C2003/6280, Transcript of Proceedings [2003] AIRCTrans 5091 (17 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2003/6280

APPLICATION TO STOP OR PREVENT INDUSTRIAL ACTION

Application under Section 127(2) of the Act
by John Holland Engineering Pty Ltd for orders
in respect to the alleged industrial action

BRISBANE

11.05 AM, MONDAY, 3 NOVEMBER 2003

PN1

THE COMMISSIONER: Thank you, I will take appearances, please.

PN2

MR J. LUNNY: Commissioner, my name is Lunny, initial J, and I seek leave to appear on behalf of John Holland, the applicant in the first matter, and the respondent in the second matter. I am accompanied by MR BILL WYATT and MR STUART JACKSON of our client. If the Commission pleases.

PN3

THE COMMISSIONER: Thank you, Mr Lunny.

PN4

MR E. MOORHEAD: If it pleases the Commission, my name is Moorhead, initial E. I appear on behalf of the AFMEPKIU. With me is MR PETER LEES, Assistant State Secretary. Commissioner, we oppose the legal representation of John Holland Engineering. We say that the matter is not of such complexity or - that requires legal representation. In the course of Section 127 applications we say that this matter is a fairly standard matter, and doesn't involve any extensive points of law that would require significant legal representation.

PN5

THE COMMISSIONER: Very well, thank you, Mr Moorhead.

PN6

MS Y. D'ATH: If the Commission pleases, D'Ath, initial Y, on behalf of the Australian Workers' Union. With me FRANK CHAMBERS. The AWU would also oppose legal representation on the same basis as Mr Moorhead has outlined. If the Commission pleases.

PN7

THE COMMISSIONER: Thank you, Ms D'Ath. Well, before I ask Mr Lunny to respond to the question of leave, we have - or I have acquiesced to the AMWUs application in terms of their suggestion to the Section 99 at the same time as the 127. I understand from your application, Mr Lunny, that you have concerns the disputes procedure has not been fully discharged.

PN8

MR LUNNY: That is correct, Commissioner.

PN9

THE COMMISSIONER: I would have thought commenced the proceedings this morning by allocating some time, brief in nature, to allowing the parties to have some discussions in relation to, as it would be, a general consideration of mine under exercising any discretion whether an order be issued in relation to the 127 as to whether that disputes procedure had been fully discharged in terms of conciliation.

PN10

So putting aside for one moment the issue of leave, which I will give some consideration and here you on prior to adjourning, but my preferred course of action would be to allow the parties to have some private discussions to report back to me after a brief adjournment in order that there can be some consideration of the issues raised under that 99. So I can consider, if we move to the 127, and I am not suggesting that we wouldn't, whether the outcome of at least exhausting the disputes procedure at this stage. I understand there would be some submissions as to what would have occurred in terms of the disputes procedure on Wednesday, the 30th, but at this stage, because it wouldn't necessarily be a consideration of mine under the Section 127. Do you have any objection to that course, Mr Lunny?

PN11

MR LUNNY: I don't, but I would request that I be allowed to at least advise my client during that conference.

PN12

THE COMMISSIONER: Well, before we do that, Mr Moorhead and Ms D'Ath, do you have any objection to Mr Lunny representing his clients in that Section 99 matter?

PN13

MR MOORHEAD: Commissioner, is the - - -

PN14

THE COMMISSIONER: I know you made your submissions in relation to the 127 matter in terms of leave.

PN15

MR MOORHEAD: Is the question whether - sorry, Commissioner, I am a little confused as to what - are you suggesting - - -

PN16

THE COMMISSIONER: I am suggesting - the two matters have been listed together - the 127 obviously was the application that was made first, and then the Section 99, and you requested that it be listed at the same time; that has been done. And my preferred course of action would be that the Section 99 proceed first in terms of some discussions between the parties in the first instance, and I am asking you if that was to occur, that Mr Lunny be able to represent his clients in those discussions.

PN17

MR MOORHEAD: I don't have any objection to that suggestion, Commissioner, at all. I am just a little confused, Commissioner; is that conference of which you speak chaired by yourself, or is it just - - -

PN18

THE COMMISSIONER: Well, I thought in the first instance that the parties could have some discussions; is that - are you seeking that it be chaired by the Commission?

PN19

MR MOORHEAD: Well, Commissioner, it may briefly - at first, it may be best if the parties have a brief discussion without your chairmanship, but we would seek that after that time that there would be some - a conference with you chairmanship.

PN20

THE COMMISSIONER: That is my suggested course. All right. Ms D'Ath, do you have any objection to Mr Lunny?

PN21

MS D'ATH: No, Commissioner.

PN22

THE COMMISSIONER: All right. Well, what I would like to do is hear Mr Lunny in relation to the question of leave on the 127. I will consider that issue whilst the parties are having the discussions in relation to the Section 99.

PN23

MR LUNNY: Commissioner, thank you very much, and can I also thank you for your indulgence in putting the conference back to 11 o'clock, which enabled my client to travel up from Sydney. They are very grateful for that. Commissioner, there are two limbs to Section 42(3) which deals with an application for leave to appear. Clearly, the matter is entirely at the discretion of the Commission. We can forget the first Section 42(3)(a) which is only by consent of the parties. I note that my friends oppose my application.

PN24

Going towards special circumstances in a Section 127 environment, we wold say firstly there is an element of gravity to any Section 127 application which puts it beyond the routine matters of the Commission, and there have been a number of observations made by senior members of the Commission to the effect that a Section 127 application is a very serious matter. And if we take the word special, it means special or exceptional, in terms of, we would say, the potential consequences and outcome.

PN25

And the potential consequences in this matter as we speak are considerable if the application is granted with respect to the obligations that it will create on the union and the members, and expose them to potential Federal Court application. The consequences are considerable for John Holland Engineering if the application is not granted because it is subject to extremely damaging industrial action as we speak.

PN26

Any Section 127 application does require you to be formally taken to those issues which go towards establishing jurisdiction for the order, and those are matters of fact and law. There is a requirement to take you to the element of discretion and submissions to be made on its proper exercise. There would be a requirement to refer to established authorities. We know that there is a likelihood it could escalate to another forum; that is the Federal Court. And we say that there would be a very substantial need for continuity in that consequence. The seriousness of the issues; evidence would be led to indicate that the damages caused to our client and its clients is very considerable indeed. That is the limb that we may describe as going to special circumstances on the subject matter.

PN27

The second limb, 42(3)(c), Commissioner, deals with the issue of whether the client can only be adequately represented. And adequate, we would say, embraces proportionate to the requirements, and issues of natural justice come into play as well, and we have got very experienced advocates here from both unions. And a situation whereby my client's industrial officer, Mr Bill Wyatt, who is here today, would, in the Section 127 matter, be required to give evidence, along with Mr Jackson, and we say it would be inadequate to expect a proceeding to go ahead on that basis without representation.

PN28

And there would also, even in conference, be the need for a client to be advised on its legal position as the dynamic of the proceeding unfolds, and we say those factors go towards adequate representation as a supporting element, Commissioner. Substantially the same parties appeared before you earlier this year on a Section 127 application, and you were persuaded that the merits justified granting of that order, and I note that leave to appear was granted despite vigorous opposition on that occasion. If the Commission pleases.

PN29

THE COMMISSIONER: There is no objection to your representation in terms of the Section 99, so I would suggest the parties proceed with those discussions, and I will consider your submissions in relation to the 127 matter as that evolves, subject to the report-backs after the Section 99. Mr Lunny and Mr Moorhead and Ms D'Ath, any guidance for the Commission in terms of how long you would want for those discussions first up? Half an hour, Mr Moorhead, in the first instance?

PN30

MR MOORHEAD: Yes, Commissioner, half an hour would be fine.

PN31

THE COMMISSIONER: Well, I will have my associate check with you after half an hour.

PN32

MR MOORHEAD: Thank you, Commissioner.

SHORT ADJOURNMENT [11.20am]

RESUMED [11.52am]

PN33

THE COMMISSIONER: Right, who would like to commence with the report back?

PN34

MR LUNNY: Commissioner, if I may. We had very constructive discussions between the parties. Now, from John Holland Engineering's perspective, we would like to put to you what we see as a resolution to this current issue and that is a resolution by way of a recommendation, a strong recommendation, from yourself, Commissioner, that there be a resumption of work at the Mac yard at Hemmant from 6.30 am tomorrow, which is the start of the day shift. We would invite the unions to formally indicate their support to any recommendation that you make.

PN35

I understand that they will then be reporting back to their members tomorrow morning, that there be, again, subject to a report back mechanism to you, Commissioner, there be discussions between the parties consistent with the dispute resolution procedures in the agreement over the safety issues which have emerged in discussion with particular emphasis on procedures whereby employees can voice their individual and collective concerns. On the basis that such a recommendation is issued, we would ask that the section 127 application be adjourned with leave to apply only in the event that resumption of work does not commence tomorrow morning, Commissioner.

PN36

THE COMMISSIONER: Mr Lunny, the discussions with regard to the safety issues, those conferences, just to clarify, when are you suggesting that they occur?

PN37

MR LUNNY: Tomorrow morning, Commissioner.

PN38

THE COMMISSIONER: That is on-site, are you saying?

PN39

MR LUNNY: Yes.

PN40

THE COMMISSIONER: Yes, and if needs are you suggesting they come to the Commission?

PN41

MR LUNNY: Certainly there would be a report back facility and, if necessary, can come back to the Commission with those matters for your chairmanship.

PN42

THE COMMISSIONER: Yes. I just wanted to clarify that. I didn't quite hear. All right, thank you, Mr Lunny. Mr Moorhead?\

PN43

MR MOORHEAD: Commissioner, the position of the AMWU is that if the Commission is to make a recommendation in the terms sought by John Holland Engineering, the AMWU will support that recommendation and will strongly recommend the contents of that recommendation to the report back meeting to be held, if that is the recommendation to be issued by the Commission.

PN44

THE COMMISSIONER: What time are you suggesting that report back meeting is going to occur, 6 am prior to the - - -

PN45

MR MOORHEAD: 6.30.

PN46

THE COMMISSIONER: 6.30. That is the same time as the start of the shift, is it?

PN47

MR MOORHEAD: Yes.

PN48

THE COMMISSIONER: All right. So the employer is aware that those two - that report back meeting will occur at - contemporaneous with the start of the shift. Mr Moorhead, I didn't mean to cut you off. Is that - - -

PN49

MR MOORHEAD: No, that is our understanding of what John Holland are seeking.

PN50

THE COMMISSIONER: Thank you. Ms D'Ath?

PN51

MS D'ATH: Thank you, Commissioner. Yes, the AW can also place on the record that if the Commission does issue a recommendation as requested by the company, then it is the AW's position to strongly support that recommendation and to convey that support to the members at the meeting at 6.30 in the morning and to certainly support a meeting occurring after the resumption of work in relation to the industrial delegates an also the safety delegates in management to go through those safety procedures for the purpose of coming up with any preferred safety procedure that in future would be acceptable to all the parties and if need be they will report back to the Commission in relation to those matters, if the Commission pleases.

PN52

THE COMMISSIONER: All right. Certainly I think the terms of the request for that recommendation are reasonable and it would certainly on the reports of the parties achieve a resolution in this matter subject to the report back being received and supported tomorrow. So I would make the recommendation in accordance with what is sought by the parties. I would firstly say that I have not heard any evidence in relation to the section 127 matter and I do not see it as necessary to respond to the submissions of leave at this stage of Mr Lunny given the report back in relation to the section 99. I commend the parties on reaching a resolution to this matter.

PN53

I don't determine any of the issues, obviously, that have been put before the Commission. Certainly safety issues are f importance but also is the discharge of the disputes procedure a critical issue at any work site and there is a clear dispute procedure in the Transfield agreement as cited by Mr Lunny in his application and I would expect that there would be a full and proper discharge of that procedure before any industrial action be taken. Please convey that it is my strong recommendation that should be conveyed by the unions to the work site that no industrial action should be taken before there is a discharge of that disputes procedure.

PN54

I don't denigrate if the employees have a concern over a safety issue, that they can agitate that particular issue but it should be done through the proper discussions through the disputes procedure and, if necessary, would be listed expeditiously before the Commission. I therefore recommend that there be the discussions to convey that recommendation in terms of no industrial action as I have set out at 6.30 am at the start of the shift tomorrow with the support of the unions and the employer and I also understand that at that time there will be arranged appropriate discussions over the proper procedures to be implemented if there is concerns in relation to safety issues.

PN55

On that basis of the resumption of work following that recommendation, I understand Mr Lunny, on behalf of the company, would withdraw the section 127 or has withdrawn on the basis of that recommendation but he has the ability, if work is not resumed at that time, to resume that action before the Commission. I would expect that that would be a full resolution of the matter if the recommendation and the support that has been expressed this morning, is conveyed at the work place that there should be a full support. If, in fact, those discussions break down, I would list this matter on the application of any party in an expeditious manner. Thank you.

PN56

MS D'ATH: Commissioner, can I just make one point briefly. We would ask that that - - -

PN57

THE COMMISSIONER: We won't adjourn, then. Yes?

PN58

MS D'ATH: Sorry, we would ask that that recommendation be formally put on transcript and released to the parties as soon as possible today so that that can be conveyed to the members.

PN59

THE COMMISSIONER: All right. What I will do is I will ask for my associate to release from the report back right through on an urgent release so it can be received by the parties this afternoon for the report back tomorrow morning. Any other issues?

PN60

MS D'ATH: Thank you.

PN61

THE COMMISSIONER: Thank you.

PN62

MR LUNNY: Thank you.

ADJOURNED INDEFINITELY