AG2004/2421, Transcript of Proceedings [2004] AIRCTrans 3283 (20 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8140
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

AG2004/2421

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Socobell OEM Pty Limited for certification
of the Socobell OEM Pty Limited Enterprise
Agreement 2004-2007

MELBOURNE

9.58 AM, TUESDAY, 10 AUGUST 2004

Continued from 6.4.04

PN284

MR A. COLE: I appear with MR P. DI FELICE for the Australian Manufacturers and Workers Union.

PN285

MR N. OGILVIE: I appear in place of Mr Dalton on behalf of the employer Socobell OEM Pty Limited and, with MS SPRY from Socobell.

PN286

THE COMMISSIONER: Yes, Mr Cole?

PN287

MR COLE: Commissioner, you will have no doubt received from the Full Bench the outcome of the appeal under section 45 of the Workplace Relations Act, and specifically paragraphs 41, 42 of the appeal. 41:

PN288

Circumstances given the areas we have identified we are satisfied, appropriate to grant leave to appeal. We also considered the matter is of such importance in public interest, leave to appeal should be granted. We do so and quash the Commissioner's order of 7 April 2004.

PN289

And 42:

PN290

Further - because the Commissioner at first instance did not deal with the union's request to admit further evidence, we will remit the matter back to him and direct him to consider any such application that might be made in order that he determine the matter having regard to our findings.

PN291

Commissioner, in respect to the application by the union under section 170M of the Act, and in the documentation provided by the union under directions of the Full Bench, we then sought the Full Bench be included with that documentation as outlined in paras 28 through to - the documentation in response to - from Mr Dalton in response to the documentation forwarded to the Full Bench and it is dated 9 June 2004. The documentation that we provided to the Full Bench; we provided statutory declarations and bargaining authorities to the Full Bench as additional information from Mr Hoang Nguyen, Mr Tuan Nguyen and Miss Christina Sepe. And in the documentation from Mr Dalton at paras 27 onwards he talks about the:

PN292

If the statutory declaration is to be admitted, it should be given no weight inconsistent with the evidence given by the hearing by himself, Mr Di Felice, that is Mr Hoang Nguyen's. 28: For the undated statutory declaration of Tuan Nguyen is not relevant for the purpose of determining whether a request to the organisation was made by the organisation for the purposes of 170M(3)(d)(iii), the statutory declaration goes only to the request that a shop organised to make application to have the union members party to 2004 EBA.

PN293

And at clause 29:

PN294

Similarly the statutory declaration of Christina Sepe dated 7 April 2004 does not satisfy the requirements of section 170M(3)(d)(iii).

PN295

Commissioner, to try and finalise the matter before the Commission, the union asserts that the Commission has powers under the Act to call before it further parties or witnesses, and I am talking here in powers under section 111(1)(s) and (c) - dealing with (c) in accordance with division 4, part VIB, certifying agreements, and parts of 111(1)(s):

PN296

Summoned before the parties of the industrial dispute, such ...(reads)... matters only as related to the industrial dispute.

PN297

Mr Dalton, then appearing for the company was of the view that the evidence, given the statutory declaration by the Federal Secretary of the union, Mr Ian Jones, and should carry no weight; Mr Jones wasn't called upon to testify in respect to that matter. What we seek, Commissioner, is to finally try to put this thing to bed.

PN298

Here is an opportunity for the matter to be programmed, for the union to produce any further evidence related - further evidence that is discussed in the decision of the Commission, and allow the union the opportunity in the public interest to call before the Commission Mr Jones, if that is still the - Mr Dalton is now gone but if Mr Jones, if that is the position Mr Ogilvie wants to adopt in respect to his statutory declaration. And the three further statutory declarations, and those named persons put in the documentation to the Full Bench appeal by the union; that is Hoang Nguyen, Tuan Nguyen and Christine Sepe. That is what the union's position is, Commissioner. If the Commission pleases.

PN299

THE COMMISSIONER: Thank you. Mr Ogilvie?

PN300

MR OGILVIE: Thank you, Commissioner. My client opposes the application to have further evidence considered by the Commission and opposes the course of action that has been suggested, or proposed by Mr Cole. The additional evidence, as I understand Mr Cole has pointed to, refers to the three statutory declarations which were filed with the submissions of the respondent in the appeal proceedings, and those three statutory declarations were filed on 2 June and attached to the written submissions of the AMWU in the appeal proceedings. They were filed on the basis that the AMWU sought leave to tender that further evidence before the Full Bench, and the decision of the Full Bench in relation to that further evidence was set out at paragraph 40, and says:

PN301

On the appeal, the respondent filed further statutory declarations from several employees of the respondent and sought that we exercise our discretion under section 45(6) to admit that evidence, having regard to our conclusion as to the disposition of the appeal, we do not need to rule on that application.

PN302

So, that further evidence wasn't considered by the Full Bench. As has been explained in the disposition of the appeal, the Full Bench remitted the matter back to this Commission and issued a direction that any application that might be made in order to determine the request to tender further evidence be determined, and they would determine the matter having regard to our findings.

PN303

The further evidence that Mr Cole has talked about providing are, as I said, three statutory declarations for employees. If I could just go briefly to those statutory declarations. I haven't got copies, sorry, Commissioner, but the first one is a statutory declaration from Mr Hoang Nguyen who was the Shop Steward who gave evidence at the first proceedings before yourself on 6 April. We say it would be inappropriate to have further evidence provided by Mr Nguyen in those circumstances, particularly in light of the Full Bench's decision. He was at the proceedings; he gave oral evidence; he was cross-examined.

PN304

That opportunity to give evidence has taken place. It would be inappropriate to then give him a chance to come and give further evidence and somehow fix up the detriment - fix up any deficiencies in that evidence given in the first instance. We say that would be extremely prejudicial to Socobell's position and it is not necessary for the determination of the union's applications under section 170M. Indeed, we note that the statutory declaration states that:

PN305

On Friday, 2 April 2004, I met with Paul Di Felice and said, "What do we do now?". Paul said that we could try and be part of the agreement.

PN306

We would say that statutory declaration is inconsistent with the oral evidence given by Mr Nguyen at the proceedings, and indeed inconsistent with the Full Bench's findings as to the interpretation of that oral evidence. In those circumstances we would object to further evidence being given by that employee in relation to these proceedings. The second employee - the second evidence that has been pointed to is a statutory declaration of Tuan Nguyen who is the other Shop Steward for the AMWU. He was also present at the initial proceedings on 6 April. He was in the Court room but was not called to give evidence.

PN307

Now, that was a choice made by Mr Cole at that time. We would say it is now - again it is inappropriate and prejudicial to Socobell for that opportunity for them to now be called to give evidence to fix up deficient evidence given during the proceedings. It is not appropriate. Again the statutory declaration that has been filed says:

PN308

I have spoke to our members raising concern in relation to our legal position now that the LK Agreement has voted up, and requested that our shop organiser to make application to the union members party to the 2004 EBA.

PN309

We say, consistent with the submissions that were put to the Full Bench in relation to that statutory declaration, it doesn't, even if it was to be admitted, it doesn't meet the requirements of section 170M(3)(d)(iii), it only goes to evidence - it only at very best is evidence of a request made to the shop organiser; not a request made by the member of the union to the union that they notify the Commission that they wish to be a party to the EBA.

PN310

That statutory declaration is also undated, and it is difficult for us to identify when it was made. That is an important point, Commissioner, because the relevant request for the purpose of section 170M(3), we say needs to be made prior to certification of the agreement in accordance with 170M(3), paragraph (c) and paragraph (d) when read together. The third statutory declaration is of another employee, Ms Christina Sepe. That says - it is one sentence, it says:

PN311

That I have approached the Shop Steward to ask the union to represent me in the 2004 EBA.

PN312

At very best that is evidence of a conversation with the Shop Steward that the union represent her in the 2004 EBA, it is not a request to the union - we would say that it is not a request to the union that a notification be made to the Commission that the AMWU be a party to the agreement. And we would - that evidence doesn't take the Commission any further in determining the application, and it doesn't' meet the requirements of section 170M(3)(d).

PN313

And these, Commissioner, are statutory declarations that have been made after the proceedings before yourself on 6 April, with the AMWU in full knowledge of the objections that the company was raising in relation to what we say the deficiencies in meeting the requirements of section 170M; these statutory declarations have been put together with full understanding of what my client's position was and its objections to the application. And we say that, apart from Hoang Nguyen's statutory declaration which is inconsistent with his earlier evidence, the other two statutory declarations don't meet that requirement.

PN314

In relation to the statutory declaration of Mr Jones that was forwarded to the Commission, the Commission's - the Full Bench's findings in relation to that statutory declaration we say deal with the matter and that it is not necessary - we would say there is no purpose in allowing Mr Jones to give evidence. The Full Bench's findings in relation to that statutory declaration are; at paragraph 32 the Full Bench said:

PN315

Again in the context of the evidence that members of the respondent were concerned that they might not have been parties or bound by the agreement, we are of the view that the evidence is no basis for the attainment of the relevant satisfaction that a request was made that the union become bound by the agreement. In finding that Mr Jones' statutory declaration affirmed his earlier satisfaction as to that matter, the Commission erred.

PN316

We would say that that evidence on its face has been dealt with, and there is no purpose in allowing Mr Jones to come and give more evidence and we would presume try and address the deficiencies. We say the situation is quite clear; the evidence from Mr Di Felice and Mr Nguyen at the hearing has been determined and that was - and the Full Bench position is that there was a request, or inquiries made with the union as to whether or not the members would be bound by the agreement or would be covered by the agreement. The real fear of the union members was that because the agreement had been certified as a section 170LK agreement, they would somehow be left out, and not parties to it.

PN317

There was no evidence of a request that satisfies the requirements of section 170M(3)(d)(iii). It would have been easy for that to have occurred. It would have only taken Mr Di Felice or somebody to go to a union member and say, "Do you want the AMWU to be bound by an agreement?", and to have an employee say, "Yes, that is what we want". That didn't occur, and because that didn't occur the requirements of the Act haven't been met.

PN318

In those circumstances, we say the course the Commission should take today is to determined - is to refuse the request to hear more evidence on the matter, and in accordance with the Full Bench's instructions, to determine the matter in accordance with the their decision and with the matter set out in their decision. And we say that would be a determination that the requirements of section 170M(3)(d) have not been met; in particular section 170M(3)(d)(iii) have not been met in this case, and the application for the union to be bound by the agreement should be dismissed. If the Commission pleases.

PN319

THE COMMISSIONER: Is that correctly quoting what the Full Bench has said? I mean, let me take you to 42 of that:

PN320

The Commission, at first instance, did not deal with the union's request that he admit further evidence. We remit the matter back to him and direct him to consider any such application.

PN321

That is fairly straight forward English, isn't it?

PN322

MR OGILVIE: Commissioner, I am not sure if I understand. My client - our understanding of that is that because the Commission didn't, at first instance, deal with the union's request to admit further evidence, so there was a request:

PN323

We remit the matter back to him and direct him to consider any such application.

PN324

And we say that is consider an application to deal with further evidence. And at that point we would object to - we would oppose the application that the Commission deal with further evidence outright. And then we understand the second part of that disposition appeal is that once that application to deal with further evidence has been considered, the Commission either hears that further evidence and determines the application under section 170M, or doesn't hear that evidence and determines the application under section 170M.

PN325

The course that we say should be taken in this case is that the Commission refuses the application to hear further evidence at that point, and then on the basis of the evidence before the Commission - already before the Commission, we say that the evidence that was before the Commission on 6 April determined the matter, being the section 170M application, having regard to the findings of the Full Bench.

PN326

So we would say that that can be done today. The Commission should refuse the request to admit further evidence for the reasons that I have explained earlier, and then determine the matter having regard to the Full Bench's findings. And we say in order to do that we submit that the matter should be determined that there was not enough evidence to satisfy the Commission that a relevant request had been made, and the application under section 170M should be dismissed. If the Commission pleases.

PN327

THE COMMISSIONER: Thank you. Mr Cole?

PN328

MR COLE: Yes, Commissioner. Just in response to Mr Ogilvie's points. We seek to have the evidence placed before the Commission, and we seek to for a number of reasons. The first - the initial reason was at the hearing of 6 April, and it is on transcript, I did ask the Commission as currently constituted to - if the Commission required the union could produce statutory declarations. And following that, on the following day, I received an inquiry from the Commission's associate in respect to additional statutory declarations to which I responded that it wouldn't be possible to do it on that day because people didn't finish work until X period of time, then they would have to write out their statutory declarations and get them sworn.

PN329

And following that conversation I was then asked again to - if I could get a statutory declaration from Mr Jones, Federal Secretary of the union. Mr Jones subsequently filled out a statutory declaration, and forwarded it to the Commission. Following which the Commission gave its decision in respect to the 170M matter. And the union agrees with the Commission's point it has made to Mr Ogilvie because the Full Bench has sent the matter back to the Commission. We believe that clause 42 quite clearly says that if the Commission believes that admitted further evidence would clarify the decision that the Commission made, well then it is up to the Commission to determine that under the powers of the Commission as I have outlined previously.

PN330

The union hears what Mr Ogilvie says but is somewhat perplexed where he says that there is no purpose in Mr Jones giving any further evidence in this particular matter, where Mr Dalton's argument against Mr Jones statutory declaration was that he would wish to be able to cross-examine, Mr Jones wasn't available for him to cross-examine him. And I make this point, Commissioner, the three statutory declarations that were attached to the documentation forwarded to the Full Bench, as Mr Ogilvie pointed out were made after the hearing. Now, and I said during the course of the Full Bench hearing, if the union had so wished the union could simply have got somebody to sign a statutory declaration saying, "I so and so want the union to be a party to the agreement", full stop.

PN331

But we didn't do that; we let people use their own words and we say that the ability for these people to be able to give evidence, and this time, Commissioner, to be able to give evidence with the assistance of an interpreter, we believe that the real meaning, the real meaning, of those statutory declarations will flow forward to the Commission. And there is no doubt, and the company is aware of it, there is no doubt that all the union members, and the Commission is aware of how many union members there are down there, they all want the union to be a party to the this agreement; they want them to look after their industrial interests in the same manner that they looked after their industrial interests for the last six years; there is no doubt about that.

PN332

And Mr Dalton quite clearly said in his objections to it in the first instance, is that the company were objecting because it gave the union a legal right in terms of being able to represent its members under any breaches of the agreement. So for all of those reasons we believe that the matter needs to be taken one last step, that is for us to be able to put the witnesses on the stand with an interpreter and take them through, in basic common English to what we thought we had put to bed, my words to the Commission in the first instance, and those words are well documented in the decision of the Commission where I had continuously said that the wording that I used to MR Nguyen when he was in the witness box was specifically aimed, targeted to get a particular response; a response that is consistent with the wording outlined under section 170M to comply with 170M(3).

PN333

So for those reasons, Commissioner, the union still persists in seeking that the Commission give consideration to allowing further evidence to be given based on the statutory declarations filed in the section 45 appeal matter before the Full Bench. If the Commission pleases.

[10.26am]

PN334

THE COMMISSIONER: Yes, Mr Ogilvie.

PN335

MR OGILVIE: Thank you, Commissioner. I just wanted to address two matters. Yes, the objection to the evidence of Mr Jones being considered at first instance was on the basis that we didn't have the opportunity to cross-examine him on the contents of his statutory declaration. However, it was quite clear in the submissions made to the Full Bench that - and we said that even if the statutory declaration was capable of being relied upon by the Commission, its contents did not go to the requirements of section 170M(3)(d)(iii). Quite clearly Mr Jones cannot give evidence of - unless there was evidence of a request made directly to him he cannot give evidence of a request made by an employee of Socobell to the union.

PN336

The evidence before the Commission was that the development organiser, Mr Di Felice, he says he had a request made from Mr Nguyen and that was his evidence that he gave. Mr Jones cannot give any further evidence other than confirmation of discussions he may have had with Mr Di Felice. The other issue is in relation to having Mr Nguyen and the other shop steward give evidence - oral evidence with the assistance of an interpreter. The Commission as constituted saw Mr Nguyen give evidence on the first occasion, understood what his language skills were like and my instructions are from the company that he is often used as an interpreter himself to speak to other employees.

PN337

So we would say that his language skills and his understanding of the requirements are good enough and the use of having him give evidence with an interpreter is not necessary in those circumstances. I can't make any submissions in relation to the other witnesses because I don't have those instructions, Commissioner. But we would say in relation to Mr Jones it is not necessary for him to come and give evidence because he is not capable of giving that direct evidence other than confirming the discussions he had with Mr Di Felice and at least for Mr Nguyen he did give evidence on the first occasion and an interpreter wasn't sought on that first occasion.

PN338

And we say it is not necessary to have an interpreter present so he could understand, and that having him go through his evidence again would be extremely prejudicial to our client, given all that has transpired since the first proceedings. If the Commission pleases.

PN339

THE COMMISSIONER: Why do you say it would be extremely detrimental to your client? He would be under oath again.

PN340

MR OGILVIE: He would be under oath, Commissioner. We would say that the opportunity to give evidence has been there. He has given evidence and we say honest evidence about the discussions he had with Mr Di Felice. What is being sought is further clarification and we would have concerns that clarification would be tainted by sitting through these proceedings, sitting through the Full Bench proceedings and having the benefit of the Full Bench and the questions being asked. Mr Cole was quite right; he got the witnesses to put their evidence in their own words and we say that is entirely appropriate, but the evidence of those witnesses in their own words wasn't enough to meet the requirements.

PN341

So we would say that that evidence, if it is now being allowed to be given again and given in a different form, would - is not appropriate in the circumstances and has the potential of being prejudicial to my client and that could be influenced at least by the decision of the Full Bench already handed down into why that original evidence was interpreted; basically giving him a second go to fix up the evidence on the first occasion. If the Commission pleases.

PN342

THE COMMISSIONER: I want to give more consideration to this matter. I am going to reserve my decision and I will advise you as promptly as I can. We will adjourn.

ADJOURNED INDEFINITELY [10.30am]