C2006/2576, Transcript of Proceedings [2006] AIRCTrans 852 (3 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15238-1

COMMISSIONER GRAINGER

C2006/2576

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/2576)

MELBOURNE

10.06AM, TUESDAY, 20 JUNE 2006

Continued from 25/5/2006

PN74

THE COMMISSIONER: Mr Norris, you're continuing your appearance?

PN75

MR L NORRIS: That's correct Commissioner and whilst I'm on my feet I might take the opportunity to indicate there's no opposition to leave being granted for my learned friend.

PN76

THE COMMISSIONER: Yes. Good. Thank you. Yes Mr Harrington?

PN77

MR N HARRINGTON: Good morning Commissioner. I thank my learned friend, Mr Norris for that and I formally seek leave to appear on behalf of the respondent.

PN78

THE COMMISSIONER: Yes I'm happy to grant you leave, Mr Harrington and I do so. And I do so because I hope you'll be able to be of assistance to the Commission in this matter, thank you.

PN79

MR HARRINGTON: Thank you. Commissioner, because I'm on my feet and hopefully I can assist you, perhaps I might commence by simply saying as I understand today we're here for some programming.

PN80

THE COMMISSIONER: Yes.

PN81

MR HARRINGTON: There are a number of things that I wish to raise with you, Commissioner and perhaps if I raise them you can consider them and my learned friend, Mr Norris, might be given an opportunity to be heard in respect to those matters.

PN82

THE COMMISSIONER: Yes. Mr Norris, are you happy with that?

PN83

MR NORRIS: Yes I'm happy with that. I was going to suggest that all of the matters that the respondent seeks to ventilate ought to be heard.

PN84

THE COMMISSIONER: Yes. Be put on the table. Yes okay, good. Thanks very much, Mr Harrington, yes.

PN85

MR HARRINGTON: Commissioner, as you're aware this is an application that – in fact it was originally made, a different application was made last year under the old legislation as it's now known and this application pretty much mirrors the application that was made towards the middle to end of last year and it's made pursuant to section 553 of the Workplace Relations Act as amended at 27 March 2006.

PN86

THE COMMISSIONER: Yes.

PN87

MR HARRINGTON: The applicant, the union, seeks a variation of what I understand to be the roping-in award of 2002 if I can refer to it like that, Commissioner. That award is known as the Federal Meat Industry (Processing) (G & K O'Connor Pty Ltd Roping-in No. 1) Award 2002. I won't go into all of the history but that was a significant event in the relationship between the union and my client, G & K O'Connor because it came at the end of a few years of difficult and draining industrial action as between the parties.

PN88

The Full Bench made that roping-in award 2002 and importantly at clause 5 it said under the heading successional replacement of awards and agreements this award totally replaces the Federal Meat Industry (Processing) Award 1996, Federal Meat Industry Award 1981 and then it goes on and it also refers to what's become known as the 1992 agreement. There is, importantly and relevant to today Commissioner, there's attached to that roping-in award schedule A and schedule A seeks to set out the conditions that will be provided to employees to whom this schedule applies.

PN89

It's my understanding, Commissioner, and I don't seek to give significant evidence from the bar table that as at the present date there's about eight employees who fall within the compass of schedule A to the roping-in award 2002 and of course to state the obvious, Commissioner, the roping-in award roped O'Connors and the union if you like into the Industry Award and the Industry Award is known as the Federal Meat Industry (Processing) Award 2000. So the union brings an application to vary the roping-in award which in substance – and I'm summarising quite heartily at this point, in substance what it will do, it will deny O'Connors the right to rely on clause 18 of the Industry Award of 2000 and clause 18 is headed stand down of employees.

PN90

And as I apprehend with the variation application what the union seeks to do, Commissioner, is to say O'Connors will not be entitled to rely upon clause 18 of the Industry Award in respect of any employees who are entitled to the benefit of schedule A to the 2002 roping-in award and that's what it seeks to do. Now it brings that application under section 553 which is headed variation of awards if essential to maintain minimum safety net entitlements.

PN91

I don't propose, Commissioner, to go into any sorts of arguments or submissions today but by setting up that background what I am doing is foreshadowing what I am about to say which is O'Connors in the first instance seeks a direction that it be heard on an application under section 111(1)(e) of the Workplace Relations Act as amended 27 March 2006. That it be heard on the question of whether you should dismiss a matter or part of a matter on the ground that further proceedings in relation to the matter are not necessarily - necessary or desirable in the public interest.

PN92

Formerly known as the section 111(1)(g) ground, Commissioner. That's the primary submission I make today that this matter be listed for an argument under, for O'Connors to put its arguments under section 111(1)(e) of the Workplace Relations Act. That that matter be dealt with first up and separately to what I'll call the merits application but in terms of the merits application I simply foreshadow that there is a jurisdictional and a merits part to that application and the jurisdictional aspect is pursuant to section 552(1)(c).

PN93

The question will be is the variation essential to the maintenance of the minimum safety net entitlements and of course there's also a merits aspect to the application proper which is made by the union and that is that if you consider well down the track, Commissioner, that the variation is essential to maintain minimum safety net, should you make that variation based on the evidence before you.

PN94

THE COMMISSIONER: Yes, all right.

PN95

MR HARRINGTON: And I might just observe, Commissioner, that there is arguably an overlap between the section 111(1)(e) application to dismiss or refrain from hearing and the jurisdictional argument that I have adverted to.

PN96

THE COMMISSIONER: Yes, all right. Mr Harrington if I could just ask, would you be happy if Mr Norris were prepared to agree to this, to put written submissions to the Commission both in respect of the section 111(1)(e) argument and the jurisdiction argument and have the union put in written submissions in response?

PN97

MR HARRINGTON: If I might just get some instructions.

PN98

THE COMMISSIONER: Yes.

PN99

MR HARRINGTON: That doesn't trouble the respondent.

PN100

THE COMMISSIONER: Yes, all right.

PN101

MR HARRINGTON: And might I also say that I had a brief - - -

PN102

THE COMMISSIONER: It just appears to me we need to get over these preliminary hurdles before we get into, before we consider whether we're getting into the merits of the application.

PN103

MR HARRINGTON: And I think, Commissioner, you've hit the nail on the head in the sense that you've said if we're going to address in writing the question of dismissal or refrain from part of hearing it necessarily involves some submission on jurisdiction in any event. So by the end of that, by the end of your decision or arbitration on that point as to 111(e) and jurisdiction, supposing, if you decide against O'Connors it really comes down to a merits argument at that point. It could come back before you.

PN104

THE COMMISSIONER: Well that's exactly right.

PN105

MR HARRINGTON: But of course if you decide in our favour it's all over at that point.

PN106

THE COMMISSIONER: Subject to appeal.

PN107

MR HARRINGTON: Subject to appeal. Finally if I can just indicate too, that in the brief discussion I had with my learned friend, Mr Norris, beforehand and I'm sure he can speak for himself but he indicated that he didn't oppose the proposed course of having the question of the refrain from hearing section 111(1)(e) application heard first and separately. So perhaps he might want to address you on that now.

PN108

THE COMMISSIONER: Yes. All right. Thanks very much, yes.

PN109

MR NORRIS: Yes, thank you Commissioner.

PN110

THE COMMISSIONER: Yes Mr Norris.

PN111

MR NORRIS: Commissioner, it's traditionally been the case that an application for the Commission to refrain hearing something under the public interest ground has been determined at the threshold as it were.

PN112

THE COMMISSIONER: Yes.

PN113

MR NORRIS: So we have no objection to that matter, or that application by the respondent being heard and determined at the threshold. We would be seeking directions that written submissions and/or any accompanying evidence be filed and served on us at least three weeks before a hearing date.

PN114

THE COMMISSIONER: Yes.

PN115

MR NORRIS: And that we'd be given a period of two weeks in which to respond with our own evidence if required and our own written submissions.

PN116

THE COMMISSIONER: Yes. Well Mr Norris, yet again I reiterate that I wonder whether it wouldn't be better to deal with the section 111(1)(e) issue and the jurisdiction issue together.

PN117

MR NORRIS: This is where we may have a divergence, Commissioner, because in my respectful submission a determination as to whether or not something is essential for the maintenance of a safety net entitlement cannot be made at the threshold. It can only be determined after all of the relevant evidence is heard and relevant findings are made. It's similar to some jurisdictions that were exercised under the previous legislation such as the exceptional matters jurisdiction. One - there are questions which involve jurisdiction but they cannot be determined in the abstract at the threshold. One must hear the evidence before one is in a position to make that determination.

PN118

THE COMMISSIONER: So you would prefer to deal with the section, that the Commission deal with the section 111(1)(e) issue and then move on to – and whatever, and consider whatever submissions are put by the respondent in regard to that and if that deals with, if you like, jurisdiction issues then so be it.

PN119

MR NORRIS: Well the respondent's entitled to put to the Commission things that it - - -

PN120

THE COMMISSIONER: Yes. It considers relevant.

PN121

MR NORRIS: It considers relevant. One cannot place a gag on them.

PN122

THE COMMISSIONER: Yes.

PN123

MR NORRIS: If the respondent did choose to ventilate its 553(1)(c) argument at the threshold it would simply be our position that it's not truly a threshold argument on jurisdiction but we would nonetheless reply to whatever it is that it had to say.

PN124

THE COMMISSIONER: Yes well it's just this might become a very long drawn out matter because - - -

PN125

MR NORRIS: Well that's what I'd seek to make some submissions on.

PN126

THE COMMISSIONER: Yes.

PN127

MR NORRIS: In my respectful submission it would not be inconvenient to hear the merits in their entirety, including the evidence and then make that determination. The witness material is not lengthy.

PN128

THE COMMISSIONER: Yes.

PN129

MR NORRIS: There's a witness statement from one witness and we've filed our submissions which the Commission would note. In my respectful submission it ought not take longer than a day, day or two. I don't know if there's any - - -

PN130

THE COMMISSIONER: Well I was looking at trying to deal with these issues by way of written submissions. Are you suggesting to have written submissions and then follow it up by a hearing?

PN131

MR NORRIS: Well it depends on whether or not the respondent seeks to lead evidence in support of its application that the Commission refrain from hearing the matter. If it does seek to lead evidence it seems to me almost ….. that one would have to set a hearing date.

PN132

THE COMMISSIONER: Yes. Certainly. Yes, sure. Yes Mr Harrington?

PN133

MR HARRINGTON: Well my learned friend is correct about this point. Of course evidence can be called in a 111(1)(e) or in a jurisdictional hearing.

PN134

THE COMMISSIONER: Yes.

PN135

MR HARRINGTON: We've started from the premise I suppose in proposing what we have proposed that there's probably not going to be a great deal of dispute in the evidence if any. At this stage insofar as the 111(1)(e) refrain or dismissed part of the application, application is concerned O'Connors would rely upon some correspondence that passed between the parties and what the parties, in my respectful submission can't escape from is that what is in essence here is the nature of any power you have under section 553 given the nature of the application that's made, Commissioner.

PN136

THE COMMISSIONER: Well that'll be your submission.

PN137

MR HARRINGTON: Yes.

PN138

THE COMMISSIONER: Yes I understand that - - -

PN139

MR HARRINGTON: Yes and what we're – so it goes as to power if you like. So it is quite technical in that sense.

PN140

THE COMMISSIONER: So are you expecting to lead witness evidence or are you going to be relying on – you're going to be relying on submissions?

PN141

MR HARRINGTON: In respect of the section 111(1)(e) application it'll be submissions.

PN142

THE COMMISSIONER: Yes.

PN143

MR HARRINGTON: And that's why I suppose I didn't so much as jump at but thought it was reasonable when you said how about we do that on the papers.

PN144

THE COMMISSIONER: Yes.

PN145

MR HARRINGTON: Perhaps the compromise position and I don't strictly have instructions but is we do deal with the 111(1)(e) on the papers alone.

PN146

THE COMMISSIONER: Yes.

PN147

MR HARRINGTON: And then any residual question should it come to this, about jurisdiction gets dealt with on the hearing day if I might put it like that.

PN148

THE COMMISSIONER: It would be a sensible thing. Mr Norris, you're happy with that?

PN149

MR NORRIS: I concur with that view.

PN150

THE COMMISSIONER: Yes.

PN151

MR NORRIS: I think it's a sensible way to proceed.

PN152

THE COMMISSIONER: All right. Okay. Fine.

PN153

MR HARRINGTON: Having said that Commissioner I can't rule out that I have to touch upon notions and questions of jurisdiction.

PN154

THE COMMISSIONER: I understand that.

PN155

MR HARRINGTON: In a 111(1)(e) because of course that's what it deals with.

PN156

THE COMMISSIONER: I understand that and I guess therefore at the end of – well it's going to be open to the applicant in this matter to, I think to seek – well it'll respond to your submissions and part of its response may be that it believes that there needs to be a hearing in respect of some of the matters that you're raising in your submissions and I'll just have to cross that bridge when I come to
it - - -

PN157

MR HARRINGTON: Yes and I think that's a natural justice question, Commissioner, isn't it ultimately.

PN158

THE COMMISSIONER: I'm concerned - - -

PN159

MR HARRINGTON: If we raise something they say well there should be evidence before the Commission.

PN160

THE COMMISSIONER: That's exactly right but my concern is simply to try and actually push the matter forward in as timely a manner as possible so that it just doesn't get drawn out for months and months and months unnecessarily and incur unnecessary expense and inconvenience to the parties apart from other things.

PN161

MR HARRINGTON: Yes.

PN162

THE COMMISSIONER: So I think given that all of the material that the applicant has actually put in, in the matter we're at the stage where the appropriate thing is, Mr Harrington, for the respondent to make submissions in respect of section 111(1)(e), drawing attention, drawing my attention to any matters that it considers relevant to be considered in that regard. How long would you like for that process?

PN163

MR HARRINGTON: My personal timetable is a very challenging thing but I'll just get some instructions on - - -

PN164

THE COMMISSIONER: Yes.

PN165

MR HARRINGTON: Commissioner, we'd be indebted to the Commission if we had four weeks to prepare the material and what I'm proposing is that we put in our material on Wednesday 19 July if I've got my dates correct.

PN166

THE COMMISSIONER: Yes.

PN167

MR HARRINGTON: I'm pretty sure it's a Wednesday. That is perhaps longer than you would have thought, Commissioner, but I personally have a very busy timetable but that's one minor consideration.

PN168

THE COMMISSIONER: Well Mr Harrington, if that's what you're seeking it's fine by the Commission but I'll see what Mr Norris has to say.

PN169

MR NORRIS: Well given the matters that have been outlined a period of two weeks is more than reasonable and indeed I was of a mind to suggest one week but taking into account Mr Harrington's busy schedule.

PN170

THE COMMISSIONER: Yes.

PN171

MR NORRIS: I think two weeks is more than reasonable, Commissioner. We've already heard an outline of the matters which may, are likely to be raised within those submissions.

PN172

THE COMMISSIONER: Yes.

PN173

MR NORRIS: And one wouldn't think it would involve work of more than a few hours.

PN174

THE COMMISSIONER: But you'd indicated you needed three weeks to reply.

PN175

MR NORRIS: No two weeks.

PN176

THE COMMISSIONER: You need two weeks?

PN177

MR NORRIS: One week, I beg your pardon.

PN178

THE COMMISSIONER: You need one week?

PN179

MR NORRIS: Well the timetable I suggested previously was that they file and serve their material within two weeks of this hearing then we'd be allowed a week in which to respond.

PN180

THE COMMISSIONER: All right. Okay fine.

PN181

MR NORRIS: Now I'm still prepared to adhere to that proposal.

PN182

THE COMMISSIONER: Yes, all right. Okay. Mr Harrington?

PN183

MR HARRINGTON: Commissioner I just, I press it's not just my own convenience but I press for the four weeks and simply observe that you've got a balancing act to perform obviously. There is no inherent urgency in the application itself because it was made last year under a different enactment. It was let lie fallow. It's been renewed under the present legislation of recent months and, so I just make that submission as to, sort of the inherent - - -

PN184

THE COMMISSIONER: All right. Okay. Fine. Thanks Mr Harrington. Look I do like to take into account the convenience of the parties representatives in this matter and so while I don't want to contribute to it being more long drawn out than necessary I accept what Mr Harrington says. So Mr Norris, what do you say then? Would you like your submissions to be in by the 26th would you, of July?

PN185

MR NORRIS: Yes that would be suitable, Commissioner.

PN186

THE COMMISSIONER: Yes, all right and then I should list the matter for hearing for as soon as is going to be convenient for the Commission thereafter but I'll have to look at a date and I'll set a date. Mr Harrington, are you - - -

PN187

MR HARRINGTON: The hearing to which - - -

PN188

THE COMMISSIONER: Yes. The hearing of the section 111(1)(e) issue to the extent to which Mr Norris might wish to actually - - -

PN189

MR HARRINGTON: You actually will list that so it's not - - -

PN190

THE COMMISSIONER: I'll list it so that it's actually in my diary.

PN191

MR HARRINGTON: Right.

PN192

THE COMMISSIONER: But Mr Norris, I'm hoping that a hearing won't be necessary.

PN193

MR NORRIS: It may or may not be necessary. We have no desire to have a hearing - - -

PN194

THE COMMISSIONER: No, sure.

PN195

MR NORRIS: For the sake of it. If we can respond in the abstract to the points that are raised on the papers - - -

PN196

THE COMMISSIONER: Yes.

PN197

MR NORRIS: We're happy to have it determined in that fashion.

PN198

THE COMMISSIONER: All right well it'll be sometime in the fortnight thereafter. Thank you very much. Good, well I thank you Mr Norris and you Mr Harrington for what you have said today and I will issue directions accordingly and I look forward to hearing, reading your submissions. Thank you.

<ADJOURNED INDEFINITELY [10.27AM]