AG2006/4499, Transcript of Proceedings [2006] AIRCTrans 861 (5 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15256-1

COMMISSIONER GAY

AG2006/4499

APPLICATION BY TOYOTA MOTOR CORPORATION
s.170MD(6) - Variation of certified agreement to remove ambiguity
(AG2006/4499)

MELBOURNE

10.04AM, THURSDAY, 22 JUNE 2006

PN1

MR C O'GRADY: I seek leave to appear as counsel on behalf of Toyota Motor Corporation.

PN2

THE COMMISSIONER: Thank you, Mr O'Grady.

PN3

MR M GEORGIOU: For APESMA.

PN4

THE COMMISSIONER: Yes, Mr Georgiou. What have you heard about
Mr O'Grady's application for leave?

PN5

MR GEORGIOU: Well, he allowed me to appear in the Maggies Court so I might as well allow him to appear.

PN6

THE COMMISSIONER: You're gracious about this, are you?

PN7

MR GEORGIOU: Thank you.

PN8

THE COMMISSIONER: All right. Nice mutual start. Leave is granted
Mr O'Grady.

PN9

MR O'GRADY: Yes, thank you, Commissioner.

PN10

THE COMMISSIONER: Perhaps before you get under way Mr O'Grady I might mention one or two things because there's been some correspondence in this matter over - well, earlier this week. It might be necessary to comment about that shortly. I'll leave that to the advocates. I had a conversation with Mr Larkin on, I think, Tuesday. Let me see these days. Yes, Tuesday, and he indicated that his - your organisation wouldn’t be attending today and he had other commitments so I mention that for the benefit of the parties, that's a communication I've had.

PN11

MR O'GRADY: Thank you, Commissioner.

PN12

THE COMMISSIONER: Well, Mr O'Grady?

PN13

MR O'GRADY: Yes, thank you, Commissioner.

PN14

MR GEORGIOU: Commissioner, are you going to hear the matter that is the application of Toyota or my objection to the Commission hearing this matter?

PN15

THE COMMISSIONER: Well, I'm going to hear all the issues that the parties want to agitate so it's clear that there are some issues, there are some matters that APESMA wishes to raise and I will hear those.

PN16

MR GEORGIOU: Well, we ask that the Commission are refrained from hearing this matter as the matter is already - a similar matter is before the Magistrates' Court. It is listed for hearing on 6 July and in the proceedings in the Magistrates' Court where Mr O'Grady kindly allowed me to allow, well, didn’t object to my appearance the company and Mr O'Grady raised the issue of these proceedings in the Magistrates' Court and sought from the magistrate that that matter be deferred pending the outcome of this hearing and the magistrate declined to exceed to the company requesting the scheduled hearings.

PN17

THE COMMISSIONER: Mr Georgiou before you pursue that submission it might be useful to clarify, do you say APESMA make application now that the Commission refrain?

PN18

MR GEORGIOU: Yes, we've put that in correspondence to the Commission.

PN19

THE COMMISSIONER: Yes, well I must say I don’t it that way. I didn’t take your correspondence of 30 May as an application that the Commission refrain from hearing the matter, the 170MD(6) and rather I had understood and I'm looking at the correspondence now, the association request that:

PN20

Before proceeding in the Commission consider the following threshold issues.

PN21

And you set out a number of considerations.

PN22

MR GEORGIOU: Yes and on 19 June we said:

PN23

The association will not submitting any material regarding the variation as sought by Toyota until it has the threshold issue determined and believes any material it may submit would be prejudicial to its application in the Magistrates Court concerning the same clause.

PN24

THE COMMISSIONER: Yes. Mr Georgiou, I want to make my position quite clear. I, as I hope I already have, I will hear all the issues, all the matters sought to be raised by the advocates and if they're properly characterised as threshold issues well let them be threshold issues. I'll hear what's put. There has not been an application for the Commission to refrain. Now it might be that when one considers the contents of your correspondence of 30 May that there is a foreshadowed application or something, I mean, I just don’t choose to do that. Rather, and I'm happy to hear you on this, I haven’t got a fixed view about any of these things but rather the association made a request that some issues which were set out by you and you called them, APESMA call them threshold issues, should be considered.

PN25

If there was an application to refrain that of course that is a particular application and it requires the Commission to consider it in its own flight path if I might say. It is a particular style and mode of application of which you're well aware. Now the correspondence of 30 May set out a range of issues and I assume when you posed your initial question to me a few moments to the Commission, am I going to consider those things, it's those things to which I refer.

PN26

MR GEORGIOU: Yes.

PN27

THE COMMISSIONER: My answer is, yes, I will hear you on any issues you wish to raise.

PN28

MR GEORGIOU: Well, we ask that the question refrain from hearing the application before it because submissions made in these proceedings may prejudice the matter before a court of high jurisdiction, the Magistrates' Court, and we would be prejudiced by the Commission determining the matter and even more prejudiced should it find in favour of Toyota in this matter. The company has been aware of these proceedings in the Magistrates' Court for nearly a year now. The matter was as you were aware, Commissioner, before Senior Deputy President Acton where the company was put on notice that once it raised the jurisdictional issues of the Commission being unable to determine - - -

PN29

THE COMMISSIONER: I'm not aware of that, Mr Georgiou. I'm aware that your correspondence made me aware that there had been proceedings before her Honour, Senior Deputy President Act. No, I'm not aware of, other than the dates, I'm not aware of the course of those proceedings. Is there some basis that you think I should be aware of that or that I am aware.

PN30

MR GEORGIOU: Simply aware of it because it involves exactly the same matter that is before you today is before the Magistrates' Court.

PN31

THE COMMISSIONER: But it hasn’t been raised previously with me.

PN32

MR GEORGIOU: Well this is the first chance we've had.

PN33

THE COMMISSIONER: Yes, indeed, but it's not something when you say I should be aware of it, you think its relevant now, there's no other basis for thinking I should be aware of it is there?

PN34

MR GEORGIOU: Well, no, other than in my correspondence of 30 May.

PN35

THE COMMISSIONER: Yes.

PN36

MR GEORGIOU: Where I put to the Commission that the application before you should correctly be brought before Senior Deputy President Acton because it involves exactly the same clause, the same agreement and the matters that the company seeks to agitate now were correctly before Her Honour and the company has just been shopping around. For example, Commissioner, this application before you was filed two days before the proceedings in the Magistrates' Court when the company has had close to a year to do this they are trying to avoid the matter being determined and in actual fact the prejudice to my organisation and to my two members is compounded by the fact that this application before you today seeks a retrospective variation.

PN37

The effect of that would be to annul proceedings in another place and we say that that is not allowance. If this matter is to proceed it should go back to Senior Deputy President Acton under the original dispute notification. That's our first submission.

PN38

THE COMMISSIONER: All right. Well I can understand why you've put that on the basis of what your correspondence of 30 May says because it might be and the facts it's got to be quite sharp on this hasn’t it, that you say we certainly make an application now that the Commission should refrain and you, is this right? You say, the Commission as presently constituted because your correspondence said, the issue of - and I'm going to call it the 2004 agreement in contrast with the 2002 agreement.

PN39

MR GEORGIOU: Yes.

PN40

THE COMMISSIONER: But the 2004 agreement, elements of that and you say it’s the same issue so an entitlement of possibly the same people, very likely the same people but arising from the disputes aspects sought to be relied on by and made clear in the materials of Toyota, was, and I look at your correspondence of 30 May, subject to a separate application by the association in C2005/3772 and should be listed under that application. Now that was a section 99 was it,
Mr Georgiou?

PN41

MR GEORGIOU: Yes, Commissioner.

PN42

THE COMMISSIONER: And what is your section 99?

PN43

MR GEORGIOU: Yes, Commissioner.

PN44

THE COMMISSIONER: All right. Have any steps been taken by APESMA to ask her Honour to call that on?

PN45

MR GEORGIOU: No, because we made it clear that once the company raised jurisdictional issues and it was open for them in those proceedings and unfortunately no transcript is available of those proceedings.

PN46

THE COMMISSIONER: And why is that, was it a conference, Mr Georgiou?

PN47

MR GEORGIOU: No. No, just sometimes you just get transcript of proceedings and sometimes you don’t.

PN48

THE COMMISSIONER: They were formal proceedings?

PN49

MR GEORGIOU: Yes. Yes.

PN50

THE COMMISSIONER: Did you order the transcript?

PN51

MR GEORGIOU: No. No, I didn’t. I didn’t -because it was going nowhere because the Commissioner - sorry, the company had flagged that it was raising jurisdictional issues, her Honour had to determine whether she had jurisdiction to issue orders pursuant to section 99 where the application was made in this matter and the company said that the Commission did not have jurisdiction under the dispute settlement procedure.

PN52

THE COMMISSIONER: Deriving from section 99, do you mean?

PN53

MR GEORGIOU: Well, it got mixed up in 170 something. Something that deals with the dispute resolution procedure in the agreement itself and whether the process of determining the dispute under the dispute settlement procedure resolve the matter and therefore her Honour didn’t have jurisdiction. But it was always open to the company in those proceedings to apply to remove uncertainty and ambiguity if that's what they thought. This proceeding before you today is nothing more than a sham to avoid prosecution in the Magistrates' Court where if you were to determine this matter the magistrate has not ruled that the - well the magistrate hasn’t heard any submissions but if the magistrate believes that he or she can interpret that clause then it makes a mockery of these proceedings before you because if a magistrate can determine those words then there is no uncertainty or ambiguity and the company is aware of that.

PN54

Probably also aware of its chances in the Magistrates' Court and has tried to thwart those proceedings and we say you shouldn’t hear it, Commissioner, because you will prejudice - and anything we put in proceedings before you may or may not be used in the Magistrates' Court proceedings and we are not prepared to make submissions before you on this application until the magistrate has determined this matter.

PN55

THE COMMISSIONER: All right. Well I'll leave that last point for a moment and when you say, not prepared to make submissions, I take it you - is this right, do you mean in respect of the - I'll call the merit, the case, aspects as to the meaning of the 2004 relevant clause and the 2004 agreement.

PN56

MR GEORGIOU: Yes, Commissioner.

PN57

THE COMMISSIONER: Yes, all right. Well, Mr O'Grady, it seems to me that subject to of course what you want to put this is a submission that the Commission as presently constituted shouldn’t hear the MD(6) not really because of, might I say the latter prejudice point, although that’s obviously raised but because there have been proceedings before Senior Deputy President Acton and this issue and I quote:

PN58

APESMA should be listed under that application -

PN59

And that's the end of the quote and I take it that that is a reference to a fundamental principle that it is not either a good idea or the practice of the Commission to have two members dealing with similar parallel closely proceedings which closely resemble each other for obvious public policy reasons. Now I'd be very much assisted by what you chose to contribute but I must say I'm taking that as the, and Mr Georgiou if this is wrong I'd like you to comment about it before Mr O'Grady responds because I want Mr O'Grady to have the benefit of a proper crystallisation of your position. I understand that there is - there's what looks like a section - and I'll try and get my alphabet right, 111E & I argument abroad.

PN60

MR O'GRADY: Yes.

PN61

THE COMMISSIONER: But it relates to in a more literal sense not the parallel universes of the magistracy and the Commission but rather that properly this issue having been before her Honour should go back to her Honour possibly, and I don’t know this, but if one understands the reasons that and the notions that support the public policy considerations which I've earlier referred are of course nourished by the likelihood that there are aspects of the factual matrix which are know to her Honour that would require non duplication for a whole host of practical reasons.

PN62

MR O'GRADY: Yes.

PN63

THE COMMISSIONER: Now, I'm mindful also of course that a dispute, yet another set of parallel lines exists in a dispute that I heard last year and that was section 170LW not a section 99 but that in my understanding related to the 2002 agreement so that's very lengthy. I wouldn’t allow a witness to be asked a question as lengthy as that but I'm going to permit it to be put to you.

PN64

MR O'GRADY: Well, thank you, Commissioner. Commissioner, can I start by saying that there is a fundamental distinction between proceedings that were before SDP Acton and these proceedings that are in the Magistrates' Court which I don’t want to focus on unduly at the moment because of the way in which has been framed and these proceedings. As Mr Georgiou the proceedings before SDP Acton were a section 99 dispute notification and a jurisdictional point was taken by the company in those proceedings. In effect that Mr Georgiou did not have the right to come to the Commission to ventilate those issues because of the way in which the dispute resolution procedure in the 2004 agreement worked.

PN65

THE COMMISSIONER: Mr O'Grady, I don’t want to interrupt you because it wouldn’t be fair to do so. Did that objection - although I will, did that objection stem from the section 99 origin or would it have been the same if one can see that there may be a different jurisdictional footing? I suspect there may not be but had it been agitated by the section 170LW?

PN66

MR O'GRADY: It would have applied to both as I understand it, Commissioner.

PN67

THE COMMISSIONER: Thank you.

PN68

MR O'GRADY: But the point was that the dispute that Mr Georgiou sort to ventilate had been referred to the PRC, Problem Resolution Committee, which as the Commission knows is constituted by both managed or employer representatives and union representatives.

PN69

THE COMMISSIONER: Yes.

PN70

MR O'GRADY: And that committee had determined that the payment that was there under consideration was no payable and the way in which Toyota construes the dispute resolution procedure in the 2004 agreement or that's incorporated by reference into the 2004 agreement is that in those circumstances the parties did not have the right to refer the matter to the Commission. And that was a submission put to SDP Acton and accepted as I understand by SDP Acton and that determination by her Honour was not appealed by APESMA.

PN71

THE COMMISSIONER: Can I ask you, Mr O'Grady, something said by
Mr Georgiou and I don’t understand it and I say it now bluntly something about the transcript and I just don’t know.

PN72

MR O'GRADY: Yes.

PN73

THE COMMISSIONER: It seemed that Mr Georgiou hadn’t ordered a transcript, that he hasn’t got, was that by way of conference or was it a hearing?

PN74

MR O'GRADY: I wasn’t there, Commissioner. My understanding is that there were occasions where SDP Acton went into conference but there was a determination if you like of the 99 application outside of conference but I can't really assist the Commission any further in that.

PN75

THE COMMISSIONER: Well, you know, you must be properly instructed.

PN76

MR O'GRADY: Yes.

PN77

THE COMMISSIONER: I need to understand this. To understand your non appeal point I've got to understand what went before.

PN78

MR O'GRADY: Yes.

PN79

THE COMMISSIONER: Because it will either carry some weight or perhaps not much but I can't think of reason why there should be any woolly, foggy atmosphere about how it is that proceeding is described. I understand conference, I understand that things that go in and out of conferences and this one may too but if you rely on, if you tell me and of course I'll place an enormous amount of weight on it, if you tell me and that's why you must be properly instructed, if you tell me that there was a determination not in a conference of the point, the jurisdictional point taken by Toyota, then of course I'll understand that.

PN80

MR O'GRADY: Well, my understanding, Commissioner, based on the material that has been provided to me is that SDP Acton indicated that she was not prepared to make - well there was a jurisdictional point taken by my client along the lines that I've indicated and that SDP Acton indicated she was not prepared to make a recommendation on the matter unless both parties were prepared to accept and agree to the recommendation. So if you like there was no inherent jurisdiction that she had that she was prepared to determine the parties if the parties were prepared to accept and agree to her recommendation and where Toyota did not accept that course she indicated that she had no jurisdiction to hear the matter due to it having been resolved at step 6 of the problem resolution procedure set out in the agreement.

PN81

Now I'm afraid I can't take that any further but can I perhaps address it - - -

PN82

THE COMMISSIONER: It makes out one of the aspects which are important, Mr O'Grady, because the preparedness of her Honour against whatever backdrop there's nothing impermissible about that and one doesn't have to be troubled by saying that.

PN83

MR O'GRADY: Yes.

PN84

THE COMMISSIONER: The preparedness of her Honour to make a recommendation suggests that - it doesn't necessarily suggest she's at the stage where she might be capable of making a recommendation but a willingness. There have been some proceedings I must say, I would assume that. It might be there needed to be some final - the essence of disputes might need to finally somehow brushed up into something but it's likely that that issue, that is the merit whatever it may be inside the 2004 agreement, controversy, had been discussed before her Honour in those proceedings to a point where she might have made a recommendation or was capable of making a recommendation.

PN85

MR O'GRADY: Yes.

PN86

THE COMMISSIONER: Is that right?

PN87

MR O'GRADY: Well, I can't take it any further than what I've said to the Commission.

PN88

THE COMMISSIONER: Yes.

PN89

MR O'GRADY: But, Commissioner, can I make this point. There is a fundamental difference between the proceedings that were before her Honour and these proceedings.

PN90

THE COMMISSIONER: Of course there is that's absolutely so.

PN91

MR O'GRADY: What her Honour was considering was a dispute notification that might have evolved in an LW. As I understand it no such application was made but it might evolved in an LW where she didn’t have, it would appear, jurisdiction to determine the matter without the parties consenting to her doing so pursuant to some form of recommendation. The proceedings before the Commission as currently constituted concern if you like the rectification of the certified agreement in order to remove an ambiguity or uncertainty attended upon its construction. Any determination that her Honour might have made would not have had the effect of rectifying the certified agreement.

PN92

It would not be a matter that would impact upon the way in which a court if it was asked to construe the certified agreement would be required to do so.

PN93

THE COMMISSIONER: Yes, that’s true and it's very clear that they're different proceedings and I'm fully mindful of the character, the quite different character from dispute resolution that's constituted by an application under section 170MD(6) to take sometimes, to make substantial action one can contemplate to an agreement that is to change an agreement, to change an agreement given the availability of agreements under the statutory scheme.

PN94

MR O'GRADY: Indeed.

PN95

THE COMMISSIONER: So I'm really fully seized of that conceptual difference and the practical difference but while it might not change the - might it not be though that the resolution of a dispute as to a claimed allowance which requires as it inherently would require one considering the proper application of the clause constitutes directly in that case, the proceedings before her Honour, it constitutes resolution of the industrial dispute which is what this place is about and it also would absolutely directly mean that in considering the resolution of that dispute by way of the outcome provided by her Honour that a construction of the agreement had been provided.

PN96

Now of course it's clear to say it wouldn’t change the agreement or it would have that effect.

PN97

MR O'GRADY: Commissioner, if Mr Georgiou came to you today and said, Commissioner, you should not hear the matter because last week we were before SDP Acton in the context of a LW dispute and she's reserved her decision on that matter and in those circumstances is inappropriate for you to determine this application, I would be hard pressed to put a submission to the Commission saying well there isn’t some substance in it. But that's not what he says. What he says is that back a year ago he brought a section 99 - - -

PN98

THE COMMISSIONER: When were those proceedings before her Honour?

PN99

MR O'GRADY: In December of 2005 as I understood.

PN100

THE COMMISSIONER: Yes.

PN101

MR O'GRADY: A year ago or almost a year ago.

PN102

THE COMMISSIONER: Well its six months ago isn’t it?

PN103

MR O'GRADY: Well, Mr Georgiou said it was a year ago but - - -

PN104

MR GEORGIOU: When we started it was a year ago.

PN105

MR O'GRADY: Yes. And while I'm correcting dates, Commissioner,
Mr Georgiou also said we had notice of the Magistrates' Court proceedings for a year. Those proceedings were issued in March and that should be clarified for the record. But if Mr Georgiou had said, well there is a current proceeding before her Honour and she's going to determine this very issue and the parties have agitated this issue before her, you shouldn’t go ahead. That would be one thing but that's not what he says. What he says is we brought a 99 dispute notification. Her Honour determined that she didn’t have jurisdiction to determine that matter absent the parties consenting to a recommendation. We didn’t press that matter any further, we've allowed it to lapse.

PN106

THE COMMISSIONER: Well, I understand that position. I want the lines to be nice and straight. That is, is this right, Toyota declined to accept a recommendation, is that so?

PN107

MR O'GRADY: As I understand it, Toyota did not agree to her Honour making a recommendation. In the circumstances in which that application was brought which we said was in clear breach of the dispute resolution procedure set out in the agreement. We took the point as we were perfectly entitled to do to say look you have agreed to a certain way of resolving disputes, one of those elements of the agreements is that if the PRC says you've got no entitlement you've got no entitlement and you can't go running off to the Commission if you don’t like what the PRC says. Mr Georgiou ignores that. It brings a proceeding in the Commission. We put that submission to the Commission and the Commission accepts it but says I accept it but I don’t have jurisdiction but if you'd be prepared to accept my recommendation I'm prepared to make a recommendation.

PN108

We say well we're following what's in the dispute resolution procedure. We're happy to rely on its terms and we don’t want to take the matter any further.

PN109

THE COMMISSIONER: That remains the Toyota position?

PN110

MR O'GRADY: As I understand.

PN111

THE COMMISSIONER: That it won't accept the recommendation from the Commission as to the merit of the case which recommendation would require the construction - would have as its fundamental precept. Its fundamental support would be construction of the questioned clause.

PN112

MR O'GRADY: Commission, our position is that the proceeding that is best adapted to resolve this issue is the proceeding we have instituted which is an application to vary the agreement in order to remove ambiguity and uncertainty associated with its terms.

PN113

THE COMMISSIONER: Yes, and you say there's nothing opportunistic about that in the way it's pejoratively put by Mr Georgiou?

PN114

MR O'GRADY: No, not at all because, Commissioner, no other proceeding either in the Commission or in the court has had the power to do what we seek to do. If Mr Georgiou has a good merits argument in the 99 dispute notification that's an argument he can ventilate here in this proceeding. If Mr Georgiou has a good merits argument in the context of his court proceeding albeit the limited context in which the court can examine the terms of the agreement but if he has a good argument he can run that argument here.

PN115

THE COMMISSIONER: I want you to consider this question, Mr O'Grady, and it arise because of what you've just said. What is the place, what is the optimum, what is the place that Toyota and respondents to its agreements have determined should hear and settle often practically and sometimes not so practically and indeed this morning might be a champion example of the later category, controversies and disputes that arise over the application of the agreement? You see, because what troubles me is and I say used a moment ago, used a term and I acknowledge that its put so prejudicially or pejoratively rather by Mr Georgiou that is its opportunistic.

PN116

MR O'GRADY: He's been pejorative in the past.

PN117

THE COMMISSIONER: Well, I'm sure APESMA has never acted or any union have never acted opportunistically I perish the thought but if Toyota try and do so and protect itself in the clinches by mounting a multi faceted approach, of course its put in a different way, and you're condemned for it. But I must say to you and if there's tenure of Mr Georgiou's argument apparent in my question then it's not an accident because I think you all know that as finally rort industrial relationship as exists between these federal unions and Toyota there is and has been over the last decade, and I well know it goes back much earlier than that. But there has been in the modern area a nominally focused and energetic attempt to have disputes resolved in a way which doesn’t damage the employees and doesn’t damage - I'm not talking about disputes in relation to negotiation of new agreements.

PN118

It strikes me and I'm talking about disputes that arise over the operation of agreements. Now the MB(6) is there, you've got every right and you can hold to the ground, the sole ground, Mr O'Grady, that it was there and we want to do it and we've just got our rights there, they're inextinguishable. But great efforts are gone to hear every day of the week, not every day in the week in relation to Toyota, but not infrequently in relation to Toyota given its size, to resolve disputes by application of the disputes procedures.

PN119

MR O'GRADY: Yes.

PN120

THE COMMISSIONER: True it is and I don’t impeach your capacity to argue whatever point you argued before Senior Deputy President Acton but MD(6) is one avenue. The approach that is sought to be adopted in the vehicle industry and in Toyota is that disputes come here. Now if there is another course of conduct which where one party is responsive to a technical point being taken to a jurisdictional point and won't accept a recommendation and the party then who are sent away, the party who are turned away by a jurisdictional point, seek recourse to a court, it does provide Mr Georgiou with the opportunity to say, well don’t vilify us for taking that step because we first tried here. They've come here and I don’t know if it’s the same blokes but they've come here with me under the 2002 agreement. They've come to the Commission in relation to the 2004 agreement with Senior Deputy President Acton and they're turned away.

PN121

MR O'GRADY: Yes, but Commissioner, firstly I'm not vilifying anyone.

PN122

THE COMMISSIONER: No.

PN123

MR O'GRADY: We've only brought one proceeding, we haven’t brought a multiplicity of proceedings but if I can deal with the question you asked me at the outset of what you just said.

PN124

THE COMMISSIONER: Yes.

PN125

MR O'GRADY: Which is what is the place that Toyota goes to to resolve disputes and the answer to that is there are two places under the dispute resolution procedure in both the 2002 or under the 2004 agreement.

PN126

THE COMMISSIONER: Yes.

PN127

MR O'GRADY: That is it goes to the problem resolution committee and if the matter is not resolved at that committee it goes to the Commission and that’s the deal with have with APESMA and it went to the problem resolution committee and the matter was determined by the problem resolution committee. It was determined against Mr Georgiou and his members.

PN128

THE COMMISSIONER: Mr Georgiou, does an APESMA representative sit on the 2004 - - -

PN129

MR GEORGIOU: No. No.

PN130

THE COMMISSIONER: Just a moment, Mr Georgiou. Does an APESMA persons' representative form part of the council that goes - the employees' side of the PRC?

PN131

MR O'GRADY: No, it doesn't.

PN132

THE COMMISSIONER: And that's because APESMA aren’t a party to that agreement?

PN133

MR O'GRADY: No, well, Commissioner, as you're aware there are a multiplicity of agreement but if we deal with the 2004 agreement.

PN134

THE COMMISSIONER: Yes.

PN135

MR O'GRADY: The 2004 agreement incorporates by reference the problem resolution or dispute resolution process set out in the WPA. That has a structure that includes the problem resolution committee which is constituted as the Commission is aware by union representatives and employee representations but there are no APESMA representatives on that committee. But when APESMA agreed to the 2004 agreement it agreed that that was a process by which disputes would be resolved and indeed Mr Georgiou in November of last year directed the Commission's attention to that very fact that he wanted it be very clear that the dispute resolution procedure in the 2004 agreement adopted was the procedure set out in the full title of it is the Toyota Australia Workplace Agreement Port Melbourne Sydney and Regions.

PN136

THE COMMISSIONER: Just a moment I'll turn that up.

PN137

MR O'GRADY: Does the Commissioner have the bundle of material that we filed, the various documents?

PN138

THE COMMISSIONER: I've got bundles of documents.

PN139

MR O'GRADY: You've got your own bundle of documents.

PN140

THE COMMISSIONER: I've got these coloured ones and if you take out the wrong coloured one everyone frowns at you after a while because there were two that are the same colour but are different agreements so you can't win. But you're talking about the 2002 agreement, the main - - -

PN141

MR O'GRADY: The 2002 main agreement.

PN142

THE COMMISSIONER: Which is, give its title please?

PN143

MR O'GRADY: The Toyota Australia Workplace Agreement Port Melbourne Sydney and Regions 2002.

PN144

THE COMMISSIONER: It's in your materials is it?

PN145

MR O'GRADY: It's in our materials. It is the first document behind tab A.
Mr Georgiou accepts that it is largely replicated in or it's replicated in the current workplace agreement.

PN146

MR GEORGIOU: You can use anyone, Commissioner, they're all the same.

PN147

MR O'GRADY: But if you use the 2002 - - -

PN148

THE COMMISSIONER: But your point is, part of your point is to see the launching pad being the agreement to which Mr Georgiou I anticipate was responded to?

PN149

MR O'GRADY: No. My point is this, Commissioner, and if I can address it in this way. On 9 November 2004 when this agreement, the one that we're currently considering, the 2004 agreement that we're seeking to vary pursuant to MD(6) was before you for certification. There was an exchange between yourself and
Mr Georgiou apparently stemming from something that Mr Georgiou had said in conference about the dispute resolution procedure.

PN150

THE COMMISSIONER: Now, I think I've read this in the papers, there's some transcript about this, isn’t there, is that right?

PN151

MR O'GRADY: Yes there is.

PN152

THE COMMISSIONER: Where is that found?

PN153

MR O'GRADY: The transcript if you go to the bundle of materials that we've filed behind tab D and it’s the last document as I understand it.

PN154

THE COMMISSIONER: Yes.

PN155

MR O'GRADY: Commissioner, if you go to - sorry, I’ll just find it where it starts. If you go to paragraph - - -

PN156

THE COMMISSIONER: 18 or thereabouts. It's in there.

PN157

MR O'GRADY: Well, perhaps if one goes - sorry, Commissioner, I'm just finding the passage. Yes, I think that’s right, paragraph 18.

PN158

THE COMMISSIONER: And thereafter it, yes.

PN159

MR O'GRADY: Yes, and you refer to a contribution made in clause 31 which deals with the dispute resolution procedure. This is of course talking about clause 31 of the agreement here under consideration:

PN160

Shall have access to the TMCA problem resolution dispute avoidance procedure.

PN161

And then you say in paragraph - Mr Georgiou says in paragraph 28:

PN162

It’s a state reference to the 2002 agreement.

PN163

And as I understand it he is referring to the agreement you've just dug out of the bundle, Commissioner, the WPA agreement of 2002.

PN164

THE COMMISSIONER: But Mr Georgiou says at 23, he refers to the TMCA. I regard that as a reference back to the source of the spring.

PN165

MR O'GRADY: Yes.

PN166

THE COMMISSIONER: And he says:

PN167

Contained.

PN168

Perhaps it should also say, contained in the Toyota Australia Workplace Agreement Port Melbourne Sydney and Regions 2002 Agreement.

PN169

MR O'GRADY: Yes.

PN170

THE COMMISSIONER: And I think this 2002 agreement is the Altona agreement so that’s not it.

PN171

MR O'GRADY: No, no, Commissioner, it’s the one that I took you to a moment ago. the first agreement behind tab B of our materials.

PN172

THE COMMISSIONER: Yes, all right.

PN173

MR O'GRADY: And indeed that’s made, Commissioner, by paragraph 37 of the transcript.

PN174

THE COMMISSIONER: So if I look behind B is it?

PN175

MR O'GRADY: If you look behind of our materials you should have an agreement headed the Toyota Australia Workplace Agreement Port Melbourne Sydney and Regions 2002 Agreement.

PN176

THE COMMISSIONER: I've go correspondence to Mr Larkin, Toyota Proposed Business Structure Change. Well, so perhaps it should be behind tab A, is it?

PN177

MR O'GRADY: Sorry, tab A, it is.

PN178

THE COMMISSIONER: Behind tab A, all right, I think you originally - - -

PN179

MR O'GRADY: Yes, sorry, tab A, I apologise, Commissioner.

PN180

THE COMMISSIONER: Now that's the Toyota Australia Workplace Agreement Port Melbourne Sydney and Regions 2002.

PN181

MR O'GRADY: And that’s the agreement that Mr Georgiou is referring to in the transcript.

PN182

THE COMMISSIONER: Yes.

PN183

MR O'GRADY: And then one turns to page 41 of that agreement, Commissioner, and you should find there at the foot of the page, clause 5, problem resolution dispute avoidance procedure.

PN184

THE COMMISSIONER: Yes.

PN185

MR O'GRADY: If one turns over the page you will see there are a number of steps but we come to step 5:

PN186

The problems not resolved a site senior employer representative co-ordinator and relevant union official will get involved to seek to resolve the matter.

PN187

Step 6:

PN188

If the matter is still unresolved the party who wishes to pursue the grievance has the opportunity to refer the matter to the problem resolution committee.

PN189

And that's what's happened here and then step 7:

PN190

If the matter is still unresolved after step 6 - - -

PN191

THE COMMISSIONER: And I take it you construe that to mean after the problem resolution committee has dealt with it?

PN192

MR O'GRADY: Yes.

PN193

THE COMMISSIONER: Is that right?

PN194

MR O'GRADY: Yes. Yes, and in the case what's happened is the matter has been referred to the problem resolution committee and the problem resolution committee has determined the matter. Again Mr Georgiou - - -

PN195

THE COMMISSIONER: Well it says, step 7:

PN196

If the matter is still unresolved after step 6 the party that wishes to pursue the grievance -

PN197

So that’s the party grieving.

PN198

Has the opportunity to refer the matter to the AIRC.

PN199

MR O'GRADY: Yes.

PN200

THE COMMISSIONER: But I take it you - is this really the pivotal point, you say that the grievant, someone aggrieving can't pursue a grievance if they're bound by the outcome of the dispute resolution procedure?

PN201

MR O'GRADY: Yes. Yes and indeed that was the submission as I apprehended that was put to SDP Acton and that was the submission that she acceded to.

PN202

THE COMMISSIONER: Because a person who hasn’t achieved satisfaction can't be a person who has an unresolved grievance.

PN203

MR O'GRADY: Sorry, our position is that if the dispute resolution committee cannot reach a determination on the matter then it is open for the matter to be referred to the Commission. But if the dispute resolution committee does reach a determination on the matter then that is the end of the process. Now, Commissioner, we took that point before SDP Acton and SDP Acton acceded to that. Now it may have been open for Mr Georgiou to have taken issue with it but SDP Acton said well in those circumstances I'm not going to pursue the matter any further as I understand it absent the parties consenting to a recommendation and that consent was not forthcoming.

PN204

But one, I think, should keep in mind, Commissioner, that there is this fundamental distinction between that process which has lied in abeyance since December and the current position.

PN205

THE COMMISSIONER: Yes, I understand that.

PN206

MR O'GRADY: Whilst the Commission has the transcript, can I take you to another point which really goes to the heart of our response to what Mr Georgiou has said. Commissioner, you'll see in paragraph 10 of the transcript, paragraph 9 and on paragraph 10, you'll see in the last sentence of paragraph 9, Ms Box says:

PN207

On 25 August that agreement, this is the agreement we've got here before, was released to ...(reads)... and the answers that were being circulated.

PN208

Now, Commissioner, I don’t need to take you to them but that is in essence the position of all parties to the agreement in their stat decs when they're asked in paragraph 6.5 and 6.4 of the stat dec that you relied upon when you certified the agreement. How was the agreement given to employees, what steps were taken to explain it, all parties including APESMA refer to this session on 25 August. Now on 25 August as Ms Box said there was - - -

PN209

THE COMMISSIONER: Mr Georgiou refers to it?

PN210

MR O'GRADY: In the stat dec filed because he didn’t sign the stat dec, Mr Artis signed the stat dec on behalf of APESMA but Mr Artis says in 6.4:

PN211

On 25 August the agreement was released to staff via divisional communication session, hard copies of the agreement were circulated in that session of which there employees signatures were developed upon receipt of the agreement to ensure all employees received a copy. A summary of the agreement was present to staff with the three key principles outlined, employment security, transparency and employee support.

PN212

At 6.5 he says:

PN213

The terms of the agreement were explained in the session conducted on
25 August. Throughout the 14 day communication period TMCA utilised a question and answer sheet which answered specific questions which was then circulated to all staff.

PN214

Now, Mr Georgiou didn’t take issue with what Ms Box had said to you in the course of the certification proceeding. The information session and this is included in the material, Commissioner, but it might be easier if I just hand up a separate copy.

PN215

MR GEORGIOU: This is off the point, Commissioner, and I - - -

PN216

MR O'GRADY: No, this goes to the heart of the point with respect to - - -

PN217

MR GEORGIOU: He's arguing a matter that I will not respond to because
this - - -

PN218

THE COMMISSIONER: Mr Georgiou, I don’t want to hear you now. If you make an objection - - -

PN219

MR GEORGIOU: I'm objecting to you receiving material that goes to the substance of the case and this exhibit that the company proposes to give to you now is one of the issues between the parties that is to be agitated in the Magistrates' Court.

PN220

THE COMMISSIONER: Yes, well I'm quite prepared to receive material from you Mr O'Grady in relation to these issues. Go ahead.

PN221

MR O'GRADY: Thank you, Commissioner. Commissioner, if you have a look at this document and this is the power point presentation and this is in our material, that was, as its heading makes - - -

PN222

THE COMMISSIONER: It's in your material?

PN223

MR O'GRADY: It's in the material but I'm just trying to make it - I realise you've got bundle and bundles and I was trying to make it a lot easier.

PN224

THE COMMISSIONER: Well, I won't mark it - if it becomes a question, it won't be identified.

PN225

MR O'GRADY: No. Well - - -

PN226

THE COMMISSIONER: Where is it in the material?

PN227

MR O'GRADY: Yes, it is.

PN228

THE COMMISSIONER: It is in there somewhere?

PN229

MR O'GRADY: Yes it is, if one turns to tab B. It's the last document but the last page of that document shouldn’t be attached to it and I'll explain that in due course but if one goes to tab B it’s the last document baring the last page.

PN230

THE COMMISSIONER: Yes, there it is.

PN231

MR O'GRADY: Commissioner, you'll see its there. This is a power point presentation that was put on 25 August. This is how employees were told about what the contents of the agreement was and if, Commissioner, you turn to the fourth page, the one headed, PLE/PDC Agreement 2004 Summary. Do you have that, Commissioner?

PN232

THE COMMISSIONER: I do.

PN233

MR O'GRADY: If you go half way down the page you will see there's a reference there to job closure redeployment and it is clear that in the power point presentation that was the basis upon which employees were told what's in this agreement it was explained to them that they only get the transfer support payment in the event of redeployment upon redeployment to an alternative TMCA site. Now, Commissioner, the Commission is with respect bound to have regard to the equity and substantial merits of the case.

PN234

THE COMMISSIONER: Don’t omit those in the next two words.

PN235

MR O'GRADY: I won't omit those next two words, Commissioner. I was making sure they haven’t changed, equity - - -

PN236

THE COMMISSIONER: No, well they've been there since 1904 and its an absolute delight, it is, whatever else it might be but it is also a delight to see that they remain in the Act unchanged and they are that in determining matters that come to requiring determination amongst other things there's a minimal legal form and technicalities and without recourse to restrict rules of evidence and by application and the Act doesn't spell all these things out but the High Court has been very helpful along the way, hasn’t it. By application of the principles of natural justice and the requirement to act judicially the Commission is required going back to the principle statutory direction to an injunction to act according to equity, good conscious and the substantial merits of the case.

PN237

MR O'GRADY: Yes, Commissioner.

PN238

THE COMMISSIONER: I always like to think the parties that appear before the Commission have a similar obligation.

PN239

MR O'GRADY: Yes, I would like to think that was the case as well, Commissioner.

PN240

THE COMMISSIONER: Yes.

PN241

MR O'GRADY: Now, Commissioner, when the agreement that is the subject of our application was certified you were told that the employees had it explained to them on 20 August. When they had it explained to them it was made crystal clear to them that if they were redeployed and that redeployment did not entail movement to an alternative TMCA site they would not be entitled to the bonus. What Mr Georgiou is seeking to do and it is with respect unworthy of him is he is seeking to pursue a claim whereby employees who were told you don’t get these moneys if you're redeployment on site can none the less attain this payment and he is attempting to frustrate a procedure brought in this place that has the ability to resolve that issue determinately as parliament intended. Because as the Commission is aware, section 170MD(6) is designed to resolved precisely this sort of situation.

PN242

THE COMMISSIONER: Well, it's the intention to provide the Commission with the capacity after it's considered the asserted, alleged existence of an uncertainty or an ambiguity.

PN243

MR O'GRADY: Yes.

PN244

THE COMMISSIONER: To then give effect if a finding is made, the necessary preliminary finding, it then exercises a discretion at large.

PN245

MR O'GRADY: Yes. Yes, Commissioner, and obviously we have to convince the Commission that there is an ambiguity or uncertainty and we have to convince the Commission that it would be appropriate to exercise its discretion in the way in which we seek. We also have to convince the Commission that it would then be appropriate for the Commission to make any such order retrospective.

PN246

THE COMMISSIONER: Yes. I follow all that and of course, that’s so, that’s so.

PN247

MR O'GRADY: But that those are matters that in my respectful submission should be agitated before the Commission and they should be agitated before the Commission prior to another place that does not have the powers of this Commission and does not have the underpinning injunction that we referred to a moment ago determines what the clause the means and whether or there is paid, moneys payable pursuant to it. That's the heart of our application, Commissioner, and Mr Georgiou says, well you shouldn’t go ahead because you're going to prejudice the proceedings in the Magistrates' Court. Proceedings in the Magistrates' Court should never have been brought, with respect. In the light of this document and in the light of Mr Georgiou said on 9 November of 2004 those proceedings should never have been issued.

PN248

All we're seeking to do is bring the agreement into terms which make it crystal clear that it provides what the parties were told it would provide at the information session. Now that is matter that wasn’t before SDP Acton back in 2005.

PN249

THE COMMISSIONER: What wasn’t before her?

PN250

MR O'GRADY: The proper terms of the clause 16 of the 2004 agreement. There was a dispute. There was an issue about what the dispute resolution procedure required.

PN251

THE COMMISSIONER: That's what the disputes about. Understanding that, you can't have a grasp of the dispute unless you understand the terms of the agreement, can you?

PN252

MR O'GRADY: Well, there might be factors that SDP Acton would take into account in the resolution of that dispute that would not be appropriate for the Commission to take into account in the context of this proceeding. For example, has the Commission has made clear, absent and ambiguity or uncertainty the Commission has no jurisdiction under any of these things. The same would not necessarily apply to SDP Acton in the context of a section 99 dispute notification.

PN253

THE COMMISSIONER: Why would that - - -

PN254

MR O'GRADY: Sorry?

PN255

THE COMMISSIONER: Why wouldn’t, deriving from the way in which that dispute was notified under 99, I just want to understand what that submission means.

PN256

MR O'GRADY: Yes. Well it simply means - - -

PN257

THE COMMISSIONER: It's very like I would have thought that section 99, that the application was misconceived. I don’t know. But I don’t think it really matters much I'm sure the parties took a practical approach as they normally would. There may be some reason that I must say I can't discern as to why that dispute would have been notified under section 99 but it doesn't seem - that wasn’t the course of any obstacle raised by Toyota was it?

PN258

MR O'GRADY: Sorry?

PN259

THE COMMISSIONER: That is that it had its main - it had its sources and application under section 99?

PN260

MR O'GRADY: No, no. My understanding is that the point that was taken by Toyota is the one I've tried to articulate which is the parties have agreed to a process for resolving disputes. That involves the matter being referred to the PRC. If the PRC determines the matter then that’s the end of that process.

PN261

THE COMMISSIONER: Yes. Mr O'Grady, you see I'm not sitting in some, well, I don’t see myself as sitting in someway either in review and I don’t want to be alternative to those proceedings.

PN262

MR O'GRADY: Yes.

PN263

THE COMMISSIONER: It immediately trenches into the policy considerations to which you referred perhaps 50 minutes ago or so about parallel proceedings about similar issues. Now one aspect as I understand it of APESMAs case is, there is the blatant 111 or whatever it is, I & E.

PN264

MR O'GRADY: Yes.

PN265

THE COMMISSIONER: E and I, but most particularly in the foreshadowed material and that’s what we're dealing with at the moment, the objection of APESMA. They say, APESMA says, and its here that the issue should be listed under the application previously heard by SDP Acton. Now you've really only got to say it to see that it can't quite mean that but rather because this is a different application and you have an entitlement.

PN266

MR O'GRADY: Yes.

PN267

THE COMMISSIONER: If Mr Georgiou waits for a decision to be told that I'll foreshadow it now, you of course have that entitlement, it just can't be trammelled. You have the entitlement to make your application so in a literal sense the point at capital A in that correspondence that I know you're familiar with can't have a direct meaning.

PN268

MR O'GRADY: No.

PN269

THE COMMISSIONER: But the meaning that I give it is and I apologise for saying this, it’s a practical, a practical industrial relations dispute vehicle industry meaning is that because SDP Acton was alive and alert and heard these arguments that the desirability of 170MD(6) or the vulnerability of your application that you're entitled to bring to these arguments should be heard by the person who heard the primary dispute over the 2004 agreement and that's her Honour.

PN270

MR O'GRADY: But, Commissioner, I think we should be alive to the fact that what Mr Georgiou seeks to achieve through raising these matters is simply the delay of this proceeding.

PN271

THE COMMISSIONER: The effect would be to delay - - -

PN272

MR O'GRADY: And a win - - -

PN273

THE COMMISSIONER: Yes, I follow.

PN274

MR O'GRADY: And a win by default in the Magistrates' Court because the Magistrates' Court proceedings would be heard and determined prior to those matters being resolved.

PN275

THE COMMISSIONER: Yes.

PN276

MR O'GRADY: Now, if Mr Georgiou was fair dinkum he could come to the Commission and say look we agree to adjourn the Magistrates' Court proceedings indefinitely so that the matter can be referred back to SDP Acton and the matter can be determined by her - - -

PN277

THE COMMISSIONER: You'd accept that?

PN278

MR O'GRADY: I would get instructions.

PN279

THE COMMISSIONER: All right. Because you're the party and of course
Mr Grady, you know I put that, I believe its Toyota. It's Toyota who, you say, quite absolutely permissibly but declined to accept the recommendation of her Honour.

PN280

MR O'GRADY: Well, certainly, Commissioner, I would be speaking to my client and I would be seeking instructions that if Mr Georgiou said that he was prepared to adjourn the Magistrates' Court proceedings until the determination of this matter before SDP Acton by whatever application either he or we sought to bring upon before her, that would have to be a matter we would have to consider. If he was saying that, Commissioner, you could have no doubt about what his real agenda was.

PN281

THE COMMISSIONER: Well, accept this and I'll put it to you, I won't wait for Mr Georgiou to put it to you but I don’t say that he can't because no doubt he wants to play his cards. I'm told that he advised in December 2005 that in the face of a successful jurisdictional point taken by Toyota he still had a claim. He had a view. Toyota didn’t agree with it but he still had a view and he wanted to take a legal course open to him and he advised in 2005 in December and he goes about his case preparation and no doubt it took some months. I think you said the proceedings were instituted in March.

PN282

MR O'GRADY: March.

PN283

THE COMMISSIONER: Well, anyway he has a very short Christmas break and then he starts his case preparation of perhaps six to eight weeks and he institutes proceedings. Now from the December announcement by him and you said fair dinkum, this is where I've got to say I've got hopefully a ..… division because does Toyota take steps? Does Toyota think, well as an add jump to our position before her Honour we really must go to the source of the Nile and we will put in our 170MD(6) to have effect of truncating the capacity for there to be any further uncertainty. He says, well she didn’t do it. He does what he said he'd do and then in comes a stopper, your late application.

PN284

MR O'GRADY: Well, Commissioner, the answer is that Toyota did not bring an application in that interim but in the light of the fact that we have a view of what the dispute resolution provides namely if it's determined by the PRC in one way then that’s the end of the matter, that's perhaps an understandable position. What did happen of course is when the proceedings were issued in the Magistrates' Court we did as we were entitled to do, file the MD(6) application. We told the Magistrates' Court about that application. We said, look it make sense to have that application determined first. Now, Mr Georgiou opposes that.

PN285

THE COMMISSIONER: Well, when was the MD(6) lodged, on 23 May?

PN286

MR O'GRADY: Yes.

PN287

THE COMMISSIONER: All right. Just a moment, Mr O'Grady. Yes,
Mr O'Grady.

PN288

MR O'GRADY: Yes. I'm not saying it might not have been brought earlier, Commissioner, but you would appreciate, Commissioner, that it is not a light decision to make to institute proceedings of this nature in that they are significant and there are moneys that have to be devoted to the proceeding and the like.

PN289

THE COMMISSIONER: Yes.

PN290

MR O'GRADY: What we have done however, Commissioner, is we have instituted that proceeding. We have been up front with the Magistrates' Court about that fact and we are prepared to agitate it and prepared to agitate now. Now as I say if Mr Georgiou says, well we've come here before the wrong member of the Commission, that matter we would have thought could be resolved by him putting the brakes on the Magistrates' Court proceedings to enable it to go before another member of the Commission.

PN291

THE COMMISSIONER: Yes.

PN292

MR O'GRADY: Because if he doesn't do that then we have the unpalatable situation, Commissioner, of in the light of what would appear be an unanswerable position based on merit where the parties have been told that you don’t get it if you are redeployed to the same site. Mr Georgiou has sat numb during the course of the certification proceedings and not said or actually we are going to try and bring a proceeding to obtain this payment. We have another place which doesn’t have the broad powers conferred upon the Commission by section 170MD(6) having to determine the matter in effect with its blinkers on. In the context, Commissioner, can I hand up to you a decision in Westgate Logistics, a decision of Commissioner Larkin where precisely this issue was discussed.

PN293

Sorry, Commissioner, buried it under some of my bundles. Here we are, I've got it.

PN294

THE COMMISSIONER: It's in your material, is it, are you hand it up?

PN295

MR O'GRADY: No, I'm going to hand it up.

PN296

THE COMMISSIONER: I thought you said you were going to hand it up.

PN297

MR O'GRADY: Yes.

PN298

THE COMMISSIONER: Thank you.

PN299

MR O'GRADY: Now, Commissioner, this was in the context of an application perhaps not dissimilar to what Mr Georgiou is flagging, an application under 111(1)(g) of the old Act and you will see that there was an MD(6) application brought by Westgate.

PN300

THE COMMISSIONER: Yes.

PN301

MR O'GRADY: There was an argument, well you should go ahead with this because there are proceedings in the court and what Commissioner Larkin notes and this at paragraph 58 I'm following, Commissioner.

PN302

THE COMMISSIONER: Yes.

PN303

MR O'GRADY: It addresses the problem in this way, namely:

PN304

Is the MD(6) application before me dependant upon the determination of the issues before the Federal Court of Australia?

PN305

And he goes on to say:

PN306

The matter before the court concerns issues relevant to MN.

PN307

Et cetera.

PN308

A decision in the proceedings before the court on the question for it might not necessarily result in ...(reads)... if in fact such an ambiguity or uncertainty exists.

PN309

Then he goes on to refer to a decision of his Honour Justice North in the AFNPKIU and Qantas where his Honour was dealing with an award breach proceeding or a breach of a certified agreement proceeding and he could not determine the matter because he found that there was no clear view about what the agreement meant. He went on to say and you will see at the foot of the quote:

PN310

In a case such as the present an application to the court can identify an ambiguity, it cannot remove it. The Commission is empowered to remove the ambiguity.

PN311

And he went on to note what Justice Sundberg said, where he said:

PN312

A merits approach is available in the Commission and that was the forum that the applicant initially intended to approach.

PN313

Now, what we are looing for, Commissioner, is a merits approach. That's what our application is designed to achieve, a merit approach on the appropriate on the meaning to be given to clause 16 of the certified agreement. What concerns us about what Mr Georgiou has raised this morning is he is attempting to defeat that approach through a serious technicalities and he should be allowed to do so, with respect.

PN314

THE COMMISSIONER: Yes.

PN315

MR O'GRADY: If the Commission please.

PN316

THE COMMISSIONER: Yes.

PN317

MR GEORGIOU: Commissioner, to go have to the proceedings before her Honour, SDP Acton, in the course of the proceedings the reason why the application was made under section 99 and not pursuant to 170 whatever it is the disputes process.

PN318

THE COMMISSIONER: It's LW.

PN319

MR GEORGIOU: Whatever it is, I always get - - -

PN320

THE COMMISSIONER: Well, it's just LW. You're only to remember, I'm not going to talk about alphabet soup because I don’t want to become adept at it there are others who are very clever but its section 99 or LW, certainly that’s how it goes.

PN321

MR GEORGIOU: I've got it down there. I wrote it down before. During the proceedings before her Honour the issue of correspondence between my organisation, Toyota and FBIU over the disputes resolution procedure and our unwillingness to participate in that process because we had no representation on that committee was apparent and during the proceedings before her Honour we agitated that either the Commission as it was then constituted should determine the matter or we would be off to the Magistrates' Court.

PN322

THE COMMISSIONER: Yes.

PN323

MR GEORGIOU: The company has had a year because the correspondence on that goes back to, sorry, I'll just find the exact - November of the formal correspondence between the company, FBIU and ourselves on this was in November but Mr Dymock from the company who conducted the proceedings before her Honour. There were several meetings held prior to that so it's almost a year that the company has been on notice that either we refer the matter to the Commission and have it determined one way or another or we were off to the Court. I was being a bit cheeky in front of her Honour which is not like me but I just said, if you rule against us, your Honour, I'm off to the Maggies Court and she said, you'll probably have to take it to the Maggies Court and she used the same term which was in the spirit of the way the sessions had been conducted.

PN324

Now I'm fairly sure that that was on transcript, Commissioner. Unfortunately there is no transcript available and Mr Dymock is not - - -

PN325

THE COMMISSIONER: Yes, well I want to deal with that point and I'll deal with it now, Mr O'Grady, thank you, Mr Georgiou and I'll ask you Mr O'Grady, do you have transcript?

PN326

MR O'GRADY: No, I don’t, Commissioner.

PN327

THE COMMISSIONER: Well I'm told - you' haven’t got it Mr O'Grady?

PN328

MR O'GRADY: No I haven’t, Commissioner.

PN329

THE COMMISSIONER: All right. Well I'm sure that this won't reveal any state secrets but the position is that unless the parties order transcript, matters are recorded but not transcribed. It's a great cost to the commonwealth person, your taxes at work, we are conscious of that and it is with due respect to Ravi there, it is very expensive to transcribe proceedings. If the parties have a request, they pay. I think if the Commission requests the parties' get there's free of charge, that's how it goes. Now, in this case it is likely but I don’t know and I've conducted no great forensic activity in this respect at all but it's likely that I suspect that neither of the parties sought to order the transcript.

PN330

But the proceeding was recorded and I'm reminded by my associate that the sound files available and I have a very strong reason to believe that it can be availed of and its there on the main line so if there's any need for - but you haven’t got a copy of it?

PN331

MR O'GRADY: No.

PN332

THE COMMISSIONER: And you haven’t ordered it? Thank you.

PN333

MR O'GRADY: Yes, thank you, Commissioner.

PN334

THE COMMISSIONER: Well, Mr Georgiou, the transcription can be made and even more relevantly for today's purposes it can be listened to. I don’t know that I'm prepared to, without discussing with her Honour, make the transcript available in either a written form or of the audio form but its there, it hasn’t been expunged. There's nothing improper about it, its there, you didn’t order it. My associate's got it, she's got an ear piece there, she's - but only by reference to her Honour will you hear it and if I chose to hear to it I will advise the parties. I would like to advise them before I do but there we have it. There is no mystery about that tape it's there.

PN335

MR GEORGIOU: I remember that it was, there was a court reporter and we were on the record because her Honour did ask what I was seeking and I said that would accept the recommendation that her Honour should hear the matter.

PN336

THE COMMISSIONER: Yes.

PN337

MR GEORGIOU: It was very apparent to the company why we were bringing the matter under section 99. Her Honour did make reference to 170LW and I can't swear that it was on transcript or in conference that we could have changed our application at any stage but it didn’t seem appropriate in the circumstances.

PN338

THE COMMISSIONER: Yes. All right.

PN339

MR GEORGIOU: I don’t have any other submissions to make with regard to this, Commissioner.

PN340

THE COMMISSIONER: All right. Thank you. Now, Mr Georgiou, you choose not to respond to Mr O'Grady's stated willingness to seek instructions that he set out some 15, 20 minutes ago.

PN341

MR GEORGIOU: Commissioner, I have been appearing before the Commission as currently constituted for some 18 years, no, is the answer I am not interested in withdrawing the matter in the Magistrates' Court whatsoever. We will be proceeding in the Magistrates' Court to prosecute that clause on behalf of our members and nothing in this place is going to dissuade me to that effect.

PN342

THE COMMISSIONER: Well, thank you, Mr Georgiou. All right. Well,
Mr O'Grady, I'm of course preparedly interested in what you'll final position is so I'm going to give you the opportunity to seek some further instructions along the line the way I view these things it doesn't require for me to understand your position. I need to understand your position, you've had the benefit now of hearing what Mr Georgiou has said and I'm going to ask you though in coming to receiving those instructions and then the preliminary that give rise to their final formulation to give particular emphasis to have the Commission of course review a proper disposition of these issues.

PN343

MR O'GRADY: Yes. Well, perhaps if the matter could be stood down so that I could obtain those instructions?

PN344

THE COMMISSIONER: Yes, and it's like I would have thought that that wouldn’t take less than 30 minutes? It may take longer, have you got a view on how long?

PN345

MR O'GRADY: No, I wouldn’t have thought it would take longer than 30 minutes. I would have though perhaps less.

PN346

THE COMMISSIONER: No.

PN347

MR O'GRADY: But if the Commission was to adjourn until - sorry, there is one matter I should raise, Commissioner?

PN348

THE COMMISSIONER: Yes.

PN349

MR O'GRADY: Which is that one of the witnesses that the company is seeking to call if we do get into merits has flight commitments this afternoon so if perhaps the Commission would only give me 15 minutes we will get instructions.

PN350

THE COMMISSIONER: I just don’t want anyone's lips to be scaled which won't be a function of your discussions.

PN351

MR O'GRADY: I may be scalded but not my lips, Commissioner.

PN352

THE COMMISSIONER: All right. Well, we'll adjourn now. The Commission will adjourn for not less than 15 minutes.

PN353

MR O'GRADY: Yes, thank you, sir.

<NO FURTHER PROCEEDINGS RECORDED