C2004/6590, Transcript of Proceedings [2005] AIRCTrans 439 (22 February 2005)

1800 534 258


TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10446

COMMISSIONER CARGILL

C2004/6590

s.111(1)(f) - appln to revoke award etc

APPLICATION BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
(C2004/6590)

SYDNEY

1.59PM, THURSDAY, 10 FEBRUARY 2005

Continued from 7/12/2004

PN1

THE COMMISSIONER: Could I have any change of appearance since the last occasion please?

PN2

MR M RATTIGAN: I appear on behalf of the AMWU.

PN3

THE COMMISSIONER: Thank you Mr Rattigan.

PN4

MS C TSUNG: I seek leave to appear on behalf of HIS Engineering Services.

PN5

THE COMMISSIONER: Thank you. I presume there would be no objection to Ms Tsung, she is appearing in place of Mr Gee and Mr Chadwick who variously appeared at various times.

PN6

MS TSUNG: Mm.

PN7

THE COMMISSIONER: Now the matter has been listed today for the purposes of programming. It needs now to be listed for hearing somewhere in the Newcastle area and I want to know what parties have got to say about their availability and how long they thought the matter would take.

PN8

What I would also like to do is see if it is possible to organise to cut down for the length of the hearing, when we are actually into the main part of the hearing, maybe there could be some exchange of witness statements or something to that effect. I know on a previous occasion there was such a request made by someone for the company, but at the time I refused the request in large part because of the fact that the hearing at that time was going to be occurring fairly shortly thereafter and it would have been difficult. But I think if we have now got perhaps a little more time, it might be best and it would certainly cut down on the length of the evidence that would need to be taken. I think anyway.

PN9

So, perhaps, Mr Tanner, do you want to go first, I mean I know it is the AMWUs application?

PN10

MR C TANNER: Certainly Commissioner.

PN11

THE COMMISSIONER: But I don't think we need stand on ceremony as far as that is concerned?

PN12

MR TANNER: Sure. I had a discussion with Mr Gee yesterday and he had spoken prior to that to Mr Morrison. I was told that Mr Morrison had agreed in principle to an arrangement in terms of which there would be a filing of outlines beforehand.

PN13

THE COMMISSIONER: Mm.

PN14

MR TANNER: The unions would commence, there would be a response or a reply from the employer and the unions would then respond to that. So we need to schedule the filing of outlines. As far as the hearing is concerned one day was discussed as being appropriate, which might come as a relief to your Honour.

PN15

THE COMMISSIONER: What about witness evidence, Mr Tanner, because I mean certainly outlines are fine, but I suppose what I was getting at to the extent that it is possible, what is the view of yourself, and I can find out from Mr Rattigan, about witness evidence being put on by the unions?

PN16

MR TANNER: Well, my understanding is that there would not be witness statements as such, witnesses would be called and I suppose the unions might reserve the right to introduce a witness during the hearing through a statement. But as far as prior indication of the complete detail of the evidence as concerned that was not to be done, there was to be an outline which would give the company an opportunity to understand the case it needed to meet.

PN17

THE COMMISSIONER: Right. The main reason I was suggesting the witness statements was just for the time purposes, but you think as far as one can be sure of these things, I won't hold you to it, but you think that a day would be sufficient? It is just that I know when we were there last time, there was some suggestion that maybe a day might be cutting it a bit fine, that's all.

PN18

MR TANNER: Perhaps a day is cutting it a little fine.

PN19

THE COMMISSIONER: Which is why if it is I would prefer some sort of - what I have in mind I suppose is statements that you could still each lead some more evidence-in-chief if you want, I am not saying that will be, you know, that's the only evidence-in-chief of that witness, but just to cut down on the material
that's - - -

PN20

MR TANNER: Well, the advantage with the statement is that the witness simply in the witness box confirms the correctness of that.- - -

PN21

THE COMMISSIONER: Attests.

PN22

MR TANNER: And then you dispose of what might otherwise take half an hour to lead, so I understand the logic of that. But if it is in circumstances where, as you say, Commissioner, the parties would be at liberty to supplement the statement with further material, then I suppose there would be no prejudice in filing an abridged statement.

PN23

THE COMMISSIONER: Yes. Well, as full as could be done subject, obviously, to whatever comes in from the respondent. I mean if it is you know, you could certainly lead more evidence, but if it is things that are within the knowledge of you or Mr Morrison at the time to the extent that you could put them in the statement. It is really just for time management, that's the only reason. I am not trying to truncate anyone's right to put evidence, I just - - -

PN24

MR TANNER: I notice that Mr Rattigan to my left is shaking his head and perhaps we should hear what he has to say?

PN25

THE COMMISSIONER: Yes.

PN26

MR RATTIGAN: Well maybe. Commissioner, I spoke to Mr Morrison early this morning and about five minutes ago, and Mr Morrison's instructions to me were quite clear. Filing before Easter of outlines or contentions or whatever people want to bring, but he does not wish to file witness statements. He is quite clear to me about that point.

PN27

THE COMMISSIONER: Well, with respect, Mr Rattigan, at the end of the day if I direct that there will be witness statements Mr Morrison will comply.

PN28

MR RATTIGAN: I understand that, Commissioner. I am simply trying to say to you as clearly as I can what my instructions are. Okay. If there is a decision about that, well, then obviously we would comply with the decision. Like I said, Mr Morrison's instructions to me were quite clear and quite firm that he did not want witness statements done beforehand, what he said to me was contentions or outlines were okay. His position was that it would take one day even without statements and that can be listed for Newcastle or Muswellbrook, whatever.

PN29

THE COMMISSIONER: Did he give a reason why he does not want to do statements Mr Rattigan?

PN30

MR RATTIGAN: He did not, Commissioner.

PN31

THE COMMISSIONER: Okay. Well, if he didn't, he didn't, that is fine.

PN32

MR RATTIGAN: Pardon?

PN33

THE COMMISSIONER: I said if he didn't he didn't, that's fine.

PN34

MR RATTIGAN: No, I know, but he was quite concerned that it was going to be contentions and outlines and whatever.

PN35

THE COMMISSIONER: Okay. Ms Tsung?

PN36

MS TSUNG: We have no objections to filing of outlines of submissions and evidence prior to the hearing.

PN37

THE COMMISSIONER: It seems to be agreed I think there will be outlines. Okay, we are all agreed on outlines, but does the company have a view on whether there should be statements?

PN38

MS TSUNG: No, we are agreed. Mr Gee spoke with Mr Tanner and
Mr Morrison yesterday and we agree that if we could just timetable some sort of program of when to file and serve outlines and submissions.

PN39

THE COMMISSIONER: Okay.

PN40

MS TSUNG: And evidence, was agreeable.

PN41

THE COMMISSIONER: There is probably not much point in me insisting on something that no-one particularly wants, is there?

PN42

MR TANNER: Well, we can take a vote on that in this room, Commissioner.

PN43

THE COMMISSIONER: I think I get a casting vote; but I don't think we need go to that. I just thought it may be the situation where in fact one side did and you know, it might have been that, but look, if people don't want to file evidence, that's fine. Mind you, I might be then holding people firmly to the day rather than - but anyway, outlines I don't mind. You mentioned something about before Easter, Mr Rattigan, I gather that means we are not rushing to hear this, is this what you have - - -

PN44

MR RATTIGAN: Yes, Commissioner, the reason why I am here is Mr Morrison is on leave or is about to go on leave.

PN45

THE COMMISSIONER: Yes.

PN46

MR RATTIGAN: He is saying that he will be back around the end of the month.

PN47

THE COMMISSIONER: And then Easter is the end of March isn't it?

MR RATTIGAN: And then Easter - that is virtually Easter and he is saying that his diary is empty for April, so any date that the Commission wishes to choose in April.

PN48

THE COMMISSIONER: Well, as I indicated to you earlier today Mr Rattigan in another matter, he is very lucky to have an empty diary in April, I don't, I have two full week's of a Full Bench in April. So April might be a bit of a problem for me. But is there any difficulty perhaps going off the record and just talking about dates?

PN49

MR TANNER: Not at all.

PN50

MS TSUNG: No.

<OFF THE RECORD [2.08PM]

PN51

THE COMMISSIONER: The future conduct of the case and dates have been agreed that both unions will file outlines of submissions, contentions, however that should be described by close of business on 18 March, and they are to be filed in the Commission and also copies provided to Fisher Cartwright on behalf of the company. And then by close of business of 4 April the company's outline of contentions or submissions are to be similarly lodged with the Commission and also served upon both unions, or in the case of the AWU, upon Mr Tanner, I presume is the appropriate way.

PN52

The unions' outlines in response will be lodged and served by close of business on 8 April, and then the matter will be listed for hearing somewhere in the Newcastle area, subject to availability of courts on 11, 12 or 13 April. Is there anything else before we - and sorry, a listing will go out when we are able to find out the availability of the courts. Nothing else? No?

PN53

MS TSUNG: No.

PN54

MR TANNER: No.

PN55

THE COMMISSIONER: Thank you very much the matter is adjourned.

<ADJOURNED INDEFINELTY [2.25PM]