C2004/4722, Transcript of Proceedings [2004] AIRCTrans 2722 (15 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 10962

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/4722

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Linfox Armaguard Pty Limited re alleged
industrial action at Armaguard's North Altona
Branch

MELBOURNE

3.21 PM, TUESDAY, 6 JULY 2004

PN1

MR S. WOOD: I seek leave to appear for the applicant, Linfox Armaguard Proprietary Limited.

PN2

MR A. BANDT: I seek leave to appear for the ASU, and appearing with me in this matter is MR D. LEYDON from the ASU.

PN3

THE DEPUTY PRESIDENT: Yes. Leave is granted in both cases. Mr Wood.

PN4

MR WOOD: Thank you, Deputy President. Deputy President, I think we have arranged for a statutory declaration and an outline of argument; a statutory declaration of Mr Joseph Pastore, and an outline of argument to be given to your chambers.

PN5

THE DEPUTY PRESIDENT: Yes, I have a copy of that.

PN6

MR WOOD: I don't think it was filed in the Registry. We also provided the same documents to Mr Leydon about three hours ago. Just before - would it be convenient to mark those at least for identification at this stage?

PN7

THE DEPUTY PRESIDENT: Yes. I will mark it for identification only. It is not my practice to accept into evidence submissions, Mr Wood, but - - -

PN8

MR WOOD: Very well.

PN9

THE DEPUTY PRESIDENT: That is inclusive of the affidavit of - - -

PN10

MR WOOD: Perhaps they can be marked separately because I imagine if the matter goes on, we would actually want to tender the - - -

PN11

THE DEPUTY PRESIDENT: Yes, that is what I thought.

PN12

MR WOOD: Yes.

MFI #MFI OUTLINE OF ARGUMENT OF LINFOX ARMAGUARD PTY LIMITED

PN13

THE DEPUTY PRESIDENT: And I am not sure whether I have the affidavit here, Mr Wood. Just bear with me.

PN14

MR WOOD: We have got another copy here if you haven't.

PN15

THE DEPUTY PRESIDENT: Yes. I don't think I have been provided with the affidavit. It is simply the submissions, and there is an annexure A to the submissions.

PN16

MR WOOD: Yes. Well, I will hand up the statutory declaration of Mr Pastore with some - - -

PN17

THE DEPUTY PRESIDENT: I am sorry, it is here. It was in another bundle. I am sorry. I have a copy.

PN18

MR WOOD: That is an unsigned - - -

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR WOOD: I am sorry, I understand your copy - yes, your copy is signed as is the one which has just been handed to me.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR WOOD: That is an eight page statutory declaration with three annexures.

PN23

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 STATUTORY DECLARATION OF MR J. PASTORE WITH THREE ANNEXURES

PN24

MR WOOD: Just before we came into this courtroom, Deputy President, we were handed a document by my learned friend Mr Bandt, and I don't make any implied criticism of that fact - - -

PN25

THE DEPUTY PRESIDENT: What about any expressed criticisms, Mr Wood?

PN26

MR WOOD: Well, that is yet to come, Deputy President.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR WOOD: I don't have another copy of it but - - -

PN29

THE DEPUTY PRESIDENT: I have a copy I think, if it is the same as you are referring to. It is a letter to Mr Pastore by the ASU. Is that what you are referring to?

PN30

MR WOOD: Yes, yes.

PN31

THE DEPUTY PRESIDENT: Dated 6 July presumably. Yes, 6 July.

PN32

MR WOOD: Yes, mine doesn't appear to have a date on it.

PN33

THE DEPUTY PRESIDENT: No, the date is on the fax cover.

PN34

MR WOOD: Yes. That document, together with the notice which is attached to it - that is the notice of intended industrial action - somewhat affects the jurisdictional basis for our application.

PN35

THE DEPUTY PRESIDENT: Yes, to some degree.

PN36

MR WOOD: Mr Bandt and I have had a discussion about that and I think I can say that we have an agreement between ourselves that we are content not to press, that is the applicant is content not to press its application on the basis of the tender of this document by the respondent; and that the matter be thereafter adjourned to another time or sine die. And the basis upon which we have come to that agreement is that the industrial action which led to this application was as is set out in the outline of argument.

PN37

THE DEPUTY PRESIDENT: Yes. Essentially you are saying that you are accepting this as an undertaking that there won't be further illegitimate industrial action.

PN38

MR WOOD: Exactly, exactly.

PN39

THE DEPUTY PRESIDENT: Yes, I understand.

PN40

MR WOOD: But the proof of the pudding is in the eating and, if it turns out that the industrial action that is taken is illegitimate, then we want to come back here at short notice.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR WOOD: And I think that position is acceptable to Mr Bandt. That avoids the necessity to get into cross-examination of the witness or witnesses, and I think it is fair to say that Mr Bandt takes a different view of our construction of the evidence that we do and that is common in these sorts of matters, but we can delay that for another day hopefully.

PN43

THE DEPUTY PRESIDENT: Yes. I should say I did say there wouldn't be any further illegitimate action. I should qualify that by saying that I don't at this stage have a view as to whether the industrial action such as was taken was illegitimate or otherwise at this point in time.

PN44

MR WOOD: Yes, yes. I don't think there is anything else I need to address you on, Deputy President, unless you want - you have any questions.

PN45

THE DEPUTY PRESIDENT: No, that is fine. Thanks, Mr Wood. Mr Bandt.

PN46

MR BANDT: Thank you, Deputy President. Perhaps if I can tender a five page document. That document has on the front of it a transmission record and I am instructed that that is a transmission record from the ASU private sector which is - one can see on the front through to the number of Mr Joseph Pastore. And the second page of that is a letter from the branch secretary sent to Mr Pastore. The third page is a cover letter that encloses the fourth page notice of intention to take protected industrial action.

PN47

THE DEPUTY PRESIDENT: It might have been a good idea to have sent that 72 hours prior to 2 July, Mr Leydon.

PN48

MR BANDT: The final page is the 170MR notice of giving of authorisation to engage in industrial action. This document, your Honour, is a document that reflects letters that were sent from the ASU through to the applicant in these proceedings, Linfox Armaguard, earlier today at half past two.

PN49

THE DEPUTY PRESIDENT: Yes, I have read them, Mr Bandt.

PN50

MR BANDT: And I would tender that document.

PN51

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #R1 FIVE PAGE DOCUMENT

PN52

MR BANDT: Your Honour, had the matter progressed today, then we would have been seeking to put into contention some of the matters that are in Mr Pastore's statutory declaration and that are in the submissions. And so to that extent, the fact that we have put this in and the matters aren't proceeding any further today isn't a concession on the part of the ASU or anything that has gone - or happened up to date. But as the document says, and it speaks for itself, the ASUs position from here on in is to do the matters by the book, and a notice has been served and industrial action will take place in accordance with that notice.

PN53

THE DEPUTY PRESIDENT: Yes, okay. Well, perhaps it would be a good idea if the parties sat down to see if they could settle the agreement and then you wouldn't have to worry about the protected industrial action or unprotected industrial action.

PN54

MR BANDT: Can I just perhaps on that point foreshadow that I am instructed that we may be - we have had the assistance of the Commission, as differently constituted, earlier today with respect to conciliation.

PN55

THE DEPUTY PRESIDENT: Yes.

PN56

MR BANDT: And as I am instructed we will be seeking in the near future further assistance from the Commission in an attempt to try and resolve this dispute some time - hopefully very shortly before any of the action needs to take place.

PN57

THE DEPUTY PRESIDENT: Yes. Well, it seemed that on the basis of what was before me, which I admit wasn't very much at this stage to do with the actual dispute over the agreement itself, but it seemed to be that the matters that are separating the parties at this stage are not at least in quantity huge. So perhaps it would be a good idea to get around the table and, from my point of view, I make the offices of the Commission, or my office available to the parties should it be required on application.

PN58

MR BANDT: Thank you.

PN59

THE DEPUTY PRESIDENT: All right. Is there anything further, Mr Wood?

PN60

MR WOOD: I think only to adjourn the matter, Deputy President. I think that is all that remains.

PN61

THE DEPUTY PRESIDENT: All right. Well, I can do that. Thank you. We will adjourn.

ADJOURNED INDEFINITELY [3.31pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #MFI OUTLINE OF ARGUMENT OF LINFOX ARMAGUARD PTY LIMITED PN13
EXHIBIT #A1 STATUTORY DECLARATION OF MR J. PASTORE WITH THREE ANNEXURES PN24
EXHIBIT #R1 FIVE PAGE DOCUMENT PN52