C2004/6534, Transcript of Proceedings [2004] AIRCTrans 4751 (7 December 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 3661

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2004/6534

QUEENSLAND LOCAL GOVERNMENT OFFICERS' AWARD 1998

Application under section 113 of the Act
by Hervey Bay City Council and Others to
vary the above award re insertion of
clause 6.6 - exemption of executive officers

BRISBANE

10.11 AM, FRIDAY, 26 NOVEMBER 2004

PN1

THE COMMISSIONER: Thank you. I'll take appearances, please.

PN2

MR WATSON: May it please the Commission, I seek leave to appear on behalf of the applicants in the matter.

PN3

THE COMMISSIONER: Thank you, Mr Watson. Mr Beer, you're not making an appearance?

PN4

MR BEER: No, not at this point.

PN5

MS M. ROBERTSON: If it please the Commission, I appear on behalf of the Australian Services Union.

PN6

THE COMMISSIONER: Thank you, Ms Robertson. Firstly, do you have any objection to Mr Watson's appearance?

PN7

MS ROBERTSON: I do, Commissioner.

PN8

THE COMMISSIONER: On what grounds is that?

PN9

MS ROBERTSON: On the grounds that he is a legal representative and that as I understand it this is an application to vary an award. It's not a rules matter and we don't believe that an award variation warrants legal representation. The three councils, Hervey Bay City Council, Redland Shire and Boonah Shire, can be adequately represented by the Local Government Association of Queensland, Mr Beer or any other representative that they choose.

PN10

THE COMMISSIONER: All right. Mr Watson?

PN11

MR WATSON: The applicants take a different view, which would come as no surprise to my friend or the Commission, I am sure. If I could just hand up a decision to the Commission. I won't take you to the detail of that at the moment but save to say this: that the decision I have handed out is the decision of Commissioner Bacon made 23 March 2001 on an application to vary the award, the effect of which was to exclude with agreement of course, chief executive officers of respondents to the award which is under consideration by the Commission, the subject of this application.

PN12

What this application does is to, in effect, extend the effect of this application in this way but this application seeks to widen the exemptions from the chief executive officer to other senior executive officers, if I can use that term. Perhaps I should use the term "executive officers" because that's the term which is used in the award by this application. So in other words, this application seeks to expand the effect of the original application. Now, I appeared for the applicants in that original application.

PN13

THE COMMISSIONER: Yes, I was just looking for the appearances. It didn't seem to be attached to that.

PN14

MR WATSON: Yes, I didn't look for that because I knew. I appeared for the applicants in that application and Mr Richards appeared for the APESMA and Mr Buckley appeared for the ASU. Now, that actually brings to mind that the APESMA hasn't seemed to have registered an appearance today although they were served, I am led to believe.

PN15

THE COMMISSIONER: Well, they're not on the directions. So, Mr Watson, are you aware whether, in terms of the substituted service, did council notify APESMA?

PN16

MR WATSON: Well, I have been instructed, may it please the Commission - - -

PN17

THE COMMISSIONER: The list of authorities that are attached to the substituted service are those that were served.

PN18

MR WATSON: The list of authorities - can I just backtrack for a moment, if I may, if it please the Commission. I understood that the effect of the order for substituted service was that the service would be on the Local Government Association for those authorities. Well, I am instructed that's - - -

PN19

THE COMMISSIONER: The reason I ask is, in terms of my directions, or in terms of the listing - I can't confirm; I can't even confirm that the ASU were actually notified by the directions. Ms Robertson might be able to help us out. I just can't see a listing for APESMA. But at the time, my associate informs me, at the time of providing the application, that wasn't a certain matter in terms of the coverage. There were inquiries made of Mr Beer in terms of the relevant parties to this particular matter but anyway - it might be these are a number of threshold issues that you might just confirm your awareness of those matters, Mr Watson and we will endeavour to confirm them.

PN20

MR WATSON: Well, I can tell the Commission, on instructions, that Mr Beer has handed me a delivery confirmation advice receipt of service of an article which I assume is a copy of the application which was delivered on 18 November 2004.

PN21

THE COMMISSIONER: So from that submission, as I understand it, he has complied, Mr Watson, with the order for substituted service as released from the Commission in November.

PN22

MR WATSON: I will just check on that. My instructions are that Mr Beer has.

PN23

THE COMMISSIONER: All right. Thank you.

PN24

MR WATSON: Going back to my original submission, Commissioner Bacon's decision refers to an undertaking given and that appears on page two in the first tab. You will see the undertaking is set out about half way down the page. The undertaking was to this effect. A similar application will be made to vary this award in respect of any other officer whose conditions of employment are subject to the award. In other words and he has interpolated this, people employed in all other award classifications will not be the subject of a similar application between now and March 2004. So the effect of that application, although now expired will of course arise in these proceedings and there is a natural link between these proceedings and what was said in the CEOs case if I can use that colloquial term.

PN25

THE COMMISSIONER: Was there a similar - sorry to interrupt you, Mr Watson - objection at that time from the ASU to the legal representation?

PN26

MR WATSON: I can't recall, may it please the Commission. There will be, no doubt, strident opposition to this application, as there was in 2000, which will require evidence to be put on before the Commission and obviously cross- examination of witnesses as there was before Commissioner Bacon in the CEO exemption case.

PN27

There will also no doubt be legal argument as there was in the CEO exemption case on such matters as to whether councils are constitutional corporations. That matter was raised and I refer the Commission to page three of the decision that I have handed up about point two. This was in submissions, submissions that I made. AWAs can only be made by employees of constitutional corporations. There are reservations whether councils are constitutional corporations. Now the reason why that's a moot point is this, you see, our argument is this that you can have an AWA which in effect grants exemption from award coverage.

PN28

Obviously, the no-disadvantage test needs to be complied with. But to get the benefit of an AWA you have to be a constitutional corporation. So the argument runs this: that if there are some councils that are not constitutional corporations then of course they miss out on the benefit of being able to take advantage of the AWA provisions in the Workplace Relations Act.

PN29

THE COMMISSIONER: Mr Watson, there is one issue that is worrying me again that you make reference to, and this isn't specifically with your submissions; it's with the notification of this particular hearing. I would like to be able to confirm that APESMA have been appropriately notified. Now, you raise the issue of legal representation and you have made certain references to the relevance of this particular case. I would like to actually also look at whether there was an objection at that time.

PN30

I would also like to be able to hear from Ms Robertson but given that these are threshold issues, rather than in fact delay the parties if in fact there hasn't been appropriate notification to APESMA at this particular hearing, it might be - I will hear from you if you think this isn't a prudent course but it might be appropriate for me to confirm the particular directions in this matter for me to use the time to in fact look at the transcript of the original hearing of that matter, consider this particular decision that you have handed up and relist the matter. But if you think it is more appropriate prior to me adjourning this matter to hear your full submissions simply on legal representation. The only reason that I stop you Mr Watson is that if APESMA have not been appropriately notified, and I need to relist this particular matter, they obviously should have an opportunity to hear your submissions in regard to legal representation.

PN31

MR WATSON: Yes, I am not quite sure what the Commission means by appropriately notified.

PN32

THE COMMISSIONER: Well, it is just that, as I understand it, they are a relevant party bound by this particular award.

PN33

MR WATSON: They are bound by the award, that is true.

PN34

THE COMMISSIONER: Yes.

PN35

MR WATSON: They are party - - -

PN36

THE COMMISSIONER: And I cannot see on the listing of this particular matter that they have been notified of the listing this morning.

PN37

MR WATSON: Sorry, isn't that a matter for the applicant, though, may it please the Commission.

PN38

THE COMMISSIONER: Well, yes, but I want to make sure that the appropriate channels have been followed within the Commission, and from the Registry notification. Either way, there doesn't seem to be a notification in terms of - from my office - notifying them that the hearing was on this morning. And normally, we notify all parties that the hearing was on. I don't seem to have any issue with Mr Beer's substituted service in terms of the local government authorities that you refer to, but - okay - Mr Watson, we may be at cross-purposes. I didn't understand - your submission was that APESMA and the ASU were notified.

PN39

MR WATSON: Yes.

PN40

THE COMMISSIONER: I am sorry. I thought it was simply the local Government authorities that are listed on the substituted service. That clarifies the matter for me. That is where my concern was.

PN41

MR WATSON: I am sorry.

PN42

THE COMMISSIONER: On the substituted service listing that I have APESMA and the ASU do not appear.

PN43

MR WATSON: No.

PN44

THE COMMISSIONER: It is only the local authorities, all right. And that is why my concern was that in any of the documentation that I have the unions don't appear to have been notified or served. But you are confirming for me, from Mr Beer's instructions, that they have been and that is the case.

PN45

MR WATSON: Absolutely. I mean, if you like, I will call Mr Beer and give evidence to that effect. I mean, he has got a notice of - sorry - an advice receipt from Australia Post, saying b

PN46

THE COMMISSIONER: I am not going to take issue. Mr Beer frequently appears before me and I have no reason that he would mislead me. Normally, what gives me some further comfort is in the notice of listing confirms all of the parties that in terms - that would normally appear as representatives.

PN47

MR WATSON: Yes.

PN48

THE COMMISSIONER: And on this occasion it doesn't list the ASU and APESMA.

PN49

MR WATSON: No.

PN50

THE COMMISSIONER: Yes.

PN51

MR WATSON: No, no. The obvious reason is because we didn't want to substitute service against them. We only want it against those authorities who are respondents, and obviously nominally represented, I suppose, if I can put it that way, by the LGAQ.

PN52

THE COMMISSIONER: Yes.

PN53

MR WATSON: We always fully intended to serve, by way of effective service, the ASU, as has been done, and APESMA.

PN54

THE COMMISSIONER: All right. And that has been confirmed

PN55

MR WATSON: Yes.

PN56

THE COMMISSIONER: All right, Mr Watson.

PN57

MR WATSON: Lastly, there was reference to this matter - sorry - the application in the CEO exemption case not being an allowable matter, and that was referred to on page 4 at about point 4, where you will see the variation is not an allowable matter as prescribed by Section 89A of the Act.

PN58

Again, that was a matter which was raised in submissions. Commissioner Bacon ruled against that, but I am - we apprehend that a similar argument may be raised again in this matter. And for those reasons, in my submission, legal representation should be permitted by leave of the Commission under Section 42. We, of course, rely upon the adequacy of representation in Section 42, as well as the special circumstances.

PN59

THE COMMISSIONER: Thank you, Mr Wilson. Ms Robertson, do you wish to respond to those more particular submissions with regard to representation?

PN60

MS ROBERTSON: Yes, thank you, Commissioner. Commissioner, our position to legal representation is still maintained. Mr Watson has raised a number of issues. We weren't informed of this hearing until the registered post arrived last week, and it was brought to my attention earlier this week. I have had no opportunity to prepare, and certainly we were not informed that there was going to be an issue of legal representation being sought by the LGAQ.

PN61

We have had no time to prepare. We would prefer that this matter be re-listed, Commissioner, so that we can adequately prepare our objections to legal representation. I know Mr Watson has handed up this case, and certainly that is not the case that I was involved in. I would like to seek instructions from Mr Buckley who appeared at that time.

PN62

THE COMMISSIONER: All right. Look, I will allow that to occur, but - - -

PN63

MR WATSON: Well, can I be heard on that, Commissioner?

PN64

THE COMMISSIONER: Yes, well, I was going to put you on notice, Ms Robertson, that I have read that particular decision previously to this matter, so I will put you on notice that there does seem to be some consistencies of issues in relation to these two matters, and as outlined by Mr Watson there is - shall I say there were some matters raised in that particular hearing where certainly the arguments, and I think Mr Watson has foreshadowed, would be similar in this particular matter. So I put you on notice that I would be expecting submissions, but certainly I will from Mr Watson on that.

PN65

MR WATSON: Yes. Well, I am not one usually given to pursuing lost causes, may it please the Commission. However, I do wish to say this - - -

PN66

THE COMMISSIONER: I am not really against your representation in any way.

PN67

MR WATSON: No. I appreciate that. May it please the Commission. Can I say this - - -

PN68

THE COMMISSIONER: You are saying that in reference to the adjournment, Mr Watson?

PN69

MR WATSON: Yes, yes. It strikes one as rather strange that one can have a position in relation to opposing legal representation, and yet not be adequately prepared to come along and verify why that opposition should be sustained. To then come along and say that we need time to prepare, well, what did the ASU expect? That having run the CEO exemption case, with legal representation, that this case would not be run in a similar way? I mean, that would be naive.

PN70

And in my submission, I appreciate that the rules of natural justice do apply in the Commission, and that one does allow certain latitudes, but it seems to me, with great respect to the ASU, that they are trying to have their cake and eat it too in this situation. But they are my submissions, so - - -

PN71

THE COMMISSIONER: All right.

PN72

MR WATSON: We would oppose the adjournment that is being sought.

PN73

THE COMMISSIONER: Look, I understand, Mr Watson. You have foreshadowed that there will be evidence in relation to this matter and issues that you yourself indicate that are of some elevation or complication, and for that reason so that I can proceed fairly in relation to this matter, as you make reference to the issue of natural justice, I will provide the adjournment, and I think you have now heard clearly Mr Watson's submissions in relation to why the Council consider they wish to retain counsel to have the consistency. And as I have said, Ms Robertson, I will say no more than I put you on notice in relation to those submissions and reference to that other case. We might go off the record for one moment.

OFF THE RECORD [10.31am]

RESUMED [10.40am]

PN74

THE COMMISSIONER: I will just indicate for the record that a process in relation to this matter has been confirmed. The matter will be re-listed on the 17th. Directions will be released in relation to providing simply an outline of submissions of those parties objecting to legal representation in order that any further comment or response can be put on the record on the 17th. A determination will be made on that particular time, as will directions. However, they should be set for this particular matter. On that basis, I will adjourn.

ADJOURNED UNTIL FRIDAY, 17 DECEMBER 2004 [10.40am]