C2006/2497, Transcript of Proceedings [2006] AIRCTrans 700 (4 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14888-1

JUSTICE GIUDICE, PRESIDENT

C2006/2497

APPEAL BY TRANSPORT WORKERS’ UNION OF AUSTRALIA
s.120 - Appeal to Full Bench
(C2006/2497)

MELBOURNE

10.59AM, FRIDAY, 21 APRIL 2006

PN1

MR W FRIEND: I seek leave to appear on behalf of the Transport Workers’ Union of Australia.

PN2

MS H MCKENZIE: I seek leave to appear on behalf of TNT Australia with
MR B MACKENZIE. I’m sorry. Yes, I do appear for both respondents.

PN3

JUSTICE GIUDICE: Yes. Well, leave is granted in each case. Any discussions about this application?

PN4

MR FRIEND: No, your Honour.

PN5

JUSTICE GIUDICE: The application’s opposed I take it?

PN6

MS MCKENZIE: It is, your Honour.

PN7

JUSTICE GIUDICE: Very well. Thanks, Mr Friend.

PN8

MR FRIEND: Your Honour will appreciate that the application is in respect only of the application of the order to the TWUA.

PN9

JUSTICE GIUDICE: Yes and I should mention that there’s a letter from the Transport Workers’ Union of New South Wales indicating they don’t wish to be involved in the proceedings. I don’t know whether you’ve received that,
Ms McKenzie?

PN10

MR FRIEND: We obviously were copied into it, your Honour. I’ve shown
Ms McKenzie a copy this morning that was given to me. Also, your Honour, late yesterday we faxed an unsworn affidavit to your Honour’s chambers of
Mr Duffin.

PN11

JUSTICE GIUDICE: Yes.

PN12

MR FRIEND: It’s obviously unusual to go into evidence on a stay application, but there were good reasons on this occasion, your Honour, the main one being that we weren’t present when the matter was heard. The TWUA wasn’t there, wasn’t in a position to make submissions or give evidence and there are factual matters that we seek to rely on going to the validity of the order that’s appealed against.

PN13

JUSTICE GIUDICE: Well, is there an executed or a sworn - - -

PN14

MR FRIEND: Yes. I have a copy of that together with the exhibit sworn. This is the original. We can make available a copy in addition if that’s agreeable.

PN15

JUSTICE GIUDICE: Yes. Is it in the same form as the draft?

PN16

MR FRIEND: There is a change, your Honour, to paragraph 16 of the draft and these are typographical changes. Paragraph 16 of the draft the word “roll” was misspelt. Roll instead of role. And some words somehow in the word processing got interpolated at the end, activities of the TWU NSW, but there’s no change in substance.

PN17

JUSTICE GIUDICE: Thank you. Well, perhaps I should mark that. I'll mark the affidavit, subject to anything you say Ms McKenzie. Yes?

PN18

MS MCKENZIE: I was going to say, your Honour, that we received a draft of the affidavit unsworn at about 5 pm last night. We haven’t seen the attachments until now and it’s not clear the basis upon which it’s put forward as evidence in the stay application. It appears to be going to material which perhaps the Transport Workers’ Union may have submitted to Hamberger SDP had they been there, but it doesn’t seem to go directly to the grounds of appeal and the grounds of appeal raise only the assertion that there was a failure of natural justice and a failure of the Transport Workers Union to be given an opportunity to be heard in relation to the application and accordingly the order shouldn’t have been made.

PN19

The material in the affidavit seems to not directly, if at all, deal with those matters so we’re not sure on what basis it’s being put forward as evidence.

PN20

MR FRIEND: The first thing I should say, your Honour, is the appeal notice goes further than that. If one turns to it, paragraph 4, this might not have been expressed, is the Senior Deputy President erred by making orders against the TWUA in the absence of any evidence that the TWUA was a party to them orders pursuant to section 496 of the Act should be issued. The point is, your Honour, that we will say in the appeal, and we want to put some evidence to show that we have an arguable case at this stage of proceedings, that the TWUA just has nothing to do with this dispute or the conduct of it and therefore there was no jurisdiction.

PN21

JUSTICE GIUDICE: So this is really in supporting a positive case in relation to that ground which is really expressed in the - - -

PN22

MR FRIEND: It supports that, your Honour, and also we wanted to meet the possible argument that if there was a denial of natural justice you’d need to show that you would have had something to say in any event. You just can’t come along and say well, we weren’t heard. You’ve got to say we had something to say.

PN23

JUSTICE GIUDICE: Yes, that would have altered the situation.

PN24

MR FRIEND: Yes.

PN25

JUSTICE GIUDICE: Or might.

PN26

MR FRIEND: The ..... the High Court migration cases. So it goes to that. I should say that Mr Duffin’s here and available for cross examination. The exhibits are matters that were all well known to the parties at the time of the hearing. I don’t think there’s any issue about that. In relation to the time, well if one looks at the 496 application, that was served a couple of hours before the term disposed of I think. They had a lot more time to deal with it than any of the parties that were before Hamberger DP[sic]. So we would seek to tender it, your Honour. As I say Mr Duffin’s here if he wants to cross examine him.

PN27

JUSTICE GIUDICE: Yes. Anything else, Ms McKenzie?

PN28

MS MCKENZIE: No.

PN29

JUSTICE GIUDICE: Look, I will admit this material. In doing so it’s only for the purpose of this hearing or for the stay application. Obviously it will be a matter for the Full Bench in due course whether it wants to admit the evidence.

EXHIBIT #TWUA1 AFFIDAVIT OF LINTON DUFFIN

PN30

MR FRIEND: Thank you, your Honour. Could I also hand up your Honour an outline of submissions which I’ve prepared.

PN31

JUSTICE GIUDICE: Can I ask you, Mr Friend, and you may not know the answer to this. The industrial action which was conceded to be occurring at the time, did that cease as a result of the order?

PN32

MR FRIEND: My instructions are it has ceased, yes.

PN33

JUSTICE GIUDICE: Yes.

PN34

MR FRIEND: I don’t know if it was as a result of the order. I think what was indicated in the transcript was that they needed a little time to make sure everything stopped, but as I understand it it ceased. Ms McKenzie may know more about that obviously.

PN35

JUSTICE GIUDICE: All right. Well, I’ve read those submissions.

PN36

MR FRIEND: Thank you, your Honour. The first two paragraphs are fairly straight forward and one wouldn’t mention there to be any issue about them, your Honour, on the basis of the way the matter was conducted below. The level of distinction between the two organisations is an important matter.

PN37

JUSTICE GIUDICE: Well, they’re different legal entities, aren’t they?

PN38

MR FRIEND: Well, they are, your Honour. Not only are they different legal entities, but they’re different in a number of ways. They have different finances, there are different memberships, the TWU NSW can enrol as its members people in the textile, clothing and footwear trade, boot makers.

PN39

JUSTICE GIUDICE: Are they still in the double sided car?

PN40

MR FRIEND: I don’t know, your Honour. There are provisions which in the TWU New South Wales rules which say that a member who is also a member of the TWUA, the TWU NSW has to pay a fee to the TWUA. But people might be members of both organisations, but it doesn’t mean that they cease to exist differently and independently. And what’s more to the point, your Honour, in this case the TWU NSW has the conduct of this type of industrial matter within New South Wales and it had the conduct of this industrial matter in New South Wales and there doesn’t seem to be any evidence or any suggestion that the TWU had anything to do with it.

PN41

Mr Duffin’s affidavit goes to a number of those things. The rules of the federal body are exhibit A, the New South Wales body are exhibit B and the conduct of industrial matters in New South Wales and the rest of Australia is dealt with in paragraphs 9 to 16. If your Honour were to turn to the rules of the TWU NSW, which is exhibit B, you will see that on page 5 under the objects of the union, industrial organisation of all transport, textile, clothing and footwear workers into one union. It’s clearly a much broader group than in the TWUA. Rule 10 on page 14 is the rule I referred to a little moment ago saying that there was in effect a transfer of some of the membership fees to the TWUA if there was joint membership.

PN42

In the third line you’ll see there, your Honour, who is also a member of the TWUA. The what we would call in the federal jurisdiction the eligibility rule, rule 5, is called here qualification for membership. We have transport industries and then in 5.2 mills or factories in New South Wales, woollen, worsted, wool tops, wool scouring, et cetera, felt having in 5.2.2, manufacturing and repairing boots at 5.2.3. Then in 5.3 making repairing the whole or any part of any male or female garment, dying and cleaning. So, your Honour, it’s not just in a notional sense or a technical sense that these organisations are different. They are real and distinct bodies in a practical sense as well.

PN43

JUSTICE GIUDICE: Is the TWU in New South Wales amalgamated with those other unions in New South Wales.

PN44

MR FRIEND: I think it did. Well, from my reading, your Honour, of the
rules - - -

PN45

JUSTICE GIUDICE: It looks like it.

PN46

MR FRIEND: It indicates that the textile clothing division sub-branch, I think it’s called, control it’s own funds. So that suggests an amalgamation. Your Honour is no doubt familiar with Moore v Doyle. I'll just hand up a head note, your Honour. I’ve got the full copy of the case here if it’s any assistance. But that’s found at [1969] CthArbRp 285; 1969 15 FLR 59 and that it did have the Full Court of the Industrial Court in respect of these two very organisations said they were separate and distinct.

PN47

JUSTICE GIUDICE: I don’t think that decision’s ever been doubted, has it? It’s just a question of what you do about it, if you reconcile the - - -

PN48

MR FRIEND: Yes, well I remember being a law student and not being able to understand it, your Honour. It’s probably my thought process has probably got more competent in a sense it seems to make some sense now. That’s the position. I mean, it doesn’t get us, your Honour, all the way to say that they’re separate organisations. We’ve got to show as a matter of evidence that the TWUA isn’t involved in this industrial action if that’s the point.

PN49

JUSTICE GIUDICE: Were you coming back to paragraphs 9 and 10 of your outline?

PN50

MR FRIEND: I haven’t got up to that yet.

PN51

JUSTICE GIUDICE: I see.

PN52

MR FRIEND: I'll deal with it in due course. Yes. I want to take your Honour through what happened before the Commission below.

PN53

JUSTICE GIUDICE: Yes. Well look, I’ve had a look at the transcript and I’ve read the submissions and at the moment I only really have one question which is in relation to paragraph 9 where you referred to a conditional application to amend the application.

PN54

MR FRIEND: Yes, your Honour.

PN55

JUSTICE GIUDICE: Are you talking about the transcript there?

PN56

MR FRIEND: Yes.

PN57

JUSTICE GIUDICE: Yes.

PN58

MR FRIEND: If your Honour turns to - unfortunately the transcript isn’t numbered.

PN59

JUSTICE GIUDICE: Yes, I’ve read that. I wasn’t sure whether you were referring to some other conditional application.

PN60

MR FRIEND: Yes. Mr Brotherson’s - well, we think we’re right, but your Honour - - -

PN61

JUSTICE GIUDICE: Should I look at that again?

PN62

MR FRIEND: Well, perhaps that would be useful, your Honour. Can I point out to save time without taking your Honour through it all, what’s apparent through the course of the proceedings the applicants are saying it’s the TWU NSW and the argument was about whether or not an order could be made against that body. I would have thought that was not a particularly difficult argument. It’s a legal person and orders can be made against legal persons. Then about five pages - - -

PN63

JUSTICE GIUDICE: This transcript doesn’t seem to have the paragraphs.

PN64

MR FRIEND: It doesn’t have anything, your Honour. Five pages from the end, six pages from the end.

PN65

JUSTICE GIUDICE: It’s got paragraph 1. Do you have paragraph numbers,
Ms McKenzie?

PN66

MS MCKENZIE: I have a separate copy that has paragraphs, your Honour. The copy that we were provided in the appeal book doesn’t, but we got our copy separately which does.

PN67

JUSTICE GIUDICE: Yes.

PN68

MR FRIEND: Your Honour doesn’t have paragraphs anyway.

PN69

JUSTICE GIUDICE: No. Yes, how many pages from the end?

PN70

MR FRIEND: Six.

PN71

JUSTICE GIUDICE: How does the relevant paragraph start?

PN72

MR FRIEND: The bottom, the last paragraph:

PN73

And we would say that that argument just can hold true.

PN74

JUSTICE GIUDICE: This is Mr Brotherson for the applicant?

PN75

MR FRIEND: Applicants.

PN76

JUSTICE GIUDICE: Applicants, yes.

PN77

MR FRIEND:

PN78

..... disingenuous of the union to suggest that by - in some way trying to argue that its not a state branch of a federal body, or in other words, or in other ways it has not otherwise sought its own transitional registration it could obtain some amenity.

PN79

We say that just can’t occur and in context what he’s saying there, your Honour, is you can’t hide the fact that it hasn’t sought the transitional registration to say that no order could be made against it. It goes on:

PN80

If the Commission was at all concerned about that then we would seek to amend the application in 2(a) to say that the party there should be the Transport Workers Union of New South Wales together with the Transport Workers Union of Australia and then the definition changing together the TWU.

PN81

We don’t submit, your Honour, that that’s the necessary amendment. We would say that the proposed order as set out is valid. But we would put it there for your Honour’s consideration if you were at all minded to be influenced by the submission of Mr Kaine. And the submission of Mr Kaine was that you couldn’t make an order against the TWU NSW because it wasn’t a person in the relevant sense. It wasn’t an organisation rather in the relevant sense because it wasn’t federally registered. The answer to that was that he asked that Mr Brotherson may as a person.

PN82

Employees obviously, your Honour, aren’t organisations. Then if your Honour goes through to the fourth last page the Senior Deputy President gives reasons for decision on transcript and these are a little more illuminating than the published reasons. He says he’ll give a decision straight away and then goes through some of the statutory matters. On the top of the next page he says well, it’s quite clear and conceded by the union that there is industrial action occurring and it seems quite clear to the Commission that if no order is issued industrial action will continue.

PN83

The next paragraph he deals with the argument that had been made about the organisation and finishes on the last line:

PN84

..... I do propose that the order be made against the Transport Workers Union of New South Wales.

PN85

He then goes on:

PN86

I actually do intend to add in the Transport Workers Union of Australia as well just to ensure that there is no potential for confusion there. So the order would be binding upon the Transport Workers Union New South Wales and the Transport Workers Union of Australia together defined as the TWU and their officers, employees -

PN87

Et cetera. Bear in mind, your Honour, that the TWU NSW have been the only body that announced the appearance in relation to this matter. The TWUA had been served with some documents 45 minutes before the hearing commenced, wasn’t served with the draft order until after the hearing commenced. The draft order was not expressed to be binding upon the TWUA but upon the TWU NSW.

PN88

JUSTICE GIUDICE: Yes, I follow all that.

PN89

MR FRIEND: Pardon, your Honour?

PN90

JUSTICE GIUDICE: I follow all that.

PN91

MR FRIEND: Yes. I’m sorry, your Honour.

PN92

JUSTICE GIUDICE: That’s all right.

PN93

MR FRIEND: I just haven’t said it and I thought I ought to.

PN94

JUSTICE GIUDICE: Yes.

PN95

MR FRIEND: The tab 6 has the draft order which says all of that. I should mention briefly tab 5, your Honour, which was exhibit 1 in the proceedings. Something was made of the fact that the dispute had been notified to the New South Wales Commission by the TWU NSW and the fact that the letterhead described the organisation as Transport Workers’ Union of Australia New South Wales branch. Does your Honour see that?

PN96

JUSTICE GIUDICE: Where is that?

PN97

MR FRIEND: Yes. Tab 5.

PN98

JUSTICE GIUDICE: Yes, I’ve got tab 5.

PN99

MR FRIEND: Putting TWU members first, state secretary - - -

PN100

JUSTICE GIUDICE: I see. Right up the top, yes.

PN101

MR FRIEND: Yes. And then notified by the Transport Workers’ Union of New South Wales is paragraph 1. That’s explained by Mr Kaine. No point was taken of that. Mr Kaine represented the TWU NSW. At the beginning of his submission, your Honour, which is about a third of the way through - I can count the pages if that would assist.

PN102

JUSTICE GIUDICE: Well, it’s the page where the Senior Deputy President says thank you Mr Brotherson and Mr Kaine.

PN103

MR FRIEND: Yes and Mr Kaine explains that TWU New South Wales branch use to be the name of the TWU New South Wales. They’ve changed it, but they haven’t changed the letterhead or notified parties, the TWU NSW. I should take your Honour as well to the decision itself which is contained behind tab 3. His Honour dealt with the jurisdictional prerequisites on the first page, paragraph 3. Paragraph 2 and paragraph 3 he notes that if they’re met the Commission must make an order. Paragraph 4 he says the Act doesn’t explicitly indicate against whom an order can be made.

PN104

The first two subsection 12, I think it is, about orders that the court might make and draws the implication that an order under section 496 can be made against another person and notes this would include organisations registered under the New South Wales Industrial Relations Act. We then don’t have the reasoning that’s in the oral statement at the end of the transcript, but simply with respect to the Senior Deputy President appears to be a nonsecular:

PN105

Accordingly I have determined that the order should be binding upon the TWU of New South Wales as well as the TWUA.

PN106

What does appear, your Honour, from the transcript is that what his Honour was attempting to do was make sure all basis were covered. Now, if I can return to the written outline, your Honour, at paragraph 8 there are three grounds of appeal that we rely on. The first is the obvious one, denial of natural justice. The second is that there’s no jurisdiction because there’s no jurisdictional fact which has to be found upon which it could be said that the Transport Workers’ Union of Australia was organising industrial action. I think organising, your Honour, is now the way these matters have to be looked at because the section 496 differs from section 127 by that reference to organising what use to be the old section 4 about being involved in industrial action is now gone. The third point - would your Honour like me to take you to that?

PN107

JUSTICE GIUDICE: There’s no need.

PN108

MR FRIEND: Yes. The other section that one needs to look at, your Honour, is section 420 and compare it with the old section 4. The other point, your Honour - and this is really tied in with the second point - this third point probably isn’t in the notice of appeal, your Honour, but I mention it because it seems to us to be a good one is that the Commission can’t say well, it might be this party or this party so I'll make the order against both. That might be okay for an interim order, but you’ve got to make your findings first. Now, in relation to the natural justice, your Honour, the submissions I would have thought are fairly straight forward.

PN109

The TWU ought to have been given an opportunity to be heard. It ought to have known at least that there was an application being made against it. None of those things happened and that would seem to be a text book example of a denial of natural justice. It might be accepted that in urgent circumstances an interim order might be made and of course the Act requires interim orders to be made if the matter can’t be dealt with to finality within the 48 hours. But that’s not what happened here and a final order was made without any opportunity being given to the TWUA to bring any submissions or any evidence before the Commission.

PN110

That’s an error that just goes to the heart of jurisdiction. We say that it’s a very, very strong probability that that argument will be made out on appeal. The second matter deals with the question of power. It is of course a necessary precondition to the exercise of the power, but there’s a finding that industrial action is happening, threatened, impending or probable or is being organised. Now, the industrial action was happening but there’s no basis for a finding that the TWUA was in any way involved in it.

PN111

JUSTICE GIUDICE: Does there have to be such a finding?

PN112

MR FRIEND: Well, your Honour, the Commission can’t when it finds industrial action is occurring use that for a basis of jurisdiction to make an order against any person whatsoever. There must be a connection.

PN113

JUSTICE GIUDICE: Yes. I suppose it’s a question of degree.

PN114

MR FRIEND: Well, the level of proof which needs to be satisfied, your Honour, might vary in certain circumstances, but it would not be open, in my submission, for the Commission to have made an order that takes this outside this matter against the AMWU on these facts. Now, analogies are always difficult because you end up putting the same question, but my submission is, your Honour, that is the same question because unless you have some basis upon which you can say the TWUA is involved in this then you can’t make an order. There’s a jurisdictional prerequisite that the party against whom the order is made is in some way involved in the industrial action.

PN115

Then, your Honour, there’s the question of the manner in which the power is exercised. The outline is a little in the summary. But it’s not really appropriate to say I don’t know if it’s you or you engaged in industrial action so I'll order both of you to stop it. It’s necessary to make the finding and one has only to think of this in relation to another aspect of the Commission’s former jurisdiction, a dispute finding. The Commission would not have said, could not have said, I don’t know if the employer is A or B so I'll make a finding of dispute between the union and both employers.

PN116

And your Honour might recall all those cases some time ago involving the service companies of law firms and the difficulty of identifying the employers and the Commission didn’t take the view and couldn’t take the view as a matter of finding of industrial action that there had to be some of these companies, at least one of them, so I'll make a dispute finding against all of them and see where that goes. And what his Honour did where he fell into error, in my submission, is that he said well, I'll just make sure that I’ve got all bases covered. He should have made a finding in relation to that. If he’d been concerned about making sure that the matter was completely covered he might have had jurisdiction, he would have had jurisdiction probably, your Honour, to make an interim order and deal with it quickly.

PN117

Along the analogy, your Honour, of the Hoyts case in the High Court where you can go a bit beyond your actual jurisdiction to preserve things pending before hearing, but that’s not what’s happened. What we’re faced with is the final order which brings me, your Honour, to the balance of convenience. We don’t want to be faced with an order where we’re asked to do something which we can’t do. As of course the fundamental principal in relation to court orders and injunctions that a court won’t make an injunction directing someone to do something which they can’t do.

PN118

In this matter the evidence is that the TWU in New South Wales is conducting a dispute. It’s a different organisation and the TWUA doesn’t have control over it. Now, if something happens the TWUA could well be drawn up into difficult and expensive litigation dealing with potential breach of the order. On the other hand if your Honour grants a stay in respect of the TWU the order continues in respect to the TWU NSW and it continues in respect of the employees and in circumstances where there’s presently no industrial action, we’re not aware of any threats of any industrial action further, the order seems to have done its job.

PN119

It’s my submission that the balance of convenience clearly substantially favours the TWUA. It’s really one where it’s almost all one way. In those circumstances, your Honour, we seek a stay pending the hearing of the appeal.

PN120

JUSTICE GIUDICE: Yes.

PN121

MR FRIEND: If your Honour has any enquiries, otherwise that’s it.

PN122

JUSTICE GIUDICE: Thank you, Mr Friend. Ms McKenzie?

PN123

MS MCKENZIE: Yes. Thank you, your Honour. Your Honour, this matter arose in somewhat unusual circumstances being the very early days of amendments which representatives as well as the Commission exploring for the first time in a practical sense, but it’s not unimportant to have regard to that context. The application which was brought to the Commission was an application for orders under section 496 and it was in relation to industrial action which was occurring at the applicant’s sites in New South Wales and the dispute which had given rise to the industrial action had some history and it’s not in dispute that that dispute was being conducted in a practical sense by the New South Wales union and it’s not in dispute that the employees of TNT and Riteway involved in the dispute are at least members of the New South Wales union.

PN124

So there was strike action, an application for orders were made and his Honour properly had regard to the very changed requirements of the Commission when faced with applications directed to industrial action. And it is clear from the Act that under section 496 the discretion which the Commission may have previously had under section 127 to have regard to various circumstances, the underlying dispute and perhaps give consideration to conciliation or some other enquiry into the merits of the matter is not a course open to the Commission under section 496. His Honour identified the jurisdictional prerequisites, as it were, of the granting of an order as being set out in the section and they are that industrial action by a employee, being a federal system employee relevantly, is occurring.

PN125

If the Commission finds that it appears that industrial action is happening, threatened, impending or probable or being organised then the Commission must make an order that the industrial action stop, not occur and not be organised. So clearly if there’s industrial action the Commission makes an order and equally clearly the order is directed to stopping the industrial action and the order which his Honour made clearly is directed to stopping the industrial action, but the order goes beyond simply repeating the words of the section and saying the industrial action must stop, not occur or not be organised and goes in a more practical and constructive way to set out the steps which the parties to whom the order is binding should take.

PN126

And relevantly in relation to the union parties 4(c) of the order requires the union, its officers, employees, agents and delegates to stop, not organise and not recommence any bans, not organise, aid, abet, direct, procure et cetera. That in 3 and 4 takes practical steps to ensure that the employees understand the effect of the order by advising them that they must not engage in industrial action and then taking steps necessary, reasonable and available to ensure compliance. And those features of the order are, in our submission, quite common features of section 127 orders because the purpose of the order is to stop industrial action and the purpose of binding unions to orders of this kind is to assist in achieving the statutory objective that the industrial action stop, not occur and not be organised.

PN127

Now, of course unions organise industrial action as well as employees taking industrial action, but in our submission the inclusion of the reference to industrial action being organised does not impose any jurisdictional restriction on the extent to which a union can be bound by an order I the way I think Mr Friend has suggested. I think his submission went so far as to suggest that if there was no evidence that a union was organising industrial action then there was no jurisdiction to bind the union to an order under section 496. In our submission that simply can’t be right when one has regard to the scheme of section 496 and the requirement of the Commission to make the orders directed to the cessation of the action.

PN128

And there is nothing in the scheme of section 496 which limits the parties to whom an order can be binding - I withdraw that - which limits the role a union can play as a respondent to such an order as being only to not organise the industrial action. The substantive issues raised in the notice of appeal are that the Transport Workers’ Union was denied natural justice because it was not given an opportunity to be heard up on the application and that is a matter which the affidavit of Mr Linton does not really take any further than the level at which the Commission understood the facts to be at the time of the hearing. Mr Linton’s affidavit does not deal directly with two important factual matters which have a bearing and certainly on the appeal would have the potential to be significant in the determination of the appeal.

PN129

Those issues are firstly, are there employees of TNT in New South Wales who are members of the Transport Workers’ Union of Australia. Secondly is Mr Kaine, who appeared on behalf of the New South Wales union, is Mr Kaine in any way an officer or employee of the Transport Workers’ Union of Australia and is
Mr Kaine somebody who could speak on behalf of the Transport Workers Union of Australia. Because if you consider the transcript you will see that these were matters which were put, at least by way of submission, directly to the Commission by Mr Brotherson at the hearing and they were matters which were not directly challenged or put in issue by Mr Kaine.

PN130

JUSTICE GIUDICE: Can you take me to that?

PN131

MS MCKENZIE: Yes, I can. Unfortunately, your Honour, I’ve very helpfully got paragraph references and I now, because I was preparing off my version, but I will try and navigate the Commission and Mr Friend to the relevant passages. The first one is in the early submissions of Mr Brotherson which are on the third page and it’s apparent from where Mr Brotherson commences in respect of the agreement, he’s just opening his submissions and he refers to the fact that the union party to the agreement is the New South Wales union and he says:

PN132

I’m informed by my friend prior to the proceedings commenced -

PN133

Does your Honour have the place?

PN134

JUSTICE GIUDICE: I do.

PN135

MS MCKENZIE: Yes:

PN136

- that they have not made any application under schedule 10 of the amended Workplace Relations Act for transitional registration, however as an organisation they certainly still would remain a party to the agreement. I would also observe, your Honour, that save for anything else the Transport Workers Union of New South Wales indeed for all intents and purposes is the state branch of the Transport Workers Union of Australia.

PN137

And his Honour then referred to some history in relation to that and
Mr Brotherson said:

PN138

..... we would submit that officers of the Transport Workers Union of New South Wales frequently appear in this Commission as officers also of the Transport Workers Union of Australia. Their own website confirms that they operate out of the same offices and all of the state offices appear to have reciprocal identification as state branch offices of the federal body.

PN139

Pausing there, your Honour, it appears that that material that Mr Brotherson was referring to was not in evidence in any way, but there was certainly a submission based on material that had been obtained from the website. And Mr Brotherson says:

PN140

Your Honour, we say that it is possible for the orders which are sought to be made against the Transport Workers’ Union of New South Wales as a person.

PN141

And he then went to section 496.

PN142

JUSTICE GIUDICE: Mr Kaine appeared for the state union, did he not?

PN143

MS MCKENZIE: He did, your Honour, in relation to these proceedings.

PN144

JUSTICE GIUDICE: Well, how can his failure to deny any of these submissions insofar as they effect the federal union be held against the federal union?

PN145

MS MCKENZIE: Well, it’s only in this respect, your Honour. If Mr Kaine has some authority or capacity on which he can represent the federal union and he’s appearing in proceedings for the New South Wales union, in circumstances where a point is being raised where as a direct result of his jurisdictional challenge to the Commission’s capacity to make orders against the New South Wales union - and it was Mr Kaine that raised this - a solution is proffered that the federal union could be bound and his Honour makes it very clear that he’s minded to do that to avoid confusion or, I think as Mr Friend put it, for the abundance of caution or to resolve any confusion that might otherwise arise.

PN146

If Mr Kaine was in a position to either request an adjournment or to seek instructions or to put in issue some of the assertions that were being put from the bar table and he did not do so, then that’s relevant to the question whether the federal union at least had an opportunity to be heard.

PN147

JUSTICE GIUDICE: How can it be unless he was appearing for them?

PN148

MS MCKENZIE: Well, if he had authority to speak on behalf of the union generally in relation to industrial matter, and we don’t know that he did, but if he did - - -

PN149

JUSTICE GIUDICE: But it’s speculation, isn’t it?

PN150

MS MCKENZIE: It’s speculation, your Honour, because it’s not something that the federal union has dealt with in Mr Duffin’s affidavit.

PN151

JUSTICE GIUDICE: No. But you see, in this case your clients appeared to be aware of the difference between the two bodies. They served documents on the state union and the federal union as I understand it.

PN152

MS MCKENZIE: They did, your Honour.

PN153

JUSTICE GIUDICE: And the document served on them. So first of all it indicates that there was a knowledge of the distinction and secondly the application only sought to bind the state union. Mr Kaine turns up and says I’m here for the state union and thereafter I’m having difficulty seeing how anything that was said could be binding on the federal body because it just wasn’t there. But perhaps I’m wrong about that.

PN154

MS MCKENZIE: Well, the proposition I suppose works this way, your Honour. The proceedings, the application was brought to stop the industrial action. It was brought against the New South Wales union. Mr Kaine appeared for the New South Wales union. Mr Kaine raised and it appears immediately before the proceedings, but it was then put fair and square by Mr Kaine in his submissions, that the Commission had no jurisdiction to make an order against a New South Wales union because he submitted that in his submission it was not a body capable of being bound to a order of this kind.

PN155

On the basis that that issue had been foreshadowed a possible alternative was in order to ensure that the orders were as much as possible given effect to in a real sense, there was a discussion about the status of the federal union and it’s put to the Commission that officers of the Transport Workers’ Union of New South Wales frequently appear and they were also officers of the Transport Workers' Union of Australia. So there’s an assertion put that there’s at least some dual capacity in which officers not appear, but there’s some dual capacity held by officers of the state union and the federal union.

PN156

There is also in evidence the notice of notification of a dispute which had been filed in the New South Wales Commission which was the dispute which gave rise to in relation to which the industrial action occurred and that dispute notification has as the heading Transport Workers' Union of Australia New South Wales Branch. Mr Kaine responds to the reference to that as saying well, it’s simply something we haven’t got around to changing, but on the face of it there is a dispute notification which shows that there is at least some moving between the two. The Transport Workers' Union of Australia New South Wales Branch and the New South Wales union.

PN157

And it is put that if there is to be an issue raised as to the status of the respondent union then it could be the federal union and there is no attempt by Mr Kaine to at that point raise an issue as to the appropriateness of that course in terms of the rights of the Transport Workers' Union of Australia to be heard or to have something to say in relation to the application. He just doesn’t respond to those matters, but he puts in issue the ability of the Commission to otherwise find the union. So in those circumstances his honour proceeds to make the orders against both the New South Wales union and the federal union.

PN158

JUSTICE GIUDICE: Did he ever ask Mr Kaine if he was representing the federal union?

PN159

MS MCKENZIE: No, he didn’t. I think given the urgency with which these applications are bought and the requirement on the Commission to now determine these matters within a specified time period or make interim orders, there was a clear focus of everyone’s attention on the practical reality that industrial action was occurring.

PN160

JUSTICE GIUDICE: I’m not suggesting those aren’t valid considerations. It’s clear from the submissions that there were a number of issues about the application of the legislation that people were having trouble coming to grips with, but for the purpose of these proceedings it’s really a question of whether it’s a sufficiently arguable case of error on the first leg.

PN161

MS MCKENZIE: Yes. I appreciate that, your Honour. Can I deal with the issue of the balance of convenience in this way. I think what’s being put in support of that submission is that the Transport Workers' Union of Australia should not be made party to an order to which it can’t comply and it would be inappropriate for it to remain even pending the determination of the appeal bound for that reason. In our submission that should not sway the balance of convenience. The orders are clearly directed to unions taking action as they can in relation to their members who are employed by the applicant. If none of the employees are members of the Transport Workers' Union of Australia then there seems no difficulty with it complying with the orders.

PN162

We don’t understand anything that Mr Friend has put to point to any real prejudice to the Transport Workers' Union of Australia if a stay is not granted. If the only prejudice appears to be the submission that he put that they wouldn’t be able to comply, in our submission that can’t be right. On the other hand the prejudice to the applicants is real in circumstances where there has been put in issue by the New South Wales union a question as to the status of the New South Wales union to be a person bound by a section 496 order. This is new territory. It’s not a matter which has been tested obviously before. So this is an early appeal in relation to the powers of the Commission and the procedure adopted in relation to section 496 matters.

PN163

JUSTICE GIUDICE: Your client’s submission is that the order may be invalid as against the Transport Workers' Union of New South Wales?

PN164

MS MCKENZIE: Well, our submission is that it’s not, would be it’s not clearly. But the Transport Workers' Union of New South Wales clearly had that view at the time in which the order was made and the period for filing an appeal against the orders has not closed. So it is at least possible that the New South Wales union will appeal the decision. They’re not here today and they have said that they wish to take no part in these proceedings. My client is at least apprehensive that depending on the outcome of this application there may be a further challenge to the validity of the unions by the New South Wales union.

PN165

JUSTICE GIUDICE: What’s the position in relation to the industrial action?

PN166

MS MCKENZIE: The industrial action ceased and it ceased upon the granting of the order, we would say in compliance with the order. But the underlying dispute is not resolved and the matter continues to be an issue between the parties. Absent the orders on my instructions there would be a very real concern on the part of the applicants that there would be further industrial action and in those circumstances we say the balance of convenience would favour the stay not being granted. We’d have no objection to cooperate in any expeditious hearing of the appeal, but we don’t see what prejudice really flows from the stay not being granted to the Transport Workers' Union of Australia and that the overall balance of convenience is in favour of orders remaining on foot which are directed at all relevant persons who are capable of being bound by the orders pending effect of them to stop the industrial action or to stop it recurring.

PN167

JUSTICE GIUDICE: Yes.

PN168

MS MCKENZIE: If it please the Commission.

PN169

JUSTICE GIUDICE: Is it fair to say that the TWU of New South Wales has complied with the order?

PN170

MS MCKENZIE: Yes, your Honour.

PN171

JUSTICE GIUDICE: Yes.

PN172

MS MCKENZIE: Perhaps I should say more correctly they appear to have in a sense that the industrial action stopped. We don’t understand what their position is in relation to their position being bound by the order.

PN173

JUSTICE GIUDICE: Yes. Yes, Mr Friend?

PN174

MR FRIEND: Two things, your Honour. The first is something attempted to be made of the fact that Mr Kaine didn’t say anything on behalf of the TWU. Well, there’s nothing to suggest that he could have or should have, your Honour. He wasn’t there representing the TWUA and in my submission nothing can be made about that. In relation to the balance of convenience my client’s concern - and I tried to say this but it hasn’t been responded to and I want to make sure I’ve got it across - is that they are at present bound by an order in relation to an extant industrial dispute over which they have no control and they will be, if the order happens to be breached, they will be subject to proceedings in relation to the breach of the order.

PN175

Now, they may well succeed in those proceedings on the basis of the grounds of an appeal, your Honour, if the order’s invalid, but they shouldn’t be put in that position in circumstances where there doesn’t seem to be any need for them to be in any way involved. That was the respondent’s position first instance. The inclusion of the TWUA was something that only happened at the last moment. In any event on any view the employees are bound. In those circumstances, your Honour, I repeat the submission that the balance of convenience very strongly favours the grant of the stay.

PN176

JUSTICE GIUDICE: One possibility, Mr Friend, is that I simply reserve leave - if I were to grant the stay - reserve leave to the employer respondents to have the stay application brought back on if circumstances alter. Would you object to such?

PN177

MR FRIEND: I'll just get instructions.

PN178

JUSTICE GIUDICE: It’d be hard to object.

PN179

MR FRIEND: We don’t have any difficulty with that, your Honour, if there was some involvement of the TWUA. This isn’t an attempt to get out of the gate. It’s a genuine concern because it is another organisation, your Honour.

PN180

JUSTICE GIUDICE: Yes. Thank you for your submissions. I’m in a position to give a decision on the application. An application by the Transport Workers' Union of Australia for a stay of an order made by Hamberger SDP on
7 April 2006 pursuant to section 496 of the Act pending the hearing and determination of an appeal against that order. I have applied the conventional approach to applications of this kind and have addressed the matter in terms of two tests. First that there is a sufficiently arguable case that leave to appeal would be granted and the appeal would succeed and secondly that the balance of convenience favours a stay pending the determination of the appeal.

PN181

I’m persuaded there is a sufficiently arguable case that the Transport Workers' Union of Australia was denied natural justice in the hearing of the section 496 application and in the making of the orders of 7 April 2006. It’s not necessary to state in detail the reasons for that conclusion and probably undesirable in light of the fact that the matters will have to be dealt with by the Full Bench. But it’s sufficient to say that as I understand it the Transport Workers' Union of Australia was not represented in the proceedings before Hamberger SDP and had no notice in any effective sense that an order was sought against it.

PN182

As to the balance of convenience I’m satisfied that the balance of convenience does favour a stay of the order pending a determination of the appeal. The Transport Workers' Union of New South Wales, the other respondent to the order, has not appealed against the order and has apparently complied with it. When that’s combined with the fact that the employees of the two employer respondents are members of the Transport Workers' Union of New South Wales at least it appears to me that the position of the respondents, that is the applicants for the section 496 order, is reasonably protected.

PN183

To ensure that that is the case I will reserve leave to the employer respondents to apply for this stay application to be relisted at short notice should circumstances arise justifying such a course. I'll issue an order staying the application of the order of 7 April 2006 later today. Is there anything else?

PN184

MS MCKENZIE: Sir, just in terms of practicality of that, your Honour.
Mr Friend didn’t deal with how that would happen.

PN185

JUSTICE GIUDICE: Yes. I hadn’t intended that it would be stayed in relation to any party other than the Transport Workers' Union of Australia. I should have made that clear. Was that the point?

PN186

MS MCKENZIE: Yes, that was the point. Yes, thank you.

PN187

JUSTICE GIUDICE: Yes. And I take it that’s - - -

PN188

MR FRIEND: That’s what we sought, yes.

PN189

JUSTICE GIUDICE: That’s what was sought, yes. Very well. Thank you for your assistance. I shall adjourn.

<ADJOURNED INDEFINITELY [12.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWUA1 AFFIDAVIT OF LINTON DUFFIN PN29