C2004/4548, Transcript of Proceedings [2004] AIRCTrans 2594 (12 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2899

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2004/4548

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under Section 127(2) of the Act
by Queensland Rail for orders in respect
of unprotected industrial action

BRISBANE

4.15 PM, WEDNESDAY, 30 JUNE 2004

PN1

THE COMMISSIONER: Can we have appearances, thank you?

PN2

MR J. MURDOCH: I seek leave to appear for the applicant, Queensland Rail.

PN3

THE COMMISSIONER: Thank you, Mr Murdoch.

PN4

MR A. SLEVIN: I seek leave to appear on behalf of the respondent, the CEPU.

PN5

THE COMMISSIONER: Yes, thanks, Mr Slevin. Leave to appear is granted in both cases. Yes, Mr Murdoch.

PN6

MR MURDOCH: If the Commission pleases, I read the application filed on behalf of my clients today. I seek leave to tender a set which is comprised of further purported notifications pursuant to the provisions of Section 170MO of the Act. In short, the situation is, Commissioner, that the applicant as filed addresses or seeks to address stoppages and action to take place tomorrow morning, Thursday morning, and Friday morning. We've since received further notices in relation to the succeeding three days, namely, Saturday morning, Sunday morning and Monday morning. Again, the same group of individuals are concerned. That's the control room operators at the same three centres. I tender a bundle of the further notices.

PN7

THE COMMISSIONER: I'll mark those exhibit QR1.

EXHIBIT #QR1 BUNDLE OF NOTICES

PN8

MR MURDOCH: Commissioner, the application that I've read has attached to it a draft order under Section 127 of the Workplace Relations Act. In the light of the contents of exhibit 1, might I take you to page 3 of the draft order?

PN9

THE COMMISSIONER: Yes.

PN10

MR MURDOCH: We'd sought in paragraph 5(1) of the draft order to have the order remain in force for a period of three working days. I'd like to amend the draft to strike out the words "three working" and to insert in lieu "seven days," so we enlarge from three to seven and we delete any reference to working days. Further, if I could take you back to page 2 of the draft, in paragraph 4.1(a) there's a reference to serving a copy by facsimile to Mr Richard Williams. I'd like to, after the words "facsimile to" insert the words "the office of" Mr Richard Williams.

PN11

And I'd like to delete the word "serving" at the commencement of (a) and insert the word "forwarding" in lieu. The amendment is necessitated by the fact that if we are able to persuade the Commission to make an order it's possibly going to be after hours. Mr Williams may not be in his office to receive service. I also read a copy of the affidavit of Scott Jason Ridel sworn today and filed today.

PN12

THE COMMISSIONER: Thank you. Yes. We'll mark that exhibit QR2.

EXHIBIT #QR2 AFFIDAVIT OF SCOTT JASON RIDEL DATED 30/06/2004

PN13

MR MURDOCH: I understand, Commissioner, that the affidavit was filed by faxing it. Might I hand up a copy of the original?

PN14

THE COMMISSIONER: Yes. Thanks.

PN15

MR MURDOCH: I'm instructed that the affidavit was served on the solicitors for the respondent in the period around noon, precisely 12.06 today, by fax. Commissioner, Mr Ridel is outside and I make him available for cross-examination if that's required.

PN16

MR SLEVIN: Commissioner, it might be appropriate at this time now that Mr Murdoch has handed up his material for me to make an application that my client would like the Commission to consider, and that application is for these proceedings to be adjourned into conciliation. The reason for the adjournment, Commissioner, and I think you're more familiar with related proceedings between these parties and I, there's been discussions towards a certified agreement, there have been conciliation proceedings before.

PN17

A proposal was put, I'm instructed, yesterday in relation to those negotiations and in relation to the industrial action that is planned. That proposal, I'm instructed, was not accepted yesterday. My client actually has a new proposal and we believe that proposal may be more palatable to my friend's client and in those circumstances we'd like the opportunity during conciliation to put that proposal. The proposal does involve an undertaking that the notices of industrial action will not be acted upon if the proposal is acceptable by the company. In those circumstances, Commissioner, it seems that there is a real possibility that the industrial action the subject of these proceedings may be averted by a quicker means than going through the process of the application under Section 127.

PN18

You have enough material now before you, Commissioner, to appreciate that there are a number of factual issues in contest so far as the Section 127 application is concerned and clearly that it's going to take some time in the Commission for that application. We do oppose the Section 127 application, Commission. So we make the application to adjourn into conciliation on those grounds, if the Commission pleases.

PN19

MR MURDOCH: I'm not being rude, Commissioner. I'm just getting some instructions.

PN20

THE COMMISSIONER: Sorry, I was just thinking, Mr Murdoch, too. I wasn't being rude. I was just thinking about what's been said. Yes, all right. I'll hear from - I was just thinking about - - -

PN21

MR MURDOCH: Commissioner, my client is willing to conciliate, but time is of the essence, and if there is to be a conciliation it ought to be for a fixed period, say, for 40 minutes, and if at the end of that 40 minutes we've not had success I'd ask that the hearing resume on the basis that we've had the sad experience before where the night is spent in conciliating and at the end of the night, whether through exhaustion or lack of time, your right to issue an application in a hearing are lost irretrievably. So as a matter of balance, yes, we'll conciliate, but we'd ask that it be on the understanding that come 5 o'clock if we've got nowhere that the hearing should resume.

PN22

THE COMMISSIONER: Yes, thank you. Yes. The only other thought I had, Mr Slevin, was equally I've had the experience where being sought to go into conciliation was then just simply a means of having the person in conciliation knocked out if the matter goes to further hearing, so I'd want some understanding that, if I do so as was the case yesterday the union was prepared to participate on the basis that they understood that was the case. I just want to be clear seeing as you weren't here yesterday that that situation hasn't changed.

PN23

MR SLEVIN: Yes. I'm getting instructions now that that's the case.

PN24

THE COMMISSIONER: Otherwise you appreciate I've got to consider what resources are available in the Commission at this stage to deal with it if I was knocked out.

PN25

MR SLEVIN: I'm instructed that there'll be no application made under Section 105 of the Act, Commissioner.

PN26

THE COMMISSIONER: Yes. Thank you. On that basis, the Commission will adjourn into conciliation until 5 pm or some reasonable time subject to how that conciliation is proceeding.

OFF THE RECORD [4.28pm]

RESUMED [6.10pm]

PN27

THE COMMISSIONER: Yes, having conferred separately and collectively with the parties, the Commission understands that there is an agreed process and that process involves conciliation being undertaken by the Commission with the parties at 10 am tomorrow morning, for the am, and it is scheduled to resume Monday morning. No time as been set as yet, we'll discuss that tomorrow. The union undertake that there will be no industrial action until the end of that conciliation and until the hearing of this matter which will be adjourned until 2 pm Monday, if necessary. The parties will be represented by their own personnel. Yes, is there anything further either of the advocates wish to raise?

PN28

MR SLEVIN: Just one point of clarification, and that's the undertaking of the union is in relation to industrial action by ECOs.

PN29

THE COMMISSIONER: That's correct, yes. Unless said otherwise, it should be assumed, because that is what we have been discussing. It is just the ECOs involved in the three locations we've discussed. Yes, Mr Murdoch?

PN30

MR MURDOCH: And the reference to conciliation - sorry, the reference to representation by the in-house people is in relation to the two conciliation sessions.

PN31

THE COMMISSIONER: Yes, that's correct. Yes. Thank you, and I'll see the parties for conciliation at 10 am tomorrow morning. The Commission stands adjourned.

ADJOURNED ACCORDINGLY [6.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #QR1 BUNDLE OF NOTICES PN8
EXHIBIT #QR2 AFFIDAVIT OF SCOTT JASON RIDEL DATED 30/06/2004 PN13