C2006/1697, Transcript of Proceedings [2006] AIRCTrans 263 (28 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14221-1

DEPUTY PRESIDENT HAMILTON

C2006/1697

THE POLICE ASSOCIATION
AND
VICTORIA POLICE FORCE
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/1697)

MELBOURNE

2.21PM, MONDAY, 13 FEBRUARY 2006

PN1

MR C KENNEDY: I appear for the Police Association, with me is MR L OLIVER and MR W GATT.

PN2

MR M FOLLETT: I seek leave to appear on behalf of the Chief Commissioner of Victoria Police, the relevant employer under the certified agreement under which this notification is brought.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR J BOURKE: I seek leave to appear on behalf of the state of Victoria in relation to the proposed issue of a subpoena.

PN5

THE DEPUTY PRESIDENT: Terrific. Thank you. Any objections to leave being granted? No? Leave is granted. Right. Well we are here today to deal with a proposed summons. We left it on the basis the parties would have a discussion and enter into hopefully an agreed position on the issue of summons. So where did we get to Mr Kennedy? Everything …..?

PN6

MR KENNEDY: Your Honour, as you will recollect, on Friday the Association sought the issue of two summonses. One directed to Victoria Police and the other to the state of Victoria. We have had discussions with Victoria Police on Friday and again today and the parties have reached agreement on what information Victoria Police would be able to provide to the Association.

PN7

THE DEPUTY PRESIDENT: Okay.

PN8

MR KENNEDY: On that basis we don't wish to press that summons.

PN9

THE DEPUTY PRESIDENT: All right so that's set aside so we don't - - -

PN10

MR KENNEDY: So the remaining issue is the one directed at the state of Victoria seeking documents relating to payments made by the state of Victoria's Compensation for inconvenience caused by the Commonwealth Games and I was provided a copy of that on Friday.

PN11

THE DEPUTY PRESIDENT: Yes well perhaps we had better mark that.

EXHIBIT #POLICE ASSOCIATION 1 SUMMONS TO WITNESS TO THE STATE OF VICTORIA

PN12

THE DEPUTY PRESIDENT: So it seeks all documents relating to payments made by the state of Victoria's Compensation for inconvenience caused by the Commonwealth Games, is that right?

PN13

MR KENNEDY: That's right.

PN14

THE DEPUTY PRESIDENT: Okay. It's not agreed, is that right?

PN15

MR KENNEDY: Well that's my understanding. There have been - there were brief discussions on Friday.

PN16

THE DEPUTY PRESIDENT: Sure.

PN17

MR KENNEDY: As to whether any form of modified words – though no modified words were produced on Friday. It might be - - -

PN18

THE DEPUTY PRESIDENT: I think you mentioned a few specific examples.

PN19

MR KENNEDY: Yes.

PN20

THE DEPUTY PRESIDENT: AFL and one or two others.

PN21

MR KENNEDY: That’s right. But at that time Mr Stapleton, he was here for Industrial Relations Victoria, needed to obtain instructions over the weekend, your Honour. Since I’ve had no further communication I assume some are still opposed by the state.

PN22

THE DEPUTY PRESIDENT: It does raise the possibility of greater specificity in the sort. I mean, I’m not saying that’s the appropriate way. For example summons relating, if you put the words AFL in there it would make it more specific. I’m not saying you should.

PN23

MR KENNEDY: Well, that’s the issue.

PN24

THE DEPUTY PRESIDENT: I assume that’s the sort of issue they’re going to raise.

PN25

MR KENNEDY: It is. Compensation to the AFL, Cricket Australia, the Reggio Calabria Club are ones that have been documented in the media, your Honour. We’re not in a position to know- - -

PN26

THE DEPUTY PRESIDENT: If that’s all.

PN27

MR KENNEDY: If that’s all and what the basis of the compensation has been to all of those, whether it goes purely or merely to inconvenience or whether it’s been substantiated by some formula for economic loss to those parties or on what other basis might have been available.

PN28

THE DEPUTY PRESIDENT: Marvellous.

PN29

MR KENNEDY: As we indicated on Friday we were prepared to have discussions with the status, but narrowing the scopes so they were clear as to what we actually were seeing.

PN30

THE DEPUTY PRESIDENT: All right. Well, perhaps you’d better see if there’s any objection. Sorry, do you have anything else you want to say at this stage?

PN31

MR BOURKE: Not at this stage.

PN32

THE DEPUTY PRESIDENT: All right . Mr Follet, is the position as was described, that you have no problem with them withdrawing the proposed summons on the basis of an agreed position?

PN33

MR FOLLET: Yes, your Honour. The parties did reach agreement this morning on the contents and types of documents that we might be providing to the Police Association and my client is prepared to write to the association to confirm that.

PN34

THE DEPUTY PRESIDENT: Marvellous.

PN35

MR FOLLET: One matter that I did raise, that was raised with Mr Kennedy and I'll raise with your Honour, in the event that once the association’s materials are received on Wednesday and the basis upon which they press their application is all fully articulated we have reserved our position to contest whether the documents within the classes that we’ve at this stage agreed to no longer bear any relevance to the matters to which the association was raised. But otherwise yes, I did brief the Commission with respect to the summons against my client.

PN36

THE DEPUTY PRESIDENT: Thank you. Now, Mr Bourke.

PN37

MR BOURKE: It may be appropriate if I lead off in relation to the subpoena. If we could hand up, your Honour, a bundle of documents which includes Police Association exhibit 1.

PN38

THE DEPUTY PRESIDENT: All right. Well, I'll mark the summons, what seems to be copies of summons - well, what are they, these two documents?

PN39

MR BOURKE: The first bundle, your Honour, should be the two summonses, the LW application, an extract from the relevant certified agreement.

PN40

THE DEPUTY PRESIDENT: Well, these are all Commission documents. I won’t mark them.

PN41

MR BOURKE: They’re all Commission documents. They’re just, they don’t need to be marked. And the next bundle is from cases I will quickly take your Honour to in relation to- - -

PN42

THE DEPUTY PRESIDENT: Well, do we need to get there? I mean, isn’t it possible that this matter could be settled in some sensible manner? I’m sure you’ve given some thought to that and have instructed proposals to put, or am I wrong about that?

PN43

MR BOURKE: Well, we’ve not come here with a proposal.

PN44

THE DEPUTY PRESIDENT: You haven’t? I see.

PN45

MR BOURKE: If the Police Association have a proposal we could get some instructions.

PN46

THE DEPUTY PRESIDENT: Is there a reason for that, that you haven’t come here with a proposal? I mean, if you have objections presumably you’re here to try and solve them in a constructive manner rather than simply to list objections. I mean, it’s a question I’m putting to you. I mean, are you interested in a solution which meets your needs as well as the associations?

PN47

MR BOURKE: No one can take issue with that, your Honour.

PN48

THE DEPUTY PRESIDENT: Excellent. That’s good.

PN49

MR BOURKE: But can we just say that the way the net is cast in terms of a subpoena, we didn’t think there was really any meaningful room to move. But the issues haven’t been narrowed in any way by that subpoena. We do have a fundamental problem unless it could be highly narrowed in terms of relevance being required to produce any documents relating to the games. There’s a fundamental problem here in that an application under 170LW involves issues between actual parties to the certified agreement. What is in issue is a particular clause.

PN50

THE DEPUTY PRESIDENT: We don’t really know that until we’ve seen the written submissions, do we?

PN51

MR BOURKE: Well, unless there’s an application to vary the primary application, that has spelt out the basis of their claim. A bit like a court of pleading, you’d be entitled to look at that. So unless there’s a reformulation, if that could be indicated to us today.

PN52

THE DEPUTY PRESIDENT: Look, we haven’t seen the written submissions. Do you know what their written submissions are? No.

PN53

MR BOURKE: No.

PN54

THE DEPUTY PRESIDENT: Probably isn’t the best way to deal with issues of relevance as the police force have done, which is to say when you have seen their written submissions you’ll know a bit more about the relevance issue and observe our position? Without being difficult, isn’t that probably the best way to go? That's what the police force have done and you know, without anticipating what you have to say, I mean clearly until we’ve seen the written submissions and the full basis on which the arguments are put that you are to judge relevance of them. Or is it? I would have thought it is. I mean, I’m not trying to preclude arguments you may put, I’m just trying to deal with them in a sensible way. I find it hard to deal with issues of relevance before I’ve seen the arguments.

PN55

MR BOURKE: Your Honour, we can go down that route and that would just mean that this application be adjourned until those submissions are, we can have that crystallised. We have no objection to that.

PN56

THE DEPUTY PRESIDENT: Right, okay. That might be the best way to deal with issues of relevance. But there is, if I can put it this way, I did raise the association issues of specificity which might be of some assistance. I don’t know.

PN57

MR BOURKE: Can I just raise problems that we have an maybe that will assist the association if they want to reformulate.

PN58

THE DEPUTY PRESIDENT: All right.

PN59

MR BOURKE: Because a part of the fundamental problem as your Honour indicated at the outset is the extreme broad nature of the request and the lack of certainty in what we have to produce. You start with the requirement that it’s all documents, there’s no cutting down of the type of documents sought. You then move to relating to payments made. We just wonder, we want really confirmation. Is it directed to payments that are already made in circumstances where we all know the Commonwealth Games have not occurred yet, then it leaves the question of compensation which is a broad term and could mean a lot of things including it could mean - I mean, the payment of wages is compensation, the payment of overtime could be seen as compensation.

PN60

So there’s a lot of things that could come under the umbrella of compensation. Again we have this word of inconvenience. Now, on or reading that could catch the inconvenience of having to work extra hours, not in relation to the games and if one is talking about the lead up to the games and you could probably safely assume that probably across the government, virtually in every department, there’s been something extra done where someone’s had to stay back to get some little notice our or a brochure out or whatever an you’re potentially talking millions of documents. And an alarm bell rings when you see the words ‘related to’.

PN61

The use of the expression relating to means that if you find a relevant document, any document that’s part of that paper trail, it becomes relevant including, for example, if there’s a payment by way of overtime, it would become every little document that the payroll area, the pay slip, any change in the bank statement, potentially talking hours of search even to see if there is a document. You’d need to check through every nook and cranny.

PN62

THE DEPUTY PRESIDENT: Well, I think three examples have been given. What is it, the AFL and I can’t recall the other two.

PN63

MR BOURKE: Cricket Australia and the Reggio Calabria Club.

PN64

THE DEPUTY PRESIDENT: They’re perhaps a guidance to the sort of meaning that’s meant.

PN65

MR BOURKE: Well, if we could get some instructions on that and maybe come up with formal words, but in the position where we would reserve on the question of relevance upon seeing the submissions.

PN66

THE DEPUTY PRESIDENT: Yes, sure.

PN67

MR BOURKE: It might be appropriate have we have it briefly stood down and we could discuss a formulation of words or relation to .....

PN68

THE DEPUTY PRESIDENT: Look, perhaps I could make a suggestion. Sorry, thank you for the outline of your difficulties. Is there anything else you want to add by way of a general nature? I think I understand the objection you have.

PN69

MR BOURKE: Well, that was the general thing. It goes to the touchtone of certainty fails, the depression or oppression fails and there was one other thing and that’s putting aside this issue of relevance.

PN70

THE DEPUTY PRESIDENT: Of course.

PN71

MR BOURKE: But this would also catch any internal - the breadth of this would catch any internal discussions about issues of Commonwealth Games and possible compensation. Now, we’ve brought the cases, but there’s been a long approach of the Commission to say that are parties entitled in its own confidential environment to consider industrial relations issues and their approach to particular issue, such as a big ticket item like the Commonwealth Games and be entitled to have deliberations without the fear that they will subsequently be subpoenaed, the same way as a union can or an association can internally also discuss their tactics or procedures. Now, the breath of this would pick up those types of deliberations if and when they occurred.

PN72

THE DEPUTY PRESIDENT: I see.

PN73

MR BOURKE: And that troubles us.

PN74

THE DEPUTY PRESIDENT: Well look, it may well be that many of what you say, perhaps all, is not actually intended by the association. So thank you very much for that brief outline. Mr Kennedy, would my impression be correct, you’re not intending to gain details of the overtime paid to public servant X a year ago? Is that correct?

PN75

MR KENNEDY: That’s correct, your Honour.

PN76

THE DEPUTY PRESIDENT: No, I assumed it would be.

PN77

MR KENNEDY: And the invitation, where it was left on Friday, was with the discussions with Mt Stapleton who appeared for the state at that point of time. We outlined the examples of the sorts of issues that we were interested in and he was to get instructions and perhaps come back to us with an alternate set of words that might have been satisfactory to the state. Now, I’ve had no discussions with- - -

PN78

THE DEPUTY PRESIDENT: Well look, one way of dealing with it,
Mr Kennedy, is this. You’ve got a good and succinct outline of the problems as seen by the state of Victoria with your application. Now, the question is we could essentially stand this matter over until whenever it is, the date of hearing to have these matters argued more fully if necessary and you can reformulate your draft having regard to those objections or you could spend the next half hour, an hour, doing it with the state of Victoria an perhaps we could reconvene. How would you like to deal with this?

PN79

MR KENNEDY: Well, we’re quite happy to have further discussions today. It depends whether they have actually any instructions on the question or whether they’re purely instructed to resist.

PN80

MR BOURKE: Well, it’s not as if we’ve come with instruction, but we can have telephone contact with people hopefully.

PN81

THE DEPUTY PRESIDENT: Yes. Well look, it might be useful to adjourn for an hour and you can rally your mutual positions a bit more. At some stage I’d like to issue something perhaps if we’re going to have any actual documents to consider, to see if they are relevant, et cetera, at the date of hearing. But why don’t we do that? Would that be all right? Well adjourn until, say, quarter to four to allow you to both have discussions about the issue and in an endeavour to reach an agreed position. Would that be a constructive use of time or not? If it’s a waste of time I want to hear it. Yes?

PN82

MR BOURKE: Yes, I think it will be constructive.

PN83

THE DEPUTY PRESIDENT: All right. Well, I'll leave you on that basis and good luck.

<SHORT ADJOURNMENT [2.38PM]
<RESUMED [3.39PM]

PN84

THE DEPUTY PRESIDENT: Terrific. So, where did we get to?

PN85

MR KENNEDY: The parties have had discussions, your Honour, about the form of the summons the association has sought to have issued. At this stage we’ve reached agreement whereby the association seek to adjourn this application for leave to issue the summons to a date to be fixed. The association’s provided an alternative set of words in the state of Victoria which they have taken to consider and respond to the association by close of business on Friday whether we need to press the matter.

PN86

THE DEPUTY PRESIDENT: Close of business on?

PN87

MR KENNEDY: This Friday, your Honour. I suppose that has the advantage in also that they would have the association’s submissions in the matter as well by then.

PN88

THE DEPUTY PRESIDENT: Right. And the date of hearing on the matter is?

PN89

MR KENNEDY: 23rd, your Honour.

PN90

THE DEPUTY PRESIDENT: Yes, terrific. All right, that’s excellent. I’m happy to follow that course of action if that is in fact the agreement. Is that the agreement?

PN91

MR BOURKE: Yes. That’s correct.

PN92

THE DEPUTY PRESIDENT: Marvellous. All right. Well, I encourage the parties to have any discussions they need to have to agree the matter in full. Terrific. Thank you very much.

<ADJOURNED INDEFINITELY [3.41PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #POLICE ASSOCIATION 1 SUMMONS TO WITNESS TO THE STATE OF VICTORIA PN11