C2006/1862, Transcript of Proceedings [2006] AIRCTrans 555 (5 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14569-1

COMMISSIONER LARKIN

C2006/1862

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
AND
RAILCORP
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/1862)

SYDNEY

10.34AM, MONDAY, 20 MARCH 2006

PN1

MS L CARRUTHERS: I appear for the Rail, Tram and Bus Union and with me I have MR M FARHAT and MR P KESSEY.

PN2

MR A WOODS: I seek leave to appear on behalf of Rail Corporation and with me is MR G GREENHALGH and other witnesses MR T EID and
MR WINDSOR and a couple of other observers.

PN3

THE COMMISSIONER: Yes, thank you, Mr Woods. Ms Carruthers, do you have a view in relation to Mr Woods application for leave to appear?

PN4

MS CARRUTHERS: No, I oppose the application, Commissioner. Commissioner, this is a matter that derives from the application of a dispute settling procedure contained within a certified agreement. The matters that are before this Commission are to determine matters which in the substance of the dispute settlement procedure itself, and I might just take the Commission to that particular section of the dispute settlement procedure. It's clause 8 and it appears at 8.2 and step 6, Commissioner. In proceedings of this nature the matters that the Australian Industrial Relations Commission is empowered to actually deal with are limited to disputes that involve the interpretation, application or process of implementation of a term or terms of this agreement.

PN5

Commissioner, it's my submission in opposing that leave be granted to Mr Woods that these proceedings are not arbitral proceedings, if I can put it this way, that will be traversing the length and breadth of either the Act itself or complex matters of labour law. These are matters which will be determined by yourself based on the knowledge of the parties to the running and operation of the enterprises that are covered by this agreement. It will go to knowledge of the agreement itself and knowledge of the situations to which the agreement applies. Commissioner, in our submission the introduction of counsel to proceedings of this nature renders almost useless - I will withdraw that - introduces unnecessary complexity into a provision in the agreement which is designed by the parties to reduce complexity and to enable fast and effective determinations to be made in relation to disputes that arise from the agreement.

PN6

Commissioner, in our submission the introduction of counsel into every proceedings that may arise on the application that may arise from disputes involving the application, interpretation or implementation of this agreement necessarily introduces unnecessarily complexity, length, expense and inefficiency into detailing with disputes in the organisations that this agreement covers, if it pleases the Commission.

PN7

THE COMMISSIONER: Thank you, Ms Carruthers. Mr Woods.

PN8

MR WOODS: Commissioner, there's a number of reasons why it's submitted that I should be given leave. First of all the other person who would be in a position to do anything to assist is a key witness in these proceedings, Mr Greenhalgh and in a position where he is a key witness. It's inappropriate that he be forced or called upon to be an advocate on behalf of Rail Corp. We note that Mr Kessey is a key witness for the RTBU and that the RTBU has gone to separate representation.
Ms Carruthers talks about a question of somehow my introduction introduces complexity. A key point in these proceedings is the interrelationship between the 2002 enterprise agreement for State Rail and the current agreement.

PN9

The fact that the interrelationship is complex is something that this Commission has seen when the current agreement was certified and the complexity is just there. It's not a matter of introducing complexity. These proceedings involve an arbitration in accordance with step 6. That arbitration requires consideration of the inconsistency rules and how these proceedings are to be interpreted. I believe that this is the first time that a dispute has come before this Commission under the 05 agreement where the question of the interrelationship of the prior and current agreement and the impact of clause 9.2 which incorporates prior agreements into this agreement has been dealt with.

PN10

That of itself is a complex issue without introduction of anybody and I would hope that I would assist the Commission in trying to interpret how that complexity should be implemented. The questions of the running and operation of the agreement which is relied upon, yes, it is a question of how some parts of the agreement operate but it has to be looked at in consideration of that backdrop of how all the agreements fit together. There are a number of issues that have been brought in these proceedings in the way that they've been wrapped together.

PN11

The question of ultimately deciding that inconsistency point, while in the submissions which I have prepared and presented to the Commission doesn't go back to cite any of the High Court authority, the questions of the test for inconsistency I haven't cited because on the basis that I think they are those two broad principles well known and looking at the agreements it comes back to how that is implemented. So Commissioner, I would submit that it's not inappropriate in this case for leave to be granted.

PN12

THE COMMISSIONER: Ms Carruthers.

PN13

MS CARRUTHERS: Thank you, Commissioner. Commissioner, let me deal first with the issue of Mr Greenhalgh and his normal role and the fact that he's a chief witness. Without going to the invidious calling of names, Rail Corp is a large organisation with many experienced industrial operatives, industrial officers, industrial advisers there who could perform the role for Mr Mackie that my friend, Mr Woods, is now seeing to perform. Commissioner, my friend raises the issue about the nature of the arbitration and that it involves matters going to the relationship between this agreement and other agreements.

PN14

Well, this certified agreement is not unique in that respect; it's the first thing I would say. All certified agreements have a history behind them or the vast majority of other agreements that they replace. The matter going to the inconsistency between the previous agreements is a matter that has to be tested by evidence. It's not been established that there is any inconsistency here in the way asserted by my friend and that's one of the issues that we're going to be dealing with here and it is quite appropriate that a representative of the parties to the agreement actually deal with those issues. In my submission counsel is not required actually to deal with that and I will just say here that while it is the first time that this provision of the agreement comes before this Commission it is not unique in that sense.

PN15

These provisions are common agreements all over the country and indeed it's been common for years that the direct parties to either an award or an agreement can deal with disputes of this kind directly without the intervention of counsel. Counsel being introduced into these proceedings in our submission is seeking to not only develop a level of complexity which I don't think, in our submission, is not necessary, but it in fact is directly contrary to the intent of the parties when this agreement was reached and when the dispute settling procedure, which was one of the matters that was quickly settled may I say in the negotiations was agreed upon, precisely to ensure that the level of complexity be reduced in dealing with these issues and it's our submission that it is entirely contrary to the intention of the parties in coming to this dispute settling procedure to have counsel deal with what are in effect workplace disputes. If it please the Commission.

PN16

THE COMMISSIONER: If I uphold your objection, Ms Carruthers, then I presume I would have to entertain an application for an adjournment.
Mr Greenhalgh's point is a reasonably telling point but of course your argument against of course is quite correct. Rail Corp is a very large organisation with some very expert industrial relations people.

PN17

MS CARRUTHERS: Commissioner, quite clearly we would have no objection to any application to adjourn these proceedings until some suitable assistance from that large organisation is found for Mr Greenhalgh.

PN18

THE COMMISSIONER: Mr Woods, I have been persuaded to decline leave to appear. As the parties very well know, you're all experienced in this Commission over many years. Counsel or agent must seek leave. There is no right to appear and I take on board your issue in relation to the interdependence of other agreements and their relationship with the 2005 and I think that is an issue and I do think it is a complex issue as well. However, Ms Carruthers is an employee of the RTBU and she is experienced as are a number of officials of the RTBU and within Rail Corp there are very experienced industrial relations and human resource management within that organisation.

PN19

While notwithstanding the fact the issues may be complex, and I take your point that this is the first time the 2005 agreement has been before the Commission in relation to a dispute over the application of that agreement where we are looking at other agreements and how that relationship will pan out not only in this application but possibly others in the future, I don't take light of it. I don't think it's a simple exercise, however I have considered what has been put and I will decline your application for leave. However, if you seek and I think that is possibly appropriate, or if Mr Greenhalgh now seeks to address me on an application for adjournment, then I will hear from Mr Greenhalgh.

PN20

MR GREENHALGH: Yes, Commissioner, I do seek application for an adjournment of today's proceedings. I'm not in a position to run the case and also act in the position of a witness for this Commission. I would need time, obviously, to instruct other industrial practitioners within the organisation and make a decision as to who will run the case before this Commission.

PN21

THE COMMISSIONER: Yes. We will adjourn until these proceedings, however my associate will retrieve my diary for me as I didn't think I would have a need to refer to it this morning, and we will go into conference and we will have to look at available dates, which may not be an easy matter at the moment. However, having said that your application for an adjournment is not opposed so this matter is now adjourned to a date to be set, thank you.

<ADJOURNED ACCORDINGLY [10.49AM]