C2006/2914, Transcript of Proceedings [2007] AIRCTrans 16 (3 January 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16319-1

SENIOR DEPUTY PRESIDENT HARRISON

C2006/2914

TERMINALS PTY LTD
AND
NATIONAL UNION OF WORKERS
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/2914)

SYDNEY

5.08PM, MONDAY, 18 DECEMBER 2006

PN1

MR N STEVENS: I seek leave to appear on behalf of Terminals Pty Ltd.

PN2

MR S MUELLER: I appear on behalf of the National Union of Workers, New South Wales branch.

PN3

THE SENIOR DEPUTY PRESIDENT: Any difficulty with leave being granted to Mr Stevens to appear?

PN4

MR MUELLER: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Stevens.

PN6

MR STEVENS: Thank you, your Honour. Firstly - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Just a minute. You've provided to my chambers this afternoon firstly the letter which has resulted in this hearing this afternoon, letter dated today's date, sent in this afternoon at about 2 pm or so, addressed to Hamburger SDP. His Honour is on leave, his associate brought the letter to my attention and the file is now in my possession and has been - at least until I hear from you further you can assume has been assigned to me but there's some aspects of that that I would need to address.

PN8

The letter to the Commission informed me of the status that the matter was when Hamburger SDP had it before him in August this year, and that is that it was adjourned without setting a date with liberty to call the matter back on with no relief being granted one way or the other, either an order, interim order or dismissal of the application.

PN9

Your client was informed by delegates of the NUW that no operator would make themselves available to work overtime tomorrow morning, 19 December, on the Freedom Fuel contract. Subsequently I have received an order from you, a draft order presumably. Have you served a copy of that on the union?

PN10

MR STEVENS: No, I haven't. I've got a spare copy here.

PN11

THE SENIOR DEPUTY PRESIDENT: All right. I'll come back to that again in a moment - in fact I'll address it immediately . The order is directed to the NUW. May I make an assumption that that is the federally registered organisation, the organisation party to the time expired EBA?

PN12

MR STEVENS: That's correct, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Who do you appear for, Mr Mueller?

PN14

MR MUELLER: I appear for the National Union of Workers, New South Wales branch.

PN15

THE SENIOR DEPUTY PRESIDENT: Do you or do you not need to worry yourself with this matter? It doesn't extend to the state registered organisation. Is that correct, Mr Stevens?

PN16

MR STEVENS: Sorry, that's my understanding. We did also serve the federal branch with that letter. You'll see down the bottom there's two branches of the office. As I understand it, though, the New South Wales branch and the officers - I don't know if Mr Mueller is the same case - obviously can have appearance on behalf of the New South Wales division of the federal branch, but I'm not sure.

PN17

THE SENIOR DEPUTY PRESIDENT: I noted from the file that the enterprise bargaining agreement that covers the terms and conditions of the employees, the subject of this application, was a federal agreement and it would follow that at the time it was certified, the legislation then operating would rather suggest to me that's the federally registered NUW that was a party to it.

PN18

MR STEVENS: Yes, that's right, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: I assume that hasn't changed.

PN20

MR STEVENS: No, not that I'm aware of, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: It would then, as I understand it, be the case from what had been addressed earlier in these proceedings, that the draft order that you will be seeking be made, is directed to the federally registered NUW.

PN22

MR STEVENS: That's correct.

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Mueller, I understood appeared for the state registered branch which may or may not be a transitional union. I don't know. Who do you appear for, Mr Mueller?

PN24

MR MUELLER: I'm not appearing for the state registered branch. We appear as a union which is party to the certified agreement your Honour referred to.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I assume another matter. That was the same union notified of the earlier proceedings before his Honour but relief wasn't there granted but it was that union as well?

PN26

MR MUELLER: Yes, it was, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: I understand there might have been some individual employees who also were potentially the subject of the order you may have then been seeking back in August?

PN28

MR STEVENS: That's correct, the delegates, I think and - - -.

PN29

MR MUELLER: Sorry, your Honour, that's not entirely correct.

PN30

THE SENIOR DEPUTY PRESIDENT: What say I get his story first,
Mr Mueller.

PN31

MR MUELLER: Just about the history, yes.

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Stevens, previously before his Honour who were you seeking the order against, and when I say "were you seeking" things may have changed from when you filed the application and served the draft order to the final submissions before his Honour. Who at the end of that hearing were you seeking the order against?

PN33

MR STEVENS: Just the union, so my friend is correct to say if you look earlier in the actual application, we had a much broader terms of the application so it was to cover the NUW or its officers, delegates, agents and employees. We then sought to amend that order, at least the requested order, Mr Warren who was appearing as counsel, and the order that I emailed to your associate and handed to my friend is the shortened version just against the union.

PN34

THE SENIOR DEPUTY PRESIDENT: Who, though, when final submissions were being made to his Honour and before he reserved his decision, were you seeking the order against?

PN35

MR STEVENS: Just the union.

PN36

THE SENIOR DEPUTY PRESIDENT: Just the federally registered union.

PN37

MR STEVENS: That's right.

PN38

THE SENIOR DEPUTY PRESIDENT: This draft order that you filed this afternoon, is that also the case?

PN39

MR STEVENS: Yes, it is, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: I see that it's directed to both the union, its officers and/or agents.

PN41

MR STEVENS: The NUW you can see there, your Honour, under 2E is required to prepare the written notice.

PN42

THE SENIOR DEPUTY PRESIDENT: No, I was looking at who it applies to and I thought - - -

PN43

MR STEVENS: I'm sorry, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: I was having a look at 2C insofar as it refers to the union, it refers to the union, it's officers and agents.

PN45

MR STEVENS: Agents, as opposed to the individuals.

PN46

THE SENIOR DEPUTY PRESIDENT: The employees are the subject of a direction in the draft order 2A and B as I read it.

PN47

MR STEVENS: That's correct.

PN48

THE SENIOR DEPUTY PRESIDENT: There are directions in it for the NUW to attend to service of the document including on its officers, delegates, agents and employees as well as all employees of Terminals?

PN49

MR STEVENS: That's correct, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: What attempts have there been to serve this document on those persons who are named in the draft order?

PN51

MR STEVENS: Up until this stage, there hasn't been attempts other than I have put the union on notice and if I can hand up a copy of my earlier facsimile to the union. Your Honour, you will see there on the letter, the second page, second paragraph:

PN52

We put your union on notice that at the hearing of the above matter we'll be seeking the orders as set out in the application previously filed in this matter. We are in the process of finalising affidavits in support and we will serve them on your shortly.

PN53

THE SENIOR DEPUTY PRESIDENT: Any attempt to serve the order or bring the enlivened application to the attention of any of the individual employees who are proposed to be bound by the order?

PN54

MR STEVENS: My firm has not. Officers of my client have informed and I understand they are aware that these proceedings are on today, but to answer your question, your Honour, they aren't aware of the specific orders. We've relied upon both the federal and the New South Wales federal office to inform their members of the tenet of the orders.

PN55

THE SENIOR DEPUTY PRESIDENT: The issue of service was a live issue before his Honour, was it not, it being said by the union to be one particular difficulty they had with the orders issuing in the terms as sought or even as narrowed?

PN56

MR STEVENS: Yes, I think it was a live issue, your Honour. You're right.

PN57

THE SENIOR DEPUTY PRESIDENT: It will be a matter that I will return to. It's still well and truly alive before me, Mr Stevens.

PN58

MR STEVENS: Yes, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: For the time being, too, I haven't even tackled the difficult question of the status of the matter, other than physically the files before me because of the letter received, but we can attend to that later.

PN60

Now, Mr Mueller, there were some things you wanted to tell me.

PN61

MR MUELLER: Thank you, your Honour. Can I first seek leave for Mr Mendouca who appears from the union as well. He was held up in traffic.

PN62

THE SENIOR DEPUTY PRESIDENT: I understand.

PN63

MR MUELLER: Regarding the orders previously sought in these proceedings, I have a transcript of the last hearing in front of me and it was clarified by Mr Warren appearing for the employer and the applicant that the company presses the orders against the individual employees. For the purposes of today's proceedings the company does not press the orders sought against the union. I notice at PN5 I have to correct my friend that last time the orders were just sought against the union. That's in fact incorrect.

PN64

Issues were raised on this occasion with the service and I press for these objections at this stage myself. Can I just ask for further proceedings, if the company have been made aware that there is an affidavit which has been given to me by Mr Douglas Eng. If the company seeks to - and it might be necessary to give evidence - I was wondering what the proceedings are going to be. I might add that I believe the issue here could be resolved easily in conciliation. It's just a matter of current practice and the possibility for my friend to get instructions. I notice that there are two persons here. The person who's going to give evidence could leave basically the courtroom if the company should so press. I think that's just - - -

PN65

MR STEVENS: I was prepared to have the two witnesses leave in any case.

PN66

THE SENIOR DEPUTY PRESIDENT: Shall we put to one side the interesting procedural issues that I still have not made rulings about, not the least being service; secondly, the status of the matter before me, it being part heard before Hamburger SDP and there being no fresh application, nice legal issues. Shall we put them to one side and shall I come down and join you at the bar table for a short time? The Commission now adjourns into conference.

<SHORT ADJOURNMENT [5.21PM]
<RESUMED [6.17PM]

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Stevens.

PN68

MR STEVENS: Your Honour, the applicant would like to make an application and that is namely that they will withdraw these proceedings.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Do you wish to say anything about that, Mr Mueller?

PN70

MR MUELLER: No. We support the withdrawal of the application. Thank you, Your Honour, for your assistance.

PN71

THE SENIOR DEPUTY PRESIDENT: The transcript will reflect the application is withdrawn, the file is closed. The Commission adjourns.

<ADJOURNED INDEFINITELY [6.18PM]