C2004/4956, Transcript of Proceedings [2004] AIRCTrans 4331 (9 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8907

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/4956

MEDIA, ENTERTAINMENT
AND ARTS ALLIANCE

and

AUSTRALIAN BROADCASTING
CORPORATION

Notification pursuant to section 99 of the Act
of a dispute re issues in relation to the alleged
removal of an employee with no valid reason and
the alleged failure to deal adequately with a
grievance lodged by the same employee

MELBOURNE

10.09 AM, FRIDAY, 29 OCTOBER 2004

Continued from 12.10.04

PN372

THE COMMISSIONER: Is there change in appearances? No? All right. Now, I have received outlines from both parties and the ABCs outline is it raises fairly squarely the issue of jurisdiction and so what I had in mind, subject to the submissions of the parties, was to hear the jurisdictional arguments because the ABC say quite clearly in their outline of submissions that the jurisdictional matters can be subject of an appeal, in paragraph 180, so they have evinced a clear intention to appeal any matter which might be inconsistent with their submission. So I thought we would hear the jurisdictional matter first. I determine that, reserve and determine that, so that any subsequent Full Bench wouldn't be troubled by discretionary notions of merit and I would give the ABC 21 days, of course, in which to lodge the appeal as statutory time frame if it is indeed against their submission. I think that is probably the most prudent course to adopt in the circumstances but subject to anything anybody might say. Mr Smith, do you have a view about that?

PN373

MR SMITH: Commissioner, no, I would agree with the approach. I think we should just clarify exactly under what authority the Commission is hearing the matter and the submissions outline quite clearly in our view where that should and could go. The only thing I would add, Commissioner, is that in terms of numbers of witnesses we would also need to do a bit of housekeeping about witnesses that are unlikely to be able to be heard and schedule them.

PN374

THE COMMISSIONER: Well, we won't even get to that on the proposition I just advanced. All I would hear is any additional submissions people want to put on jurisdiction. There is no point in troubling witnesses which go to matters of fairness.

PN375

MR SMITH: Correct. I just flag it just in case - - -

PN376

THE COMMISSIONER: If you are right on the jurisdictional point, questions of fairness become irrelevant to the proceedings.

PN377

MR SMITH: Correct. Thank you, Commissioner.

PN378

THE COMMISSIONER: Thank you. Mr O'Donnell?

PN379

MR O'DONNELL: Commissioner, I am not quite sure what - given that the ABC has made a fairly substantial submission on - to how you do intend to proceed? Are you going to hear their view and then proceed from there today?

PN380

THE COMMISSIONER: I will hear if they want to add anything on the jurisdictional argument they put.

PN381

MR O'DONNELL: Right.

PN382

THE COMMISSIONER: Then I will hear you and then I thought the best thing I can do is if I am in a position to announce a decision immediately that would be fine. If it requires some reflection and these things are always better considered appropriately so that the subsequent Full Bench, if one indeed arises either on your appeal or on theirs, can look at the reasons and why I have said I have jurisdiction or don't have jurisdiction. So I would have to consider that carefully so I suspect we wouldn't take very long today.

PN383

MR SMITH: Commissioner, it may help the alliance - I don't know whether Mr O'Donnell has had an opportunity to look at some of the authorities I have cited. I have got a bundle of documents, a book, which I would be proposing to hand up in any event. Perhaps if I hand those up. I don't have anything particular to add to the written submissions at this point.

PN384

THE COMMISSIONER: All right. Well, if you hand up your bundle of authorities. Now, I have summonsed two people to attend today. Those summons were executed, were they, Mr O'Donnell?

PN385

MR O'DONNELL: Yes, sir, they were.

PN386

THE COMMISSIONER: And Ms Torney and Ms Armstrong present no doubt? Oh good, up the back, yes.

PN387

MR O'DONNELL: They are, and Commissioner I thank you and I thank them for their attendance.

PN388

THE COMMISSIONER: Well, there is no point in thanking them for their attendance. I have told them to come. They really had no choice.

PN389

MR O'DONNELL: Well, they mightn't have had a choice, Commissioner, but they did it graciously and I think we do owe them that courtesy, sir.

PN390

THE COMMISSIONER: Thank you, thanks, Mr O'Donnell. Yes, Mr Smith, this is your bundle?

PN391

MR SMITH: Commissioner, I just hand up a bundle of documents, which is tabbed in accordance with the attachments that were outlined in the outline of submissions. The authorities - - -

PN392

THE COMMISSIONER: Oh, yes, well it has got a range of matters in it so I will mark it as ABC1.

EXHIBIT #ABC1 BUNDLE OF DOCUMENTS

PN393

MR SMITH: Thank you, Commissioner. The relevant tabs for this purpose really are the outline of submissions and tab 3, which is the various authorities upon which the ABC has relied.

PN394

THE COMMISSIONER: Yes. Now, do you want to add anything to your jurisdictional argument that is contained in your written submissions at this stage other than in response to what Mr O'Donnell may wish to put?

PN395

MR SMITH: No, I think I will wait, sir, to hear what Mr O'Donnell has got to say, thank you, Commissioner.

PN396

THE COMMISSIONER: Thanks. Well - - -

PN397

MR O'DONNELL: Commissioner, I - - -

PN398

THE COMMISSIONER: - - - it is a rather interesting irony that the program this is all about is Inside Business, but - - -

PN399

MR O'DONNELL: Indeed, Commissioner.

PN400

THE COMMISSIONER: - - - please, Mr O'Donnell.

PN401

MR O'DONNELL: I have got to say this leaves us at somewhat of a disadvantage. The time frame and the fact that we now have these documents now. We have not had - we weren't, in the document that we received from the ABC whilst it listed the intended authorities, we have not seen them and for that reason we are at somewhat of a disadvantage. I am also mindful, of course, sir, that we have witnesses here that simply have given up their time to be here.

PN402

THE COMMISSIONER: Yes.

PN403

MR O'DONNELL: And that causes some concerns.

PN404

THE COMMISSIONER: Yes.

PN405

MR O'DONNELL: However, my capacity to respond to these documents given that I have now seen them for about three minutes is limited and fairly valueless.

PN406

THE COMMISSIONER: What sort of time would you like, Mr O'Donnell?

PN407

MR O'DONNELL: I would like two days, sir.

PN408

THE COMMISSIONER: All right. That is not a problem. What would you prefer to do? Would you prefer to return and give an oral submission on these matters? It is probably easier than Mr Smith can respond.

PN409

MR O'DONNELL: I would prefer the oral submission should be on the basis that to do otherwise we delay the process and I might well be retired and you also, sir.

PN410

THE COMMISSIONER: Yes. Just a moment. Is next Friday too far away for you, Mr O'Donnell, the 5th?

PN411

MR O'DONNELL: Not for me. I mean, I prefer it earlier but I am mindful of your calendar too, sir.

PN412

THE COMMISSIONER: That is all right. Well, I will be here next Tuesday but unfortunately the place will be rather quiet but I am happy to sit next Friday morning or I could sit on an evening of either the Wednesday or the Thursday, whichever is more convenient.

PN413

MR O'DONNELL: Certainly. The Wednesday would be preferable to me, sir.

PN414

THE COMMISSIONER: Oh, I am sorry, the evening I can't. I have got something on the evening. The evening of the 4th?

PN415

MR O'DONNELL: Is the Thursday?

PN416

THE COMMISSIONER: Yes. Either Thursday evening, or again Friday at 10 o'clock in the morning.

PN417

MR O'DONNELL: The Thursday evening would be preferable.

PN418

THE COMMISSIONER: Thursday evening?

PN419

MR O'DONNELL: I would like to move it along as fast as we can.

PN420

THE COMMISSIONER: All right, well we will sit at five and I will set aside three hours just in case.

PN421

MR O'DONNELL: So sir, can I make it clear we are talking about the Thursday evening simply to talk about the jurisdictional argument?

PN422

THE COMMISSIONER: Yes.

PN423

MR O'DONNELL: Yes.

PN424

THE COMMISSIONER: Yes, and then what I have in mind, subject again to any submissions, what I have in mind is then handing a decision down as quickly as I can but then not sitting for 21 days and the reason that I am not going to sit for 21 days is that is the statutory appeal time and there is a clear intention on behalf of the ABC to appeal any decision which is adverse to its submission and they should be afforded that time.

PN425

MR O'DONNELL: Thank you, sir.

PN426

THE COMMISSIONER: All right. We will adjourn until 5 o'clock on Thursday, 4 November.

ADJOURNED UNTIL THURSDAY, 4 NOVEMBER 2004 [10.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ABC1 BUNDLE OF DOCUMENTS PN393