C2003/1008, Transcript of Proceedings [2003] AIRCTrans 977 (21 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT10248

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2003/1008

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION, VICTORIA BRANCH

and

MAINTENANCE RESOURCE ENGINEERING
PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re refusal of entry

MELBOURNE

1.05 PM, WEDNESDAY, 5 MARCH 2003

PN1

MR J. MADDISON: I appear on behalf of the applicant, the CFMEU. Also with me today is MR S. REARDON, who has provided a witness statement in this matter. Commissioner, while I am on my feet I indicate that there will be no opposition to leave of my friend in this matter.

PN2

THE COMMISSIONER: Thank you for that, Mr Maddison.

PN3

MR J. DOUGLAS: I seek leave to appear for Maintenance Resource Engineering Pty Limited. Appearing with me is MR R. MATHIESON.

PN4

THE COMMISSIONER: Leave is granted, Mr Douglas.

PN5

MR DOUGLAS: If the Commission pleases.

PN6

MR MADDISON: Commissioner, yesterday I did send through a fax addressed to Senior Deputy President Acton who did have the matter as of that stage.

PN7

THE COMMISSIONER: I have those materials, and I have read them.

PN8

MR MADDISON: Yes. If I could, there was the agreement that MRE is a party to the Shell Geelong Refinery which wasn't attached just due to the - not faxing something that was even bigger than necessary, but I will provide the copy with that completed. The facsimile was also sent to Mr Douglas who is representing MRE. We received some correspondence from Mr Douglas this morning indicating that he did not receive the whole of the facsimile transmission. I did re-fax it this morning, but I have been informed by Mr Douglas that he was out of the office and did not receive the re-faxed one.

PN9

I have subsequently provided him with the materials that have been provided to the Commission. I just note that and obviously Mr Douglas is at liberty to make submissions as to the further conduct of this matter given those, but we accept those matters.

PN10

THE COMMISSIONER: Perhaps I might ask him now. Mr Douglas, have you had the opportunity to examine those materials?

PN11

MR DOUGLAS: In short, Commissioner, no. We have only been provided with the material just prior to the commencement of these proceedings. The material that was missing yesterday was the important parts of it, being the statement by Mr Reardon and the draft order which the union seeks in this matter, and it is on that basis, sir, that my client instructs me to seek an adjournment of these proceedings to enable me to receive proper instructions in relation to the statement by Mr Reardon.

PN12

It relates to - the statement relates to a number of factual matters upon which I at this stage have no instructions and which I would seek to - I will need to be able to progress this case on behalf of my client.

PN13

THE COMMISSIONER: What is the extent of the adjournment you require?

PN14

MR DOUGLAS: Given the time of day, probably at least later today, but preferably to a different day, because the statement by Mr Reardon is quite detailed. It relates to a number of matters including visits to the site and also the status of contractual arrangements between my client and third parties, and we will seek - we will need detailed instructions from those parties to be able to properly respond to the matter.

PN15

THE COMMISSIONER: Is it necessary to proceed to detailed argument, or is there some possibility that this matter could be resolved today by conciliation?

PN16

MR DOUGLAS: On the basis of my instructions, whilst hope springs eternal, Commissioner, in relation to conciliation, on the basis of my instructions it is clear that my client continues to oppose the application and the draft order which the union seeks in this matter, and on that basis I think it is unlikely the conciliation would be successful, but we are conscious that regardless of the position that my client takes, the Act prescribes a scheme whereby conciliation is a necessary precondition to the Commission moving to arbitration, and so on that basis it is step that would need to be taken, I would suggest, but as I said, it is only a step that can be taken once I have received full instructions in relation to the material that has been filed by the union in this matter.

PN17

THE COMMISSIONER: Yes, I see, thank you.

PN18

MR DOUGLAS: If the Commission pleases.

PN19

THE COMMISSIONER: Do you have anything to say about all of that, Mr Maddison?

PN20

MR MADDISON: Commissioner, all we would say is that I know my friend puts it as an adjournment, but perhaps what we would say would be the appropriate course today would be the further directions for the further hearing of the matter where if my friend is to file any witness statements in response that he be given an opportunity to do that and then the matter is brought back on for formal hearing.

PN21

THE COMMISSIONER: I think if it is adjourned from today it is more likely that the member that it was first before is the person who would deal with it and should set the directions, I think. I mean, I have stepped into the breach today, but - - -

PN22

MR MADDISON: I appreciate that, Commissioner, if it is to go back to her Honour - - -

PN23

THE COMMISSIONER: I think it would be seen - yes.

PN24

MR MADDISON: The only thing - yes. I recognise it might be hard for you obviously to set directions not knowing her Honour's availability.

PN25

THE COMMISSIONER: Well, the only basis on which directions could be or programming could be set is on the basis that subject to the convenience of her Honour.

PN26

MR MADDISON: Yes. I appreciate that. But if I may be so bold to suggest, Commissioner, if the matter could be taken up between yourself and her Honour and her Honour does issue directions based on her availability rather than us having to necessarily come back before her Honour and have the same hearing without the matter being further progressed, if my friend might give an indication as to how long he might require and then at least you might be able to go back to her Honour with a sort of timetable that she can work around based on her availability, and then obviously the parties would comply with those directions.

PN27

THE COMMISSIONER: Yes. Do you want to make some suggestions in that direction, Mr Douglas?

PN28

MR DOUGLAS: Yes, Commissioner. At this preliminary stage the position that we would be seeking is that a witness statement at a minimum will need to be prepared by the appropriate officer of the company to respond to the material and also to attest to any additional matters which are relevant. Given that the statement refers to a number of organisations, including my client, but also third parties such as the Shell Company and other construction companies, we would be envisaging that at least a week or so would be required for that.

PN29

In the interests of progressing the matter at a speed which would be acceptable to the union, our suggestion would be perhaps rather than having dates set by her Honour including potential hearing dates, that it may be useful to call the matter back on for directions in that everyone will then be here with their diaries, and of course we all know - the difficulties of trying to set dates can be, so our suggestion would be that perhaps if the file is to be returned to her Honour that a directions hearing be listed and dates can be set with everyone in the room.

PN30

THE COMMISSIONER: Yes. I can't say with any certainty that it will go back to her Honour. I am just saying that I have stepped in today because of her absence at short notice, but I hear what you say and I will have discussions with her Honour. Thank you.

PN31

MR DOUGLAS: If the Commission pleases. Mr Maddison.

PN32

MR MADDISON: Commissioner, we would just say to that, that that would be an unnecessary sort of extra step in the process, noting that this matter was filed by the union a number of weeks ago now. It is a matter of obviously some substance and concern, that is, the ability of the union to be able to communicate at the work place with the members, and the Commissioner would be conscious of the fact that, you know, that is an important matter for both the members and the union, and we would like to obviously progress the matter.

PN33

If people have problems with dates that are set, there are always ways to deal with that without the need to come back on and have another directions hearing, but that is a matter between yourself, Commissioner, and her Honour if it does go back there. We would say that a week would be in respect of filing materials in response - would be too long. We would say by Monday at the latest would be enough time. Most of the material is not new. There is correspondence which forms the bulk of the material which is correspondence which would be known to my friend, and he has obviously given some legal advice as to what the position of his client is.

PN34

We would say that a few days at the most would be more than is required to respond, and depending on people's availability we come back here next week and have the formal argument. Commissioner, I am not sure as to whether or not you feel that it is mandated by the Act that there needs to be some conciliation prior to the matter being formally heard and arbitrated.

PN35

THE COMMISSIONER: I wasn't necessarily expressing that view. I was trying to seize an opportunity if it was there for us to address it that way today, that is all.

PN36

MR MADDISON: Yes. I think my view is probably at least in agreement with my friend in this matter that given the history of it, and noting my friend's comments that hope springs eternal, but it is probably not something that is necessarily going to be resolved by conciliation, but by the same token I always take the view, unless you try you will never know.

PN37

THE COMMISSIONER: Well, it would seem if it is, it wouldn't be today.

PN38

MR MADDISON: Yes.

PN39

THE COMMISSIONER: Yes.

PN40

MR DOUGLAS: Commissioner, if I could just briefly respond to that, in terms of - it is correct to say that the union notified this matter some weeks ago, and that the matter was adjourned. My client was informed, and the matter was adjourned at the instance of the union, was my understanding, or certainly not at the instance of my client. At that stage the case which my client believed that it was facing was something of a threshold issue turning on the proper construction of the Act, and in particular section 285C. It is only - said some half-hour ago that we have received service of the evidentiary material upon which the union relies in this matter.

PN41

It is on that basis that a very brief perusal of the document indicates that there are a number of matters upon which instructions are required. This is not a matter which - the issues contained in there are not matters for which my client on its own can provide an appropriate response. There are a number of matters attested to, including alleged contractual arrangements that have been entered into between third parties to my client, and it is on that basis that instructions will be required from those organisations to be able to properly respond to that material.

PN42

It is on that basis that we don't believe one week is a necessarily long period of time to properly provide a response to that material and to have that response filed and served on the parties.

PN43

THE COMMISSIONER: Yes. I hear what both parties have said on that matter.

PN44

MR DOUGLAS: If the Commission pleases.

PN45

THE COMMISSIONER: I will confer with her Honour, and I will convey both positions to her and either she or I will be in touch with you in early course. Is there anything further you want to put to me today?

PN46

MR DOUGLAS: No, Commissioner.

PN47

MR MADDISON: Not at this stage, Commissioner.

PN48

THE COMMISSIONER: Then I regret that the matter needs to be adjourned and you will be advised in due course.

ADJOURNED INDEFINITELY [1.20pm]