C2004/1689, Transcript of Proceedings [2004] AIRCTrans 460 (5 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 5914
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2004/1689

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Ajax Cooke Pty Ltd t/as Ajax Engineered
Fasteners for an order to stop or prevent
industrial action in the form of work bans
at the Mills Road Braeside site

MELBOURNE

3.34 PM, FRIDAY, 23 JANUARY 2004

PN1

MR R. LEVIN: I seek leave to appear on behalf of the applicant in this matter.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MR I. THOMAS and MR C. PANDOLFO, and I object to my friend's application for leave.

PN3

THE COMMISSIONER: Yes, Mr Levin.

PN4

MR LEVIN: Some of the matters in the background to this dispute. The AMWU employees are covered by the Ajax Engineered Fasteners Braeside Collective Bargaining Agreement 2003, which is an agreement that remains in force until 30 June 2005. There is industrial action that is holding up approximately one-and-a-half million parts from car manufacturers, and if the industrial action is not lifted, that will close down the car manufacturers within a matter of days.

PN5

The dispute has been ongoing. The consequences are serious. The matter involves cross-examination of witnesses. It involves matters of which I have the background. So in order to satisfy the requirement of dealing with this matter speedily and efficiently, it would assist the Commission, in my submission, if I were granted leave. I note that my opponent is also a lawyer, and I think that is a relevant factor to take into account in the overall consideration.

PN6

THE COMMISSIONER: Well, it wouldn't be if you were an employee of the company.

PN7

MR LEVIN: Indeed.

PN8

THE COMMISSIONER: Well, he is an employee of his organisation.

PN9

MR LEVIN: In terms of the balance of fairness in the overall consideration, that is all I say. That if my client were subject to cross-examination from someone legally qualified, who also has, as I do, an understanding of the legal issues involved in this, it might present an imbalance of fairness. Furthermore, the matter - I would like to be able to take you to issues of law which I have discussed with my friend preliminarily. We say that if we are not able to have leave granted, that it would actually be against the objects of the Act to speedily and efficiently deal with this matter.

PN10

Finally, we should say that the considerations should also take into account the urgency of the matter, and the need for it to be dealt with as quickly as possible. If we cannot resolve the matter today as a result of my inability to seek leave, that the consequences for the outcome of the continuing ban, as my client would not be able to - possibly be able to run the proceeding, that should be a factor to take into account.

PN11

The final factor we ask you to take into account is that this is unlawful, unprotected industrial action that is arising out of a demarcation dispute. So the special circumstances that you should also take into account are in order for my client to be able adequately deal with the matter, it would need to have the assistance of counsel to deal with those matters as well. And obviously in terms of the generality of the appropriateness of the granting of leave, we would also finally just say that you should weight up the inappropriateness of not using the appropriate steps in the dispute resolution procedure to come here if the union has a problem with a demarcation issue on site, rather than just throw on a ban of this nature. If the Commission pleases.

PN12

THE COMMISSIONER: Is work being performed over this long weekend?

PN13

MR LEVIN: No - I beg your pardon - - -

PN14

THE COMMISSIONER: Required to be performed.

PN15

MR LEVIN: I will just get instructions. You are inquiring, sir, whether there would be work being performed over this weekend?

PN16

THE COMMISSIONER: Whether this would have been working days.

PN17

MR LEVIN: I am instructed yes.

PN18

THE COMMISSIONER: Full working days, are they?

PN19

MR HAWKES: Sorry?

PN20

THE COMMISSIONER: Are they full working days, Mr Hawkes?

PN21

MR HAWKES: We normally work heat treatment continuously over the weekends. It is a continuous process. Normally it doesn't shut down unless there is an extended period of closure, and such would be, say, a two week closure over a Christmas period, or something to that effect. But other than that, essentially heat treatment runs continuously 24 hours a day, 7 days a week.

PN22

THE COMMISSIONER: Thank you.

PN23

MR ADDISON: Commissioner, I hear what my friend has just said. However, what my friend says is not consistent with what the Act says. The Act makes it very clear at section 42(2) that the only representation before the Commission in proceedings is that which is prescribed by the Act. Commissioner, section 42(3) deals with the appearance by agent, solicitor, counsel, and section 42(3) makes it clear that the only time counsel would be granted leave to appear is, one, by agreement of the parties: that is not the question here. Two, if the company can only adequately be represented by counsel.

PN24

Now, Commissioner, this company is a member of the Australian Industry Group. The Australian Industry Group do have automatic rights as a registered organisation to appear in the Commission, and we say in the particular facts of the dispute before us, maybe the Australian Industry Group is a more appropriate. However, that is a matter for the company. I don't go any further with that, but to say that the company can adequately be represented by others apart from counsel. So neither 42(3)(e) or (c) can apply, in my submission. That leaves 42(3)(b), and 42(3)(b) says:

PN25

By leave of the Commission granted on application made by a party, if the Commission is satisfied that having regard to the subject matter of the proceeding there are special circumstances that make it desirable that the parties may be so represented.

PN26

Now, Commissioner, we say a section 127 application which is the subject of these proceedings is not such a special thing. The principles with regard to section 127 are well known. I go as far as to say they are almost pedestrian these days. It is very, very well known - - -

PN27

THE COMMISSIONER: Well, just because they happen regularly does not mean they are not - that special circumstances could not apply, or that they are not serious. 127 is a very serious application.

PN28

MR ADDISON: It is a very serious application, I agree, Commissioner. It is a very serious application because of its potential ramifications. However, that doesn't make it special, in my submission. It is not a question of special circumstances. The only special circumstance that my friend puts forward is the fact that it may result, if he is right, and if he can prove there is industrial action happening, it may result in 1.5 million parts. Now, I don't even know what that means. It means 1.5 million nuts, or 1.5 million bolts, well, it may or may not be serious: but it certainly is not special.

PN29

THE COMMISSIONER: But he says it is special in the sense that - Mr Levin says it is special because he can provide a quicker resolution of the matter. And isn't it special, given that this is late Friday afternoon before a long weekend?

PN30

MR ADDISON: No, Commissioner. The timing we say is irrelevant. There is many a time that all of us in this room have been in this Commission on Saturdays and Sundays and public holidays.

PN31

THE COMMISSIONER: Indeed. But if I take up the point you make, and the company is to get AIG to represent them, they won't be representing them before Tuesday, and it is put to me that that will have serious repercussions on the company.

PN32

MR ADDISON: Well, Commissioner, I have no objections to Mr Levin being involved in some conciliation, and I think some conciliation may assist the parties. As Mr Levin has indicated, we have had some preliminary discussions downstairs with regard to this matter. The AMWU will be alleging that the company is in fact in breach of its own agreement in terms of clause 11 of the agreement. I don't know if you have got a copy - - -

PN33

THE COMMISSIONER: No, I haven't.

PN34

MR ADDISON: I will hand a copy up, just so that you have got a copy. We will be saying that the company is in breach of clause 11. We will also be saying that the company is in breach of the dispute settling procedure.

PN35

THE COMMISSIONER: Is AMWU bound by this agreement?

PN36

MR ADDISON: No, it is not. No, it is not, but the employees are; the employees are. We would say that the company is in breach of its own agreement at clause 19.1.3: that is, the status quo provision in the dispute settlement procedure. So we are happy to go into conciliation to have some discussions with regard to that. We don't oppose leave. We say that the circumstances are not special. So if we go into a substantive hearing, we would certainly say that Mr Levin should not be given leave.

PN37

THE COMMISSIONER: You say you do not oppose him being participant in a - - -

PN38

MR ADDISON: Participating in a conference, no, I don't. No, I don't. If the Commission pleases.

PN39

MR LEVIN: The circumstances that have been discussed between the parties under which the union says that they would lift the bans are unacceptable to the company. The only other thing I will respond is to say that the Act does have regard to the subject matter, and the subject matter also is that this is a 127 application.

PN40

If it is not run appropriately, as has occurred with a number of matters run by people who have run them in the Commission without regard to the requirements of the Federal Court and the injunctions that can follow, that that is indeed a very, very special circumstance, very important circumstance, to make sure that any enforcement of an order of the Commission that is perhaps not obeyed by the AMWU is able to be enforced by the Federal Court in proper terms. Again, that is a matter which we say is, in addition to the matters that I previously raised, an important matter for you to consider. If the Commission pleases.

PN41

THE COMMISSIONER: Mr Addison before you proceed, just let me interpose for a moment. You invite me to have conciliation because you say it may be helpful to the matter, but Mr Levin says that you have had your discussions, and what the union proposes the company rejects.

PN42

MR ADDISON: Well, I hear that.

PN43

THE COMMISSIONER: How will that take us to a resolution of the matter?

PN44

MR ADDISON: Well, I put the proposition to Mr Levin prior to coming up here, and I had not had a response prior to then. I have just got the response clearly. I don't know the reasons why the company have got a difficulty with it. Maybe we can find a way through, maybe we can't; I don't know. Conciliation is a normal part of a 127 in any event, to see if resolution can be found.

PN45

However, that said, in terms of Mr Levin's submission with regard to the fact that it is a special matter because it could lead to the Federal Court if it is not properly done in accordance with the rules, etcetera, etcetera, etcetera, we say that is a nonsensical submission, Commissioner; a nonsensical submission. Every matter before this Commission can lead to the Federal Court. Even something as pedestrian and mundane as a finding of a dispute, if the dispute is not appropriately authorised by the union who seeks the finding of a dispute, if the log of claims is not in an appropriate form, etcetera, etcetera, etcetera, it can all end up in the Federal Court.

PN46

THE COMMISSIONER: None of that will have the consequences of this matter, though - alleged consequences.

PN47

MR ADDISON: No, no, that is right. But what I say is, Mr Levin relies upon the fact that consequences of a 127 is special. Well, that could be said of any application in the Commission, any at all, and we all know the SPSF case which ended up, I think, at the end of the day in the High Court with regard to proper authorisation of logs of claims. So any matter before this tribunal can end up in the Federal Court, the High Court, wherever. We say that is a submission that should carry no weight with the Commission at all. It certainly doesn't bring the ambit of these proceedings, my submission, within section 42(3)(b).

PN48

So we say that you should deny Mr Levin the right to appear in this matter. We are happy to have some discussions that may or may not take us somewhere, I don't propose that we spend too much time on it, given the time of afternoon now on a Friday.

PN49

THE COMMISSIONER: And Mr Levin is talking about calling witnesses.

PN50

MR ADDISON: I understand that Mr Levin is talking about calling witnesses.

PN51

THE COMMISSIONER: So if the Commission - - -

PN52

MR ADDISON: It could be a long night.

PN53

THE COMMISSIONER: Well, that may or may not be, and that is not a consideration. But what is a consideration is the Commission does not want to waste its time in being invited into conciliation that both sides know has got no prospects.

PN54

MR ADDISON: I don't know whether they have or they haven't. I mean, I put a proposition to Mr Levin which has been rejected formally on the record. As I said, I don't even know the reasons for that rejection. It may or may not be useful to have a discussion. In fact, I think it is always useful to have a discussion, Commissioner. Often it leads on to things. But I am in your hands when it comes to that. We say there is no grounds under section 42 for Mr Levin to be granted leave. If the Commission pleases.

PN55

THE COMMISSIONER: I am going to reserve my decision in respect to that. I am going to go into conference briefly, to just at least acquaint myself more with the matters, and I am going to restrict the conference to just the persons at the bar table. If other people would wait outside, please.

SHORT ADJOURNMENT [3.49pm]

RESUMED [5.21pm]

PN56

THE COMMISSIONER: Mr Levin, before you go ahead, I will indicate to you that arising out of the conference of the parties I intend to grant you leave to appear.

PN57

MR LEVIN: If the Commission pleases. Thank you. I am pleased to confirm to the Commission that agreement has been reached, and thank you for your assistance in the suggestion that has been implemented. Agreement is as follows: That the current circumstances relating to the heat treatment continue to apply, and that be that the operators on day shift continue to perform the condition for the furnaces, that on day shift the lab laboratory technician continue to supervise that in the way that has been since the change from the previous circumstances.

PN58

That the afternoon and night shift conditioning continue to be done by the lab technicians. I believe that they are the current circumstances. That there be a consent arbitration, private consent arbitration under section 111A before Commissioner Hingley and the current parties whereby the decision be made by the Commission as to whether the current circumstances should continue, or whether there should be a reversion to any prior circumstance or any other circumstance that is advanced by the parties.

PN59

That in order to progress that, that the submissions and witness statements in support of changing from the current circumstances be made by the respondent to this application by 6 February. That there be reply by the company by 13 February. And that there be any reply to the company by the respondents by Wednesday the 18th, and that the matter then be heard on 25 February at 10 am.

PN60

The decision of the Commission would then be upheld by the parties for a six month trial period from the date of the decision being handed down. Pending that six months, that those circumstances as decided by the Commission would continue other than by application to Commissioner Hingley by reason of any material change of circumstances, and that the parties are free after the six months to make an application for a change if the parties so desire.

PN61

That is how I apprehend, sir, the agreement between the parties. If the Commission pleases.

PN62

THE COMMISSIONER: And that covered the directions? Did I miss - - -

PN63

MR LEVIN: Yes, it did cover the directions.

PN64

MR ADDISON: I concur with the submissions of my friend, Mr Levin, and I confirm that that is the agreed position, Commissioner.

PN65

MR LEVIN: I wonder if I could clarify just from Mr Addison, given that other parties were not present in the room, as to the circumstances surrounding the current industrial action.

PN66

MR ADDISON: Any industrial action that is currently in place, we will be recommending to our members that that be withdrawn.

PN67

MR LEVIN: Could we have confirmation, given that they are here, that it will be withdrawn.

PN68

MR ADDISON: Yes. I have just said that.

PN69

MR LEVIN: Thank you. I think my friend said that he would recommend it. I am more interested in that it will actually be lifted by the people who do the testing.

PN70

MR ADDISON: It won't be a problem, Commissioner.

PN71

THE COMMISSIONER: Thank you, Mr Addison.

PN72

MR ADDISON: Did you have a question for me?

PN73

THE COMMISSIONER: No, I don't. That was the question I was going to ask. I have one for Mr Levin in a moment. I accept your undertaking on behalf of your members. Mr Levin, do I take it then that the application for a 127 order is withdrawn?

PN74

MR LEVIN: It is, sir.

PN75

THE COMMISSIONER: Thank you.

PN76

MR ADDISON: We don't object to that, Commissioner.

PN77

THE COMMISSIONER: I am grateful. I congratulate the parties for resolving the matter to this stage at least. The Commission will make its decision when it hears the arguments of the parties in due course. I repeat what I said in conference, that I have not reached a view in respect of the matters. I do not think there is anything further to add than to adjourn.

ADJOURNED INDEFINITELY [5.23pm]