C2006/3144, Transcript of Proceedings [2006] AIRCTrans 1136 (10 October 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15854-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

C2006/3144

AUSBULK LTD
AND
MARITIME UNION OF AUSTRALIA, THE
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/3144)

ADELAIDE

3.03PM, FRIDAY, 29 SEPTEMBER 2006

PN1

MR SHORT: I seek leave to appear for the applicant.

PN2

MR ATS: I seek leave to appear for the respondent. I note that my friend has indicated its consent and we also consent to counsel appearing.

PN3

THE SENIOR DEPUTY PRESIDENT: All right, I grant leave in both cases and welcome back.

PN4

MR ATS: Thank you, sir.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Our application arises, sir, out of industrial action which has both been happening and which we contend is threatened, impending or probable in relation to employees of our client in respect of its terminal operations.

PN6

MR ATS: Excuse me, sir. There's a matter that I think ought be brought to the Commission's attention before my friend raises any matters beyond those set out in the application. There are two matters to which I draw the Commission's attention. Firstly, my friend has provided me approximately 10, 15 minutes ago with three statements in the matter. I've attempted to peruse those in the available time. However, that's not been possible to complete. I would anticipate that some of the individuals here today are perhaps persons who've given those statements and certainly in the event that this matter is to proceed, there is a person here today who I would anticipate calling and if there's any objection to be taken to his presence in the room, particularly in the earlier parts of the proceedings, then that in my view ought to be taken now and certainly it would be my view that if there are witnesses in the room to be called by the applicant, then they ought to be excluded from the room until they give evidence and the final matter which I would raise is I am instructed to make a submission that the applicant is stopped from bringing these proceedings and that by virtue of that estoppel, this Commission ought not hear those matters, this application ought be dismissed or stayed and in light of the way those sorts of submissions are then dealt with in the past, those issues ought to be resolved before evidence is led as to the matters required in order to establish the Commission's jurisdiction in this matter.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. I'll deal with the issue of possible witnesses and statements first of all. We'll come back to the second issue in a moment. Mr Short, first of all, are there persons in the room who you seek to call to give evidence in this matter?

PN8

MR SHORT: If we get to that stage, there are two persons present that I would be seeking to call who are here.

PN9

THE SENIOR DEPUTY PRESIDENT: And is there any reason why you say that they need to stay in the room?

PN10

MR SHORT: Mr Eamon O'Sullivan is the industrial relations manager in the facility and we're being instructed in relation to this matter by him and so I would see it as appropriate that he remain. Mr Hill, although probably better informed about the matter than I, I would accept that an order for witnesses - it would be an appropriate matter in respect to him. I don't know who my friend's witness is.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Ats, is there any objection to Mr O'Sullivan remaining in the room on that basis?

PN12

MR ATS: Well, I would accept that my friend needs the opportunity to take instructions. Whilst I would anticipate only calling Mr Clothier who is behind me, I couldn't rule out that in some circumstances I might call Mr Newlyn who is beside me and on the basis that the same courtesy is extended to my client, then we'd be prepared to accept that.

PN13

THE SENIOR DEPUTY PRESIDENT: All right, in which case I'd ask Mr Hill and Mr Clothier if they would mind waiting outside of the court room for a time. I am sorry I can't offer them coffee or some other refreshment. Now, Mr Ats, you've foreshadowed a possible preliminary argument.

PN14

MR ATS: Yes, sir.

PN15

THE SENIOR DEPUTY PRESIDENT: I will note that at this stage I will just let Mr Short outline the position that he's putting to me and I'll then extend to you that opportunity to take up the estoppel argument that you've foreshadowed. I am doing that because I, too, have a couple of questions that I want to ask of Mr Short about the application and I don't want to get into an argument on the estoppel issue if we don't need to do so.

PN16

MR ATS: Thank you, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Short.

PN18

MR SHORT: Thank you. The background is that Ausbulk had notified employees of a restructure in respect of its operations at its Port Adelaide facility and I don't know, sir, if you've had an opportunity to at all consider some statements that we have recently provided to you, sir, to try and save some time in respect of this matter.

PN19

THE SENIOR DEPUTY PRESIDENT: No opportunity at all, Mr Short. They're on my desk. I understand there are three of them, but I only understand that from the fact that I can see three staples.

PN20

MR SHORT: All right, and we would have provided them to my friend, but we weren't aware of his involvement and I recognise these things move quickly, so we've provided them at the Commission. We've faxed them off to the national state office at the earliest opportunity, but it's been a rapidly moving situation. The background, sir, is that on 15 September there was consultation about a proposed restructure and that involved meeting with the employees and also with the Maritime Union, then further meeting on 25 September involving the company, Mr O'Sullivan, Mr Hill, Mr Clifton and Mr Weaver and from the MUA there's Mr Rick Newlyn and Mr Clem Clothier.

PN21

Matters that were discussed there included a change to the roster arrangements and a different interpretation between the parties about leave entitlements, but most materially an issue about redundancies. The company had notified that it proposed reducing the number of core terminal employees from 35 to 25. The company had advised that it would be calling for voluntary redundancies, but it reserved a right to reject applications and to target individuals if it did not receive the required number of appropriate applications.

PN22

On 25 September, Mr Newlyn for the MUA proposed that the company only proceed via voluntary redundancies and informed the company that the union would create a dispute, it would not cop this and it would respond and there was discussion about, in respect of voluntary redundancies, the time for application had closed by that stage, Mr Newlyn asked how many would be accepted and Mr Hill responded by saying approximately half would be accepted.

PN23

That was 25 September. On 27 September, industrial action commenced. Let me just get this chronology correct, so 25 September the meeting and the indication that voluntary redundancies with a right of rejection would not be acceptable to the union, 26 September further discussion involving Mr Newlyn and Mr Clothier and the company. Mr Newlyn and Mr Clothier came and spoke to employees. After that they met with Mr Hill from the company. Mr Newlyn proposed if the company agreed to accept all applications, the MUA would agree to amend the relevant enterprise agreement that the minimum core number of employees is 24.

PN24

Mr Hill rejected that, wanted to retain some good working employees. Mr Newlyn said that he would not agree to management refusing the voluntary redundancies. Later that afternoon, the union sent a facsimile to the state Commission, a copy to the company, that's on 27 September, sorry, indicating it wanted to get into the state Commission and attached to the application is the company's response to the union and the state Commission indicating that any issue should be dealt with by the federal Commission in accordance with the Workplace Relations Act and as we apprehend it, that is the required position arising from the federal legislation that the state enterprise agreement disputes procedure no longer has application and instead it would be the model dispute procedure under the federal Act.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, but there is no dispute as I understand it that there is a pre-existing state registered or certified agreement that has not yet passed its nominal expiry date.

PN26

MR SHORT: That is so. That is the Ausbulk Ltd Port Adelaide Terminal Enterprise Agreement 2005. It has application to all of the relevant employees, so following that exchange of communications on 27 September, employees at the Port Adelaide facility ceased work at 11 pm on 27 September and informed the company that they were being directed to do so by the MUA. Employees were directed to return to work. They refused to do so.

PN27

On the next morning, employees were due to - the next shift was due to start around 7 or 8 o'clock, I'm not sure of the exact time. Those employees also refused to commence work and once again indication was that it was at the direction of the union. Employees did not perform work. Mr Clothier was on site. Mr Clothier was present when employees were directed to return to work and when management indicated so, did not work because they were directed to by the union, Mr Clothier remained mute and employees returned to work at 9 o'clock this morning.

PN28

However, the concern we have is that further involuntary redundancies will take place this afternoon. So far, sir, two involuntary redundancies have taken place and one voluntary redundancy has been implemented. Tonight by 5 pm, a further five voluntary and two involuntary redundancies will be implemented.

PN29

THE SENIOR DEPUTY PRESIDENT: So it will be five voluntary?

PN30

MR SHORT: And two involuntary will occur before 5 o'clock today. Mr Newlyn was on Channel 10 news last night in relation to this matter, quoted:

PN31

If this is going to be the Australian ..... of the future, we will fight it now, today, tonight, tomorrow, forever. We're not going to cop it.

PN32

Now, we apprehend from that that further industrial action is threatened, impending and probable because those further redundancies will be implemented and Mr Newlyn and the union have made it very clear to us that they will not cop those involuntary redundancies and they will respond and they have done so and we apprehend they will continue to do so, so that is the state of play at the moment, sir. Now, if you have some questions - - -

PN33

THE SENIOR DEPUTY PRESIDENT: I do have a question, Mr Short. Your application is made, or the application is made for an order. Do you say that it's made pursuant to - - -

PN34

MR SHORT: 496(4).

PN35

THE SENIOR DEPUTY PRESIDENT: Subsection (4)? Now, do you rely on 496(1) or (2)?

PN36

MR SHORT: It appears to me that subsection (1), that these are federal system employees, because as I understand it, the state agreement becomes a preserved state agreement within the federal arena following introduction of Work Choices, so I see them as federal system employees.

PN37

THE SENIOR DEPUTY PRESIDENT: The proposed order, will it be an error in that regard? It appears to refer to section 496 - no, it refers to 496(1), yes, in which case can I refer you to schedule 8 of the Act and in particular to part 2, division 2?

PN38

MR SHORT: Yes, about a preserved collective state agreement.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, that's certainly my understanding of what you've told me, that there's a preserved state - collective state agreement and that the nominal expiry date of that agreement has not yet been reached.

PN40

MR SHORT: That is so.

PN41

THE SENIOR DEPUTY PRESIDENT: As you've said, clause 15(a) provides that the dispute resolution process in that agreement is in effect replaced by the model dispute resolution process, but if we continue on - I'm sorry, Mr Ats, do you have a copy of the Act?

PN42

MR ATS: I do, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: Very good, to division 6, clause 23.

PN44

MR SHORT: Of schedule 8?

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, it's of schedule 8, it remains part 2, division 6, clause 23.

PN46

MR SHORT: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: Do you say that the provisions of that particular part of the Act operate in tandem with the provisions of section 496 or that one in effect usurps the other?

PN48

MR SHORT: No, they both operate, that is there is an obligation under schedule 8, clause 23, not to take action, but action has been taken.

PN49

THE SENIOR DEPUTY PRESIDENT: All right.

PN50

MR SHORT: We certainly don't suggest for a moment that the action is lawful. To the contrary, we acknowledge it is quite unlawful, but it's happened and we seek an order.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Ats, this might be the opportune time for you to outline your issue in relation to whether or not there is an estoppel against the matter proceeding.

PN52

MR ATS: Yes, sir. I note from the very brief perusal I've been able to undertake of the statements provided that there are - - -

PN53

THE SENIOR DEPUTY PRESIDENT: You're ahead of me.

PN54

MR ATS: Sorry, sir?

PN55

THE SENIOR DEPUTY PRESIDENT: You're ahead of me, Mr Ats.

PN56

MR ATS: I would never contend that, sir. There are some very substantial differences of fact as between my client and my friend's client and I raise that at this point as one element of those go to the application which I now foreshadow or to outline to you, sir. The particular factual basis for that I will outline before going to its operation at law is that, to be brief, sir, in communications between Mr Clothier, Mr Newlyn and various senior representatives of the company, some of whom are here today, I think Mr Weaver and Mr Hill amongst them, I'm instructed that clear, unequivocal undertakings were given to attempt to resolve this matter or, rather, the issues of substance which have led perhaps to this matter being before you today which are in short the circumstances surrounding the redundancy and I do recognise that the company also raises an issue relating to annual leave provisions, but it does seem to me that perhaps the real nub of the matters between the parties, if not of this application, is the redundancy arrangements.

PN57

Now, in these discussions there were clear and unequivocal undertakings provided to my client to submit to perhaps on the basis you might characterise it as a private arbitration to the South Australian Industrial Relations Commission and an agreement to accept the outcome of that proceeding to resolve the matters between the parties. Now, at the very outset, I would accept that there's something in what my friend said about the respondent being a constitutional corporation. I don't think that we would seriously take issue with that and the preclusion that would ordinarily flow from that, that this is the place to be dealing with matters between the respondent and my client and that, sir, combined with the practical matters that I've outlined to you is part of the basis of our application with respect to estoppel.

PN58

As this Commission is no doubt familiar, a large part of the law of estoppel is concerned with persons indicating to others that they will not stand by, they will not enforce their strict rights at law. I suppose perhaps the two, in my respectful submission, two of the leading cases on this point and I have copies of them here, well, I have copies of one of them here today, sir, but to be frank, they're very extensive. They are not authorities characterised by unanimous decisions and require some analysis, the matter of the Commonwealth v Verwayan and the matter known as .....

PN59

In both of those matters, the dispute was concerned with persons, on the one hand the Commonwealth and on the other hand I think ..... making clear statements, considered statements to the other party that they would not - sorry, in the case of Verwayan that certain apparent strict legal rights open to them in that case, being the manner in which an action was pleaded and in the ..... case, that there would be a certain commercial relationship formalised, representations of a clear and considered nature were made as to that and they were subsequently resiled from.

PN60

Now, we say that that is the case here. We have clear, unequivocal, considered representations made at least in terms of its South Australian operations by senior individuals and, sir, I would respectfully suggest that the fact that one of those individuals is here to instruct my friend today is tolerably clear evidence or the basis for a tolerably clear inference that that person has the confidence of the respondent such as to bind it. Why else would such a person be here in these proceedings to instruct?

PN61

Now, having outlined at a very basic level, I suppose, the submission that we would make, I would say to this Commission that it must - this Commission in my respectful submission must make its decisions in accordance with law and the law of Australia includes the law of estoppel and there are numerous decisions, I would say, of this Commission which in fact deal with issues of estoppel. I would certainly accept that many of those decisions deal with estoppel by way of issue estoppel or in the nature of res judicata.

PN62

That is not our submission. Our submission is in the nature of equitable estoppel or promissory estoppel, so I do accept there is some distinction there, but as the court observed in the matter of Verwayan and in particular His Honour Mason CJ as he then was, these sorts of distinctions that have historically existed in the law of estoppel are very much fading and becoming a thing of the past. It is an evolving area of the law, as it has for some hundreds of years, but certainly in my submission there is no basis, no proper basis for a finding that in terms of being entertained by this Commission, there ought be some distinction between issue estoppel and equitable or promissory estoppel.

PN63

Further to that, there is the matter of Administration of Papua New Guinea v Dera Duma at 130 CLR 353 which stands for the proposition that estoppels operate before administrative tribunals such as this one, not only before chapter 3 courts, so that part of my submission, sir, goes to the point that a determination based on an estoppel is one that is open to you. Now, as I said before, the promise, if you like, not to enforce strict legal rights is in the nature of a classic estoppel in this sense and again I refer to Verwayan in that regard. As is clear from my friend's - or inherent perhaps I should say in my friend's submissions today and certainly clear from his correspondence to my client, the undertaking which we say was given is resiled from.

PN64

THE SENIOR DEPUTY PRESIDENT: Where do you say that undertaking was given and is it in a documented form?

PN65

MR ATS: No, sir. My understanding, it's verbal, but in the presence of witnesses and I'm in a position to call evidence as to that. I note, sir, I hope I don't inaccurately foreshadow your thoughts in that regard, the old common law position of estoppel, indeed, it seems has now been laid to one side and the equitable position of estoppel in case or estoppel by conduct or estoppel by statement of intention is now one that's recognised by the High Court, so if it were to be something your Honour was considering asking that question, then I - - -

PN66

THE SENIOR DEPUTY PRESIDENT: No, I'm just trying to come to grips with what you're putting to me. It does seem to me, Mr Ats, on a very brief consideration of what the parties are advising me of, that - it might be best if I try to clarify my understanding of the matters in dispute. I understand that the parties are in dispute in effect over the redundancy process and the extent to which that process is consistent with the agreement.

PN67

MR ATS: Yes, sir, and by way of aside, perhaps, my client, I'm instructed my client stands ready to participate in any attempt to conciliate the outcome of that and I don't criticise my friend for taking you to the background to this matter. That's quite appropriate and I may go on to do some of that, depending on the Commission's preference in that regard. However, it seems to me that the Commission's role in this application is fairly constrained by the terms of the Act and whilst it is quite appropriate to inform the Commission of the background circumstances, if it is the case that this Commission determines to proceed to deal with the application, some of those matters will be no more than background.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but perhaps it's best if I characterise my developing understanding of the matters in dispute on two bases. I understand there is what I call a redundancy dispute. It's a dispute over the actions proposed or being taken by the employer in the context of the agreement.

PN69

MR ATS: Yes, that's correct, sir.

PN70

THE SENIOR DEPUTY PRESIDENT: And I then understand, rightly or wrongly, that there is an industrial action dispute and that the company say that industrial action has been taken and is threatened, probable or impending.

PN71

MR ATS: Yes, and to ensure the Commission is clear on our position, certainly industrial action was taken. However, in our respectful submission, any claim that industrial action is impending, threatened or probable is ill founded and ought not or cannot be made out and found the jurisdictional prerequisite to the exercise of this provision.

PN72

THE SENIOR DEPUTY PRESIDENT: All right. Now, I understand that position. That's something we may get to in the context of finalising a section 496 application.

PN73

MR ATS: Yes, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: But if I understand what you're putting to me in relation to the promissory estoppel argument, it is to the effect that a promise given by the employer in the context of what I call the redundancy dispute is such that the application in relation to section 496 ought not proceed.

PN75

MR ATS: Ought be stayed or dismissed, sir. Now, there is, I must say, as my friend would no doubt point out, a little more to estoppel than what we've dealt with thus far, but perhaps the guts of it if you like is as your Honour outlined, but I will proceed to deal with the other elements that you would need to find in order to find that an estoppel or an equity exists.

PN76

THE SENIOR DEPUTY PRESIDENT: All right. Now, at the risk of being overly simplistic, it does seem to me that if we continue to proceed down this path, I'll hear a substantial amount of probably very useful and on the Friday before a long weekend exciting information about estoppel and a series of arguments of that sort of ilk. What I'm struggling with is how that in very practical terms will actually assist in the resolution of what I call the redundancy dispute.

PN77

MR ATS: Well, sir, it's a very worthy concern. This section under which this application is being brought, as this Commission well knows, as my friend well knows, is in my respectful submission an inordinately narrow one. It is not in my respectful submission directed to the resolution of the substance of industrial disputes, although as you've outlined, sir, it could be said that there is a dispute as to industrial action and certainly that section can resolve disputes about industrial action if it's considered that they're resolved by ending industrial action and I suppose, sir, if I may make this submission, the very point that you're raising about the proper resolution of the issues in dispute between the parties is in some ways the foundation of what's led us to this estoppel point. My client wants these issues resolved and I don't think that it would be an unfair characterisation to suggest that in a matter in the nature of a private arbitration before the state Commission, the guts of the matters, the issues of substance, the questions of whether the procedures have been followed properly and if so, what ought to be the result, can be dealt with, whereas in my respectful submission, in a strict application under section 496 or the other provisions of this federal Act, this Commission is in my submission unfortunately restricted to regulating the fight, as it were, rather than dealing with the issues at the heart of it and that's what my client would much prefer to do.

PN78

THE SENIOR DEPUTY PRESIDENT: All right. Well, let me just take that a step further. Am I correct in understanding that the union position is that the dispute resolution provisions of the agreement and that's the state registered or certified agreement, have been overridden by the model dispute resolution process set out in the Act?

PN79

MR ATS: As a matter of strict law, sir, I would find it hard to take issue with that, but that again brings us back to the nub of this estoppel point.

PN80

THE SENIOR DEPUTY PRESIDENT: Well, that's what I want to try to clarify with you, because it does seem to me that if I'm to understand at least the basis of your estoppel point, I need to understand whether you are saying that the agreement reached with the employer was such that there was an agreed process for the resolution of this redundancy dispute and that that process was consistent with the provisions of the Workplace Relations Act. Alternatively, it might be that you're saying to me that there was an agreed process for the resolution of the redundancy dispute and that process was by some form of agreement with the parties independent of the provisions of the Workplace Relations Act.

PN81

MR ATS: Sir, in my respectful submission, the two are not mutually inconsistent. Certainly, it may be more akin to the latter, but I wouldn't say that's inconsistent with the former. The tenor of the Act is to empower the parties to try and deal with their own matters as they can and see fit and resolve disagreements between them in an agreed manner. I don't hesitate in acknowledging that the process taken had one party if you like stuck to its digs and enforced its strict legal rights, may not have been possible, but they didn't do that, sir. They took the opportunity as the Act encourages them to do, to find the most appropriate way of resolving their mutual concerns and we're now here today as that's being resiled from.

PN82

THE SENIOR DEPUTY PRESIDENT: Well, if I get you to look at section 696 of the Act which details the dispute resolution process, whereabouts within that process do you say the parties have got?

PN83

MR ATS: Sir, what I would say - look, sir, to be frank, I can stand here and provide some reconciliation of that process and what's occurred and I'm happy to do that. However, the contention which I am making, which we are making, is that strict compliance with this Act is, of course, the legal right of the parties. However, as you well know, sir, it is open to parties in a whole range of circumstances not to stand upon their strict legal rights. It's an ordinary element of day to day life and the point which then arises is if a party is to do that as we say they have and then resiles from it and that leads to some detriment to my client, then they are estopped from resiling from it and equity arises whereby an attempt to then usurp that strict legal right is prevented.

PN84

THE SENIOR DEPUTY PRESIDENT: All right. Well, maybe the alternative way of addressing the issue that I'm struggling with is to ask whether you say to me that all of the dispute resolution functions that your union or that the union agreed to in this matter are provided for under the Workplace Relations Act, because, you see, if you expect something of a dispute resolution provider, be it the Australian Industrial Relations Commission or an alternative provider which is not provided for under the legislation, then I'd like to understand what that is.

PN85

MR ATS: Sir, we would say that there was an agreement as to an alternative provider, being the South Australian Commission, but I suppose, sir, and I'm willing to expand on or happy, as your Honour pleases, to expand on that really in the alternative as our primary submission is that, as I say, the strict legal rights have been set to one side and an agreement has been struck and that ought not be resiled from.

PN86

THE SENIOR DEPUTY PRESIDENT: All right. Well, then - - -

PN87

MR ATS: I'm happy to expand on the alternative, sir.

PN88

THE SENIOR DEPUTY PRESIDENT: No, I don't need you to do so at the moment. I'll hear from Mr Short before we get that far, but what I would like to know is if you describe the disputes in these two ways, as the redundancy dispute and the industrial action dispute and if you say that the redundancy dispute is the underpinning dispute as I understand you to be saying - - -

PN89

MR ATS: Well, sir, perhaps I might characterise it slightly differently. My understanding is perhaps rather than underpinning and perhaps my instructor will kick me in the leg if I'm wrong about this - - -

PN90

THE SENIOR DEPUTY PRESIDENT: I'll watch for sudden action.

PN91

MR ATS: Thank you, sir. It's not so much a matter of one being the cause of another. It's more a matter as I understand it that if we were simply dealing with an annual leave dispute, that would be perhaps progressing through some further discussions. The redundancy dispute has a far more or was perhaps - I withdraw that - was a more pressing, immediate matter as at the nub of it, two workers have been sacked and that was the event that preceded the industrial action and that it seems to me is why we're all here.

PN92

THE SENIOR DEPUTY PRESIDENT: Okay, let me rephrase the question again. If the focus is on the question of redundancies and what should be done from here to resolve the redundancy dispute, what form of advice do you or can you give me, if any, that might have the potential and I stress the word potential to occasion the applicant in this matter to review the need for a section 496 order?

PN93

MR ATS: Sir, in the first instance and I know that the applicant is aware of this and hasn't taken it at perhaps the weight that I would put upon it, there is no industrial action happening. Secondly, sir, I would say to use the colloquial phrase, if I may, the circumstances that have led to the cessation of the industrial action demonstrate in the colloquial very much, sir, that the employer has the whip hand. The employees were told as I'm instructed if they did not return to work more or less immediately, they would be sacked. This occasioned the employees to return to work.

PN94

They do not wish to be sacked and it seems to me, sir, that without passing any comment on the legality or otherwise or any view that any court may express about such things, that having decided that they don't want to be sacked, that that's unlikely to change, sir, so it seems to me that the employer very much has the whip hand here and, thirdly, sir, as I alluded to earlier in my submissions, my client instructs me that it's very happy, only too happy to submit to conciliation and attempt to resolve this matter which, as I understand it, the applicant has declined entirely to participate in and I would hope that were there to be some conciliation, it may well be that I can take some instructions as to what occurs during the course of that conciliation.

PN95

THE SENIOR DEPUTY PRESIDENT: I see. Let me try and take that just a step further and I might exceed your capacity to answer my questions, but it does seem to me that in these types of situations, there is quite commonly some form of commitment given for a defined period of time to the extent that there would be no industrial action of any type to allow a specified type of conciliation or dispute resolution process to occur. Now, there are two questions inherent in exploring that possibility. One is whether the union can give that form of commitment about no industrial action occurring.

PN96

I'm sorry, I should say three questions. Two is the extent to which the redundancy dispute as I've characterised it can be clearly defined insofar as it raises a question of whether that dispute includes the termination of employment of employees to date or presumably in the next hour or so and three is the question of just what form of dispute resolution process the union might propose, notwithstanding your position that, as I understand it, you had some form of agreement with the company about a process that would occur before Commissioner Steel.

PN97

MR ATS: And, with respect, sir, I might add to those matters a fourth if you like perhaps condition precedent and that is whether the applicant is willing to engage in any conciliation.

PN98

THE SENIOR DEPUTY PRESIDENT: Look, I haven't even put the question to Mr Short as yet. I am just trying to ascertain your position of what appears to me to be fairly fundamental threshold issues, the response to which might determine whether or not there's much point in even putting the question to Mr Short.

PN99

MR ATS: Sir, certainly I would take instructions as to what level of commitment my client is able to provide. It would be unwise of me to state some position to you now without clearly exploring that in my mind and as to the position of the workforce, I suppose, as distinct from officials of the registered organisation. As to the compass of the dispute, I would certainly think that that can be adequately defined and whilst I will certainly need to take instructions, I would anticipate that that would include an examination of the redundancy arrangements as they relate to the dismissals that have been implemented and are apparently imminent.

PN100

THE SENIOR DEPUTY PRESIDENT: You see, in terms of dismissals that have occurred or for that practical matter that are about to occur, there are some serious questions there about the capacity of either Commissioner Steel or indeed this Commission to assist the parties in that regard other than through the processes set out in the Workplace Relations Act.

PN101

MR ATS: Sir, once again that's so on a strict application of the Act. However, it seems to me that what we're talking about is an agreed dispute resolution process, be it the one previously agreed or some other process and it seems to me therefore that it's for the parties to agree the compass of that and it may well be that the parties acknowledge that perhaps no binding order could be made by yourself or Commissioner Steel. However, they may well undertake to implement any recommendation as if it were an order and it does seem to me that the compass of the dismissals can in fact be dealt with.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, have a look at section 700 for a moment. It may be that Commissioner Steel as a member of the South Australian Industrial Commission is not obligated to have regard to that section, but I don't have any such luxury.

PN103

MR ATS: Yes, sir, I would have to give this matter some consideration and perhaps, sir, this Commission or my friend may even assist me in this regard. However - no, I withdraw that, sir. Yes, that may well be the case, sir, but as I say, the Commission could well rule that it is in fact dealing with a redundancy dispute and it's for the parties and the Commission in a conciliatory procedure to determine the compass of that and it would seem that if a recommendation were made, perhaps not even in the formal sense, even in the Commission's useful remarks in these matters about perhaps what ought to occur, that would assist the parties and be useful in avoiding litigation which is something that I would think we all wish to do.

PN104

THE SENIOR DEPUTY PRESIDENT: It does seem to me that the ball is in your court to some extent, Mr Ats. You can tell me now that you want to go ahead and add anything to your submissions in relation to the argument, such that the Commission is estopped from acting further in this matter, in which case I'll hear anything further you want to say and then I'll invite Mr Short to respond to that. I'll rule on that matter and depending on that ruling, proceed to hear the section 496 application or alternatively desist from doing so. The second alternative is that there might be something that the union and I stress the word might, can put to Mr Short that addresses each of those three characteristics that I've referred to in a fashion that might progress the resolution of the matter. If you need five minutes to think about that with Mr Newlyn, I'm happy to allow you that time.

PN105

MR ATS: Yes, I was correct in foreshadowing that I was going to request that and to ensure that there's absolute clarity as between myself and my instructor and, in fact, Mr Short, the matters to be addressed are the compass as I understand it, the commitments that can be given - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, it was the question of what commitments could be given in relation to industrial action.

PN107

MR ATS: Yes, sir.

PN108

THE SENIOR DEPUTY PRESIDENT: And the duration and nature of any such commitments.

PN109

MR ATS: Yes, sir.

PN110

THE SENIOR DEPUTY PRESIDENT: The question of just how you defined that which you were in dispute, given that it appears that for all practical purposes, at least four employees will have been made redundant by the time you manage to exit this building and, thirdly, the question of just who and what type of dispute resolution process would be followed which brings with it the potential for the dispute resolution provided to be constrained by the Workplace Relations Act. It may be we're all wasting our time, but if you want to have a few minutes to talk about those issues, feel free to do so.

PN111

MR ATS: Yes.

PN112

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn the matter for five minutes or so. Thank you.

<SHORT ADJOURNMENT [3.55PM]
<RESUMED [4.24PM]

PN113

THE SENIOR DEPUTY PRESIDENT: Mr Ats, I hope Mr Newlyn's absence doesn't mean that the discussions came seriously unstuck.

PN114

MR ATS: No, sir. Sir, we have had some progress in the discussions. The applicant has requested that if there is to be some conciliation or conference process, that it be conducted by a member of this Commission. Now, sir, my client, subject to I suppose instructions that are now being taken by Mr Newlyn which is why he's absent, is minded to go along with the matters which my friend has outlined to me in terms of a way forward. However, in order for Mr Newlyn to attempt to obtain undertakings from the workers at the site, in our view it's necessary or sensible for him to be able to put a complete position to them and in order for that to occur, my friend and I thought it wise to seek your view as to whether you or a member of this Commission can deal with the conciliation of this matter, the compass of which would involve the redundancies and the terminations thereunder and the annual leave, but as I understand it, I'm sure my friend will correct me if he has a different view, it would be anticipated or proposed that orders be made.

PN115

However, the proposal is that the parties ought abide by and enforce, if you like, any recommendations that are made and it seems to me that the level of formality for recommendations is not required, particularly one matter, if they're recommendations made in a conference, the parties will abide by them and if, sir, you're able to advise us that you or another member is able to preside in a conference to try and resolve things in that way, then my instructor will attempt to take the relevant instructions and I am instructed that it's most likely that his recommendation would be accepted. Whether my friend wishes to add anything to that or not - - -

PN116

THE SENIOR DEPUTY PRESIDENT: Perhaps before I hear from Mr Short, Mr Ats, can I just seek some clarification? Can I refer you to section 701(4) and for that matter you'd better read subsection 5. Is there anything that you or the union is likely to ask me to do or a member of the federal Commission to do that would constitute one of the factors identified in section 701(4)?

PN117

MR ATS: Sir, my friend has been helpful. In any event, my answer to your question would have been no, but my friend has helpfully directed me to subsection 7 of that section which is what we are seeking the Commission's view as to whether it will assist us in that way.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes. I think the best answer I could give you as an immediate answer is to the extent that the functions the parties would seek from the Commission are consistent with those set out in sections 700 and 701, then I can indicate that either myself or another member of the federal Commission would be prepared to assist the parties. After all, that is why taxpayers fund us.

PN119

MR ATS: As the Commission pleases. Sir, if you would just allow me a brief moment?

PN120

THE SENIOR DEPUTY PRESIDENT: Certainly, and, Mr Short, I didn't mean to cut you off at the pass. Feel free to address me if you wish to do so.

PN121

MR SHORT: Sir, our primary position here is that we seek the comfort which we are entitled to we say by law in respect of no further industrial action occurring, so we seek either the order or an undertaking to the effect of the order and then we are prepared to continue with discussions before you, sir, to get to the substance of the differences between the parties, being a course that we apprehend that we had made clear to the union in our correspondence, namely use the processes of the Act. For our part, we'd be prepared to enter into conciliation before you immediately after that comfort is given with a view to seeking recommendations from the Commission as to an appropriate way forward in respect of differences between the parties. I hope, sir, that that gives some clarity for our position.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ats.

PN123

MR ATS: Sir, if I may just have a very brief moment?

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, feel free.

PN125

MR SHORT: Sir, following a discussion with my friend, I can say if we either get a consent order or an undertaking in terms of the order for a period of one month, during which time we would be, as I've indicated, willing to enter into discussions with the assistance of the Commission, we would then be prepared to commence those discussions forthwith.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN127

MR ATS: Sir, from my client's perspective, it's preferable that we obtain the relevant undertakings. My instructor is in a position to contact the present shift at least and attempt to obtain undertakings which we're confident of obtaining and if we were indulged by a matter of minutes, to allow my instructor to do that, I would hope to be in a position to provide those undertakings.

PN128

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. I'm happy to allow you that time. There's just one other issue that I'll raise with you. Mr Short referred to a preparedness to engage in conciliation forthwith. There's a question as to what forthwith means.

PN129

MR SHORT: It means if you're available, then now, or if not available, then - - -

PN130

THE SENIOR DEPUTY PRESIDENT: I have an hour or so now. I have all day tomorrow or I have - but I understand Mr Newlyn might be the father of the groom tomorrow and I would hate to disturb a wedding unnecessarily.

PN131

MR SHORT: I wasn't seeking to force ourselves on anyone unnecessarily or - - -

PN132

THE SENIOR DEPUTY PRESIDENT: I don't think you're being invited to the wedding, Mr Short, and I haven't taken it as an invitation either, but I can assist the parties on Wednesday of next week. Otherwise, I could leave it with the parties to contact my office and as long as you bear in mind that I'm actually on leave for the next couple of weeks, so you'd need to give me a little bit of time, a little bit of advance warning to come in maybe not on the day that you call, I could certainly come in at some stage over the next couple of weeks.

PN133

MR SHORT: Thank you for that, sir. I apprehend we might have a bit of time tonight and then we would determine a time that suited the parties. We're not seeking to delay those discussions inappropriately.

PN134

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN135

MR ATS: Sir, likewise, we have no desire but for unavoidable facts if you like to delay. As you've observed, my instructor is the father of the groom and that event takes place outside of the country and as a result, my instructor will be out of the country until the end of next week and we would ask for your time beyond then.

PN136

THE SENIOR DEPUTY PRESIDENT: All right. I'll adjourn the matter for a short time.

<SHORT ADJOURNMENT [4.34PM]
<RESUMED [4.46PM]

PN137

MR ATS: Sir, I'm pleased to say that we've made some good progress. I'm instructed that in consideration of the conciliation proposal and the understanding between the parties as to that, to give the undertaking that the MUA, its officials, employees, members and agents in respect of Ausbulk Ltd shall not be directly or indirectly party to or concerned in the continuation, maintenance of imposition of any ban, limitation or restriction on the performance of work or the acceptance of or offer for work request, directly or indirectly, any person to fail or refuse to attend for work, request directly or indirectly any person to fail or refuse to perform any work other than in respect of protected action, that the MUA is to take all and any steps necessary and available under its rules to ensure compliance with this undertaking and that this undertaking will come into effect today and shall remain in force for a period of one month. Sir, I hope that would assist us all to progress this matter. In respect to the happier matters which are mentioned earlier, I note that my instructor is due to be leaving terra firma in about an hour and 10 minutes and thus, I would be concerned to ensure that that actually occurs as planned, so that said, I will hand over for any questions you may have or comments my friend may wish to add to that.

PN138

THE SENIOR DEPUTY PRESIDENT: Is there anything further, Mr Ats, that you want to say to me about the conciliation proposal? I ask that question because I don't want you folks to come unstuck on what you've agreed this afternoon at some later stage, because history has it that you might come unstuck with those sort of issues.

PN139

MR ATS: Sir, I suppose that our understanding as to the compass is what's been referred to as the redundancy matters including the terminations connected with that and the annual leave matters. Sir, that's the sort of thing that we think appropriate to say and I thank you for your suggestion in that regard.

PN140

THE SENIOR DEPUTY PRESIDENT: Within the confines of sections 700 and 701?

PN141

MR ATS: Yes, sir.

PN142

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Mr Short.

PN143

MR SHORT: Thank you, sir. I understand that the undertaking is given by the union, its officials, employees of Ausbulk Ltd employed at the Port Adelaide facility. I would just ask my friend to refer to that on transcript.

PN144

MR ATS: Those are my instructions, sir.

PN145

MR SHORT: And we agree with the process of conciliation being entered into in accordance with the Act and we understand that the parties would be looking to recommendations to emanate from the Commission in due course. It's probably appropriate that I put this on transcript. My learned friend referred to an understanding between the parties. The understanding between the parties is that both parties, that is the union and the company, would be prepared to abide by those recommendations. In saying that, we understand that that is not a power that you have, that is a matter between us, but it strikes me as appropriate that that understanding is clear to the parties and placed on the record. I hope my friend is comfortable with that course.

PN146

MR ATS: Yes.

PN147

MR SHORT: So unless there's anything further, sir, as I understand it, due to Mr Newlyn's commitments, it's probably appropriate for us now to look at setting a time to come back the week after next, if that is convenient for the Commission.

PN148

THE SENIOR DEPUTY PRESIDENT: That's convenient for me. I can offer you the Monday or the Wednesday or the Friday. Sorry, I can't offer you the Friday. I can offer you Monday, Wednesday, if needs be, Thursday.

PN149

MR ATS: Sir, I'm conducting a trial in the Federal Court on Thursday. It's anticipated to be a very short point. It's listed to start to the best of my memory at 10 am. I would be most confident that if we were to commence in this matter perhaps at 1 o'clock, I would certainly be available by then and perhaps a little bit earlier. I don't know if my friend has anything to say about that.

PN150

THE SENIOR DEPUTY PRESIDENT: Is the entirety of that afternoon going to be an adequate time?

PN151

MR ATS: Well, my suspicion, given the nature of these things, sir, is that I would expect that there will be some discussions and given the nature of these matters, it may well be that my instructors then need to talk to their members and it may well be that the applicant in this matter needs to give consideration to matters and potentially take advice from their superiors. I don't know, but it would seem to me that it's often in these matters that one occasion, be it long or short, is not adequate to resolve it.

PN152

THE SENIOR DEPUTY PRESIDENT: All right. I am happy to start at 1 o'clock if that's convenient to you, Mr Short.

PN153

MR SHORT: Yes.

PN154

THE SENIOR DEPUTY PRESIDENT: That's 1 o'clock on Thursday, 12 October. Will there be a need to involve your federal office or the union's federal office, Mr Ats, and if so, would it be necessary that we organise a video link?

PN155

MR ATS: That may be an option.

PN156

THE SENIOR DEPUTY PRESIDENT: We'll try and book the video link irrespective of whether or not you need that option. If the union does seek to avail itself of that option, I just wonder whether you might let my office know some time in that week preceding the Thursday.

PN157

MR ATS: Sir, we'll take instructions as soon as we can.

PN158

THE SENIOR DEPUTY PRESIDENT: All right. Very well, Mr Short, you may have said so, but just in case I've overlooked it, I take it that on the basis of the undertakings that have been given and the discussions between the parties, the employer seeks to withdraw the application or not proceed further with it.

PN159

MR SHORT: We've received the undertaking. We would ask that the Commission not further consider that application for an order. I'm not sure, sir, whether you require anything in writing in respect of the conciliation process.

PN160

THE SENIOR DEPUTY PRESIDENT: No, I don't at this stage. The only other question is where the parties want that conciliation proceeding to occur. I am in your hands in that regard. It can occur at these premises or it can occur at the employer's premises or, indeed, the union's offices.

PN161

MR SHORT: I find that the attendance at the Commission can have a useful effect on the parties.

PN162

THE SENIOR DEPUTY PRESIDENT: You like my coffee?

PN163

MR SHORT: Nice coffee and plenty of it.

PN164

THE SENIOR DEPUTY PRESIDENT: Mr Ats, do you have a particular view in that regard?

PN165

MR ATS: Sir, we would agree that the location is - - -

PN166

THE SENIOR DEPUTY PRESIDENT: All right. I will welcome you to my office on Thursday, 12 October at 1 pm. I will adjourn the matter accordingly.

<ADJOURNED ACCORDINGLY [4.55PM]