C2004/3309, Transcript of Proceedings [2004] AIRCTrans 1792 (17 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6957
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE

C2004/3309

APPEAL UNDER SECTION 45 OF THE ACT
BY COLES MYER LOGISTICS PTY LIMITED
AGAINST THE DECISION IN TRANSCRIPT OF
SENIOR DEPUTY PRESIDENT ACTON AT MELBOURNE
ON 3 MAY 2004 IN U2003/7681

MELBOURNE

4.42 PM, TUESDAY, 4 MAY 2004

PN1

JUSTICE GIUDICE: Yes, we are on the record now, so you go ahead.

PN2

MS O'BRIEN: Yes, okay. I beg your pardon, your Honour. I will give you the set. Here is Refrigeration Express, and it is at page 347, and this one is marked, so I apologise to my learned friend, but there it is. That was a Trade Practices Case where there were monopoly exceptions to the anti-monopoly rule. And if you read the whole of the paragraph, I think that Dean's exposition is quite helpful about what is intended by this principle. And I certainly can see, of course - - -

PN3

JUSTICE GIUDICE: What do you say to the proposition that 170CK and 170CE both confer rights? It is not a question of the exercise of powers, but the question of what rights are conferred by the provisions.

PN4

MS O'BRIEN: Well, what I say, sir, is the exercise of power arises in the mode by which those rights are to be implemented. So under section 170CE the Tribunal has the power to determine whether there is a valid reason, look at any relevant consideration, and all the other considerations set out in CG. They also have the power to award costs in certain circumstances, and they have the power to dismiss an application if someone is not present, the powers being set out following in 170CG.

PN5

Under CK the powers are different. Only the Federal Court can hear the matter. The penalties that they can impose are different, the penalties that are available under section 170CE. The costs power is different and, most importantly, of course, they merely need one reason, that is a reason being a prohibited reason to arrive at an outcome. And, of course, the other power is the reversal of the onus. So the scheme for dealing with the CK matter and how that CK matter is to be dealt with, the powers that are to be exercised are very different, in my respectful submission, than they are under section 170CE.

PN6

And whilst this submission doesn't say specifically, it is my respectful submission that 170CE is a code as to those matters which do not fall within the - is a code as to those matters, and section CK is a code as to the discrimination matters. You can't use one code or exercise one set of powers to deal with matters which fall under the specific powers, that is, the CK powers. That is the gist of the argument. And I concede they are different jurisdictions, but in my respectful submission that is just a question of the exercise of the powers, and is what the High Court has talked about in, I think, Horton v Wallace, as being the mode by which the powers are exercised, yes.

PN7

When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. Now, that is Gavin Duffy CJ and Dixon in Anthony Horden at page 7. And I have got a set for your Honour, and will give them to you now, all the ones that are cited. And that proposition was approved in Downey v Trans Waste both by the Full Court and by Dawson at 181.

PN8

I submit, your Honour, the principle itself is not an unusual principle in its application. This Commission has on numerous occasions, when examining the Act to determine what powers can be exercise in particular circumstances, have used that principle to assist them and guide them. And at paragraph 16 of my submission I make reference to Davids Distribution, which is a print Q1851, as per Vice President Ross. And in those circumstances, if I remember correctly, it was about section 170MW, and the power to order cessation of industrial action when assisting in a bargaining power process that was under the old Industrial Relations Act.

PN9

Then the Full Bench of the Commission said of Commissioner Smith's direction to the union to cease industrial action, that that was action that he could not order, that was an order he could not make under his general supervisory powers. It was only a power that could be exercised appropriately by a vice presidential member under the specific powers in section 170MW.

PN10

JUSTICE GIUDICE: But, Ms O'Brien, when a Court looks at a matter it does so judicially, it exercises judicial power.

PN11

MS O'BRIEN: That is undoubtedly correct.

PN12

JUSTICE GIUDICE: The second part of the proposition is that the Commission doesn't notoriously.

PN13

MS O'BRIEN: Of course, the Full Court in relation to termination of employment matters, your Honour, in the - the case will come to me in one moment - Moore J said that the Commission was acting in a quasi judicial fashion when deciding past rights.

PN14

JUSTICE GIUDICE: But I think there is a recent Full Court decision about that issue which was on the question of whether an estoppel arose from the Commission's decision.

PN15

MS O'BRIEN: I know the name of this case, it is an unusual eastern European name, and I think that was considered in that case. I think there was a question of interpretation of what was the meaning of reasonableness under the costs provisions, and there had been a failure to award costs to the plaintiff in circumstances where there had been a finding of quite serious magnitude against the employer.

PN16

JUSTICE GIUDICE: I don't think that is the case I am referring to. That is a case called Blagojevch, that was a more recent one.

PN17

MS O'BRIEN: Yes.

PN18

JUSTICE GIUDICE: But in any event it is undeniable that the Commission doesn't exercise judicial power.

PN19

MS O'BRIEN: Well, I appreciate that. And that seems to me to reinforce my argument because if the Commission is going to take on the role of considering whether someone has been terminated on one of the prohibited grounds, whether they make a determination on that question or not is irrelevant. They are taking into account matters which it is asserted by applicants who bring these type of applications under 170CE, they are addressing those issues. Whether they make findings or not, in my respectful submission, doesn't matter, but often they do, and it is certainly the case that they have in the past.

PN20

The question is taking evidence of that nature into account which is clearly evidence of matters which are clearly only within the jurisdiction of a judicial tribunal, in this case the Federal Court. And that may be a false distinction that the legislature has left us with, but it is a distinction, in my respectful submission, that we have to recognise.

PN21

JUSTICE GIUDICE: Well, there are plenty of examples in the general law, aren't there, of overlapping civil and criminal liabilities? For example, O.J. Simpson was acquitted of murder, but was the subject of a civil suit. I mean, they are different sorts of jurisdictions, aren't they?

PN22

MS O'BRIEN: Well, if, of course, there is no criminal - - -

PN23

JUSTICE GIUDICE: I am not suggesting O.J. Simpson has got anything to do with this case.

PN24

MS O'BRIEN: If we weren't in the same enactment, if we weren't looking at the same piece of legislation, as all these cases are - here we are, we are looking at one enactment - - -

PN25

JUSTICE GIUDICE: Yes, I suppose it is a bit closer.

PN26

MS O'BRIEN: Yes. That says you are to do that, and you are to do that. Now, it might be hard to determine in any particular matter whether the matters fall within section CE and therefore are prohibited by section CK. But in my respectful submission it is a matter which must be addressed, because especially in a case like the one currently before you where the kernel of the case - this is not a case where, as was suggested, there is a whiff of discrimination. The kernel of the applicant's case is, I have been sacked because I am a trade unionist, an active trade unionist, and have been a trade unionist in the past and a representative of other trade unionists in the past.

PN27

Now, whether ultimately determination - findings are made, in my respectful submission, is irrelevant. It is not open to this Tribunal to take on and hear those matters. And the Anti Discrimination Tribunals are a good example, elsewhere I mean. Our own Victorian Anti Discrimination Tribunal is in the business of striking out claims which are really about unfairness or unjustness or harshness, people who can't satisfy the Tribunal on the ordinary arguable case test that they actually were treated less favourably on the ground of an attribute within one of the relationships under the Act.

PN28

And in my respectful submission it is necessary for this Tribunal to do exactly the same if someone is going to bring applications which are not within the power of section CE and CG, as they operate together, to be dealt with. And in this case, in particular, the honing of the way the whole thing mats together is almost impossible to disentangle. And there is one thing other that is not in the written submission, your Honour, that I wish to take you to. I think it is in the transcript in reply, though it is not properly set out by me there.

PN29

Section 170HB and HC recognise that there are jurisdictional - well, obviously there are other jurisdictional questions, but they recognise that people may bring matters to this Tribunal which are not within its jurisdiction, and it preserves the rights of people to go elsewhere. I mean, the applicant in this case is not going to lose his rights. He has just got to go to the right place to enforce them. And that is what is intended, in my respectful submission, by section 170HB, and I think, in particular, in this case it is either B or C that is the relevant provision.

PN30

JUSTICE GIUDICE: You haven't referred to section 170HA.

PN31

MS O'BRIEN: That is right. That is what I am talking about, I am sorry. Yes, HA, HB, HC. And what is intended by these provisions is a recognition that there are jurisdictional issues, and the preservation of an entitlement to go and exercise the appropriate jurisdiction. I mean, it is just a statutory enactment of the principles that we all understand. If you can't establish jurisdiction your case doesn't end, you merely go to the appropriate jurisdiction.

PN32

So in light of the application that is being made to you today, what is submitted is that there is an arguable case. We say that it is an important arguable case as to whether her Honour can proceed to hear this matter. We say that her granting of the jurisdiction and proceeding to hear the matter is - her taking on of the jurisdiction is wrong, is an error of law, and there is an arguable case about that. We say, secondly, that on the balance of convenience questions there is no prejudice to the applicant. Yes, his case will be delayed, but if he - if we fail, and he is ultimately successful, he has a right, and has claimed the right to all of the back pay that he would be entitled to, so he loses nothing.

PN33

However, if this stay is not granted, the respondent, that is Coles Myer, is in the position of having run a case, spent money on a matter, and then has still got to appeal the jurisdictional question. So there are costs thrown away that will be irrecoverable if the jurisdictional question is successful. So there is prejudice to Coles Myer, but no prejudice, in my respectful submission, to the applicant. There is the prejudice, if it could be called as much, of a delay for the applicant, but in my respectful submission that is not prejudice of a kind that outweighs the prejudice to the respondent which is represented by the costs thrown away if we were to succeed. As it please, your Honour.

PN34

JUSTICE GIUDICE: Can I just get clear in my mind the submission. The submission is that there is a sufficiently - this is on the legal question - there is a sufficiently arguable case that there is an error of law, in that section 170CK is the exclusive remedy available under the Act to a person who submits, alleges that their employment has been terminated for reasons dealt with in section 170CK?

PN35

MS O'BRIEN: A reason.

PN36

JUSTICE GIUDICE: A reason?

PN37

MS O'BRIEN: CK merely requires a reason.

PN38

JUSTICE GIUDICE: Yes, thank you. And in this case which paragraphs of 170CK(2) do you say are attracted?

PN39

MS O'BRIEN: In the submission it says C and D. That is incorrect. It should say B and D, 170CK(b) and (d).

PN40

JUSTICE GIUDICE: Yes, thank you. Mr Borenstein?

PN41

MR BORENSTEIN: Your Honour, we have prepared a short outline of submissions which may assist your Honour and may expedite the arguments that I wish to put. I might hand them up, your Honour. At the outset in the submissions we identify the test which the applicant for the stay must meet. And your Honour will see in paragraphs 2 and 3 that we have set out those tests by reference to two of many cases that have enunciated the test of having an arguable case on the merits as well as on the leave and balance of convenience was enunciated by Vice President MacIntyre in the TWU case.

PN42

And his Honour, Vice President Moore, as he then was, went on to explain that it must be shown that the arguable case has a real prospect of success as well. Now, in paragraph 5 we indicate that there is no transcript of the decision or arguments put. That needs to be corrected, your Honour. Late this afternoon we actually were provided with transcript. It appears from that transcript - I haven't read it in detail - it appears from that transcript that her Honour didn't give any reasons, but simply stated her decision, and one would have expected in the normal course she would incorporate her reasons in the final decision.

PN43

JUSTICE GIUDICE: Were reasons asked for, Ms O'Brien?

PN44

MS O'BRIEN: They were, your Honour, yes.

PN45

JUSTICE GIUDICE: And did the Senior Deputy President respond to that request at any stage?

PN46

MS O'BRIEN: Well, she didn't say no.

PN47

JUSTICE GIUDICE: No. But there is nothing else to be said about that?

PN48

MS O'BRIEN: No. I just made the application, and I assumed that that would be at some stage addressed. And I did say to her also that a notice of appeal and a stay application was going to be made, and I did use the word stay in relation to requesting her to stand the matter down, and that was obviously an incorrect approach to it. I merely then said I wanted it stood down or adjourned, and she said she wasn't prepared to do that.

PN49

JUSTICE GIUDICE: Yes, thank you.

PN50

MR BORENSTEIN: Your Honour, the difference, the primary difference between the parties in this matter and on this question is that which we identify in paragraph 6 of the outline. The appellant's argument proceeds, we say, on an incorrect premise that the respondent is suing in his application for a contravention of section 170CK. Now, the jurisdiction that is enlivened in the Commission is that which is identified in the documents which initiate the proceedings in the Commission.

PN51

In the appeal documents at tab 2 you will find the application for relief which Mr O'Donnell filed, and you will see in that at a paragraph which is missing from the copy I think that has been filed.

PN52

JUSTICE GIUDICE: Yes.

PN53

MR BORENSTEIN: At paragraph 21, which is not in that document, but I have a copy that I can hand to you in substitution, your Honour. Can I hand that up. And your Honour will see in paragraph 21 that, in fact, the application is brought under section 170CE, and not under paragraph CK. Now, that is the jurisdiction which the applicant seeks to invoke in the Commission. The matter is then confirmed when the notice of election is filed by the applicant. And, again, that is a document that is not in the appeal book, but we hand up a copy.

PN54

And your Honour will see in the left hand column, in the second box in the left hand column, the election is made to proceed to an arbitration to determine whether the termination was harsh, unjust or unreasonable. Now, it is that, that her Honour is charged to determine, and it is that task upon which her Honour is embarked. And in the discussion in the transcript your Honour will find that in debate with my learned friend, her Honour actually identifies that her task is to find whether there is a valid reason. And that is inconsistent with the suggestion that is made by the appellant, that this is a claim that is being sought to be pursued under section 170CK.

PN55

The evidence to which reference is made is evidence which is sought to be led by way of context to the dismissal, and in order to contend that the Commission can take those matters into account in a contextual sense. Now, paragraph 7 - - -

PN56

JUSTICE GIUDICE: Could you excuse me for a moment, Mr Borenstein.

PN57

MR BORENSTEIN: In paragraph 7 of the outline, your Honour, we have set out three paragraphs from a rather lengthy decision of a Full Bench in Smith v Moore Paragon in print PR915674. That was a case in which a complaint was made that the worker was dismissed because of an injury and WorkCover payments. And there was a debate as to whether those matters could be taken into account under section 170CG(3), and the Full Bench held that it was permitted to take those matters into account. And, in particular, we draw attention to the opening sentence of paragraph 49, which we have underlined, and then there is paragraph 87.

PN58

Now, in addition to that, your Honour, before her Honour at first instance, counsel for the appellant submitted some written submissions, which I think are included in the Appeal book, and which set out a series of - yes, they are at tab 6 - and they set out a series of passages from a string of cases which are to the same effect. For the purpose of demonstrating that in considering the matters that the Commission is bound to consider under section 170CG(3), that conduct which would give rise to possible claims under section 170CK may be taken into account if the Commission regards it as relevant for the purpose of determining whether the termination was harsh, unjust or unreasonable.

PN59

And if I might refer your Honour without reading to the cases which are extracted at pages 4, 5 and 6 of that outline which is at tab 6 of the Appeal book. Your Honour will see repeated statements from single members of the Commission and Full Benches, and just, for example, the third one down on page 4, a passage out of the judgment of the Full Bench in MM Cables, where the Full Bench says:

PN60

We readily accept that if a termination was in breach of 170CK, then it could not be said there was a valid reason for termination.

PN61

And, again, over the page the decision of Senior Deputy President O'Callaghan in Stringers case, and again in Lunney, and so on. Now, your Honour, as far as the jurisprudence in the Commission is concerned, it would seem to be fairly well accepted that conduct that might constitute a contravention of 170CK might yet be taken into account in the discharge of the function of the Commission under section 170CG(3). That is the way in which the material was being advanced in the case before the Senior Deputy President.

PN62

JUSTICE GIUDICE: I suppose, Mr Borenstein - sorry to interrupt - I suppose that in one sense all these cases show is that the view that has been accepted to date is that the evidence which might tend to show a breach of 170CK is relevant to questions to be decided pursuant to section 170CG(3). That is all it shows. It doesn't actually show - I don't think it quite meets the point that is being argued, that there is a collision, as it were, between the two provisions which must be resolved in favour of the more specific provision.

PN63

MR BORENSTEIN: Your Honour, we say that it doesn't arise. It is the classic straw man situation. Our friend puts up the straw man to knock it down. We say it doesn't arise, because what we say is, look at the jurisdiction which is invoked, look at the documents which we have handed up. The jurisdiction is the jurisdiction under section 170CE. We are not interested in invoking the jurisdiction under CK, we don't seek to invoke it. And how can we be criticised, how can our case be taken away from us on the basis that our learned friend says, look, you say this, but I think you are. It can't be that, your Honour.

PN64

Surely a party is entitled to designate the jurisdiction which it seeks to invoke. It is then incumbent on that party to stay within that jurisdiction, and my client is happy to do that. There may be an argument about whether certain evidence is relevant or not relevant, but that is a far cry from saying that the claim itself is a claim under section 170CK. We don't argue that it is. We wouldn't argue that if you want to make a claim under 170CK you have got to go to the Federal Court. There is no dispute about that.

PN65

The dispute is the proper characterisation of what is before her Honour. And we say the way in which you make that characterisation is you look at the initiating documents. There is nothing else. They define what her Honour has to decide, and they define the parameters of what the parties can argue before her, and we accept that. We accept that. But we say we haven't transgressed those boundaries on the strength of these decisions. These decisions say the evidence which our friend complains about is evidence which may be received.

PN66

Now, our friend can complain about its remoteness, she can complain about its efficacy, she can complain about its probative value, but she can't complain about jurisdiction and she can't complain about error in receiving the evidence and then assessing it. Now, it may be at the end of the day her Honour will say, this is all very interesting, but I reject all this evidence, and I decide without it. But that is a matter for her Honour at the end of the case.

PN67

There is nothing before her Honour which indicates that we seek to rely on section 170CK. And that really is the area between us. So interesting as the point our learned friend raises might be, we say that it hasn't arisen in this case. And we say that for that reason the whole appeal really proceeds on a wrong premise. It mis-states, if your Honour looks at it, it mis-states what is at issue between the parties.

PN68

In paragraph 1 the sole ground which is advanced is that the Senior Deputy President erred in concluding that the reasons stated by the applicant for his dismissal, being engaging in union duties, was a matter in which the Commission had jurisdiction. Now, we don't say that was the reason, but we say it is relevant evidence against which the reason for dismissal falls to be assessed.

PN69

Now, her Honour may say it is not relevant, and she has that discretion under subsection 3, paragraph E of section 170CG. Your Honour may recall that in that subsection, for determining whether a termination was harsh, unjust or unreasonable, the Commission can have regard to a number of matters. And paragraph E, which is the paragraph that we would rely upon for this evidence, says any other matters that the Commission considers relevant.

PN70

So there can be an argument about relevance, and we will have that argument if we need to, but it is not an argument about jurisdiction. So we say, your Honour, that because the objection to jurisdiction so called is misconceived, the appeal is misconceived and it has not prospect of success, and really what this is about, this is an argument about the relevance and admissibility of evidence.

PN71

And her Honour is entitled to make decisions about that in the conduct of the proceeding before her, and depending on the outcome of the proceeding, the outcome, the final decision may or may not be appealable for all sorts of reasons, but it wouldn't be appealable because she had exceeded jurisdiction. So we say that there is no arguable case demonstrated on the appeal. Indeed, we say it is unarguable, and because it is unarguable we say you don't even get to balance of convenience.

PN72

But if you do get to balance of convenience, then our submission is that one of the factors you take into account is the strength of the argument on appeal. And if there is a skerrick of an argument, your Honour, we say it is precisely that, a skerrick of an argument which is weak and which weighs the balance of convenience in our favour.

PN73

Now, as to the effect of interrupting the case that is presently before her Honour, and in which the second day has now been completed, we say that there is a significant inconvenience and difficulty to the parties because the case is interrupted, there is an appeal which will then be heard. If the appeal is unsuccessful then all the parties and her Honour will have to go back and seek to resume the case after some months, try to pick up, in a case where matters of credit are at the forefront, try to pick up the tenor of evidence that was given a long time before, including the demeanour of the witnesses, and then try and continue with the case.

PN74

Now, that is a task which your Honour will no doubt appreciate is one that is extremely difficult and fraught with considerable potentiality for unfairness. Whereas on the other hand, to allow the case to proceed to judgment, avoids those difficulties, and depending on how her Honour decides the matter, may, in fact, make the appeal completely otiose. So we say that in terms of the procedural interruption, the balance of convenience favours allowing the Commission to complete the task upon which it is almost halfway through, and then to see what the outcome is and to see whether the outcome warrants the appeal going ahead.

PN75

JUSTICE GIUDICE: How many days is it estimated for?

PN76

MR BORENSTEIN: Another three I think, your Honour.

PN77

MS O'BRIEN: Two more days is fixed, your Honour. We haven't begun cross-examining the applicant today at 3 o'clock. That is how far we have got. We have got virtually nowhere.

PN78

MR BORENSTEIN: As to the costs, your Honour, that my friend raises, we would submit that the costs that will be involved in litigating the balance of this case for an entity as significant as the respondent, is a trivial matter, and your Honour may take into account the well known substantial stature in financial terms anyhow of the respondent, and weigh that up against the disadvantage to Mr O'Donnell in having his case delayed.

PN79

It is all very well for our learned friend and those at Coles Myer to say, well, in three or four months time he might get his money. But Mr O'Donnell has got to live for the next three or four months without that money, and that may not be a matter that is of grave concern to those at Coles Myer, but I am sure it is of significant concern to Mr O'Donnell, and a significant detriment.

PN80

The Commission is charged by the Act to proceed as quickly as possible in the determination of matters, and we would say that particularly in situations where people have been dismissed and are seeking reinstatement and back pay, that injunction in the Act is particularly significant. So we say that there are substantial balance of convenience considerations in favour of rejecting the stay, but most significantly, your Honour, the weakness of the argument tells against any stay.

PN81

JUSTICE GIUDICE: Ms O'Brien?

PN82

MS O'BRIEN: Your Honour, just a couple of points in reply. My learned friend's submission as to jurisdiction would have to be the narrowest concept of jurisdiction that you could think of, that is, I elect to bring my case in this particular jurisdiction, therefore I am entitled to proceed without more, that is, I have issued my writ in the Supreme Court, I have paid my stamp duty fees, I have put in a pleading, and that is it. The Court has no right to review what I say about my case to determine whether it is truly within the jurisdiction.

PN83

So in my respectful submission that is not how one approaches jurisdiction. One approaches jurisdiction by looking at the substantive question; are these matters which this Court or this Tribunal has the power to decide? It cannot be merely the filing of a document. It is an argument without foundation. Second, I don't believe this argument has ever been put before, and all the cases that my learned friend refers to as set out in Ms Bornstein's original submissions, as I said to her Honour, Senior Deputy President Acton, nobody deals with this argument. There has been an assumption about these matters, and I readily submit to you for the reasons I have already given, that they are wrong, and it is an opportunity for the Full Bench to look carefully at this question because it is a very important question.

PN84

Fourthly, my learned friend says you mustn't take away the rights of Mr O'Donnell. You are not. All his rights are retained pursuant to section 170HA, B or C, whatever the relevant one, and I think it is C. Fifthly, my learned friend keeps saying, well, what if Senior Deputy President Acton says it is not a reason? What if she says it is the reason he was sacked? The proof is in the pudding, and that what jurisdiction is about. That is why it has to be decided and reviewed prior to a matter proceeding.

PN85

If she were to say the reason he was sacked was because of trade union activity, that is clearly beyond her jurisdiction. So how can she consider all these matters if she can't, in fact, make a finding? And sixthly, the resumption of matters down the track is done regularly and often in these matters, and contrary to what my learned friend says, and in my respectful submission it is not correct for you to take into account - I don't say the relative resources of the parties, but it is not appropriate for you to take into account that one of the parties may have more resources than another. That seems to me to be an irrelevant consideration.

PN86

JUSTICE GIUDICE: Can I just ask you, who is Coles Myer Logistics Pty Limited?

PN87

MS O'BRIEN: That is the supply part of Coles Myer. It is a separate company from Coles Myer, as I understand it, and they do all of the deliveries of all of the goods to the Coles companies, Target, Myer, K-Mart, Coles, Bi-Lo, so all of the deliveries. The applicant is a storeman.

PN88

JUSTICE GIUDICE: Yes. I will adjourn for a few moments.

SHORT ADJOURNMENT [5.23pm]

RESUMED [5.35pm]

PN89

JUSTICE GIUDICE: I think it is desirable that I give a decision in this matter at once, in light of the circumstances, being particularly the planned resumption of proceedings before Senior Deputy President Acton tomorrow. This is an application by Coles Myer Logistics Pty Limited for stay of an operation of an order made orally by Senior Deputy President Acton in proceedings before her on 3 May 2004.

PN90

Those proceedings concern an application by Mr C. O'Donnell for a remedy in relation to the termination of his employment by Coles Myer Logistics. In the order which is sought to be stayed, and which independently is the subject of a notice of appeal for which leave will be required, the Senior Deputy President refused to dismiss the application for want of jurisdiction.

PN91

The substantive question before the Senior Deputy President is whether the termination of Mr O'Donnell's employment was harsh, unjust or unreasonable. It is submitted by Coles Myer Logistics that section 170CK is the exclusive remedy available under the Act to a person who alleges that a reason for the termination of their employment is a reason dealt with in section 170CK, in this case more particularly section 170CK(2)(b) and (d).

PN92

Those sections provide that subject to exceptions it is not necessary to refer to, an employer must not terminate an employee's employment for any one or more of the following reasons or for reasons including any one or more of the following reasons. (b) Trade union membership or participation in trade union activities outside of working hours or with the employer's consent during working hours; and (d) seeking office as or acting or having acted in the capacity of a representative of employees.

PN93

It is submitted on behalf of the applicant, the respondent in this application, that it seeks in the proceedings before the Senior Deputy President to educe evidence as to the industrial activities which were occurring at the time of the termination of Mr O'Donnell's employment by way of context for the dismissal, and that it will rely in that connection on section 170CG(3)(e).

PN94

If the proposition advanced by Coles Myer Logistics is correct, that Senior Deputy President Acton has no jurisdiction to deal with the application before her, it follows that the decision under appeal is wrong. I do not accept there is a sufficiently arguable case that the proposition advanced is correct. The cases which Coles Myer Logistics relies upon do not seem to me to deal with a situation in the one enactment different remedies are provided which can be pursued in different places.

PN95

In this case a remedy available under section 170CG(3) is available in the Commission. A remedy pursuant to section 170CK is available in the Federal Court of Australia. Mr O'Donnell has not sought to invoke the section 170CK jurisdiction directly or, on what has been submitted to me, indirectly.

PN96

Turning to the balance of convenience, given my assessment of the case on the merits the balance of convenience does not favour the stay sought. It may be the applicant, that is Mr O'Donnell, will be unsuccessful in his application. Alternatively, if he succeeds it may be that the allegations which are related to the matters dealt with in section 170CK(2)(b) and (d) will not be critical elements in the decision.

PN97

In either case the stay and the delay will in retrospect have been futile. They are my short reasons for declining to grant the stay sought. When read in conjunction with the submissions and the interchange with counsel, I think that the position will be reasonably clear.

PN98

MS O'BRIEN: As it please, your Honour.

PN99

JUSTICE GIUDICE: Thank you for your attendance at this late hour and your assistance. I will now adjourn.

ADJOURNED INDEFINITELY [5.42pm]