C2004/6868, Transcript of Proceedings [2004] AIRCTrans 4964 (17 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 9385

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE

C2004/6868

APPEAL UNDER SECTION 45 OF THE ACT
BY GIO AUSTRALIA LTD AND ANOTHER
AGAINST DECISION OF VICE PRESIDENT
LAWLER ON 12 NOVEMBER 2004 IN
C2003/2457 RE APPLICATION FOR
SETTLEMENT OF DISPUTE (CERTIFICATION
OF AGREEMENT)

MELBOURNE

4.24 PM, WEDNESDAY, 8 DECEMBER 2004

THESE PROCEEDINGS WERE CONDUCTED VIA VIDEO LINK
AND RECORDED IN MELBOURNE

PN1

MR S. PENNING: I seek leave to appear for the respondent on the appeal, the Finance Sector Union of Australia. With me is MS D. HANNAN from the union.

PN2

MR M. HARMER: I seek leave to appear for the appellants in the matter and I appear with MR P. LANDY, MS H. DAVIS and MR J. COUSINS, all of whom are presently in Brisbane.

PN3

JUSTICE GIUDICE: Well, there is no need to take any Brisbane appearances separately I take it.

PN4

MR HARMER: Yes, that would be correct, thank you, your Honour.

PN5

JUSTICE GIUDICE: Yes, thank you. Leave is granted in each case. Mr Harmer.

PN6

MR HARMER: Thank you, your Honour. Your Honour, the matter is on this afternoon as we understand it for purposes of hearing the application for a stay. The parties have had the opportunity to confer during the course of the afternoon and I will briefly move to a position reached by the parties in respect of the stay order. Before doing so I just by way of introduction note that the decision at first instance involves recommendations made pursuant to clause 8.3 of an agreement relating to the integration of the GIOA workforce into Suncorp following its acquisition by that group and the effect of the recommendations are such under the terms of the agreement as to be binding upon the parties provided that they are made properly by way of application of that integration agreement, and that agreement appears at tab 14 of the appeal book although I don't seek to go to it at present unless your Honour so requires.

PN7

JUSTICE GIUDICE: Thanks, Mr Harmer.

PN8

MR HARMER: Accordingly, your Honour, the binding nature of the recommendations does have a number of implications for the appellants including monetary obligations to provide certain remuneration and benefits to the four employees who took aggrievance under the integration agreement. Now, in conferring this afternoon, your Honour, the position has been reached whereby the FSU who can obviously talk to the position themselves have agreed, as we understand it, not to oppose the granting of a stay this afternoon on the understanding that if a stay is granted GIO Australia Pty Ltd and Suncorp Metway Staff Pty Ltd will agree to four conditions and if the Commission pleases if I could just move through those four positions which are agreed to by the appellants.

PN9

JUSTICE GIUDICE: Yes.

PN10

MR HARMER: The first one is that in the event that a stay is granted the appellants undertake to the Commission and to the FSU that interest will accrue on any amounts payable as a result of the decision of Vice President Lawler, should the present appeal be unsuccessful. That interest will accrue from the date of Vice President Lawler's decision and at rates set by the Supreme Court of New South Wales. The second condition is that the appellants consent to an expedited hearing of the appeal and, your Honour, I note with respect we appreciate we are in the Commission's hands in that regard and both parties would seek to further address that issue of expedition, but certainly that is sought by the appellants with a view to ensuring certainty for both the appellants and a large number of affected employees.

PN11

The third condition is that the appellants will confer and agree, subject to an available date from the Commission, and again the Commission's discretion on a reasonable timetable to facilitate the expedition which we seek, that timetable involving steps by way of submissions and fresh evidence such as would be relied on by the parties. The fourth and final condition to which the appellants agree is that the existing grievance procedure under the Suncorp GIOA General Insurance Business Integration Agreement 2002 which I referred to earlier as "the integration agreement" will continue to operate in respect of some 45 additional employees who have to date subsequent to his Honour's decision lodged a grievance which is a, if you like, flow on from the decision.

PN12

And further to that, any additional employees in the category of Suncorp TEC employees who may subsequent to today lodge a grievance will also be able to progress that grievance under the relevant grievance procedure solely up to the point, if appropriate and necessary, of conciliation before the Commission. The understanding between the parties is that no additional aggrievance related to this matter will proceed at the initiation of either party to arbitration at any time prior to the appeal in this matter being resolved.

PN13

Now, your Honour, by way of additional context to those conditions and recognising that the parties are entirely in the Commission's hands and that we as appellants do bear the onus in relation to the application, I would note that the decision made by Vice President Lawler has potential application to some 1286 current and former GIOA employees. Of that number 45 employees in what we would respectfully contend is a closed category of some 452 employees covered by the Suncorp Certified Agreement have lodged grievances flowing from his Honour's decision.

PN14

There remain some 610 contract or TEC employees who are effectively staff employees who also have, as I understand the FSU's position, the opportunity to pursue flow on of the decision, and there are some 224 former GIOA employees who have already been made redundant in circumstances where his Honour's decision does impact upon the interpretation of the redundancy pay provisions of the relevant agreement.

PN15

In the circumstances, your Honour, the appellants apprehend that there are serious potential flow on implications and cost implications running into many hundreds of thousands of dollars. There are already some 45 additional individual grievances, this initial case only involving some four employees, and there is the potential for considerable additional time, effort and expense on the part of all parties if clarity is not provided in relation to the meaning of the agreement. We respectfully contend that there is a strong arguable case in favour of leave based on the potential expanse of the flow on implications, and also the importance of the decision to the issue of how grievance processes are to be treated by the Commission in circumstances where the grievance itself evolves or adapts through the very steps of the grievance process.

PN16

We respectfully contend, your Honour, that it is strongly arguable that the approach taken by the Vice President with respect in not allowing the nature of the agreements to narrow with steps including steps taken in the conciliation process, but rather treating the initial grievance as if it were a pleading if you like under the relevant clause, has with respect stepped into error and in so doing stepped into jurisdictional error by stepping outside the confines of the relevant clauses of the agreement. Without going into great detail at this stage as to other aspects of what we contend is our arguable case, there are additional issues going to numerous aspects of interpretation of the agreement, your Honour, which we would seek to press on the appeal, and we remain in your Honour's hands as to how much you seek from us today given the position reached by the parties.

PN17

JUSTICE GIUDICE: Yes. Mr Harmer, I don't seek very much at all. If there is no opposition to the application, subject to the undertakings, then provided nothing is said by your opponent to dissuade me from that course I would be inclined to grant the stay.

PN18

MR HARMER: If it please the Commission.

PN19

JUSTICE GIUDICE: But I would want to be assured that I knew precisely what the undertakings were and what the agreement is between the parties and for that purpose I would require within the next 12 hours or so a document which faithfully sets out what the parties have agreed and to which either the parties are signatories or there is a subsequent confirmation from the union. But if there is nothing else perhaps I should turn to Mr Penning now to see what he says about that.

PN20

MR HARMER: Yes, thank you, your Honour.

PN21

MR PENNING: Thank you, your Honour. Mr Harmer has correctly conveyed the union's position to the extent that the union does not oppose the stay application by the appellants, contingent on the four grounds that were read onto transcript by Mr Harmer and which we can certainly ensure are provided to the Commission within that period of time. Could I emphasise also the second ground which Mr Harmer has referred to, that being the request which the appellants make and which is supported by the union for expedition by the Commission of the hearing of the appeal.

PN22

Your Honour, Mr Harmer has referred to the broader consequences of the decision potentially as it affects other employees. Could I also briefly make mention of the fact that the four employees who are the subject of the decision are also of course significantly affected by the stay application. To an extent any prejudice which the four employees would suffer in respect of monetary payments in circumstances of redundancy are catered for by the first ground of the agreement between the parties, that is that if the appeal is not successful, that interest will accrue at Supreme Court of New South Wales rates on any payment.

PN23

But in his Honour Vice President Lawler's decision there are also various conditions of employment and provisions for benefits which go beyond strict monetary payments. I don't seek to take the Commission at present to those matters but would simply refer to paragraphs 64 in respect of Mr Fisk, 66 in respect of Ms Bongers, and 73 in respect of Mr Bevan, and those paragraphs relate to a finding or a recommendation by his Honour in terms of a sick leave indemnity provision for those three employees. There is also a recommendation in the decision at first instance in respect of Mr Bevan at paragraph 73 in terms of lifting of a post employment restriction or restraint and that is relevant to Mr Bevan because Mr Bevan is now no longer an employee of the appellants and was made redundant, and is at present subject to that post employment restriction.

PN24

At paragraph 56 of the decision there is also reference to certain matters in respect of the fourth employee, that is Ms Peaston, and Ms Peaston is a continuing employee of GIO Australia, and the recommendations of his Honour Vice President Lawler at paragraph 56 continue to have implications for Ms Peaston. Your Honour, Mr Harmer had outlined general issues in terms of potential implications for other employees, other than the four who are directly subject to the decision. I don't seek to go to those matters at first instance at present but would note that they are referred to at paragraph 5.1(a) of the appellants' application for appeal.

PN25

In terms of expedition probably the final point I would seek to briefly make, your Honour, is that this matter does have some quite long history and in fact some of the employees who are immediately affected by the decision originally commenced their formal grievances around May of 2003. So in that respect those employees have now been waiting some quite long time for the resolution of their grievances. So on those grounds we would certainly seek the Commission's favourable consideration of the request that is jointly made by the parties for expedition.

PN26

Your Honour, could I perhaps also at this point formally place on the record that in not consenting to the stay the FSU does not wish to be in any way taken by Suncorp or GIO to be accepting that there is a proper basis or a proper jurisdictional basis for the application for leave and for the appeal, and in that sense we would also refer to clause 8.3 of the integration agreement which we will contend more fulsomely in due course made it clear that the parties had agreed to be bound by a recommendation of a single member of the Commission at first instance, and that that binding agreement to be bound by the recommendations of the Commission member at first instance was not intended to be subject to rights of appeal.

PN27

Those initial comments having been made, your Honour, we are in the Commission's hands. There is one further matter I raise and I think this will be dealt with in the document that the parties jointly send to your Honour. Mr Harmer has made a reference to there being fresh evidence in this matter. Could I indicate that we are certainly not by not opposing the stay application at this stage in any way to be taken as consenting to the introduction of fresh evidence on the appeal.

PN28

JUSTICE GIUDICE: Yes, thank you, Mr Penning. The question of directions which is also relevant in a general sense apart from the question of any application for new evidence to be considered causes me to suggest that the likelihood of getting the matter on before the middle of February is fairly slim. 2 February apparently we can deal with it. Would that be putting the parties on too tight a timetable in terms of outlines and whatever other directions are sought by way of pre trial arrangements? Mr Penning, do you have any view about that, or Mr Harmer?

PN29

MR HARMER: Your Honour, if perhaps I could seek your indulgence, I may need to confer with those presently in Brisbane on that date and I know there is some absence over the Christmas/New Year period. If I could have that allowance to confer, that would be appreciated, your Honour.

PN30

JUSTICE GIUDICE: Well, I call two months barely expedition but you may have a different view about that.

PN31

MR HARMER: Yes, your Honour.

PN32

JUSTICE GIUDICE: And I am aware that they are proceedings which have involved some complexity and no doubt there will be some legal issues to be considered. Well, I am not quite sure how we can arrange that today, Mr Harmer. What did you have in mind?

PN33

MR PENNING: Your Honour, could I perhaps just indicate that 2 February would certainly be suitable to the union.

PN34

JUSTICE GIUDICE: Yes. What would be required by way of pre hearing directions? Mr Harmer, my practice normally is not to insist on elaborate outlines of argument and so on. In many cases I don't require anything at all on the basis that in appeals it is normally evident from the original proceedings and the notice of appeal pretty much what is going to be argued. So I would, left to myself, only require in this case probably an outline, a brief outline, from each party. Perhaps contentions from your client in the middle of January or a little later and then any contentions in reply. Again, just a brief outline of contentions a few days before the hearing date from the respondent.

PN35

The question of fresh evidence I think could be dealt with by requiring that at the same time as the contentions are filed an affidavit of any evidence which will be sought to be introduced and relied on should be filed and served on the respondent. Would that be an adequate series of directions in a case such as this?

PN36

MR HARMER: Yes, your Honour. With respect I don't see great difficulty in meeting those forms of direction although my concern earlier related to the potential deponent of the affidavit and - - -

PN37

JUSTICE GIUDICE: I see.

PN38

MR HARMER: Seeking the opportunity to confer, I was perhaps seeking the indulgence of the Commission in a very brief adjournment so I could speak off the record with those in Brisbane, in the presence of the union would be fine.

PN39

JUSTICE GIUDICE: Yes, well I can certainly adjourn for a few moments. Is that a course acceptable to you, Mr Penning?

PN40

MR PENNING: Yes, it is, your Honour.

PN41

JUSTICE GIUDICE: Well I will adjourn for a few moments which I suspect - no, we won't hang up just in case but I will certainly leave the Bench and leave the Court at this end and my associate will let me know when you are ready to resume.

PN42

MR HARMER: May it please the Commission, thank you.

SHORT ADJOURNMENT [4.47pm]

RESUMED [4.56pm]

PN43

JUSTICE GIUDICE: Mr Harmer, did that bear any fruit?

PN44

MR HARMER: Thank you for the time, your Honour. It is certainly in the process of doing so. If I can just indicate at present it appears to be the position that the FSU would seek that we put on our material at the end of the first week of January being both our outline of submissions and our affidavit evidence, and we anticipate there would be two brief affidavits. Thereafter the FSU seeks two weeks in which to respond. Sorry, I am corrected there, the FSU seeks three weeks in which to respond.

PN45

I was just going back to my clients to seek confirmation on the FSU's position and certainly from my understanding it shouldn't prove a difficulty, your Honour, so I think we can proceed with consent there, subject to the Commission's discretion.

PN46

JUSTICE GIUDICE: So the end of the first week in January would be 7 January, would it?

PN47

MR HARMER: Yes, thank you, your Honour.

PN48

JUSTICE GIUDICE: And then three weeks from that date is 28 January?

PN49

MR HARMER: Yes, your Honour.

PN50

JUSTICE GIUDICE: That only gives a very short time before the case is heard, but if that is satisfactory to you, Mr Harmer.

PN51

MR HARMER: Yes, your Honour. I anticipate, given the parties are going to talk about the issues in the interim, that that should be satisfactory and I think given the circumstances we should consent to that arrangement.

PN52

JUSTICE GIUDICE: Yes.

PN53

MR PENNING: Your Honour, perhaps it might be more appropriate if we said we would put on our material in reply or outline of submissions by the Wednesday of that week which would be Wednesday 26 January - that is Australia Day I am reminded - well, by Tuesday 25 January.

PN54

JUSTICE GIUDICE: I should reiterate that of course it is to some extent up to the parties how much they wish to commit to writing by way of contentions but the Full Bench requirement will simply be that there be an outline sufficient to indicate the case on appeal. Now, do I take it, Mr Penning, that there may be thought given to evidence in reply?

PN55

MR PENNING: I am in some difficult position, your Honour, because I don't have an idea at all what it is that Mr Harmer is proposing to put on.

PN56

JUSTICE GIUDICE: Yes. Well, all we can do at this stage is wait and see I suppose but should any difficulties arise in that respect you can always make an application to have the matter brought on for directions I suppose. But I should indicate that if the matter isn't heard early in February it will probably go out of a list for some time. Unfortunately it is a fairly busy time of the year.

PN57

All right, well the directions which seem to me to be appropriate, and I won't make these formally but I will rely on the consent of the parties, that the appellant file and serve an outline of its contentions on the appeal together with affidavits of any witness evidence on which it will seek to rely on or before the close of business on 7 January 2005, and that the respondent file and serve its outline of contentions in reply together with affidavits of any witness evidence on which it will seek to rely in rebuttal on or before close of business on 25 January 2005.

PN58

Could I come back to the question of the undertakings and the agreement. Do I take it that it will be possible to have something sent to my chambers tomorrow morning or some time during the course of the day confirming what Mr Harmer has indicated in relation to the four conditions? Is that so, Mr Harmer?

PN59

MR HARMER: Yes, your Honour. There has been an exchange of correspondence between the parties and I am sure Mr Penning and I will be able to settle that document when we adjourn today and then we will forward it tomorrow morning.

PN60

JUSTICE GIUDICE: Thank you, very much. Look, on receipt of that I shall issue a stay order with an appropriate preamble referring to the undertakings and the agreement.

PN61

MR HARMER: May it please the Commission.

PN62

JUSTICE GIUDICE: And the order will operate until the determination of the appeal or further order.

PN63

MR HARMER: Thank you, your Honour.

PN64

JUSTICE GIUDICE: Is there anything else, gentlemen?

PN65

MR PENNING: No, thank you, your Honour.

PN66

MR HARMER: Thank you, your Honour.

PN67

JUSTICE GIUDICE: Thank you both for your assistance and I shall now adjourn.

ADJOURNED UNTIL WEDNESDAY, 2 FEBRUARY 2005 [5.03pm]