C2005/1835, Transcript of Proceedings [2005] AIRCTrans 2553 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13731-1

COMMISSIONER SIMMONDS

C2005/1835

APPLICATION BY THE AUSTRALIAN WORKERS’ UNION
s.113 - Application to vary an Award
(C2005/1835)

MELBOURNE

2.17PM, TUESDAY, 13 DECEMBER 2005

Continued from 22/6/2005

PN2283

THE COMMISSIONER: Yes, any changes to appearances please?

PN2284

MR J HIGGINS: Yes there is Commissioner. I appear for the Civil Contractors Federation. I also on this occasion appear for Master Builders Australia.

PN2285

THE COMMISSIONER: Yes. Thanks Mr Higgins. Yes, Mr Shell's written to me and says the Australian Industry Group's unable to appear in this matter today. I've spoken to the MBA and the CCF are going to propose submissions and the AIG supports the submissions of both parties. Yes, Mr Wood.

PN2286

MR WOOD: If the Commission pleases, the AWU first sent a letter to
Williams SDP on 22/10/04.

PN2287

THE COMMISSIONER: Yes, we don't need to get into that. Look, the purposes of today's hearing is to get settlement of the order.

PN2288

MR WOOD: Okay.

PN2289

THE COMMISSIONER: The decision has been made that if someone wants to cavil with the decision I will not hear them.

PN2290

MR WOOD: All right your Honour.

PN2291

THE COMMISSIONER: If they don't like the decision, their course of action's open, they can lodge an appeal.

PN2292

MR WOOD: Okay then.

PN2293

THE COMMISSIONER: The only thing is the order, I can't understand what the problem is, but anyway. You've prepared a draft order and there appears to be no agreement about that order is that the position?

PN2294

MR WOOD: That's correct.

PN2295

THE COMMISSIONER: Right. I take it that you support the order that's been put forward.

PN2296

MR WOOD: That's correct.

PN2297

THE COMMISSIONER: Which is - I'd better mark it I think. It's a draft order clause 17 and it goes from 17.1 to 17.12.1, is that the position?

PN2298

MR WOOD: That's correct.

PN2299

THE COMMISSIONER: Yes, okay. Right let's see what the objections are. Yes Mr Higgins.

PN2300

MR HIGGINS: Commissioner, the objection to the order is as set out in my letter to Mr Woods.

PN2301

THE COMMISSIONER: That seems to me to be cavilling with the decision, if you're going to cavil with the decision I won't hear you.

PN2302

MR HIGGINS: The decision Commissioner - - -

PN2303

THE COMMISSIONER: The decision says that at paragraph 52:

PN2304

In all of the circumstances I'm prepared to make an order varying the award largely in the manner sought by the AWU.

PN2305

And the reasons are set there out - set out therein. Now, are you wanting to cavil with that decision?

PN2306

MR HIGGINS: What I'm submitting Commissioner, is that the order that is made should be consistent with the WorkChoices legislation - - -

PN2307

THE COMMISSIONER: No, no, all that. a) I would put to you that the WorkChoices legislation has not received royal assent and so therefore to the extent that it's applicable it is non-existent. It may become applicable, it may make the order in this proceeding totally moot, but then equally, it's possible that the legislation might be found to be outside the purview of the Commonwealth parliament, if and when there's a challenge made in the High Court.

PN2308

So the utility of the order may be questionable. I accept that, because the legislation may come into effect and it may mean that the order is of little or no effect, unless and until or if the legislation is subsequently found to be unconstitutional. But the decision has been made, I am functus officio as far as the terms of the decision are concerned. I'm only hear to settle the order.

PN2309

Now as I said at the outset, if your organisation has objection to the decision, they can appeal it, but I can't change the decision. The decision's been made and it's simply a question of giving effect and making an order to give effect to that decision. What I'm prepared to hear you on is where Mr Woods' draft order does not give effect to that decision.

PN2310

MR HIGGINS: The draft order, as I read it, reflects or it's very similar to, the provision in the National Building and Construction Industry Award. I'm not asking you Commissioner to change your order. My understanding of the order that you made was that the award should be varied as a result of you finding that there had been an oversight on the part of the AWU.

PN2311

Now, since that time, it would've been, had there not been that oversight, discussions between the parties about the draft order at that time. There wasn't. What I'm saying is that the draft order - - -

PN2312

THE COMMISSIONER: No, the parties were told to have discussions at paragraph 55:

PN2313

The AWU is to prepare a draft order and provide it to the other parties. If no agreement can be reach regarding the form of the order, the matter will be re-listed to settle the order. Leave is reserved for that purpose.

PN2314

Now, I've got no capacity as I understand the law, to go beyond settling the order and the order can only give effect to the decision I made. To all other extents I'm functus officio.

PN2315

MR HIGGINS: Well, our objection was based on the WorkChoices legislation. That's the objection I put to Mr Wood in writing, that's the objection I've discussed with him, Commissioner. Now - - -

PN2316

THE COMMISSIONER: But how could that be an objection?

PN2317

MR HIGGINS: Well, Commissioner, there's been two recent decisions. One in the Safety Net Review Case, where the Commission did not proceed to - - -

PN2318

THE COMMISSIONER: But that was not where the Commission had made a decision.

PN2319

MR HIGGINS: No.

PN2320

THE COMMISSIONER: The Commission made a decision in this matter back on 10 November, before WorkChoices legislation was even debated in parliament. Before the final form of that legislation was even know. Now, it's not open to me, as I just said, to vary that decision. All I can do is settle the order. I've only granted leave reserve for that purpose. Now, if you think the decision is wrong, you have got the right to appeal it.

PN2321

MR HIGGINS: Yes.

PN2322

THE COMMISSIONER: But it's not open to me to vary it, and that's what I suspect you're trying to get me to do. Now, if you say in some way that
Mr Woods' draft order does not meet the effect of that decision, then that's what we can talk about, but if what you want to do is vary the decision, I don't think I can do that. Well, I know I can't do it.

PN2323

MR HIGGINS: The draft order as proposed transposes to a large degree the National Building and Construction Industry clause, which was the issue in the proceedings.

PN2324

THE COMMISSIONER: Yes.

PN2325

MR HIGGINS: The issue I've raised is simply that next week there will be proclaimed the WorkChoices legislation which contains within it a provision relating to redundancy which will operate from next week.

PN2326

THE COMMISSIONER: Well are you certain - - -

PN2327

MR HIGGINS: If the order is made today - - -

PN2328

THE COMMISSIONER: Are you certain of that?

PN2329

MR HIGGINS: Well I did provide your associate with a link to a transcript of an interview with the - formal interview with the Minister Kevin Andrews on
7 December .

PN2330

THE COMMISSIONER: What is the effect of the - as I understood it, the only two things that were happening when - immediately the legislation was proclaimed, was that - two things happening I'm trying to remember them. One is that the business of less than 15 employees were to be exempted from redundancy provisions and there was one other matter.

PN2331

MR HIGGINS: Businesses. The business had to be due to operational requirements of the business that led to the termination or the business was insolvent. That's the proposed provision in the legislation.

PN2332

THE COMMISSIONER: Well, in terms of - how does that affect this matter?

PN2333

MR HIGGINS: Well, I'm putting that we're here this week talking about varying a major industry award.

PN2334

THE COMMISSIONER: No, the decision to vary the award has been made.

PN2335

MR HIGGINS: Yes.

PN2336

THE COMMISSIONER: It is a question of establishing the form of the order. Now, it may be that next week because of legislative intervention, that order becomes ineffective.

PN2337

MR HIGGINS: Yes.

PN2338

THE COMMISSIONER: It may also be that 6 months down the track because of judicial intervention the order becomes effective. I don't know, I can't predict the future, can you?

PN2339

MR HIGGINS: Well, the Minister is saying next week the legislation - - -

PN2340

THE COMMISSIONER: Has the Minister taken over the judiciary now has he? I understand what you're saying about what the Minister has said, but if it is subsequently found that the Commonwealth parliament doesn't have the power to do that by the High Court - - -

PN2341

MR HIGGINS: Yes.

PN2342

THE COMMISSIONER: - - - then this order would have some effect, possibly. I just don't know and I suggest that nor do you.

PN2343

MR HIGGINS: I don't know what the situation would be, whether it would be reactivated or - - -

PN2344

THE COMMISSIONER: Nor do I. But Mr Woods pressing to have the order made, he's entitled to do that and what I repeat is if you are able to show me any area where - I'd better mark it too.

EXHIBIT #A9 DRAFT ORDER

PN2345

THE COMMISSIONER: If you're able to show me where exhibit A9 does not meet the terms of the decision, then I can hear you, but otherwise I don't think I can.

PN2346

MR HIGGINS: Well, I've said what I'm putting Commissioner, which is in relation to WorkChoices, if the Commission won't hear it.

PN2347

THE COMMISSIONER: No. Not won't, can't. Are you saying that I can somehow become - remove the functus officio. I have made a decision, I have left leave reserved for the settlement of the terms of the order, but the terms of the order must be settled in the context of the decision that I made. Now, if you want to make an argument that I'm somehow not functus officio, I'm prepared to hear you. But you would have to convince me that I'm not functus officio before I can entertain arguments that would seek to vary the decision.

PN2348

MR HIGGINS: My interpretation of the decision is that, it is that the AWU award should be amended in relation to redundancy to bring in a mainstream clause. I'm putting in making that order that it should be consistent with the WorkChoices legislation.

PN2349

THE COMMISSIONER: Hello, but see I can't do that. The words are very clear. Have a look at clause - paragraph 52 of the decision. Now, you would be asking me to change the effect of those words.

PN2350

MR HIGGINS: Well, the opening sentence says largely in the manner sought by the AWU.

PN2351

THE COMMISSIONER: Yes, okay and if you've got some areas of variation that might be appropriate to make in the context of that, but you're not talking about that, you're talking about varying it in a way that would negate the AWU - they would lose the fruits of their victory as I understand your submission.

PN2352

I just don't think I can do it. But you know, I'm prepared to hear an argument as to why you say I'm not bound by the rule of functus officio. Why you might say I'm able to revisit the decision. I'm prepared to hear you on that and then we can then hear Mr Wood and then I'll make a decision on that. But I can't hear you on the - straight up on it, that's the point I'm making on it.

PN2353

MR HIGGINS: Well, I think I've outlined our position Commissioner.

PN2354

THE COMMISSIONER: Yes, okay so you've got no objection other than that rev-visiting of the decision itself. You've no objection to the draft order that
Mr Wood's put in.

PN2355

MR HIGGINS: Our position - - -

PN2356

THE COMMISSIONER: No, no. I understand what your position is. Your position is that I should not have made the decision I made. I understand that, you're entitled to have that view, but in respect of the draft order do you have any variations that you seek to have made to that draft order because it does not reflect the decision that I made.

PN2357

MR HIGGINS: No, the variations I seek are in accordance with the WorkChoices legislation.

PN2358

THE COMMISSIONER: Which is not in effect now.

PN2359

MR HIGGINS: No, it will be - - -

PN2360

THE COMMISSIONER: I'm glad to hear you make that concession. Yes
Mr Wood.

PN2361

MR WOOD: Yes, if the Commission pleases. The union's applied other respondents to the award, a draft. There's been no serious objection to that other than the letter that the Commission has a copy of from the CCF dated
5 December. So the union submits that it seeks the order that was provided to the Commission in the terms sought as it reflects the decision of the Commission on 10 November 2005. If the Commission pleases.

PN2362

THE COMMISSIONER: Yes thank you Mr Wood. It's unfortunate that this matter has gone on for a month. I really believe that the parties have the capacity to make an agreement about the terms of the order but it appears that the CCF has gone off on and seems to believe that somehow I can revisit the decision I've already made. It seeks to cavil with that decision rather than appeal it. I can't stop them doing that but one thing I can do and that is to make the order in the terms sought by the AWU and I so decide. The order will reflect the terms of exhibit A9 and will be issued today. The order will remain in force for a period of 6 months. I note the comments that Mr Higgins has made, it may well be that the order is an exercise in futility to some extent because of legislative changes but the Commission remains independent from the parliament and as far as I'm concerned I will carry out my duties as I understand the Act provides. If there's nothing further, proceedings are adjourned.

<ADJOURNED INDEFINITELY [2.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A9 DRAFT ORDER PN2344