C2006/2952, Transcript of Proceedings [2006] AIRCTrans 1038 (4 September 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15641-1

VICE PRESIDENT LAWLER

C2006/2952

APPEAL BY TYCO AUSTRALIA PTY LTD T/AS WORMALD
s.120 - Appeal to Full Bench
(C2006/2952)

SYDNEY

9.07AM, THURSDAY, 24 AUGUST 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MR T LANGE: My name is Lange.

PN2

MR G BORENSTEIN: I appear for the respondent, the CEPU.

PN3

THE VICE PRESIDENT: Thanks Mr Borenstein. Mr Lange - - -

PN4

MR LANGE: I think formally I should apply for leave to appear.

PN5

THE VICE PRESIDENT: Yes, thank you. Mr Borenstein, I take it you have no objection? On the directions hearing?

PN6

MR BORENSTEIN: No your Honour.

PN7

THE VICE PRESIDENT: Yes leave is granted. Now Mr Lange, your client doesn't press the stay application?

PN8

MR LANGE: That's correct your Honour.

PN9

THE VICE PRESIDENT: But you do seek expedition?

PN10

MR LANGE: We do your Honour.

PN11

THE VICE PRESIDENT: Now the next rostered Full Bench sittings in Melbourne are between the 18th and 20 September when there are two benches that are notionally rostered to sit in that time. I take it expedition, which you haven't spelt out in your correspondence, is something quicker than then?

PN12

MR LANGE: That is what we would seek, your Honour. If that's all that could be accommodated then so be it but perhaps if I could go to the grounds on which we could seek expedition?

PN13

THE VICE PRESIDENT: Yes thank you.

PN14

MR LANGE: I'll be brief. Just two matters in particular. The application for leave to appear concerns two broad grounds. One is a matter in relation to which there has been two subsequent decisions of the Commission which we say are on the same point as that dealt with, his Honour, Ives DP. Those two subsequent decisions, however, have come to what appears to be a different conclusion on a matter of some importance.

PN15

That is whether the pursuit of prohibited content is something which affects the ability to issue a protected action ballot order in the circumstances where these types of applications are liable to be brought on with some haste. It's our submission that - including against the applicant for leave to appeal, Wormald. It's our submission that resolving the controversy which we say exists between Deputy President Ives' decision and those other two decisions.

PN16

THE VICE PRESIDENT: Which are the other two?

PN17

MR LANGE: Ought to be dealt with as soon as possible. The other two decisions, your Honour, are - - -

PN18

THE VICE PRESIDENT: Which are the other two that you - - -

PN19

MR LANGE: Yes. The other two decisions are the decision of his Honour, Vice President Watson given on 11 August 2006.

PN20

THE VICE PRESIDENT: That's Blue Circle?

PN21

MR LANGE: That's correct.

PN22

THE VICE PRESIDENT: Yes.

PN23

MR LANGE: The other decision is that of Senior Deputy President Acton given on 8 August 2006. That's the Kempe Engineering decision which is PR973592.

PN24

THE VICE PRESIDENT: Yes.

PN25

MR LANGE: The second ground on which we would seek expedition, your Honour, it relates more particularly to these particular circumstances and it's a matter adverted to by Deputy President Ives in the reasons given in transcript. It is that, what we say is being pursued is prohibited content and that is something which puts employees as well as the union at risk of breaching the relevant provision in the Act which prohibits - - -

PN26

THE VICE PRESIDENT: So you're motivated by concern for the employees and the union are you?

PN27

MR LANGE: Well, we're motivated perhaps not by so much a concern for the union although they are our partners in this industry, certainly. We are motivated or are concerned to ensure that if there have been negotiations, they be negotiations which, in which there is a real capacity to - - -

PN28

THE VICE PRESIDENT: Look if there's a claim for, if a claim for a prohibited content is being pressed then there can't be protected action and it doesn't matter that it may have been approved by a ballot.

PN29

MR LANGE: Yes. That's not such much the issue, your Honour, and we accept that and we say yes of course that's correct.

PN30

THE VICE PRESIDENT: I must say I'd assumed, Mr Lange that, given that the order was made on 4 August, the voting was to close on 18 August and no doubt the results were declared by the ballot agent.

PN31

MR LANGE: That's correct.

PN32

THE VICE PRESIDENT: On the day following that this relatively late application or appeal, an application for leave to appeal in relation to the Deputy President's order, was because industrial action had commenced or was about to commence and it was an attempt to try and forestall that. Am I wrong in that regard?

PN33

MR LANGE: We don't know, your Honour. We haven't received a notice of the industrial action in circumstances where the ballot was declared, I think, on the 21st. What our expectation is that there is industrial action imminent and it would be taken on as little as three days' notice and that's the circumstance in which we find ourselves and certainly we've had nothing for the union which would suggest that it's disavowing the idea that any industrial action would be notified and, as I say, it could come on with as little as three days' notice. I mean, if the union would wish to address that position in a manner which relieved that sort of time urgency, then we would concede that one of the issues - - -

PN34

THE VICE PRESIDENT: So the real reason for expedition, when one gets to the nub of it, is the potential for industrial action occurring which the union will regard as protected action pursuant to the ballot that's being conducted and a desire to prevent that occurring and one of the ways of doing that is to, you would hope or think or suppose, is to successfully challenge the decision of the Deputy President?

PN35

MR LANGE: Yes, your Honour.

PN36

THE VICE PRESIDENT: Right, fine.

PN37

MR LANGE: To put it in a nutshell.

PN38

THE VICE PRESIDENT: Have you looked at section 488?

PN39

MR LANGE: The prohibited clause provision, your Honour?

PN40

THE VICE PRESIDENT: Yes.

PN41

MR LANGE: Yes. What we say about that is that it prevents us from going to a court. Now, it doesn't prevent us, we say, from going to a Full Bench and, indeed, a Full Bench has been convened and has dealt with protected action ballot orders on my understanding even in the last few days under section 120, I'm afraid I can't give you reference to that, I don't know it off-hand, but I thank your Honour for reminding me of that because what that means of course is we might find some difficulties if we were to take this matter to a court in any of the various ways available under the Act and we might well be answered in court. For example, if we were to apply for some form of injunction, on the basis that it might relate to a protected action ballot order.

PN42

Now we deal with that at the time that it became necessary, but we'd prefer not to have the argument. So we say there's no prohibition, taking it to up to a Full Bench - - -

PN43

THE VICE PRESIDENT: But any application you'd make in the court for a declaration or for an injunction would be action or indeed, an application under 496 of our Act in the Commission, to the extent that it's based upon prohibited content and the other bases upon which you attack the order of the Deputy President, they would provide independent grounds, would they not, for challenging the status of any industrial action as protected action?

PN44

MR LANGE: We say they would, but we prefer to avoid the argument if we can.

PN45

THE VICE PRESIDENT: But I don't think - it doesn't matter. My views aren't necessarily relevant except to the extent that they inform an exercise of discretion at the moment. Now, Mr Borenstein, do you have a view on expedition?

PN46

MR BORENSTEIN: Thank you, your Honour. I might just - section 488, I actually had a quick look at yesterday afternoon and certainly that will be an issue in the appeal and would have been an issue in any stay or application before your Honour. We certainly think that that does prevent any appeal on a ballot order by the Commission. So I suppose I could put my friend on notice that that is going to be an issue. I did have some discussions with my friend about the possible timetable and I don't really have a problem with it. It was basically that he would file his submissions on next Tuesday, which is 29 August, and then we would have a week - by close of business on that day, and we would have a week to file our submissions in reply by close of business on 5 September and then a hearing, I suppose, two to three days after that if possible.

PN47

I don't have a problem with that. I'm happy to leave it in your Honour's hands. I'm happy for it to be heard in the next appeal setting, but I don't have a problem if it's heard on 7 or 8 September either so - - -

PN48

THE VICE PRESIDENT: Mr Borenstein, you don't need to say unless you are disposed to say, but do you know whether or not, or do you have any instructions as to whether or not the union is proposing to serve a notice for the taking of industrial action?

PN49

MR BORENSTEIN: Not as of yet, I don't have instructions on it, but I certainly don't want to mislead the Commission and it is the intention of the union to take some form of industrial action in the not too distant future. When it happens, it's going to deal with the organisation of the organiser getting organised and speaking to the members, et cetera, so I certainly can't say that industrial action won't happen. I suppose the position of the union is also that it's the position of the employer that they only actually have 30 days left of work, it might be less than that. I might just say what I thought, I thought if they only had 30 days left of work on the project, and therefore by them getting a stay is basically in effect final relief for them - - -

PN50

THE VICE PRESIDENT: Yes, the withdrawal of the stay application was probably well advised. I mean, the balance of convenience factors, having regard to the delay in following the appeal and the other circumstances, would have meant that I would have required some significant persuasion, but be that as it may, Mr Lange, you say it's in fact less than 30 days life on the project?

PN51

MR LANGE: No, your Honour. What we say is that it's approximately 30 days but those days are not sequential. They will be undertaken between now and the commissioning date of the entire project, which I understand to be of some time between November and December.

PN52

THE VICE PRESIDENT: Okay. So an appeal in the time frame that Mr Borenstein has adverted to is satisfactory to you, Mr Lange?

PN53

MR LANGE: It is, your Honour.

PN54

THE VICE PRESIDENT: Fine. Look, the President returns from his leave break either today or tomorrow and I don't propose to make any determination about what should happen to this appeal until I've had a chance to speak to him, given that there's no urgency of the sort that requires a bench to be assembled today. There is a prospect, and I put it no higher than a prospect, that the matter will be listed early next week on the 29th or the 30th, and on the basis of there being no submissions the old fashioned way, the parties simply turn up and argue their case.

PN55

If that's going to occur you'll know that by first thing tomorrow morning. Otherwise it will either be in accordance with the time frame that the parties are themselves comfortable with, or in the next rostered sitting, and that will be a matter for the president to determine after I've discussed it with him. Thank you. Anything further, Mr Borenstein?

PN56

MR BORENSTEIN: No, your Honour, thank you.

PN57

THE VICE PRESIDENT: Mr Lange, anything further from you?

PN58

MR LANGE: Nothing from me, thank you, your Honour.

PN59

THE VICE PRESIDENT: That's fine. The Commission is adjourned.

<ADJOURNED INDEFINITELY [9.21AM]