no evidence of any dispute between employees and the employer, so there is not an industrial dispute within the meaning of the Act.
PN551
As to the Gribbles decision, your Honour, and this is something that as I was leaving chambers I grabbed a copy of it because I thought it may have some application, but I have to confess, I haven't had a chance to read it again. I had a look at it briefly when it came out some six or seven months ago so I - - -
PN552
THE SENIOR DEPUTY PRESIDENT: Well, if you wish I will allow you until lunch time tomorrow to put in a brief written submission about it.
PN553
MR RINALDI: Yes. As I apprehend it from what I have read and I haven't completed reading it, whilst my friend was on her feet, the court - - -
PN554
THE SENIOR DEPUTY PRESIDENT: Well, it is an unreported decision.
PN555
MR RINALDI: To the best of my knowledge, yes.
PN556
THE SENIOR DEPUTY PRESIDENT: Yes. And it wasn't provided to you by the other side, was it?
PN557
MR RINALDI: No.
PN558
THE SENIOR DEPUTY PRESIDENT: Yes. Well, you can have until lunch time tomorrow to file any written submissions, brief written submissions about it.
PN559
MR RINALDI: In relation to that, yes. Other than that, your Honour, those are my submissions.
PN560
THE SENIOR DEPUTY PRESIDENT: Okay. All right. Well, subject to your written submissions being filed by noon tomorrow, I will reserve my decision and I will hand that down at 3 o'clock tomorrow afternoon and we will see where we go from there then. If the parties need to be in attendance for the decision I will let you know through my associate. All right.
PN561
MS O'NEILL: Could I just ask, your Honour, do you have any view if you were to find that there is jurisdiction to proceed, did you have any view when that might occur? The only reason I say that is if the Commission was minded to go straight into that I would have major problems on Thursday for example, but I am probably jumping the gun.
PN562
THE SENIOR DEPUTY PRESIDENT: Well, I was intending to proceed tomorrow if I found there was jurisdiction. But the difficulty with that now is - I mean I won't receive the other submission until noon tomorrow and the parties won't have had an opportunity to prepare themselves on short notice for the continuation of the hearing tomorrow. I could hear it on Thursday but you are not available on Thursday and Friday I am in Adelaide.
PN563
MS O'NEILL: Well, can I say on behalf of the applicant that we are ready to proceed now in relation to the merits whenever the - or should that opportunity arise and presumably - - -
PN564
THE SENIOR DEPUTY PRESIDENT: Well look, if I find there is jurisdiction the parties perhaps better be ready to proceed with the merit issue tomorrow afternoon at 3 o'clock.
PN565
MS O'NEILL: Thank you, your Honour.
PN566
THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.
ADJOURNED UNTIL WEDNESDAY, 29 OCTOBER 2003 [6.30pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
TERENCE JOHN LEE, AFFIRMED PN133
EXAMINATION-IN-CHIEF BY MS O'NEILL PN133
EXHIBIT #AWU1 WITNESS STATEMENT OF T. LEE DATED 27/10/2003 PN142
EXHIBIT #AWU2 STATEMENT OF T. LEE DATED 28/10/2003 PN155
CROSS-EXAMINATION BY MR RINALDI PN164
WITNESS WITHDREW PN272
EXHIBIT #AWU3 EMPLOYMENT AGREEMENT PN298
EXHIBIT #AWU4 CERTIFIED AGREEMENT PN300
EXHIBIT #AWU5 AMENDED APPLICATION PN448
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