RE2006/2217, Transcript of Proceedings [2006] AIRCTrans 960 (15 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15493-1

DEPUTY PRESIDENT MCCARTHY

RE2006/2217

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE-WESTERN AUSTRALIAN BRANCH
AND
WEST AUSTRALIAN NEWSPAPERS LIMITED
s.748(9) - Application to Commission for access to non-member records
(RE2006/2217)

PERTH

9.55AM, WEDNESDAY, 02 AUGUST 2006

PN1

MR M SINCLAIR-JONES: The MEAA.

PN2

MR R LILBURNE: Seeking leave to appear on behalf of the respondent WA Newspapers.

PN3

THE DEPUTY PRESIDENT: Yes. Mr Sinclair-Jones, do you have any objection to leave being granted to Mr Lilburne?

PN4

MR SINCLAIR-JONES: No sir.

PN5

THE DEPUTY PRESIDENT: It's customary for people to stand in these proceedings, Mr Sinclair-Jones. Leave is granted. Mr Lilburne, I've had regard to those requirements in section 100 that I must have regard to and having had regard to them leave is granted. I've listed this matter for hearing for directions basically to ascertain the views of the parties as to how this matter should proceed. The parties will be aware that in order for any order to issue of the nature that appears that the applicant wishes to, an order to issue the Commission must be satisfied that it is necessary for an order to issue in order that there can be an investigation of suspected breaches.

PN6

Mr Sinclair-Jones, do you have any views of how you wish to establish that satisfaction and how you would prefer this matter to proceed?

PN7

MR SINCLAIR-JONES: Sir, we have conducted surveys of employees at the workplace, a survey of employees in the workplace which includes members and non members.

PN8

THE DEPUTY PRESIDENT: Yes.

PN9

MR SINCLAIR-JONES: Based on the contents of the answers that were surveyed, reasonable grounds to suspect ….. breaches in relation to payment of overtime or granting of time off in lieu of overtime and we would add that in relation to the conduct of business at the West Australian, there is a similar pattern, documented pattern of breaches in other entities, for …… Most noticeably the company ….., which resulted in a settlement ….. Industrial Magistrates …..

PN10

THE DEPUTY PRESIDENT: Yes. So for the purpose of you establishing the basis of why an order should issue, are you proposing that a formal hearing be listed in which you provide submissions and/or evidence and the nature of the order that you wish to issue. Is that how you imagine this to proceed? Do you intend - - -

PN11

MR SINCLAIR-JONES: Well given that I don't have a previous example to follow I imagine that's the way it should go.

PN12

THE DEPUTY PRESIDENT: Yes. Do you have any view as to the time frame for that to occur?

PN13

MR SINCLAIR-JONES: I notice you've given a listing for a further hearing on 16 August, in a fortnight's time. My position is …..

PN14

THE DEPUTY PRESIDENT: Yes, well there's already been a bit of a delay due to unavailability of, I think yourself. So that's the sort of time frame that would suit you, that you proceeded to present your case on that day?

PN15

MR SINCLAIR-JONES: Yes.

PN16

THE DEPUTY PRESIDENT: Mr Lilburne, do you have any views about this?

PN17

MR LILBURNE: Yes sir, and perhaps if I could explain the reason for my appearance in the first place in this case, sir, is some lack of clarity of what the issues really are in the matter.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR LILBURNE: As Mr Sinclair-Jones has indicated, he's taken a survey of employees and now made application to seek access to the files of non members or documents in relation to non members following that survey. Obviously Mr Sinclair-Jones has got a right ..... an inspection in relation to members pursuant to the Act without such application and sir, that process has not been conducted at this stage by Mr Sinclair-Jones on my instructions. I would have thought that a process would go through to the members, what's been alleged in relation to breaches across the board to go through the requirements of having to inspect for non members could well be addressed to have a reasonable suspicion based upon members in the first place. ….. have concern to the ….. that ….. has on …. on that basis.

PN20

Further, sir, in relation to overtime, I note the application referred to the award yet the issue in relation to overtime and time off in lieu has been supplied and ….. a follow up document provided by Mr Sinclair-Jones after the application referring to the 1997 EBA. Sir, in relation to that there is no overtime provided to employees as I understand it but overtime ….. time off in lieu is granted to employees and pursuant to that agreement the employees are to maintain a time book in relation to time worked and to take time off in lieu in accordance with the time, if that time is available and similarly to receive that process at any time.

PN21

So it is somewhat surprising ….. in relation to ….. and on that basis I would be submitting sir that the application may not be necessary if Mr Sinclair-Jones sought to view those documents in relation to members, form the view the company is confident that it is meeting its requirements in relation to these matters and if he sought that from the court in relation to members to see those documents he could ….. hopefully satisfy himself that those matters were addressed ….. members and saying no process is applied to non members.

PN22

THE DEPUTY PRESIDENT: Well that's really an issue of merit and discretion isn't it, Mr Lilburne, as to - - -

PN23

MR LILBURNE: I think it is, sir, but it does indicate that, a process which is available to go through first.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR LILBURNE: To help satisfy the matter has not been taken and therefore to allege that there is reasonable grounds.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR LILBURNE: There's a process to actually satisfy those grounds, in my submission is a relevant consideration as to whether the court should - - -

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR LILBURNE: That would be sufficient to having not gone through that process - - -

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR LILBURNE: - - - that there would be a ….. this Commission to make such an order at this stage. Yes it is sir, …..

PN32

THE DEPUTY PRESIDENT: Well as you say Mr Sinclair-Jones has got the right to make and pursue his application. Whether he satisfies the Commission, one that there are grounds and two, that it's necessary for an order to issue are further issues. I'm particularly interested at this point, Mr Lilburne, at your statement that there's a lack of clarity of issues. Do you wish to expand on that?

PN33

MR LILBURNE: Not particularly sir, I've mentioned a lack of clarity of issues. I suppose my comment in relation to that is in relation to the 1997 agreement.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR LILBURNE: And how that operates. As you say sir, that goes to the very issue. That the issues I think are certainly clear enough for a ….. on the merits.

PN36

THE DEPUTY PRESIDENT: Yes, what I was getting at, if there is a lack of clarity I don't want you to be at any disadvantage of being unprepared for a capacity to address any matters that Mr Sinclair-Jones might raise. So at this point, at this stage, Mr Lilburne and Mr Sinclair-Jones, I think I'll simply list the matter for hearing. Mr Sinclair-Jones, you can then present your case and present any evidence that you wish to present.

PN37

It, I think would be worthwhile if you provided an outline of your case some days before the hearing takes place so that Mr Lilburne is clear about what he will be, what he will need to consider and address. How long would it take you to provide an outline of your case and any evidence? You may sit at the moment, Mr Lilburne. Mr Sinclair-Jones?

PN38

MR SINCLAIR-JONES: Let me think. I can do it by - what's the date for Friday next week.

PN39

THE DEPUTY PRESIDENT: Could you do it within the next seven days?

PN40

MR SINCLAIR-JONES: Unfortunately not as I ….. the country.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR SINCLAIR-JONES: …..

PN43

THE DEPUTY PRESIDENT: So how long would it take you? Seven days, 10 days, 14 days?

PN44

MR SINCLAIR-JONES: I can do it by Friday next week. Is that 10 days?

PN45

THE DEPUTY PRESIDENT: Friday, that's Friday the 11th is it? Is that right?

PN46

MR SINCLAIR-JONES: I think so.

PN47

THE DEPUTY PRESIDENT: When's the hearing listed?

PN48

MR LILBURNE: 16th.

PN49

MR SINCLAIR-JONES: 16th.

PN50

THE DEPUTY PRESIDENT: Would that provide you with enough time, Mr Lilburne?

PN51

MR LILBURNE: I think so sir.

PN52

THE DEPUTY PRESIDENT: Yes okay well if you can provide an outline of case and also if you can give identification of any evidence you wish to call, Mr Sinclair-Jones. Mr Lilburne, I think it only appropriate that you also provide an outline of your, in effect, defence I would imagine it to be or reply to that by say the, how long would you need?

PN53

MR LILBURNE: Well ….. Friday the 11th, so 12th and 13th are non working days, the 14th, 15th, I think we're talking two working days.

PN54

THE DEPUTY PRESIDENT: Yes it doesn't give you much time.

PN55

MR LILBURNE: - - - a bit tight.

PN56

THE DEPUTY PRESIDENT: Yes well I might need to push that date out, of the hearing date. It might be appropriate that I also issue directions so that there's a clarity about this. I might do that in the next 24/48 hours and my associate will be in contact with you to perhaps provide another date for the hearing. I would imagine those directions would include things that will need to be established by you that I consider probably need to be established by you, Mr Sinclair-Jones, including things of, what are the reasons for the suspicion you hold, what the suspicion is about or of, who the suspicion relates to and why it is necessary for an order to issue.

PN57

I may not include those in the directions but those are the sorts of things I think that will need to be addressed and similarly, Mr Lilburne, basically why – and I imagine it to be your argument from what you said earlier, why it is not necessary for an order to issue and why any discretion I have in that regard, I should not issue an order. So that will be the nature of the directions and I will issue those in due course. Is there anything either of you wish to raise now?

PN58

MR SINCLAIR-JONES: No sir.

PN59

MR LILBURNE: Sorry sir, there is just one question and it's a matter I haven't got the document to provide it to you at the moment, just in relation to the application itself. ….. this is a preliminary matter …... In the application Mr Sinclair-Jones refers to ….. under the pre Work Choices Act.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MR LILBURNE: And not the Work Choices Act. It's not clear to me how interactive this particular ….. I do raise it as a potentially preliminary issue as to whether the application is valid at this point. I really ….. must have ….. under this Act ….. after 27 March - - -

PN62

THE DEPUTY PRESIDENT: Yes. Yes well on, I had been working on the presumption that there is a permit in existence about which this application can issue an order with respect to.

PN63

MR LILBURNE: …..

PN64

THE DEPUTY PRESIDENT: And if that foundation's not established then there's no order that can issue I would imagine, Mr Lilburne. Thank you for raising that - - -

PN65

MR LILBURNE: …..

PN66

THE DEPUTY PRESIDENT: Yes thank you. Well you're on notice about that, Mr Sinclair-Jones, and that's something you'll need to address. I'll adjourn on that basis. Thank you.

<ADJOURNED INDEFINITELY [10.10AM]