BP2006/2835, Transcript of Proceedings [2006] AIRCTrans 825 (19 June 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15183-1

SENIOR DEPUTY PRESIDENT HARRISON

BP2006/2835

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
HANSON CONSTRUCTION MATERIALS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2835)

SYDNEY

3.50PM, TUESDAY, 06 JUNE 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take appearances first here in Sydney.

PN2

MR M AIRD: I appear for the Transport Workers Union of Australia.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Aird. I'll now take appearances in Canberra.

PN4

MR D HAMILTON: I am here for Hanson Construction Materials.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hamilton. Mr Aird, as it's a hearing by way of video conference link to Canberra you might remain seated when you're making submissions. I think that's the only way that
Mr Hamilton may see you on the TV monitor. Excuse me just a minute would you both. This is an application lodged by your union, Mr Aird. I had it called on for mention this afternoon as we were having some difficulty ascertaining who was the person at the union who might be undertaking the advocacy in it and accordingly considering the most convenient venue or venues bearing in mind that the request was that the hearing should be in Canberra but there seemed to be some other variations to that from time to time.

PN6

Then in your case, Mr Hamilton, my not being entirely sure as to whether you were the appropriate person who'd be dealing with the matter or whether you were going to involve some other persons in your office. Now it seemed that the best way of discussing those and other matters would be to list it for mention which is what I've done now. You're both probably aware of the requirements under the Act for the Commission to deal with these matters as far as possible within two days of them being lodged. That was another reason I thought that I should call it on for mention to find out when the hearing might be able to be listed and both of you will be prepared to proceed but most particularly you, the applicant, Mr Aird. Now there's a few other matters I might want to raise but I'll start with your
Mr Aird.

PN7

MR AIRD: Thank you, your Honour. There has been some logistical problems for the union today. The matter was filed from our Melbourne office and the relevant official is in Goulburn today so we have had some difficulties. I've been instructed to appear in this matter today. As for future appearances I can't confirm immediately who'll have coverage of this matter but I think it would be covered out of Sydney at this stage as fas as I understand, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR AIRD: I think that's probably about as far as I can inform for you today.

PN10

THE SENIOR DEPUTY PRESIDENT: Well tell me then insofar as it's going to be covered out of Sydney what's the name of the contact who should be added to the application. It currently identifies Mr Pinkus as the contact person.

PN11

MR AIRD: Yes, if we could amend that to Mr Michael Cain, chief legal advisor for Transport Workers Union of New South Wales.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR AIRD: Can I just advise, your Honour, I haven’t had a chance to have any discussions with the respondent and pending on some discussions with the respondent about what may or may not be contested in the application would depend if we might need some evidence perhaps to be submitted from Canberra.

PN14

THE SENIOR DEPUTY PRESIDENT: When would the union imagine its going to be proceeding with the application - the hearing, when is the union going to be ready to proceed with the hearing?

PN15

MR AIRD: We're happy to proceed immediately pending comment from the respondent today of any evidentiary issues that they're raising or any contested matters that they're raising in regards to the application. If they're raising some issues there we'd have to determine what was being contested otherwise the application is ready to go, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Well have I misunderstood what you've said earlier that you're actually prepared to proceed now?

PN17

MR AIRD: Yes, your Honour, we're prepared to proceed now. I mean, the only question was if there was some evidentiary issues that might have to be investigated if they were raised on behalf of the respondent but otherwise we're prepared to proceed.

PN18

THE SENIOR DEPUTY PRESIDENT: All right. We'll we might need to come back to that again, that's certainly been a development that my chambers was not aware of. I thought in fact there was some difficulty with proceeding this afternoon and it was for that reason I listed it for mention not hearing.
Mr Hamilton?

PN19

MR HAMILTON: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: First things first, have you received a copy of the application that's been lodged by the TWU?

PN21

MR HAMILTON: I have.

PN22

THE SENIOR DEPUTY PRESIDENT: Have you had an opportunity to peruse it?

PN23

MR HAMILTON: I have. I've only really got one query at this stage and that would clarification of the term, rolling stoppages.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. Can I come back to something a little more basic than that, when this application was lodged the contact person for the company was listed as unknown. I think as a result of some enquiries my associate made a person who's described as your plant production manager and or you might have been tracked down. For further notification purposes who's the appropriate contact person for the company?

PN25

MR HAMILTON: I could be the contact person.

PN26

THE SENIOR DEPUTY PRESIDENT: All right.

PN27

THE SENIOR DEPUTY PRESIDENT: I was on leave yesterday that's why I took today off so to respond.

PN28

THE SENIOR DEPUTY PRESIDENT: All right, thanks for that, Mr Hamilton. Well if the only issue that the company might want to raised and discuss with you, Mr Aird, is what Mr Hamilton's mentioned and it's a discussion that might properly occur in my absence, well then it seems to me it will just be a matter then of perhaps changing this mention now to a hearing and doing whatever I can to provide you, Mr Hamilton, in Canberra with some orders and directions. I'll explain that in a little more detail, Mr Hamilton, but what I mean by that is that if you have no other matters you wish to raise with the union and if it's not your intention to be represented by any other person or to raise any issues under the Act I would see no good reason why I shouldn’t turn this mention hearing now into a - yes, I can already see a problem, yes, as I speak.

PN29

That I would not then consider listing the matter for hearing some time tomorrow so as to enable your employees to have an opportunity to be heard if they seek to do so. There in lies the reason why I can't change the nature of this mention into a hearing. The Act obliges me to give an opportunity to those employees to be heard. At the same time it obliges me to deal with these matters as far as possible within two days so hence the tight timetable. I think I can indicate to you that because of enquiries I made prior to coming into court there is a video conference link available tomorrow afternoon, Sydney, Canberra. But what's say I adjourn for a short time to allow the two of you to have some discussions and then I will come back again and you can let me know how much further the Commission can proceed this afternoon.

PN30

If I can't proceed much further and given my directions under the Act to deal with these matters as far as possible within two days my current inclination would be to list the matter for hearing tomorrow and as I say issue some directions to you,
Mr Hamilton, to do certain things to bring it to the attention of your employees. Could I ask you this, Mr Hamilton, are they all at one site or are they at different sites?

PN31

MR HAMILTON: It's a one single site.

PN32

THE SENIOR DEPUTY PRESIDENT: All right. Well at least that much makes this a little easier than otherwise might have appeared on the face it. Mr Aird, you're looking at me as if I've said something that requires some clarification?

PN33

MR AIRD: No, its fine.

PN34

THE SENIOR DEPUTY PRESIDENT: All right. Well we'll now adjourn for a short time and we'll probably resume hopefully in about 10 minutes or so but
Mr Aird let my associate know what's happening. The Commission is now adjourned.

<SHORT ADJOURNMENT [4.15PM]
<RESUMED [4.37PM]

PN35

THE SENIOR DEPUTY PRESIDENT: Now, Mr Hamilton, did you take that opportunity to have a discussion with Mr Aird about the matter you raised?

PN36

MR HAMILTON: I did your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Well it's really now a case of what we should do next. Mr Aird, have you and Mr Hamilton reached any accommodation short of the matter proceeding?

PN38

MR AIRD: Well we have to the extent that the only area where there's some, I think, some concern by the respondent was the question in terms and only in then in terms of rolling stoppages.

PN39

THE SENIOR DEPUTY PRESIDENT: I see.

PN40

MR AIRD: At this stage I'm in no position to define it further other than its literal meaning. Mr Hamilton has expressed some dissatisfaction. Obviously he can speak for himself in a second. He's expressed some dissatisfaction to me about that but has raised no other concerns in regards to the application so I think it's just confined to the question around rolling stoppages.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Hamilton, I think there might be an opportunity in the program that I'm about to announce for you to say something about that description of the action that proposed to be taken. I can't give you advice on it but I can just give you an opportunity to say something at a hearing so that will occur. What I'm having done now is for some documents to be bought into you in the court there, Mr Hamilton. A member of the Canberra staff will bring them in and I've got a copy here I will hand to Mr Aird at the same time and they're draft documents and I'll let you know what they are.

PN42

One is a notice listing this matter for hearing tomorrow afternoon at 3.30 and I'll hear you both in relation to the venue but my current intention is that it would just the same as today, a hearing by way of video link between Sydney and Melbourne.

PN43

MR AIRD: Sydney and Canberra, your Honour?

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, that's a better description of who's participating today, Sydney and Canberra. There will be a document titled, Orders and Directions, and I'll go through that with you but it will be doing a number of things but most importantly, Mr Hamilton, requiring you to put a copy of that document together with a notice of listing together with another document up on all your noticeboards as soon as possible. When I say as soon as possible that means really this afternoon if that is at all practicable because as I mentioned earlier in this hearing employees are entitled to have an opportunity to be heard so it's a bit hard to know how we can attend to both the urgent listing, say tomorrow, and given them an opportunity to be heard if they're not forewarned today that this application has been made and a hearing is going to be undertaken tomorrow.

PN45

There's another document that's called, A Notice to Employees, that tells them all about what I've just been describing there briefly and that's to go up on your noticeboards and there's another document to you, Mr Hamilton, telling you in more detail what I've just described in short term there. Each of those documents refers to a number of sections of the Act as to why we undertake this matter this way. So I don’t know how long that - Canberra should be bringing something into you fairly - - -

PN46

MR HAMILTON: They just handed something to me just now.

PN47

THE SENIOR DEPUTY PRESIDENT: Have they? Very good, well now I'll give the same bundle of documents to Mr Aird.

PN48

MR HAMILTON: I've received a total of five pages, would that be correct?

PN49

THE SENIOR DEPUTY PRESIDENT: Say that again, Mr Hamilton?

PN50

MR HAMILTON: I've received a total of five pages.

PN51

THE SENIOR DEPUTY PRESIDENT: That's good. Lets all put them in the same order. First one, Notice of Listing of a Matter, one page.

PN52

MR HAMILTON: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Second one, document titled, Orders and Directions, two pages.

PN54

MR HAMILTON: Correct.

PN55

THE SENIOR DEPUTY PRESIDENT: Third one, document titled, Notice to Employees, one page and last, letter to you, Mr Hamilton, from my associate dated today's date, one page.

PN56

MR HAMILTON: I've got them all, thank you.

PN57

THE SENIOR DEPUTY PRESIDENT: All right. I intend to list the hearing of this matter tomorrow at 3.30 by way of video conference link between here and Canberra. Do either of you wish to be heard in relation to that matter? Mr Aird?

PN58

MR AIRD: No, your Honour, but I was just wondering if it might be convenient just to hand up a statement of service to show all the paperwork is filed. If that's not necessary its - - -

PN59

THE SENIOR DEPUTY PRESIDENT: Hand it up tomorrow but let
Mr Hamilton have a copy of it because the Act obliges you to have attended to those matters before any order could issue and of course that's a matter about which Mr Hamilton could make a submission. So give him a copy of it. Shall we do it that way and you have a copy of it available for me tomorrow. Mr Hamilton, Mr Aird's going to send a document to you, I assume by fax, as soon as we adjourn this afternoon that really relates to the fact that he's undertaken a number of prerequisites required under the Act but in short term they're really he's undertaken the service on you of his application.

PN60

That type of matter will be addressed in the statement. So he's going to give you a copy of that. Back to my notice of listing, either of you wish to be heard in relation to the listing of this matter tomorrow at 3.30?

PN61

MR AIRD: No, your Honour.

PN62

MR HAMILTON: No, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Secondly the orders and directions, paragraph 1, is the direction that the matter is going to be listed for hearing tomorrow at 3.30. There's a direction pursuant to identify provisions of the section of the Act for you, Mr Hamilton, well the company not you personally but an appropriate officer on behalf of the company to post on all staff and employee noticeboards at your Fyshwick worksite, a copy of this document, orders and directions and a copy of the application lodged by the TWU. There's an order to you to provide to the Australian Electoral Commission who's the nominated ballot agent certain names of employees who are members of the union who are entitled to be the subject of this order and it's important to know that any employees who are under an AWA which the nominal expiry date hasn’t been reached can't be the subject of any order.

PN64

The list that you have to provide is in a certain form as required by the Australian Electoral Commission. Directions of a not dissimilar manner also then made to the TWU in relation to provision of a list of members who are going to be covered by the proposed agreement will be subject to the secret ballot order, an ability for both of you tomorrow afternoon at the hearing to revisit any part of the orders that I've just mentioned. There's a notice to employees that you are required to place on the noticeboard, Mr Hamilton, just telling them what their rights are under the Act if they're an employee potentially covered by this application that they're entitled to make submissions to the Commission.

PN65

Actually I don’t think that notice does point out the section. It should point out section 458 which is the entitlement of those employees to be heard but I just noticed that the notice doesn’t do that. Finally a letter to you, Mr Hamilton, just explaining what the Act obliges the Commission to do. I don’t think there's much more that I can explain there, it goes into some detail as to why the orders for preparation of the ballot list - list of names for employees for the ballot is undertaken in the way we have. There's a bit for you both there to absorb between now and 3.30 and be in a position to address me on. Is there anything further you wish to raise, Mr Aird?

PN66

MR AIRD: No, that's fine, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Hamilton?

PN68

MR HAMILTON: No, thank you, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: All right. Now what I'm going to do is ask each of you to liaise with my associate as to how we might be able to get a sealed and signed copy of all of these. Obviously I've given you both a draft but I will now retire to my chambers and these will be prepared in a final form and I would like to be confident that they have come to you in that form within the next 10 minutes or so. If it's not too inconvenient, Mr Hamilton, maybe if you just stay there, the registry will bring in sealed and signed copies and similarly with you, Mr Aird, unless you may some other arrangement with my associate upon me rising. The Commission now adjourns until tomorrow.

<ADJOURNED UNTIL WEDNESDAY 7 JUNE 2006 [3.30PM]