C2004/5266, Transcript of Proceedings [2004] AIRCTrans 3328 (26 August 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8209
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2004/5266

UNION OF CHRISTMAS ISLAND
WORKERS

and

FORTE AIRPORT MANAGEMENT

Notification pursuant to section 99 of the
Act of a dispute re wages and working
conditions

MELBOURNE

3.30 PM, MONDAY, 16 AUGUST 2004

Continued from 10.8.04

THESE PROCEEDINGS WERE CONDUCTED BY TELEPHONE AND VIDEO LINK AND RECORDED IN MELBOURNE

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, any change in appearances?

PN223

MR G. McCORRY: No, your Honour.

PN224

MR G. THOMSON: I appear for the Union of Christmas Island Workers.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Thomson, have your received the information that has been provided by Mr McCorry, the affidavit of Mr Forte and the affidavit of - just bear with me a moment.

PN226

MR THOMSON: Your Honour, I have received an affidavit from Mr Forte with documents attached which include an exchange of correspondence - - -

PN227

THE SENIOR DEPUTY PRESIDENT: Yes.

PN228

MR THOMSON: - - - between the union and Mr Forte, a copy of an e-mail with a couple of pages of attachments and some two - what appears to be - two photographs of some wild crowd, I think. Not very good photographs.

PN229

THE SENIOR DEPUTY PRESIDENT: Have you received the - - -

PN230

MR THOMSON: With a letter from Group Training to Forte Airport Management.

PN231

THE SENIOR DEPUTY PRESIDENT: And have you received the affidavit of Mr Bardmaehle?

PN232

MR THOMSON: I have received an affidavit from Mr Bardmaehle and I have received the respondent's outline of submissions.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr McCorry, have you received the - from Mr Thomson an extract from minutes of the UCIW central executive committee meeting dated Wednesday, 14 July 2004?

PN234

MR McCORRY: I have, your Honour.

PN235

THE SENIOR DEPUTY PRESIDENT: An excerpt from the union rules?

PN236

MR McCORRY: Yes, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: And a copy of a letter dated 26 June to Mr Thomson from Andrew Forte?

PN238

MR McCORRY: Yes, your Honour.

PN239

THE SENIOR DEPUTY PRESIDENT: A copy of a letter from UCIW dated 18 June to Mr Forte?

PN240

MR McCORRY: Yes, your Honour, I have that as well.

PN241

THE SENIOR DEPUTY PRESIDENT: And - - -

PN242

MR McCORRY: Extracts from the Workplace Relations Act.

PN243

THE SENIOR DEPUTY PRESIDENT: Yes, yes, you have those?

PN244

MR McCORRY: Yes, your Honour.

PN245

THE SENIOR DEPUTY PRESIDENT: Very well. What I propose to do, Mr McCorry is, given that you are challenging the issue and given that the authorities say that I am entitled to treat the notice of dispute and the log of claims as prima facie evidence of a dispute, perhaps I should hear from you first.

PN246

MR McCORRY: Well, your Honour, the - if I can refer you to, firstly, the outline of submissions.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes, I have read those, by the way, thank you very much for that.

PN248

MR McCORRY: I formally adopt those as my submissions in that we would say, firstly, that there can't be a dispute because of - there can't be a proper notification of dispute because on the evidence - and this is attested to by Mr Forte - of the union itself their issuing of the log of claims was only authorised by the union on 14 July and the purported service of it occurred prior to that date. Now, this clearly has not been authorised prior to service and the ex post authorisation of it can only be prospective, it did not have retrospective effect. And you will note from my submissions that there are authorities to that effect and I refer to paragraph 14 of my submissions.

PN249

THE SENIOR DEPUTY PRESIDENT: What about the fact that service - or you say that service was not effected, I think, as at 6 August and 6 August I directed that the union fax a copy of the log of claims and the letter of demand to the - to Mr Forte.

PN250

MR McCORRY: Your Honour, that was - the service of the log on that particular day was in compliance of a direction of the Commission. It was not done as authorised - as required to be authorised by the executive of the UCIW. There is no possibility that it was intended that the recipient of that be required to respond within the seven day period and we would say that that does not constitute service either in accordance with rule 72 and - - -

PN251

THE SENIOR DEPUTY PRESIDENT: But I can waive rule 72 and give directions for service in any event.

PN252

MR McCORRY: With respect, your Honour, I would disagree with that, I believe there is a recent decision of the Full Bench in which - in relation to notification as to rights of entry where the Commission ruled that service by fax was not permitted by the rules. I can't recall - - -

PN253

THE SENIOR DEPUTY PRESIDENT: Which matter is that?

PN254

MR McCORRY: This was a matter where the CFMEU purported to service notice of intention to enter premises - 24 hours notice required under section 285, I believe, and the Commission found - and I believe it was a Full Bench ruled that service by facsimile transmission was not proper service of the notice.

PN255

THE SENIOR DEPUTY PRESIDENT: Well, in - - -

PN256

MR McCORRY: And we would say that by - because the way the rules - and I am referring to the Commission's rules - are structured it is quite clear that facsimile service is only appropriate for, I believe it is, rule 51 - I haven't got my copy of the rules here, your Honour. The rules seem to anticipate that it is permissible for service of notices of hearing of a dispute notification may be served by facsimile. And we would say that the specific mention of that provision in the rules that facsimile service is possible for notices of hearing, which the union is required to do, that would preclude a general possibility to serve by fax.

PN257

And in any case, your Honour, the service still hasn't been authorised by the executive committee of the union.

PN258

THE SENIOR DEPUTY PRESIDENT: Which rules do you say - or which rule do you say was required to be observed in relation to the authorisation?

PN259

MR McCORRY: These are the rules of the union, your Honour.

PN260

THE SENIOR DEPUTY PRESIDENT: Yes, which one, which rules or rule?

PN261

MR McCORRY: The rules of the union - rule 26, procedure and notification of industrial disputes, paragraph (a) provides - second sentence:

PN262

The general secretary shall immediately report any dispute to the office of the executive committee who shall decide what course of action shall be taken on behalf of the ...(reads)... The following rules shall regulate any industrial action -

PN263

and it goes on. And the general secretary - paragraph (d):

PN264

The general secretary or any other officer of the union delegated to do so by the general secretary shall be authorised to notify the Australian Industrial Relations Commission of any industrial dispute to which the union is or might become a party.

PN265

We would say that the authorisation given on 14 July can only be in relation to authorising the general secretary to notify of a dispute and would not apply to a direction of the Commission that he serve, or send by facsimile, a copy of the log of claims.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes, no, sorry, I am talking about the authorisation aspect at the moment. So you say rule 26 stipulates what is required in order to authorise the notification or the service of a dispute. Is that right?

PN267

MR McCORRY: That is correct, your Honour.

PN268

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Just bear with me a moment. Yes, all right, your next point - that was actually your last point, wasn't it, the authorisation issue? Oh, no, that was the second last point. Your first point in the written submissions is the issue of jurisdiction. Is that right?

PN269

MR McCORRY: That is correct, your Honour.

PN270

THE SENIOR DEPUTY PRESIDENT: Have you referred to section 8F of the Christmas Island Act at all?

PN271

MR McCORRY: I am sorry, your Honour.

PN272

THE SENIOR DEPUTY PRESIDENT: Section 8F of the Christmas Island Act 1958 provides as follows:

PN273

1. Workplace Relations Act 1996 applies in relation to industrial disputes in the territory as if paragraph (a) of the definition of industrial dispute ...(reads)... the relationship between employers and employees.

PN274

So the substitution by the Christmas Island Act of subparagraph (a) of section 1 permits the requirement for interstateness, if you like.

PN275

MR McCORRY: In terms of its jurisdictional basis for Parliament to legislate, I quite agree. The Commonwealth doesn't have to rely upon placitum 35 to confer jurisdiction but in terms of determining whether there is an industrial dispute the Commission is still bound, we would say, by the definition of an industrial dispute. It doesn't require the interstatedness to confer jurisdiction because there is still- - -

PN276

THE SENIOR DEPUTY PRESIDENT: What the Act - sorry, what section 8F of the Christmas Island Act does is substitute paragraph (a) of the definition of industrial dispute in section 4 so that it omits the requirement for interstateness. And it says - it goes on to say in subsection (2) of section 8F:

PN277

For the purpose of sub section (1) an industrial dispute about the employment of persons employed for the performance of work wholly or mainly in the territory is taken to be an industrial dispute in the territory.

PN278

So, it - - -

PN279

MR McCORRY: Well, I will take that - - -

PN280

THE SENIOR DEPUTY PRESIDENT: Yes, well, you obviously - - -

PN281

MR McCORRY: I take that to be the case, your Honour, I wasn't aware of that condition in the Act and - - -

PN282

THE SENIOR DEPUTY PRESIDENT: And you don't have it in front of you which is a bit unfair and I appreciate that, so, I will arrange for my associate to fax a copy of that to you. So that was that point. Your next point was service. You maintain, do you, that service has not been effected in accordance with the requirements of the rules?

PN283

MR McCORRY: There is also a further issue in relation to jurisdiction, your Honour - - -

PN284

THE SENIOR DEPUTY PRESIDENT: What is that?

PN285

MR McCORRY: - - - and that is that the union's rules only permit it to be involved in an industrial dispute in respect of persons who are its members. And at paragraph 6 I have reproduced rule 4, the objects of the union, and apart from paragraph (a), all the others - provisions of the objects and therefore the scope of the union's legitimate powers to do stuff is in relation to person who are members. There are no persons who are members employed by Forte Airport Management and therefore the union does not have the power under its rules to - - -

PN286

THE SENIOR DEPUTY PRESIDENT: Sorry, do you see 4(a), the objects of the union in 4(a)?

PN287

MR McCORRY: Yes, your Honour. Yes, that is:

PN288

To secure the complete representation effective organisation of all persons eligible for membership of the union.

PN289

That is - - -

PN290

THE SENIOR DEPUTY PRESIDENT: Eligible.

PN291

MR McCORRY: - - - to be able to represent them.

PN292

THE SENIOR DEPUTY PRESIDENT: Eligible for persons - sorry, persons eligible for membership. It doesn't say actual members.

PN293

MR McCORRY: No, but all the other provisions - all the other paragraphs do, your Honour, and we would say to secure the complete representation, which it already has by virtue of rule 8(1), other than Christmas Island Police Force which no longer exists, so it has complete representation by virtue of rule 8 paragraph (1) but all the others have effective organisation - effective organisation does not require or - - -

PN294

THE SENIOR DEPUTY PRESIDENT: But that is the conditions - - -

PN295

MR McCORRY: - - - is not dependent upon - - -

PN296

THE SENIOR DEPUTY PRESIDENT: That is conditions of eligibility. Now, that simply identifies the characteristics that are necessary to be able to be admitted to membership, it doesn't govern what the union can do in terms of securing terms and conditions of employment for persons who are eligible to be members.

PN297

MR McCORRY: Well, what we would say, your Honour, is they can only do it in relation to persons who are members not persons who are eligible to be members. It is quite clear from the express provisions of rule 4 and it makes reference to - apart from paragraph (a) makes reference to members, not persons eligible to be members.

PN298

THE SENIOR DEPUTY PRESIDENT: Yes, all right, do you want to say anything else about that?

PN299

MR McCORRY: No, that is my submissions on that issue, your Honour. The only other issue is whether or not the alleged dispute is a genuine one and we would say that on the evidence of the affidavits of Mr Forte and Mr Mighell it is quite clear that whatever the union is doing it is not intent on obtaining terms and conditions, or appropriate terms and conditions of employment, for persons who are or might be employed at the airport. It is intent on driving Forte Airport Management from the island. And we would say that there is a reasonable inference that the reason for doing so is that the Shire can then take over the airport operations.

PN300

And it is a matter of record that the general secretary of the union and the president of the union are the president and deputy president of the Shire respectively. And that the union ticket controls the Shire, so we - - -

PN301

THE SENIOR DEPUTY PRESIDENT: Is it not - sorry, go on.

PN302

MR McCORRY: And we would say that given the nature of the campaign against Forte Airport Management the Commission can properly conclude that this is - this notification, or the purported service of the log of claims and notification of dispute, is nt about an industrial matter and it is part of a campaign of harassment against Forte Airport Management for the purposes of depriving them of the ability to operate on Christmas Island.

PN303

THE SENIOR DEPUTY PRESIDENT: Could there not be more than one purpose on the part of the union?

PN304

MR McCORRY: It is quite possible, your Honour, but we would say, given the nature of the campaign, the predominant purpose is to stop Forte Airport Management from operating.

PN305

THE SENIOR DEPUTY PRESIDENT: Why do you say they want to stop Forte Airport Management from operating?

PN306

MR McCORRY: Well, we have the evidence of the affidavit that there was a large crowd shouting for Forte Airport Management to get out. There was the procuring of denial of service by various businesses on the island. There is nothing whatsoever said or done publicly that would indicate any concern for the terms and conditions of people employed - - -

PN307

THE SENIOR DEPUTY PRESIDENT: But, what is - - -

PN308

MR McCORRY: - - - other than - - -

PN309

THE SENIOR DEPUTY PRESIDENT: What do you say is the object of having Forte driven out, if you like? Or what is the object of the union or the Shire or the community in trying to get Forte not to operate there or - - -

PN310

MR McCORRY: We would say, your Honour, the purpose of it is to enable the Shire to be the only viable - the Shire or the Commonwealth, to be the only organisation capable of running the airport. And given that the Shire, on the evidence, was a competitor for this and the Shire is, effectively, controlled by the union and the Shire has funded and is proposing a campaign against the Commonwealth, one of which alleges a lack of decision making on the island about matters affecting Christmas Island, we would say that a reasonable inference can be drawn is that the campaign is intended to give the Shire as much control over matters occurring on the island, and therefore the union through its control of the Shire, of all matters on the island.

PN311

THE SENIOR DEPUTY PRESIDENT: All right. I thought I saw something in the evidence of Mr Forte in relation to AWAs. It said something along the lines - it might have been in a letter. It was something to the effect that the AWAs are authorised by the enterprise agreement or the certified agreement.

PN312

MR McCORRY: That appears in paragraph 12 of Mr Forte's affidavit.

PN313

THE SENIOR DEPUTY PRESIDENT: Oh, yes, thanks, for that. Whereabouts in the certified agreement do I find that reference?

PN314

MR McCORRY: In the application clause, I understand, your Honour. I don't have a copy of it in front of me but I believe it says it applies to all persons employed by the - I have a copy:

PN315

This agreement applies to all administrative employees on Christmas Island except those persons whose employment is subject to conditions of a service, Australia based determination ...(reads)... an Australian workplace agreement.

PN316

That is in clause 6.

PN317

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Yes, all right, did you want to say anything else, Mr McCorry?

PN318

MR McCORRY: Only that the - just in conclusion, your Honour, on the issue of genuineness we say that the log of claims is not a genuine demand and quite create the alleged industrial dispute.

PN319

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you. Mr Thomson?

PN320

MR THOMSON: Thank you, your Honour. I wonder if we are going to have the opportunity to examine Mr Forte and Mr Mighell on their affidavits.

PN321

THE SENIOR DEPUTY PRESIDENT: It would be a bit difficult, wouldn't it, without you being able to see them?

PN322

MR THOMSON: Yes. If the Commission is to give these affidavits any standing I think they need to be tested. So I am not quite sure what I - what should occur now, your Honour. Should I proceed with dealing with some of the points that Mr McCorry has raised, or?

[3.55pm]

PN323

THE SENIOR DEPUTY PRESIDENT: Well, I am not going to deprive you of the opportunity if you want to test the affidavits but, as I say, that is a difficult task given the logistics of the situation. I mean I just don't see how you could carry out an effective cross-examination by telephone. If you had the video facility it might be a different matter.

PN324

MR THOMSON: Your Honour, if it would assist the Commission I will proceed with dealing with some of the points that Mr McCorry has made in the hope that, at some point, there will be a dispute found and the parties will be able to enter negotiations.

PN325

THE SENIOR DEPUTY PRESIDENT: Well, as I understand it, the affidavit material only goes to the question of genuineness, is that right, Mr McCorry?

PN326

MR McCORRY: Essentially, your Honour, yes - and service.

PN327

THE SENIOR DEPUTY PRESIDENT: And service. Yes, well, perhaps I could reserve on that issue, or adjourn on that issue, but deal with the rest of it and see whether or not we get to that. So perhaps if you deal with all of the aspects of the objection other than the genuineness at this stage and you can deal with the service issue I think and we will see where we go from there, Mr Thomson.

PN328

MR THOMSON: Thank you, your Honour. The concern I would have about the affidavits is that they are very revealing of a construction - I think Mr McCorry likes to call it - he likes to construct meanings out of documents and arguments but, if we set that aside, with regard to section 8F of the Christmas Island Act - I do have a copy of the Act in front of me. I can confirm that the union's understanding is the Workplace Relations Act 1996 applies in relation to industrial disputes in the Territory and I note that Mr McCorry appears to concede the jurisdiction of the Commission in that matter - - -

PN329

THE SENIOR DEPUTY PRESIDENT: To that extent, but he does not have a copy of that.

PN330

MR THOMSON: - - - and there is no need to send a copy of the Act, I have it in front of me.

PN331

THE SENIOR DEPUTY PRESIDENT: I am going to provide a copy to Mr McCorry but I think, subject to him confirming what I have said about it, then he doesn't take any further point on that - or he doesn't take any further issue on that point.

PN332

MR McCORRY: That is correct, your Honour.

PN333

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr McCorry.

PN334

MR THOMSON: With regard to the jurisdiction then that matter is resolved. With regard to - Mr McCorry's - let us call it a construction again - Mr McCorry's construction of the meaning of the rules of the union it appears to be that rule 26D requires that the Secretary of the union needs to be authorised by the Executive Committee to notify the Commission of the dispute. That is not a construction that I agree with, your Honour. I think it would be very detrimental to the purposes of harmonious industrial relations if such a construction were allowed to stand.

PN335

Rule 26 - procedure and notification for industrial disputes - I think the proper construction is that Parts A, B, C and D deal with separate matters. In any case, even if that argument is not accepted, that is the General Secretary shall be authorised - and the construction would be that, "Shall be authorised by these Rules". "The General Secretary shall be authorised", and the meaning - the proper meaning of that, "authorised", word is, "shall be authorised by these Rules to notify the Australian Industrial Relations Commission of any industrial dispute to which the union is, or might become, a party".

PN336

I would argue - I argue that the rules provide that the General Secretary is authorised by the rules to notify the Commission. The General Secretary does not need the authorisation of the Executive Committee to notify the Commission of a dispute or that a dispute might become - there might be a dispute to which the union will be, or is, a party. Part A of rule 26 deals with the procedures to be followed by members and the purposes of that is that the Executive shall ensure that no form of industrial action shall be taken or threatened without the approval of the Executive Committee. It is a discrete part of the rules - 26A deals with the concern that there be industrial action without the authority of the executive. There must be an authority of the Executive before industrial action can be taken.

PN337

THE SENIOR DEPUTY PRESIDENT: But the objection is a bit more fundamental than that, I think, Mr Thomson. The objection goes to the authority authorising the log of claims.

PN338

MR THOMSON: Your Honour, the - Mr McCorry relies upon Part D - at his construction of Part D which I have dealt with. The matter of being authorised in any case by the Executive - I refer you to the document extract from Minutes of the UCIW Central Executive Committee Meeting held on Wednesday, 14 July - the extract contains a report from the General Secretary advising the Executive that the process for dispute finding establishing the award coverage of the Airport has been commenced.

PN339

And then that report is obviously accepted and the motion that follows is that the General Secretary - that is a motion of the Executive Committee, adopted and carried by the Executive Committee was that the General Secretary is authorised to implement a program of action in the Australian Industrial relations Commission to secure conditions and wages for the airport employees to be employed at the airport after the Commonwealth terminates the current employees. The General Secretary is requested to call meetings of members, as required, to campaign for jobs for our members.

PN340

THE SENIOR DEPUTY PRESIDENT: But that was - that authorisation - - -

PN341

MR THOMSON: Now the authorisation, to implement a program of action in the Commission, is quite clear.

PN342

THE SENIOR DEPUTY PRESIDENT: Yes, but it is given after the date.

PN343

MR THOMSON: The notification of the dispute came after Wednesday, 14 July. The 14 July meeting merely noted that the process of pursuing the dispute finding had commenced and that report included notice that the log of claims had been served on the - on Forte Airport Management and that process was commenced, after discussion with the union executive, which takes place almost on a daily basis. So as far as the decision making processes of the union are concerned the formal decision was taken on 14 July confirming and authorising the program of action in the Commission but that is not to take away from the fact that there is a routine gathering of the union office, almost on a daily basis, where the union executive is thoroughly informed of what is going on and decisions are taken.

PN344

The extract from the Minutes of the Executive Committee Meeting are provided and support what I am saying that this is the Notice of Dispute that was issued after that meeting was authorised by the Executive. That is the second string to the argument; the first string is that the construction of the union's rules - put on those rules, by Mr McCorry, is incorrect and the genuineness of the dispute - clearly our understanding of meetings and telephone conversations between myself and Forte, between the President of the Union and Kelvin Lee, a member of the union executive and Forte, we say that there have been genuine attempts by the union to establish a relationship with Forte for the purposes of securing employment of our members and we brought to those attempts some sympathy for Mr Forte and the problems he was having in finalising his arrangements to execute the agreement to take over the operation of the airport.

PN345

The union refutes, absolutely, the allegation that we have not and are not attempting to pursue the best outcomes for our members and including employment by Forte of the Christmas Island Airport. The Shire with my encouragement and the encouragement of other members of the union executive has had discussions with Forte. Forte appeared to be interested in exploring the potential arrangements for the Shire to provide - to help him resource his project; whether that is labour or materials I am not sure but certainly the discussion was there.

PN346

These other claims are served as par for the course. That is what needs to be done. The role of the union is to secure - the rules require that the union - and we go to Rule 4 - the objects of the union are to secure the complete representation and effective organisation of all persons eligible for membership of the union. The basic building block, your Honour, for establishing conditions and wages for workers in any work places to issue a log of claims, a letter of demand, and there is an automatic sort of response and activity around that.

PN347

Now, Mr McCorry, has made clear at the outset that he has got instructions to contest every technical point to avoid wherever possible any relationship between the union and Forte; to avoid the dispute finding; to contest in every way possible so that there is no relationship established between Forte and the union of Christmas Island workers. Now we are very conscious of Mr McCorry's objective and the instructions he says he has had from Forte indicate that Forte's objective has always been it would appear to avoid any relationship with the union of Christmas Island workers and that was evident before any demonstrations took place.

PN348

It would appear to me that the genuineness of anybody's position it is not for the union to prove that we are genuine; that is most obviously the case. I wrote to Mr Forte on 18 June in what I would have thought were fairly conciliatory terms and certainly the tone of the letter was that we think there is a lot to talk about; we urged him not to get into bed with anybody else; we wanted to talk to him about how to do things and we had something to offer; we thought we could have brought something to the table to assist him; and any suggestion to the contrary is not accurate, not fair - certainly not fair and not true.

PN349

The union has attempted, over many months, to establish a relationship with Forte. He apologised to me in a telephone conversation for not being able to catch up with us before he left on one of his trips here. It is not possible for Mr McCorry to sustain his argument that we are not genuine in our wish to establish wages and conditions for all people who work at the Airport under Mr Forte's control. Why would we be here today in the Industrial Commission if that were not the case. We are trying to establish a relationship which will bring fairness and justice and employment, most importantly, to our members.

PN350

With regard to Mr McCorry's argument that the UCIW is orchestrating a campaign to get Forte off the island I have to say that the position of the UCIW is that there will be continuing protests, demonstrations against Forte if Forte is not prepared to talk to people and I think that point was made the other day - on Friday. The minute that Forte is prepared to sit down and negotiate and treat our people with respect; to treat their organisation with respect, not avoid us as they have done to so far; then that is when those protests will stop.

PN351

With regard to Mr McCorry's construction of the campaign for decision making on Christmas Island does he intend to slur the Chamber of Commerce, the Islamic Council, the Malay Association, the Christmas - the Chinese Literary Association, all of the Shire employees; all of the people who have been supporting the campaign. The origins of the campaign for decision making on Christmas Island lay in the decision of the Government to refuse a casino license, are forever more on Christmas Island and virtually and effectively kill off a $30 million investment in the Christmas Island Casino Resort that was being proposed by the Korean Friendship League.

PN352

The campaign launched by the Shire had two elements; that we are sick and tired of decision making about Christmas Island being totally out of the control and influence of the people of the Island and this was a frustration expressed by all sections of our community not just the UCIW or the Shire councils.

PN353

THE SENIOR DEPUTY PRESIDENT: Mr Thomson, you seem to be getting away from the issue at the moment. The issue here is whether or not there is an industrial dispute, or whether I can find there is an industrial dispute.

PN354

MR THOMSON: Thank you, your Honour. I was addressing some of the points that Mr McCorry was making about the genuineness of the union's claims and if you regard those matters as not relevant that is a relief.

PN355

THE SENIOR DEPUTY PRESIDENT: Well, all I am saying at the moment is you challenge what is put in the affidavit as I understand it, don't you, on the issue of genuineness?

PN356

MR THOMSON: Sorry, your Honour, thank you, yes.

PN357

THE SENIOR DEPUTY PRESIDENT: Yes. Well, in those circumstances it seems to me that I need to be able to observe the cross-examination of witnesses in relation to those issues and perhaps your own witnesses in relation to what you say is the facts from your point of view. I cannot very well do that without having some facility to see you and see the people that you might call as witnesses on the Island.

PN358

MR THOMSON: Your Honour, the major points of Mr McCorry's position in opposition to the dispute finding is that there is no interstatedness. We say that is not necessary - that is covered by the Christmas Island Act Workplace Relations Act, section 7. The genuineness of the dispute has been dealt with. The service of the log of claims is not lawful is what Mr McCorry saying. We have provided our best endeavours from a very remote location and I have made application and I am - I withdraw that.

PN359

The service of the log of claims; the letter of demand have been made in accordance with the rules of the union; have been authorised by the rules of the union and by the Executive. The notice of dispute has certainly been authorised by a decision of the Executive of the union on 14 July. The service of the log is not within the strict wording of the rules. I would submit that the wording of the rules is there to assist and facilitate the service of logs of claims.

PN360

The rules of the Industrial Commission are, in my submission, there to assist the smooth operation of the Commission and to facilitate the objects of the Act particularly part H enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate, within specified limits by arbitration. The objects of the Act are principal object of the Act - section 3H is the part I refer to, your Honour. The rules of the Commission I submit are not meant to frustrate parties but are meant to give clear guidance on the appropriate means of serving logs of claims.

PN361

There has been an exchange of correspondence between the union and Forte and Forte was happy to write to us under a PO Box number, of the Managing Director. I don't know who the Company Secretary is. If the company - what the status of the company is - we have taken all these little steps. Mr Forte acknowledges that he has received the log of claims and the letter of demand which was served by fax at the direction of the Commission.

PN362

In all the circumstances and for what other reasons you might deem fit, your Honour, I submit that the arguments of Forte Airport Management in this matter are meant to frustrate the proper process of smoothing relations between the union, its members and Forte Airport Management and to do so - to continue to attempt to frustrate a coming together of the parties in conciliatory mode is damaging to the interests of all parties. It is damaging to the objects of the Workplace Relations Act.

PN363

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Thomson. Mr McCorry, did you want to say anything in reply?

PN364

MR McCORRY: Yes, a couple of matters, your Honour. First of all the rules of the union are merely guidelines some are mandatory and some are merely directory and we would say that, in this case, they are mandatory and there is authority that you cannot merely not comply with them. And there is also the issue that Rule 14.2 of the Commission's Rules requires, in relation to a log of claims, at paragraph 14.2(e):

PN365

A statement by an officer of the organisation serving a log of claims, having knowledge of the facts and authorised for the purpose by the Committee of Management of the organisation that the letter of demand and log of claims were served with the authority of the organisation.

PN366

Now, clearly, that requires a log of claims and the letter of demand to be served with the authority of the organisation and that can only be done by the Committee of Management - the Executive Committee. And, as the authorities make quite clear, if it is not the authorisation I refer to the decision of the High Court in CFMEU ex parte W J Dean and Sons (1994) 125 ALR 16. If it is not authorised by the Executive it is not valid and the rule of authorisation on the 14th, made after the purported service did not act to ratify the prior actions of the General Secretary and there is a number of authorities on that and I have put them there.

PN367

A more recent one in Western Australia; a Full court of the Supreme Court of Western Australia in Robertson and Jones v Civil Service Association, upheld that principle. An authorisation made ex post can validate an action done without authority but it must be quite clear that it was being done. And it is clear from the extract from the minute - minutes of the union that the motion that was put to the executive committee was that the general secretary is authorised to implement, it is prospective, not the general secretary is authorised or authorisation is given to the general secretary for what he did in the past.

PN368

So we would say there is no problem with authorisation and there can be no valid issue of the log and the letter of demand. In relation to Mr Thomson's statement that they are interested in a nice, friendly relationship, I simply refer the Commission to paragraph 6 of Mr Mighell's affidavit where he testifies that Mr Thomson said to him, there can be no friendly relationship with Forte. We will use any means that the union has which would include picket lines and would involve sectors of the union which are not directly involved with the airport.

[4.20pm]

PN369

THE SENIOR DEPUTY PRESIDENT: But that is untested at this stage and as I have suggested, if I am going - - -

PN370

MR McCORRY: Indeed, your Honour.

PN371

THE SENIOR DEPUTY PRESIDENT: Yes.

PN372

MR McCORRY: And the other point I wish to make, your Honour, is that the service of the log of claims and the dispute can serve no useful purpose given that persons are going to be employed under an Australian Workplace Agreement. That agreement, in order to satisfy the no disadvantage test must be underpinned by an award and the Airline Employees Award 1999, an award that covers every other airport in Australia, underpins it. So there is certainly no anomalies in relation to that. And the AWA will prevail over any award or certified agreement by the provisions - operation of the agreement.

PN373

THE SENIOR DEPUTY PRESIDENT: I am not so sure of that, but anyway, I am not so sure it prevails over an existing certified agreement and I would have to check what the Act says about that. But in any event, tell me this, it says - Mr Forte's statement says, he is a company director and he is the managing director of the company operating Christmas Island Airport. Now, who won the contract to operate the airport, is it Forte Airport Management, is that who put in the tender?

PN374

MR McCORRY: That is the trading name, your Honour.

PN375

THE SENIOR DEPUTY PRESIDENT: Trading name. Well, what is the name of the company?

PN376

MR FORTE: Can I explain it?

PN377

MR McCORRY: Yes, if you would.

PN378

MR FORTE: It is Andrew Forte, sir. The full company name is Emerald Oak Pty Ltd as trustee for the Forte Family Trust trading as Forte Airport Management.

PN379

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Forte. All right.

PN380

MR THOMSON: Your Honour, I didn't hear that properly.

PN381

THE SENIOR DEPUTY PRESIDENT: It will be in the transcript, Mr - sorry, I am getting you mixed up with Mr McCorry now - Mr Thomson. Mr Thomson, you also raised a point during Mr McCorry's submission in reply that you didn't hear a reference. You said it was a rule, you thought he referred to a rule. He wasn't referring to a rule, he was referring to a case that he set out in his submissions, the CFMEU case ex parte.

PN382

MR THOMSON: Yes, your Honour, before that he referred to a particular rule - it doesn't matter.

PN383

THE SENIOR DEPUTY PRESIDENT: He referred to rule 14(2) - - -

PN384

MR THOMSON: Right.

PN385

THE SENIOR DEPUTY PRESIDENT: - - - of the Commission's rules, that is, not your rules.

PN386

MR THOMSON: Yes.

PN387

THE SENIOR DEPUTY PRESIDENT: Yes, did you want to say anything else, Mr McCorry?

PN388

MR McCORRY: No, your Honour.

PN389

THE SENIOR DEPUTY PRESIDENT: Mr Thomson, did you want to say anything else?

PN390

MR THOMSON: Your Honour, the rule 6 of the Commission's rules, relief from rules, it says:

PN391

The Commission may dispense with compliance of the requirements of these rules before or after the occasion for compliance arises.

PN392

THE SENIOR DEPUTY PRESIDENT: Yes. All right, what I propose to do is, I will deal with the questions of jurisdiction, that is, the capacity of the union to represent or to seek to secure terms and conditions of employees who are not members. I will deal also with the issue of service and the issue of authority. I will reserve or adjourn the issue of genuineness and deal with that, should it be necessary, at the time that I visit Christmas Island in September. But prior to that I will give a decision on the issues that are before me at the present time. Mr Thomson, do you understand all that?

PN393

MR THOMSON: Your Honour, if it is the case that I am - I am contesting the - I want to see the affidavits tested and that is preventing a ruling on the genuineness of the case.

PN394

THE SENIOR DEPUTY PRESIDENT: Yes.

PN395

MR McCORRY: Then perhaps I could just withdraw - the affidavit shouldn't be allow to stand because some of the things in them are really quite offensive.

PN396

THE SENIOR DEPUTY PRESIDENT: But Mr McCorry wants to rely on them and in those circumstances - - -

PN397

MR THOMSON: Yes, yes.

PN398

THE SENIOR DEPUTY PRESIDENT: - - - you have a right to cross-examine on them.

PN399

MR THOMSON: Well, perhaps Mr McCorry might say something about that because, your Honour, I think you are intending to come in the last week of September.

PN400

THE SENIOR DEPUTY PRESIDENT: At this stage, yes.

PN401

MR THOMSON: Which means that there is no prospect of a decision before then about whether there is a dispute finding and there is no - the parties don't know where they stand.

PN402

THE SENIOR DEPUTY PRESIDENT: Yes, well - well, you will know - - -

PN403

MR THOMSON: Therefore there won't be any conciliation, one would expect, if that is the case.

PN404

THE SENIOR DEPUTY PRESIDENT: Yes, well, conciliation is a bit difficult to do by - in remote means or by remote means, I would rather sit down face to face with the parties for conciliation. The only thing I could do is in fact perhaps try to get to the island sooner but there is not much point in that until I determine, first of all, these other questions. I mean, if it turns out that you fail on any of these points that are raised by Mr McCorry, then the issue of genuineness is irrelevant really at this stage anyway, isn't it?

PN405

MR THOMSON: Yes, very well, your Honour, thank you.

PN406

THE SENIOR DEPUTY PRESIDENT: So I am able to determine those matters and see whether or not it is necessary for me to concern myself about genuineness. If it is, I might be able to see if we can organise for me to get to Christmas Island earlier. Sorry?

PN407

MR McCORRY: Just on that issue, your Honour, I have a hearing scheduled for 31st of this month and the 1st, the 8th and 9 September and I believe either the 12th, 13 and 14th or the 13, 14th and 15 September, so I certainly would not be able to get up there before late in the month which is the 26th or 27th when I was planning on going there anyway.

PN408

THE SENIOR DEPUTY PRESIDENT: Yes.

PN409

MR THOMSON: Your Honour, if I may, the issue - given that you may find against us in any case - but from what I can see, the passing of time is going to deprive our members of opportunities for employment.

PN410

THE SENIOR DEPUTY PRESIDENT: How is that?

PN411

MR THOMSON: Well, if the - Mr Forte won't - refuses to talk to the representative of their members, the UCIW, then how do we get to the first base of securing employment.

PN412

THE SENIOR DEPUTY PRESIDENT: But I understood they didn't apply for jobs?

PN413

MR THOMSON: On the terms that were offered, your Honour.

PN414

THE SENIOR DEPUTY PRESIDENT: Yes.

PN415

MR THOMSON: The terms that were being offered are below what they are getting now.

PN416

THE SENIOR DEPUTY PRESIDENT: Yes, but the positions have been filled, haven't they?

PN417

MR THOMSON: No, not that I know of.

PN418

THE SENIOR DEPUTY PRESIDENT: Well, who is operating the airport? Who is working the airport?

PN419

MR THOMSON: They don't want to tell us.

PN420

THE SENIOR DEPUTY PRESIDENT: Well, there must be people out there doing the job, is that right?

PN421

MR THOMSON: I don't know, your Honour. When the Commonwealth sacked everybody last Tuesday week, that was that. I don't know who is working there.

PN422

THE SENIOR DEPUTY PRESIDENT: Well, Mr McCorry, is the airport operating or not?

PN423

MR McCORRY: Yes, it is, your Honour, the airport has a manager, a part time assistant manager, an operations employee and a senior operations employee.

PN424

THE SENIOR DEPUTY PRESIDENT: And is that all of the positions that are available?

PN425

MR McCORRY: Well, some of the services which were formerly performed by employees have been contracted out and that is the cleaning and the security screening matters which were formerly not done by the airport employees and continue to be done by the people who were doing it at that time but under contract to Forte. So the - and there are no jobs there at the moment.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomson, are you able to get to Perth at all?

PN427

MR THOMSON: Yes, your Honour, if that has any meaning. From what I have just heard there is no intention or there are people already employed in all of the jobs that Mr Forte has. My understanding is that they were just temporary arrangements. If that is not the case, I guess, there wouldn't be much point.

PN428

THE SENIOR DEPUTY PRESIDENT: In what, talking, you mean?

PN429

MR THOMSON: Well, is Mr McCorry saying, yes - is Mr McCorry saying that the jobs are closed, that is it. There is no - Forte has got no intention of employing people or our members and that these jobs are filled and it is not a temporary filling while things are being sorted out, it is a permanent arrangement.

PN430

THE SENIOR DEPUTY PRESIDENT: Is that the case, Mr McCorry or are these part time jobs or - - -

PN431

MR McCORRY: There is probationary period, your Honour and there is a couple of casual matters, but so far as we are concerned, they are going to be permanent - well, not permanent appointments because the contract is only for a three year period but they are long term appointments.

PN432

MR THOMSON: Wait until you get here at the end of September, your Honour.

PN433

MR McCORRY: I should point out, your Honour, that Forte Airport Management would have been quite happy to employ some of the existing airport people if they had applied for the jobs.

PN434

THE SENIOR DEPUTY PRESIDENT: But it is not prepared to accept any applications now?

PN435

MR McCORRY: Well, there are no positions left. If any of the existing employees cease to be employed they are welcome - applications from suitable qualified ex-employees of the administration.

PN436

THE SENIOR DEPUTY PRESIDENT: Where do the existing employees come from, on the island or the mainland?

PN437

MR McCORRY: The existing - are you talking about the administration employees, your Honour?

PN438

THE SENIOR DEPUTY PRESIDENT: No, the employees at the airport now?

PN439

MR McCORRY: The manager comes from the mainland. The assistant manager and the other employees are locals.

PN440

THE SENIOR DEPUTY PRESIDENT: All right.

PN441

MR McCORRY: And I should point out that the former airport manager also came from the mainland, he was not an administration employee, he was employed by Australian Airports Corporation and the Commonwealth had a contract with Australian Airports Corporation for them to provide his services as manager.

PN442

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Thomson, it doesn't seem that there is going to be much prejudiced suffered by me leaving the matter until I get there at the end of September. I mean, I will deal with these matters that I have got here before me now and then the rest of it can be dealt with at the end of September. Do you agree with that?

PN443

MR THOMSON: Thank you, your Honour, we will see you at the end of September, I think is what you said, isn't it?

PN444

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN445

MR THOMSON: Yes, yes.

PN446

THE SENIOR DEPUTY PRESIDENT: All right, if there is nothing else, I will adjourn the matter to a date to be fixed for publishing my reasons for decision on the matters reserved.

ADJOURNED INDEFINITELY [4.35pm]