C2005/5572, Transcript of Proceedings [2005] AIRCTrans 2466 (8 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13522-1

DEPUTY PRESIDENT IVES

C2005/5572

VILLAGE PARK BUILDERS PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5572)

MELBOURNE

1.57PM, WEDNESDAY, 23 NOVEMBER 2005

PN1

MR L CROSS: I am from the Master Builders Association and I appear on behalf of Village Park Builders and also with me today is MR M TAIT construction manager.

PN2

MR J MADDISON: I appear on behalf of the CFMEU.

PN3

MR S AMENDOLA: I represent the Australian Building and Construction Commission who has intervened pursuant to section 72 of the Building and Construction Industry Improvement Act 2005 and I would seek leave to intervene to appear on its behalf.

PN4

THE DEPUTY PRESIDENT: You're seeking leave in your role as a representative of that organisation are you, Mr Amendola? The right of intervention seems to be a matter as of right - an intervention as of right, is that not?

PN5

MR AMENDOLA: Subject to establishing the jurisdictional prerequisites in section 72, your Honour, we'd say, yes, that is the case and I'd seek to represent them relying on section 42.

PN6

THE DEPUTY PRESIDENT: Yes, so it’s your role as representative of that organisation for which you seek leave rather than the intervention per se.

PN7

MR AMENDOLA: That's correct, your Honour.

PN8

THE DEPUTY PRESIDENT: Yes, thank you. Is there any objection to leave?

PN9

MR MADDISON: Your Honour, I'd say two or perhaps three things in respect to that matter. Firstly it would be the submission of the CFMEU that intervention is not as a matter of right. We'd say that there still is a discretion involved and if I used the word, may, and then it's followed by the comma and a prerequisite would be the written notice which I understand has to be filed - - -

PN10

THE DEPUTY PRESIDENT: Yes, I have the written notice, Mr Maddison, it appears to be in an appropriate form.

PN11

MR MADDISON: But we would say notwithstanding that, that that is the first prerequisite which has been complied with but we would submit that there still is general discretion which would need to be satisfied.

PN12

THE DEPUTY PRESIDENT: And you say that discretion arises, how,
Mr Maddison?

PN13

MR MADDISON: Pursuant to the wording of section 72 of the Improvement Act.

PN14

THE DEPUTY PRESIDENT: Which I don’t have immediately before me so perhaps you can enlighten me on that.

PN15

MR MADDISON: I have a copy, your Honour, if that's of some use.

PN16

THE DEPUTY PRESIDENT: Yes, thank you.

PN17

MR MADDISON: Your Honour, section 72:

PN18

The ABC Commissioner may

PN19

and then it has the comma.

PN20

THE DEPUTY PRESIDENT: Yes.

PN21

MR MADDISON: And then it goes on:

PN22

and Mr Amendola on behalf of the ABCC has established that a primary prerequisite, that is the written notification has been - - -

PN23

THE DEPUTY PRESIDENT: Well I'm sure Mr Amendola is going to say that that, may, is a discretion that is available to the ABC Commissioner and not a discretion that's available to this Commission but you're saying that that right of intervention by virtue of that word can give rise to an argument that this Commission retains a discretion in relation to that intervention, is that correct?

PN24

MR MADDISON: In short that would be our submission, your Honour. What I was going to go to say, rather than necessarily resolving that matter at the
outset - - -

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR MADDISON: - - - it would be the position of the CFMEU who have had some discussions with Mr Cross, that on the first instance that we'd seek to go into conciliation rather than try to resolve the underlying matters in dispute.

PN27

THE DEPUTY PRESIDENT: Well that would certainly be my preferences. The parties, I think, are well aware there was a matter before me in recent times which bears some relationship, I think, to the underlying dispute in this matter and it seems to me that there may be a ground which can explored in conciliation which might if we're lucky have the result of resolving the issues.

PN28

MR MADDISON: That would be our position, your Honour, and I also note in the court room that Boral Scaffolding is here and which, in our view, their presence would be of assistance in resolving the underlying dispute.

PN29

THE DEPUTY PRESIDENT: I might say that that this by request of the Commission, also that is the attendance by Boral and that relates back to the issue that was before me previously as I have just discussed a view that might assist the parties in resolving the matter.

PN30

MR MADDISON: Yes, your Honour.

PN31

THE DEPUTY PRESIDENT: Yes. So at this point in time you're not pressing your objection subject to what happens further in these proceedings regarding going into conference, is that correct?

PN32

MR MADDISON: Yes, that's correct, your Honour.

PN33

THE DEPUTY PRESIDENT: Yes, all right. What's your view, Mr - just before you get on your feet again Mr Amendola, what's your view with respect to the suggestion that we spend some time seeing if we can resolve this matter in conference?

PN34

MR CROSS: Your Honour, we're inclined to that view as Mr Maddison says.

PN35

THE DEPUTY PRESIDENT: Yes.

PN36

MR CROSS: So we're not opposed to that.

PN37

THE DEPUTY PRESIDENT: Okay, thank you. Mr Amendola?

PN38

MR AMENDOLA: Your Honour, there are as you since in a sense two separate issues. The first is whether or not upon the provision of a notice which satisfies the jurisdictional prerequisites in section 72, the ABC Commissioner has a right to appear as a party and we say that it does. That's separate as to whether or not I get leave to intervene.

PN39

THE DEPUTY PRESIDENT: Yes.

PN40

MR AMENDOLA: But the only reason I mention that, your Honour, is because if one assumes or rules that the Commissioner has properly served a notice, that it relates to a matter arising under the Act and involves either a building industry participate or building work, then being a party, then we're entitled to be here and in a sense entitled to participate in the proceedings however they may be whether it be by way of conference or in terms of determining the application and that in a sense is similar - - -

PN41

THE DEPUTY PRESIDENT: We'll that's if we determine that the proceedings in conference are proceedings in respect of this particular application, I mean, that could be another argument.

PN42

MR AMENDOLA: Possibly, your Honour, though my submission would be that it must be so. I mean, the way in which the matter comes before the Commission is by way of a section 127 application. That's how it arises. That's how it comes before the Commission and the Commission can go into conference in relation to that application that's before it.

PN43

THE DEPUTY PRESIDENT: But I guess what I'm sort of exploring,
Mr Amendola, is that it would be possible for the parties, for example, to agree to an application to have the 127 application adjourned and seek to the Commission's assistance in a conference to resolve matters at issue that are in dispute. That would leave the 127 application adjourned and the conference itself could arguably be the subject either of another application under a different section of the Act or simply by request of the parties to convene a conference, could it not?

PN44

MR AMENDOLA: Possibly, your Honour, I'm not quite sure about that I have to say in the sense that - - -

PN45

THE DEPUTY PRESIDENT: I'm just speculating that there probably are some people in here that really won't want you in here, Mr Amendola.

PN46

MR AMENDOLA: I understand and I suppose the point I'm making, your Honour, is that being here we'd see that we have a role to play.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR AMENDOLA: How that role plays itself out is another matter.

PN49

THE DEPUTY PRESIDENT: Yes, but there's all sorts of things discussed in conference that the parties might be or might prefer to keep as confidential between the parties. And as I say, that might lead them to say for example, or lead them to come to a view, for example, that it's appropriate to seek an adjournment of the 127 to allow an application for example under section 99 of the Act to be made and to seek a conference of the Commission at the earliest possible convenience which could be immediately. And on the basis of the outcome of that conference determine what they wish to do with their 127 application. That would effectively exclude you, wouldn’t it?

PN50

MR AMENDOLA: Not necessarily, your Honour, I'd say because it would still be a matter arising under the Act although with the same sub stratum of facts. However perhaps the best way of dealing with it because in a sense this might be an interesting but sort of academic argument is that the way in which we participate could be - is a matter of process in a sense so it is a matter of where the parties lie to a extent and also how the Commission wishes to deal with the conference.

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR AMENDOLA: In other words it could seek to confer with the parties in any number of ways.

PN53

THE DEPUTY PRESIDENT: Yes. Well my preference would be,
Mr Amendola, that if we were to go into conference that the conference be confined to the parties. It seems to me that that frees up in my experience the parties to speak their mind and potentially provides more scope for reaching some form of settlement in that circumstance. So it would have been my preference for that conference to be restricted to the parties.

PN54

To the extent that there is a party present in the court room who have relevance to these particular proceedings but also relevance to perhaps wider issues in dispute I would have also sought the views of both Mr Maddison and Mr Cross about their presence. I'm referring now to Boral, in those conciliation proceedings but if that was agreed to by Mr Maddison and Mr Cross that would have been the limit of participation in those proceedings as I see it.

PN55

MR AMENDOLA: I understand, your Honour. All I'd say is that, you know, we see that we are a party in these proceedings and there are objects under the bill of Construction Industry Improvement Act that are sort of a broad application.

PN56

THE DEPUTY PRESIDENT: Yes, okay. Well can we perhaps - well can you perhaps tell me whether you are pressing for your involvement in those proceedings, Mr Amendola?

PN57

MR AMENDOLA: Your Honour, my instructions are to press for an involvement but as I said, the manner in which that's regulated in a sense we are in the Commission's hands as to how it chooses to deal with that.

PN58

THE DEPUTY PRESIDENT: Well you better be a bit more specific as how it's regulated, I mean, I've already given to you in fairly straight terms as to the way I would wish to regulate it and that would be restricted to the relevant parties.

PN59

MR AMENDOLA: Well, Commissioner - - -

PN60

THE DEPUTY PRESIDENT: That's the regulation of it, from my point of you.

PN61

MR AMENDOLA: Yes.

PN62

THE DEPUTY PRESIDENT: If you're satisfied with that then there's no reason for us in this particular circumstance to explore the whole issue of intervention any further at this stage.

PN63

MR AMENDOLA: Well, your Honour, perhaps the best way of dealing with - I had fairly clear instructions but I think the best way of dealing with it for the present purposes in order to get down to tools is to reserve the Commissioner's position in relation to that. We would say that we would be able to participate. For example in the sense that the Commission could split the parties up and talk to the parties separately. We are one of those parties. Could have the parties together. We'd reserve our position as to our capacity or right to participate.

PN64

THE DEPUTY PRESIDENT: I see what you're saying now, Mr Amendola. The coin finally dropped which took a while. Yes is there any objection to the process to us going into conference?

PN65

MR CROSS: No, your Honour.

PN66

THE DEPUTY PRESIDENT: And I will determine - and that conference may well include the participation of Mr Amendola on behalf of the ABCC. However I will determine and regulate the means of that participation?

PN67

MR MADDISON: Your Honour, if we're all on the same penny then I don’t have any objections to that course.

PN68

THE DEPUTY PRESIDENT: I think we are, Mr Maddison.

PN69

MR MADDISON: I think so too, your Honour.

PN70

THE DEPUTY PRESIDENT: All right. Well it's probably appropriate that I should adjourn and go into conference on that basis now without having heard any preliminary argument when I can be apprised of what's actually happening during that process because the particulars as provided by Mr Cross are without any intended criticism to Mr Cross sparse to say the least but no doubt you will apprise me of that.

PN71

MR CROSS: Yes, your Honour.

PN72

THE DEPUTY PRESIDENT: Yes, thank you.

<NO FURTHER PROCEEDINGS RECORDED