C2005/1027, Transcript of Proceedings [2005] AIRCTrans 1051 (29 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11326-1

VICE PRESIDENT LAWLER
DEPUTY PRESIDENT IVES
COMMISSIONER THATCHER

C2005/1027 C2005/1028 C2005/1029

APPEAL BY HEMPSTEAD, ANDREW AND OTHERS
s.45 Appeal to Full Bench
(C2005/1027)

APPEAL BY BIRCH, ADAM AND OTHERS
s.45 Appeal to Full Bench
(C2005/1028)

MR KEITH STUART BIRCH MR LYALL BROWN MR ALFONSO CAMBREA
AND
DOWNER ENGINEERING POWER PTY LTD
s.45 Appeal to Full Bench
(C2005/1029

PERTH

11.44AM, TUESDAY, 19 APRIL 2005
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [11.44AM]

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PN1

VICE PRESIDENT LAWLER: Mr Blackburn, we don't need to hear from you. We have determined that leave to appeal ought be refused. I will write a brief outline of reasons which will be reduced to writing in due course. This is an application for leave to an appeal and if leave is granted, an appeal by Andrew Hempstead and seven other named individuals, who are employees of Collex Proprietary Limited. The appeal relates to an order made pursuant to section 127 of the Workplace Relations Act 1996, made by Deputy President McCarthy on 7 February 2005. No appeal book has been filed, the transcript will record discussion as to what materials are before this Full Bench. It is probably useful to summarise that now. The materials before the Full Bench are the notice of appeal, the application by Collex under section 127 of the Act, transcript of proceedings before Deputy President McCarthy on 7 February 2005, the order made by Deputy President McCarthy pursuant to section 127 on that day, the outline of appellant submission, the written submissions of the respondent.

PN2

The respondent had foreshadowed reading two affidavits of Franklin Michael Gaffney. However, it has been unnecessary for that to occur in all the circumstances. And finally, to be added to the material I will refer to presently in the transcript is the decision of Lee J on 1 March 2005,
Downer Engineering Proprietary Limited v Atkinson, 2005 FCA149. The grounds of appeal might usefully be grouped into three different categories. The first category is a challenge based upon the alleged absence of findings by the Senior Deputy President in the absence of evidence, and a contention that his Honour did not conduct the hearing as required by the Act because he did not receive and act upon evidence and did not make findings, or if he did make findings he made findings other than on the basis of evidence. We are not satisfied that an arguable case of error has been made out in relation to that ground. At paragraph 105, his Honour said:

PN3

I am satisfied that the jurisdictional requirements have been met.

PN4

That statement is a finding in all the circumstances, that industrial action was happening, threatened, impending or probable in relation to work regulated by a certified agreement. There were uncontested submissions before the
Deputy President to that effect at paragraph 13 of the transcript, Mr Borlase who appeared on behalf of Collex and the other employers who were applicants on the day. The submission made by Mr Borlase was that industrial action is happening and it relates to work that is regulated by a certified agreement. Mr Borlase then indicated to hand up copies of those to the Deputy President. Mr Borlase noted the agreement that relates to Collex is past its nominal expiry date but still valid and I am instructed there are negotiations in place between Collex Proprietary Limited and the AWU to renew the terms and conditions or replace the terms and conditions of that particular agreement. In relation to industrial action by Collex employees, there were submissions by Mr Borlase that industrial action was occurring on the part of Collex employees.

PN5

The Deputy President at paragraph 92 provided Mr Trotter, who appeared for the AWU with an opportunity to contact any of his union colleagues so as to ascertain whether there was occurring industrial action with respect to Collex. After a short adjournment, the transcript records at paragraph 94, Mr Trotter indicating, yes, I was able to contact Mr Dix who I interposed was the relevant organiser and discussed the issue with him, and he confirmed that those of our members that were on shift that morning did participate in the industrial action that was there. At paragraph 98, Mr Trotter again indicated that Collex employees were caught up in the industrial action. Thus it appears that there was an uncontested submission in relation to the work of the Collex employees being covered by a certified agreement that had expired but was still operative and there was no contest on the part of the union that industrial action was happening on the part of Collex employees in the circumstances. Therefore having regard to the principle articulated by Barwick CJ in the Metropolitan Tramways Case, the Deputy President was entitled to act upon those uncontested submissions and lay ground to the findings that he made.

PN6

The second broad topic of appeal relates to a denial of procedural fairness arising from the failure of the employer to serve the application on the appellants and the failure of the Commission to give the appellants an opportunity to be heard in relation to the application. In our view, the matter is governed by the decisions of the Full Bench in Prior and Tenix relied upon by the respondent. The AWU appeared in a representative capacity, it being an organisation that has the benefits and responsibilities that flow from registration under the Act. We express no view on the question of whether or not the naming of specific employees and an application gives rise to an obligation to provide those named persons with an opportunity to be heard because in the upshot, the order made by the Deputy President was not directed to the specific named individuals but rather to a generically described class of persons. And as we have indicated in those circumstances, the decisions in Prior and Tenix would appear to govern the case in that context.

PN7

It is convenient then to turn to the third ground, or the third group of grounds, which are effectively that the order was vague and ambiguous. We have some sympathy for the appellant in this regard and on one view, clause 4.1 is ambiguous as to whether or not the order extends to all employees of Collex or only the employees of Collex who were members of the AWU. However, that question of construction has been addressed in some detail by Lee J in
Downer Engineering Power Proprietary Limited v Atkinson and his Honour made findings referred to by Mr Blackburn in relation to those arguments and in circumstances where the order, the subject of the appeal, has expired we do not think it appropriate to do anything other than treat the decision of Lee J with the respect which is properly due in relation to the question of construction.

PN8

And accordingly, we would adopt the construction of Lee J in relation to clause 4.1 for the purposes of the present appeal and note that even if that construction is not seen as final, the fact that the order has expired, we think, is a compelling reason to exercise our discretion to refuse leave insofar as this aspect of the matter is concerned. For all those reasons, we conclude that the proper exercise of discretion is to refuse leave. As I have indicated, that was an outline of reasons and some written reasons that more fully express those sentiments will be issued in due course. Nothing further? The Commission is adjourned.

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