C2005/6061, Transcript of Proceedings [2005] AIRCTrans 2591 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13795-1

COMMISSIONER GAY

C2005/6061

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
ACL BEARING COMPANY
s.111(1)(f) - Appln to revoke award etc
(C2005/6061)

HOBART

10.09AM, THURSDAY, 15 DECEMBER 2005

PN1

THE COMMISSIONER: Mr Littler, you appear for the AMWU and Mr Flood, you appear for ACL Bearing.

PN2

MR A FLOOD: Yes Commissioner.

PN3

THE COMMISSIONER: Now my understanding is that at the request of the parties this application has - the parties seek at this juncture anyway for it to proceed by way of a conciliation, is that right?

PN4

MR S LITTLER: I am happy to - yes I am happy with that sir.

PN5

THE COMMISSIONER: Well it is your application, Mr Littler.

PN6

MR LITTLER: Yes.

PN7

THE COMMISSIONER: Yes and my associate reminds me that the AMWU did have someone else who might have been coming and it was thought that it would be useful for there to be a conference.

PN8

MR LITTLER: Yes that is correct.

PN9

THE COMMISSIONER: All right. Well, over to you Mr Littler. I am happy to proceed in any way you think is preferable.

PN10

MR LITTLER: Well as you are aware I wrote a letter in regards to this matter.

PN11

THE COMMISSIONER: Yes.

PN12

MR LITTLER: And if I could just go through that into some detail so Mr Flood is aware of our situation and then into conference. Do you want me to stand, sir, or?

PN13

THE COMMISSIONER: Well yes we are on the record. Yes thank you.

PN14

MR LITTLER: My apologies.

PN15

THE COMMISSIONER: No not at all. Thank you.

PN16

MR LITTLER: This matter is related to a dispute proceedings before Commissioner Blair on 19 May 2005. Following conciliation, Commissioner Blair issued a determination and subsequent on 30 September 2005 issued the same determination as an order of the Commission. The union is applying for the revocation under paragraph 111(1)(f) of the order of the Commissioner.

PN17

Now if I can refer to the AFMEPKIU and Rheem Rydalmere Plant Industrial Action Order 2002 number PR921306 his Honour, Justice Munro confirmed that the powers to revoke an order arises through the combined operations of paragraph 111(1)(f) and sub clause 2 of the Workplace Relations Act 1996. I submit that the orders issued by the Commissioner has the effect of binding the parties to the dispute proceedings and the union at no time agreed to the terms of the order. Commissioner, furthermore the order was issued following conciliation between the parties.

PN18

Clear the status of the conciliation proceedings is to attempt to settle any issues between the parties. The union respectfully suggests that to draw such a conclusion in the absence of proper tested evidence is beyond the scope of conciliation proceedings. The proper forum for such an assessment of the relevant strength and weaknesses of any evidence pertaining to the issue, is in arbitration proceedings before the Commission - before a Commissioner member who has attested the terms of section 105 has not been privilege to conciliation.

PN19

The union notes that under sub section 101(1) the Commissioner is required to determine the parties to an industrial dispute and the matters in dispute and to record its findings, this was not done by Commissioner Blair. Moreover the union notes that under section 101(3) determination or finding of the Commission on a question as to the existence of an industrial dispute is in all courts and for all purposes inclusion and binding on all persons affected by the question.

PN20

It is simply beyond the Commissioner's powers in our submission to issue an order which now binds all parties in the absence of a proper assessment of any evidence to support the matters of order. The union also suggests that the proper interpretation of section 104 means that matters ought to be referred for arbitration. This would in a normal course ….. to conciliate a matter. The union expressed its opposition to any determination made by the Commission as happens in this case. It is clear that the issue in dispute has not been settled.

PN21

The union suggests it is not open for the Commission to issue an order that binds the parties and effectively limits or removes the right to have the issue arbitrated before the Commission. We therefore believe that this is a denial of procedural fairness which in all the circumstances prevent the union from properly presenting its case. Accordingly we respectfully request that the Commission revoke Commissioner Blair's order of 30 September 2005 and relist the matter by the way of a section 99 dispute proceedings so as to have the matter dealt with by the Commissioner. Thank you.

PN22

THE COMMISSIONER: Yes. Thanks Mr Littler. Mr Flood, Mr Littler was then dealing pretty closely with correspondence of the union that he has sent to the Commission. Have you got a copy of that?

PN23

MR FLOOD: No I didn't get a copy of that.

PN24

THE COMMISSIONER: No. Well it might be useful I think if you read that and it will take you a couple of minutes to do so. So you are well abreast of what Mr Littler just said. So take your time in reading it.

PN25

MR FLOOD: Commissioner thanks for allowing me to read through that. I must say from the start that I have been in this position before where a order has resulted from a conciliation conference and I must say that at the time that I received notification of the order I was surprised. I have looked through the Act and I can certainly find support in the Act for what Mr Littler has proposed and that is that perhaps one course of action is to refer the matter for arbitration under section 104.

PN26

However rather than simply accept that, Commissioner, I would refer you to section 110, procedure of the Commission and in particular subsection 2 which states that:

PN27

In the hearing and determination of an industrial dispute or -

PN28

and I think this is an important part:

PN29

in any other proceedings before the Commission which would allow a conciliation conference to come in under the terms of this sub section.

PN30

The procedure of the Commission, if I can abbreviate it, is within the discretion of the Commission is in (a) and further in (c), paragraph (c):

PN31

The Commission shall act according to equity, good conscious and substantial merits of the case without regard to technicalities and legal forms.

PN32

The only submissions that I can put to you without actually speaking to Commissioner Blair and understanding his reasons for issuing the order - the only submissions I can put to you are that I believe that on the merits of the case that were put to Commissioner Blair in the conciliation conference were insufficient for him to determine that he should refer the matter for arbitration and that the appropriate course of action for him on that day was to issue the order. Having said that, Commissioner, I am quite content to obviously leave the matter in your hands.

PN33

THE COMMISSIONER: Yes thanks, Mr Flood.

PN34

MR FLOOD: Thank you.

PN35

THE COMMISSIONER: Thank you. Well I am going to have a conference with the parties. I would like though to make this initial observation. I am assisted by the way the parties are approaching this. It shouldn't be thought that this proceeding and of its nature it might lend itself to such a notion but it shouldn't be thought that this is any way an appeal hearing against the decision to issue the order taken by my brother Commissioner Blair and when we have a conference it might be that I will be able to make that even clearer because that is not of the nature.

PN36

It is an application for revocation which is of course an application open to any party to an industrial proceeding and really just requires some sharp focus as one goes along. Having said that though, I am going to take the course which I think was in a preliminary way anticipated and we will go off the record. Now if either of you though at the conclusion of the conference want to go back on the record it would be unlikely for me to deny you that opportunity. We now go off the record.

<NO FURTHER PROCEEDINGS RECORDED