C2006/2085, Transcript of Proceedings [2006] AIRCTrans 376 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14391-1

COMMISSIONER DANGERFIELD

C2006/2085

ASC PTY LIMITED
AND
THE AUSTRALIAN WORKERS’ UNION
s.166A - Restriction on certain actions in tort
(C2006/2085)

ADELAIDE

2.02PM, THURSDAY, 02 MARCH 2006

Adjourned sine die

PN1

MR M DAVIS: I seek leave to appear on behalf of ASC Pty Ltd and with
me MR ARCHER and MS PARK from ASC Pty Ltd.

PN2

MR J BRAITHWAITE: I appear on behalf of the Australian Workers Union with MR J HANSON.

PN3

THE COMMISSIONER: Leave granted, Mr Davis.

PN4

MR BRAITHWAITE: Commissioner, may I just indicate our opposition to the intervention of counsel under 42(3). The AWU is not represented by counsel. Notification of this matter was late yesterday afternoon and I was overseas, Kangaroo Island all day and didn't get back till late. I've been down at the Submarine Corporation most of the morning and haven't had an opportunity to brief counsel. It's my view that counsel shouldn't be admitted on the basis that there is no industrial action threatened, probable or pending in relation to this matter.

PN5

THE COMMISSIONER: Mr Braithwaite, under 42(3)(b) leave can be granted by the Commission if the Commission is satisfied that having regard to the subject-matter of the proceeding there are special circumstances that make it desirable that the parties may be so represented. I have to say a 166A application doesn't happen every day and in the circumstances I think, given the nature of the proceeding, I intend to grant leave on this occasion. We'll see where the proceedings lead to but for the time being anyway I'll grant leave.

PN6

MR DAVIS: Thank you.

PN7

MR BRAITHWAITE: The AWU, sir, would request adjournment if in fact the AWU requires counsel.

PN8

THE COMMISSIONER: Yes. We'll see what Mr Davis has to say.

PN9

MR DAVIS: Thank you, your Honour. Hopefully that won't be necessary, given one very important matter. I am instructed that the conduct, the subject of the notification, has ceased and I understand that, as a consequence of discussions held between Mr Archer, representing ASC Pty Ltd, and officials of the AWU, the claim which is at the heart of the industrial action which occurred has also been withdrawn. Your Honour, that probably takes some of the heat out of the matter and some of the urgency out of it.

PN10

Nevertheless, given the terms of section 166A(6) and (7), your Honour, they are the provisions of the Act which deal with the relation back of previous related conduct for the purposes of calculating the 72 hour period. We think it appropriate to get on the record what we say has occurred to date. Again, we think that's uncontroversial but we're not seeking to move forward beyond recording what we say has been the conduct. Should we have to come here, now, of course, that will give the union an opportunity to challenge the material put forward.

PN11

What I would like to do, your Honour, is to start off by tendering an affidavit of Ms ..... Park. It's an affidavit sworn only a short time ago, which contains what we say are the relevant facts supporting the issue of the notice. If I could hand up a copy. I've supplied a copy to my friend just a short time ago. He probably hasn't had much of a chance to digest it. It looks intimidating, but the attachment is the industrial instrument that we rely upon, your Honour.

PN12

THE COMMISSIONER: Do you want to take me through this?

PN13

MR DAVIS: Yes, your Honour. ASC Pty Ltd, was formerly known as the Australian Submarine Corporation Pty Ltd. It has an industrial instrument in place which is indeed an instrument, I think, which your Honour certified back in 2003. It's known as the Australian Submarine Corporation Automotive Food Metals Engineering Printing and Kindred Industry Union and the Australian Workers Union and the CEPU Enterprise Bargaining Agreement 2003-2006. Relatively, the nominal term of that agreement does not expire until 10 June 2006.
This is, of course, referred to in the affidavit of Ms Park.

PN14

There is a no extra claims clause 8 of the agreement which is in these terms and I won't read the entirety but:

PN15

All parties to this agreement undertake that during the period of operation of this agreement there shall be no further wage increases or claims sought.

PN16

It's not an unusual clause at all but relatively we say the certified agreement which is current does not provide for any claims to be made or advanced.

PN17

What occurred in this instance is, I'm instructed, that at approximately 12.55 yesterday, a group of persons who had their terms and conditions prescribed by this instrument, absented themselves from work without authority on the basis that they were removing themselves from the premises and ceasing to work because they wished to advance a claim for what was described as a grinding allowance of $2.56 per hour. Those workers, I understand, returned to work today at 10 am and so the interruption to work has ceased.

PN18

The sequence of events following the cessation of work was that we caused to be forwarded to the union on behalf - - -

PN19

THE COMMISSIONER: How many employees, Mr Davis, were involved?

PN20

MR DAVIS: Approximately 40, your Honour. ASC, as might be known to the Commission, just as a matter of public record, has one client, the Commonwealth government and the Defence Department and ultimately the end user of the product, the Australian Navy. Pursuant to various contracts which it has, it has schedules which must be maintained and some of those contracts indeed incorporate incentive provisions to encourage performance to schedules and work requirements under the terms of those contracts.

PN21

We say that conduct of this kind would, absent the restraint imposed upon my client under section 166A, entitle our client to institute proceedings against the AWU or an action in tort to recover damage sustained. The damage, of course, depending upon the extent of the industrial action, could be very substantial. Many millions of dollars are at risk with incentive payments.

PN22

As I was taking your Honour to the sequence of events that occurred after the work ceased, we caused to be sent on behalf of our client a letter to Mr Shorten, the national secretary of the AWU, serving upon him, as we are required pursuant to the rules, a copy of the notice which we proposed to file in the Commission. Your Honour, just for the record, can I hand up a copy of the letter that was forwarded to the union.

PN23

THE COMMISSIONER: Yes.

EXHIBIT # ASC1 AFFIDAVIT WITH ATTACHMENT OF
MS PARK
EXHIBIT #ASC2 LETTER DATED 01/02/2006

PN24

THE COMMISSIONER: I might just indicate, Mr Braithwaite, given what Mr Davis has indicated, the material in ASU1, as I understand, he's just putting it on record for now. It's untested and I don't draw any findings of fact or any implications from it. You understand, Mr Braithwaite, that we're just sort of getting it on the record and as my associate just points out, it should not be ASU, it's ASC1 and ASC2. We're going through a busy time at the moment. We had the ASU this morning. So this is ASC1 and ASC2. Yes, thank you.

PN25

MR DAVIS: Once was that was served, your Honour, again, according to the rules, a notice was forwarded to the Registry of this Commission and your Honour would have a copy on the file no doubt of the letter from our office to the
Registrar. If not I have a copy which I can hand up.

PN26

THE COMMISSIONER: Yes, I might as well take it in. That's the - - -

PN27

MR DAVIS: That's the notification.

PN28

THE COMMISSIONER: - - - actual notification to the Deputy Registrar and the form itself.

EXHIBIT #ASC3 NOTIFICATION

PN29

MR DAVIS: Your Honour, just for completeness, if I could perhaps take you to the notice itself which has been filed in the Commission. It's one in accordance with the required form, we would submit, and it foreshadows a request to this Commission to involve itself in the inquiry contemplated by section 166A in respect of certain action our client would want to take in a common law court in relation to certain tortious conduct against the AWU arising from the matters which I've outlined to your Honour.

PN30

I think it is only appropriate that I concede that there's little that we can ask your Honour to do, given the facts as they stand now and in particular I note that the section contemplates that indeed the conduct may cease before the 72 hours expires and that is the fact here. At least any threat of future industrial action in relation to this matter, in light of the discussion which has occurred since, would have been withdrawn and the claim at the heart of the conduct has also been withdrawn.

PN31

As I indicated earlier, the purpose of putting this on the record is to record what has transpired and to take advantage, if needs be, of the provisions of
section 166A(7). Your Honour, depending upon what falls from my friend, our application today would simply be that these proceedings be adjourned.

PN32

THE COMMISSIONER: Understand. Thanks for that. Mr Braithwaite, do you want to make any comment, given those submissions?

PN33

MR BRAITHWAITE: I only want to make a preliminary comment, sir. We would be seeking the Commission to actually dismiss this application and move on. I say that on the basis that the application states that - which is ASC3 I think by memory:

PN34

The Australian Workers Union of 685 Spencer Street, West Melbourne, Victoria, in respect of conduct by the AWU ...(reads)... including breaches of contracts -

PN35

et cetera. Going through the rest of it there are allegations that the AWU conducted and interfered with the employment contracts. The AWU would contend they haven't interfered with the contracts of employment between the employer and its employees and we'll be seeking to have this matter relisted on the basis of affidavits from both myself and from delegates in relation to this matter on the application. I would submit that ASC have also indicated that the delegates advised members of the need for further discussion, so we'll be seeking that this application be dismissed and that we be given an opportunity to engage counsel to prepare the necessary documentation for that to occur.

PN36

THE COMMISSIONER: For the application to be dismissed?

PN37

MR BRAITHWAITE: Yes, sir.

PN38

THE COMMISSIONER: You understand the point of adjourning, given subsection (7)?

PN39

MR BRAITHWAITE: I do, sir, and that's the reason why we'll be seeking for this matter to be listed at another time for the purpose of having the application dismissed on the basis that the company is seeking to hold over the application should actions occur in the future. Therefore it needs to be, in my opinion, dealt with by the AWU and I seek time to seek instructions from my secretary and counsel.

PN40

THE COMMISSIONER: Thanks. Mr Davis, there's a couple of middle course possibilities here. I suppose it could be adjourned for a short period of time, seven days or something like that, in which case if there is no further action within that, the file could then be closed. I'm just putting forward as a possibility. The other one, I suppose, is if the file is closed or dismissed - I suppose there's a significant difference in those words - but if it is, a matter can always be reopened by the Commission and perhaps that would be - in most of these things, if action does occur after a 72 hour period, it occurs again, would that be how these things are sometimes handled, the matter would be reopened?

PN41

MR DAVIS: Yes, your Honour. I don't think and I don't want to be heard to be putting to you that it is essential for the file to be opened for the purposes of section 166A(7). It doesn't. It's a matter of submission at the time the conduct occurs again, whether or not it is conduct that should be relied upon for the purposes of the - I suppose the accumulation of time for that section. The fact that a file has been closed is, we would say ..... but - - -

PN42

THE COMMISSIONER: If the application were dismissed or closed or the file closed today and some other action did occur in the next seven days or something or other like that, you would what, file a new application but rely on the material before the Commission in this application that's been - - -

PN43

MR DAVIS: Indeed, and the only reason why I would encourage the Commission not to do that is simply because of the administrative difficulties associated with that. I think if your Honour is minded to conclude these proceedings in some formal way, it would not be for some reasonable period to see how things unfold over the next little period, and I would have thought, your Honour, something of the order of a couple of months. In light of what has fallen from my friend, indeed, if he is to make some application about or agitate some different version of events before this Commission, he needs these proceedings on foot. There's no other way of agitating that.

PN44

THE COMMISSIONER: That's why the AWU is seeking, I think, that this matter be dismissed and then they wouldn't have to take those further proceedings. That's what Mr Braithwaite is saying. From my point of view, gentlemen, I'm after administrative convenience as well and what I certainly want to avoid - it's clear from both parties that the matter has, for the time being and possibly for all time, but at least for the time being, for the foreseeable future, the matter has been resolved and no further action is required by the Commission. That is clear. We're simply down to a question of whether it is more convenient to adjourn the proceedings sine die or adjourn them for a particular period or to dismiss them or to otherwise close the file or dispose of the file.

PN45

From my point of view, I don't particularly care what we do but I don't particularly want to have to come back here either, putting the AWU to a position of having to call evidence and so on to counteract what's here if we're just going through a process. I want it to be a meaningful process.

PN46

MR DAVIS: I suppose, your Honour, if you're inclined to entertain a dismissal of these proceedings now without providing some measure of comfort to our client about these proceedings, I would have to formally read the affidavit so that there is no doubt that that material is on the record.

PN47

THE COMMISSIONER: Dismissal of the application does seem a bit strange. I don't know that I've got enough material in front of me to actually dismiss the application.

PN48

MR DAVIS: We certainly wouldn't - - -

PN49

THE COMMISSIONER: That's the difficulty, I think, Mr Braithwaite.

PN50

MR BRAITHWAITE: I can only say, sir, that we would seek an adjournment so the affidavits can be filed to reject what's stated in ASC3, on the basis that we do not accept that the AWU has undertaken any conduct in contravention of the Act.

PN51

THE COMMISSIONER: I understand how you don't want this hanging over your head. I understand that, but from a practical point of view, is it really necessary? That's something you need to consider.

PN52

MR BRAITHWAITE: In my view the ASC are relying on this application to stand indefinitely on the basis that if there is another incident, the company rely and believe that they have sustained their submission in relation to this application. We don't accept that and we challenge it now rather than let it hang.

PN53

THE COMMISSIONER: All the company would be doing, as I understand it, Mr Davis, if there was a recurrence of this in the future, you would simply be saying, "Look, we refer to the material, in particular the affidavit that was before the Commission on today's date," and they would then no doubt seek to call Ms Park and the matter would take up from there.

PN54

As I said, I accept the material before me today. It has just been lodged in front of me today, but I'm making no findings of fact, I'm making no implications from any of the material, it's just simply material that has been lodged with the Commission on this file today and that's its only purpose.

PN55

MR BRAITHWAITE: We want our ..... put on there as well, sir, so this matter is cleared up and dealt with on the basis that it isn't going to be used in the future, whereby we would then have to put evidence where people's memories have lapsed and so forth. The 166 application in our view has no merit.

PN56

MR DAVIS: In relation to that, your Honour, I think the position that you put would be something that we would be content to accept as the position. We're not asking you to move on the application. We do want our version of events recorded and we make it clear that if there is a recurrence, we'll be making an application in relation to 166A(7) but that would be unsurprising.

PN57

Your Honour, can I just turn up a case that might assist my friend when he ultimately seeks further advice about the sorts of matters that are relevant for this Commission to consider in such matters. Our respectful submission is, and I take your Honour - the case I've just handed up is a decision of the Full Bench of this Commission, Construction Forestry Mining and Energy Union and Coal and Allied Operations Pty Ltd, 30 September 1997. It's a case that we rely on for this purpose, your Honour, if you turn to page 146 it's the number on the top left-hand corner of the page, that's a useful summary, an accurate summary, we would say, of the matters which the Commission needs to turn itself to on the exercise of jurisdiction under section 166A. It's not, we respectfully submit a matter that is for this tribunal to determine whether or not a case might ultimately be made out properly - - -

PN58

THE COMMISSIONER: Yes, I understand.

PN59

MR DAVIS: - - - before a common law court and so we don't advance the materials, the evidence that we would ultimately like to read in relation to Ms Park to prove tortious conduct, but rather that an arguable case exists, for want of a better word, if we were to advance it. As we stand, your Honour, if the union honours its representations to my client about future conduct, that's not going to happen.

PN60

THE COMMISSIONER: You're still saying simply adjourn the matter sine die at this point?

PN61

MR DAVIS: Yes, your Honour.

PN62

THE COMMISSIONER: Perhaps are you suggesting that Mr Braithwaite and the union consider that in any future action they may wish to take?

PN63

MR DAVIS: Indeed.

PN64

THE COMMISSIONER: The difficulty I have, Mr Braithwaite, is that I don't think I have enough material in front of me today, given what Mr Davis has put to me, I don't have enough material to dismiss the application. He seeks the application simply be adjourned with no further action from the Commission, hopefully for all time, but he just seeks the matter be adjourned sine die. I understand where you're coming from but I don't think I have enough information on the basis of your submission simply to say, "Look, I'll dismiss the application." I think I have to simply adjourn it sine die.

PN65

MR BRAITHWAITE: I don't have a difficulty, sir, with the matter being adjourned, but I respectfully request the right of the AWU to submit evidence to the Commission to have this matter dismissed on the basis of the application that is before it, is not true and factual.

PN66

THE COMMISSIONER: You understand the point that Mr Davis is making that it is not for the Commission to determine what the prospects might be of any action taken before another court?

PN67

MR BRAITHWAITE: I accept that and it may be the AWU's position that it doesn't come back with the opportunity to have this matter dealt with and dismissed. It may seek to, on advice of counsel, not to proceed down that path but we reserve the right to put those matters on record for historical purposes.

PN68

THE COMMISSIONER: I understand where you're coming from. I think given that we will simply adjourn the matter. It can be adjourned sine die. I await further advice from either of the parties in regard to further disposition of the file.

PN69

MR BRAITHWAITE: Can the transcript be provided, sir?

PN70

THE COMMISSIONER: That will certainly be provided. Nothing further? Then this Commission stands adjourned.

<ADJOURNED INDEFINITELY [2.28PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT # ASC1 AFFIDAVIT WITH ATTACHMENT OF
MS PARK PN23
EXHIBIT #ASC2 LETTER DATED 01/02/2006 PN23
EXHIBIT #ASC3 NOTIFICATION PN28