C2005/1821, Transcript of Proceedings [2005] AIRCTrans 587 (9 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10685

COMMISSIONER GRAINGER

C2005/1821

s.127(2) - appln to stop or prevent industrial action

Metropolitan Fire and Emergency Services Board
and
United Firefighters' Union of Australia
(C2005/1821)
Victorian Firefighting Industry Employees Interim Award 2000

MELBOURNE

2.08PM, MONDAY, 28 FEBRUARY 2005

Continued from 22/02/2005

PN449

MR D LANGMEAD: I appear for the UFU together with MR D GROVE and MR P MARSHALL.

PN450

MS M SALMON: I appear on behalf of Metropolitan Fire and Emergency Services Board together Mr J CARLISLE.

PN451

THE COMMISSIONER: Yes Mr Langmead.

PN452

MR LANGMEAD: Commissioner, I understand that my instructing solicitors have forwarded to you an application and a notice of objection in this matter, or to your associate, I should say.

PN453

THE COMMISSIONER: Yes.

PN454

MR LANGMEAD: That does that form part of the Commission's file?

PN455

THE COMMISSIONER: Yes it does. Are you formally tendering it, then I will give it an exhibit number.

PN456

MR LANGMEAD: If it's part of the file, sir, that's - - -

PN457

THE COMMISSIONER: Yes, I would rather it have a number in my files.

PN458

MR LANGMEAD: In that case I will tender it sir.

EXHIBIT #R4 APPLICATION AND NOTICE OF OBJECTION

PN459

THE COMMISSIONER: Mr Langmead, I have prepared a statement in regard to this matter and I am not sure at what stage you would think it was opportune for me to actually make that statement available to you and to Ms Salmon.

PN460

MR LANGMEAD: Yes, I don't know what's in it, sir, I don't know - - -

PN461

THE COMMISSIONER: Well, it's my statement about my view of what occurred in the lead up to the conciliation conference on the 22 February, and at the conference.

PN462

MR LANGMEAD: Look, it may well assist us to see that in advance, sir.

EXHIBIT #GSG1 COMMISSIONER'S STATEMENT

PN463

THE COMMISSIONER: I have two copies for each party, thank you. I might say, Mr Langmead, that I am actually grateful to the respondent for bringing this application because it assists to clear the air in regard to the matter, whatever may be the outcome of these particular issues today, on which I have no view at this stage until I have heard further submissions. Would you like to sit down and read over this?

PN464

MR LANGMEAD: Thank you, sir, yes.

PN465

THE COMMISSIONER: Do the parties want a brief adjournment to just discuss that with their instructors?

PN466

MS SALMON: Commissioner, we would like a couple of moments.

PN467

THE COMMISSIONER: Yes, all right, fine how long would you like?

PN468

MS SALMON: Ten minutes.

PN469

THE COMMISSIONER: Good. I now adjourn and we will reconvene at 2.25pm.

<SHORT ADJOURNMENT [2.13PM]
<RESUMED [2.41PM]

PN470

MR LANGMEAD: Thank you for that adjournment, Commissioner. I am instructed that we want to put on some affidavit material ourselves and accordingly we would have to ask you to adjourn these proceedings for us to do that. We are not in a position to do it immediately, I am not sure how long it will take.

PN471

THE COMMISSIONER: You don't just want to put people in the box and swear them in?

PN472

MR LANGMEAD: No, Commissioner. My instructing solicitor is in a meeting at the moment. He is able to be contacted briefly but in those circumstances I would imagine we would probably not be in position to file them much before lunchtime tomorrow, Commissioner. And that's giving myself a hard timetable.

PN473

THE COMMISSIONER: So what are you suggesting?

PN474

MR LANGMEAD: That we simply adjourn these proceedings until then.

PN475

THE COMMISSIONER: I want to actually fix a further time. Can I suggest - what about I relist the matter for 4 o'clock tomorrow afternoon. Is that going to be acceptable to the parties?

PN476

MS SALMON: It's fine with us, Commissioner.

PN477

MR LANGMEAD: That should be convenient Commissioner.

PN478

THE COMMISSIONER: 4 o'clock tomorrow afternoon is going to be okay, because Mr Langmead are you expecting it will take long for you to present your material?

PN479

MR LANGMEAD: No, Commissioner. I don't.

PN480

THE COMMISSIONER: Not that I mind. It can go on as long as it wants then, but I realise that what might be convenient for me might not necessarily be convenient for everybody else. Perhaps if we start at four we might be finished by six.

PN481

MR LANGMEAD: Commissioner that then leaves the question of what happens with your directions that are extant in this matter, about the filing of material. We anticipate that we will be in a position to file those in the very near future although we have lost a bit of time today.

PN482

THE COMMISSIONER: That's quite all right. Perhaps, Mr Langmead, I might hear from Ms Salmon just at this stage about what her view is of your request for an adjournment and about the timetable.

PN483

MS SALMON: Commissioner, 4 o'clock tomorrow afternoon is fine for us. We have no objection to that, but in terms of filing the material as you are aware we have got some time frames which we need to meet, so we would appreciate that material being given to us as close to the directions as possible.

PN484

THE COMMISSIONER: I had, I must say, and have no intention of issuing a decision, or making a decision, or reaching a decision in the hearing of this matter, but my intention would be to reserve my decision and to consider the material. The concerns that have been raised by the UFU of which we are hearing at the moment are matters that I have to give very, very serious consideration to and I will give them very serious consideration. I don't intend to make a decision lightly. What I felt would be an appropriate process would be for me to deal sequentially with the issues that would now be before me once your submissions and evidence are in, in regard to this aspect of the matter, that I would first deal with the apprehension of bias issue, secondly, the section 105 objection. If I have not ruled myself out on the bias issue, then move on to the section 105 issue but not then found that I can accede to the respondent's objection in regard to the section 105 issue, then to move on to deal with the various issues that are raised by the board's section 127 application and to deal with those issues. So I would only get to the third of those matters if the matter was proceeding beyond either of those first two hurdles. Mr Langmead, does that sound an appropriate course of action to you?

PN485

MR LANGMEAD: With respect it does.

PN486

THE COMMISSIONER: Ms Salmon, does that sound appropriate?

PN487

MS SALMON: Yes, Commissioner, we would concur with that.

PN488

THE COMMISSIONER: It then seems to me that Mr Langmead, if I gave you until 5 o'clock tomorrow afternoon for the other submissions. Is that time enough for you? It's only a 24 hour expansion of the time frame.

PN489

MR LANGMEAD: Yes, that would certainly assist us Commissioner. Of the efficacy of having to do it, it's just something we have got to bear, I guess, in the circumstances with regard to the case.

PN490

THE COMMISSIONER: Well, that's right. Can I just ask in regard to - I am happy to accept Mr Angwin's statement which is all you tendered as evidence, even though in the end it wasn't sworn and he wasn't cross-examined with regard to it, if Ms Salmon has no objection to that?

PN491

MS SALMON: Commissioner, we had no intention of cross-examining Mr Angwin.

PN492

MR LANGMEAD: Commissioner, I am not sure that we intend to rely on that document in the form in which it is provided to the Commission.

PN493

THE COMMISSIONER: You had better let me know about that then.

PN494

MR LANGMEAD: The Commissioner will recall it was prepared in response to the Commissioner's suggestion or direction that we exchange documentation, and it simply set out Mr Angwin's views as to the documentation which had been provided to him, which on our submission would be largely irrelevant to the ultimate resolution of this matter.

PN495

THE COMMISSIONER: Well if you want to withdraw Mr Angwin's statement, it's up to you.

PN496

MR LANGMEAD: There's no disadvantage to us, sir, it's just that, my present consideration is that I don't think it's highly relevant to the final disposition of this matter.

PN497

THE COMMISSIONER: Yes, that's fine. Yes thanks very much. Ms Salmon?

PN498

MS SALMON: Commissioner, we are happy with the outline as you have made it to us.

PN499

THE COMMISSIONER: That would mean a 24 hour expansion of the time table for each of the parties, so 5 o'clock tomorrow for the respondent and then your submissions, Ms Salmon, I think were to be 48 hours afterwards, were they?

PN500

MS SALMON: There were to be a response to the UFU and I think they were meant to be on Wednesday and under those circumstances we would be in a position to respond by 5 o'clock on Wednesday. Yes we are happy to do that.

PN501

THE COMMISSIONER: All right, so that would maintain a time table.

PN502

MS SALMON: That's correct.

PN503

THE COMMISSIONER: Anything further from the parties at this stage in regard either to this or the substantive application?

PN504

MS SALMON: If I could ask your indulgence for just one moment while I just check? Commissioner, I have been reminded that since it hasn't been expressed, we are taking it that there has been no issue with Commander Swain's evidence that was made available to you. If there is we would like to hear about that now, so we can make preparations accordingly.

PN505

THE COMMISSIONER: I would have thought that was going to be caught up in Mr Langmead's submissions.

PN506

MR LANGMEAD: Yes, Commissioner, because of the way matters have evolved, we had intended, and obviously we weren't here to cross-examine Mr Swain, but we will be putting in material which will take issue with some of the things that he says. I know that leaves the position somewhat unsatisfactory in that he said he's going to be giving sworn evidence. Our people will be giving sworn evidence by way of affidavit and neither are being tested, but I think I am right in saying that most of what he says goes to discretionary factors, rather than jurisdictional issue. I know he does say something, one thing about the jurisdictional thing but I think we are probably in agreement with what he says about that. So anyway that's how we had intended to proceed at this stage and if it later becomes such an evidentiary barney that we have to reconvene to formal hearing and cross-examination, then that's something which parties to the Commission can consider at the appropriate time.

PN507

THE COMMISSIONER: Can I make the observation to the parties that having looked at the material, it actually doesn't appear to me that there are a lot of facts in dispute. Commander Swain says that he provided certain information to Mr Marshall for Mr Angwin on 9 February. I think that is my recollection, Ms Salmon, of his evidence and that UFU didn't respond further to that until you were here on 22 February.

PN508

MR LANGMEAD: Commissioner, it will be our submission that the exchange of information is of little relevance to an application for orders under 127 and is of little assistance in your determining whether or not whatever conduct was engaged in constitutes industrial action. But that will become apparent from our submission and, as I say, if there is evidentiary issues which are outstanding which can't be resolved we will have to look at a way of resolving those.

PN509

THE COMMISSIONER: Yes, I understand that, Mr Langmead. It still appears to me that, if you like, the facts that are being put forward don't appear to be substantially in dispute between what I understand Mr Angwin to be saying and what Commander Swain was saying. How that goes to the matters you have raised is another issue.

PN510

MR LANGMEAD: I think that is substantially correct. There is a disagreement about what was said at a meeting in December. There is a disagreement about what documents were provided and what were asked for. Probably not much disagreement on that.

PN511

THE COMMISSIONER: Although actually I don't even know that there is much disagreement. It appears to be Commander Swain's evidence, that at the meeting on 17 December, Mr Angwin asked for something called AFAC 3. Is that correct? Whatever that document was called, and Commander Swain said that he would endeavour to obtain that, although it wasn't a document of the Board, and it would appear from his evidence, that he didn't end up providing that document to Mr Angwin until it was placed into Mr Marshall's hands on 9 February. Ms Salmon, is that your understanding of the incident?

PN512

MS SALMON: Yes. Commissioner, I understand without belabouring this particular point, we would be happy to make Commander Swain available for cross-examination before we ended up going down the path of all of the other steps, if you thought that was useful to the UFU to ensure that there isn't any confusion about what took place.

PN513

MR LANGMEAD: Perhaps that is an issue that I could explore with Ms Salmon after we have exchanged submissions and formal material.

PN514

THE COMMISSIONER: Yes, why don't you do that. I think that we would have time to do that between 4.00 and 5.30 tomorrow afternoon or 6.00 tomorrow afternoon when we next convene.

PN515

MS SALMON: We would be happy to do that.

PN516

MR LANGMEAD: I am not sure whether we will be able to have that conversation in time for that.

PN517

THE COMMISSIONER: No, I suggest we operate on the basis that Commander Swain will be available, will be here, and after the parties have finished making their submissions with regard to the bias of the section 105 issue, that you will be able to cross-examine him if you wish with regard to his evidence.

PN518

MR LANGMEAD: I see.

PN519

MS SALMON: Commissioner, we would be happy to endeavour to make sure that he is available.

PN520

THE COMMISSIONER: Fine. Is that all, Mr Langmead, at this stage?

PN521

MR LANGMEAD: Yes, Commissioner.

PN522

THE COMMISSIONER: Ms Salmon, can I just ask, has the draft order which is document A8, which was not tendered until this latter part of the hearing on 22 February, been served on the UFU?

PN523

MS SALMON: Commissioner, it was hand delivered to the UFU office at 10 o'clock on that next morning, on Thursday morning, and it was given to the receptionist there by the name of, Helen. It was hand delivered by my associate, Mr Arnold Garcia.

PN524

THE COMMISSIONER: Yes. Has it been served on any other members of the UFU?

PN525

MS SALMON: No, Commissioner, it has not.

PN526

THE COMMISSIONER: Is there any intention of the Board to serve it on any other members?

PN527

MS SALMON: Not at this stage, Commissioner, no there isn't.

PN528

THE COMMISSIONER: Fine. There is perhaps one other question I might ask, Mr Langmead. I would like to know by the conclusion of tomorrow afternoon, whether the union still objects to the delivery of this program, which is the subject of these proceedings and if so what the basis of that objection is.

PN529

MR LANGMEAD: I will endeavour to find that out, sir.

PN530

THE COMMISSIONER: Yes thank-you very much. Anything more, Mr Langmead?

PN531

MR LANGMEAD: No, Commissioner.

PN532

THE COMMISSIONER: Ms Salmon?

PN533

MS SALMON: No, Commissioner.

PN534

THE COMMISSIONER: I thank the parties for their submissions and I now adjourn, and we reconvene at 4 o'clock tomorrow.

<ADJOURNED UNTIL TUESDAY, 1 MARCH 2005 [2.57PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R4 APPLICATION AND NOTICE OF OBJECTION PN458
EXHIBIT #GSG1 COMMISSIONER'S STATEMENT PN462