RE2007/2414, Transcript of Proceedings [2007] AIRCTrans 227 (8 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16807-1

SENIOR DEPUTY PRESIDENT HARRISON

RE2007/2414

s.771(4) - Application for order by Commission (unreasonable request)
Transport Workers’ Union of Australia
and
DHL EXEL Supply Chain (Australia) Pty Ltd
(RE2007/2414)

SYDNEY

10.10AM, THURSDAY, 26 APRIL 2007

Continued from 19/4/2007

PN123

MR A HATCHER: I seek leave to appear on behalf of the Transport Workers Union.

PN124

MR A VERNIER: I seek leave to appear on behalf of the company.

PN125

THE SENIOR DEPUTY PRESIDENT: Any difficulty with leave being granted in each case?

PN126

MR HATCHER: No, your Honour.

PN127

MR VERNIER: No, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: Leave is granted to each of you. If I need to make any other rulings by reference to the section in relation to the appearances, I can attend to that a little later in this hearing. Mr Hatcher.

PN129

MR HATCHER: Your Honour, unfortunately, I need to ask for an adjournment for a short period, about half an hour to 40 minutes for two reasons: firstly, we were served after 5 pm on Tuesday with an extensive amount of material and I just haven't quite finished the task of seeking instructions with respect to that material so that I can cross-examine in an economical fashion. Secondly, just before your Honour came on the bench, we were handed an additional witness statement of Ms Tritsaris about which I need to seek some instructions. As I said it would only take in order of half an hour to 40 minutes, if it please the Commission.

PN130

I understand there's also an issue of a video and we were sent that electronically. I certainly wasn't able to open it in the form it was sent to me and I myself haven't seen the video yet, nor has anybody instructing me and we need to have some procedure set in train so that if DHL seek to rely upon that video, the parties and your Honour can see it in an appropriate fashion.

PN131

THE SENIOR DEPUTY PRESIDENT: Mr Vernier.

PN132

MR VERNIER: Your Honour, we did serve a statement this morning of Sara Tritsaris and we have a number of CDs which have the videos on them. There are two short videos on the CDs of under a minute each so there may be - if the union has access to a computer, they can play it on the computer. We can give you a computer or the court can give you one so that's got the video on it. We don't have any objection, your Honour, as long as there's no objection to the statement of Ms Tritsaris being tendered. I can hand up to the court, your Honour, a copy of Ms Tritsaris's statement and the CD which I understand you've also had difficulty in accessing the video.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes. In relation to that matter I referred to earlier, in accordance with the provisions of section 100(3), I consider that in the circumstances express consent to representation by each of you has been given and I grant leave, having considered it is appropriate in this matter that leave is granted.

PN134

You've handed to me a witness statement of Ms Tritsaris and a CD.

PN135

MR VERNIER: I have, your Honour. The CD contains two video clips, each under a minute.

PN136

THE SENIOR DEPUTY PRESIDENT: Any difficulty with my attempting to view that in chambers in the absence of the two of you? It would avoid the need to play it again but you must be aware then, I of course have viewed it. I'm assuming it is likely to be marked as an exhibit at some stage.

PN137

MR HATCHER: No objection to that, your Honour. As to Ms Tritsaris's statement I have no objection to your Honour reading that as well though I can envisage at first glance there may be an objection to admissibility in paragraph 6 but we can deal with that in due course.

PN138

THE SENIOR DEPUTY PRESIDENT: I will adjourn, assuming I am going to do so say for around about 30 minutes. Keep in contact with my associate, provide her with mobile phone numbers if you're going to leave the vicinity of the courtroom. The Commission now adjourns.

<SHORT ADJOURNMENT [10.14AM]
<RESUMED [10.53AM]

PN139

THE SENIOR DEPUTY PRESIDENT: Mr Hatcher.

PN140

MR HATCHER: Thank you for that adjournment, your Honour. I've indicated I've obtained the necessary instructions and with Ms Wellard's cooperation I've also viewed the two videos so we're ready to proceed.

PN141

This is an application for orders under section 771 of the Workplace Relations Act and I'll turn to the section in a little while, but the application arises out of the fact that my client and any particular number of its officials have sought to exercise right of entry powers with respect to the respondent's premises at Matraville. Specifically it's 3 Millenium Court, number 2 Matraville, New South Wales.

PN142

The right of entry which has been sought to be exercised for the relevant purposes of this application are rights under section 747 of the Workplace Relations Act and I ask if your Honour has the Act available to just quickly turn to that provision. That allows a permit-holder of an organisation to have right of entry if a permit-holder suspects on reasonable grounds that a breach has occurred or is occurring of and then inter alia paragraph A of this Act. So for relevant purposes we will calling evidence that officials of my client suspect on reasonable grounds that breaches have occurred of the Act and I'll come to in a little while the nature of those suspected breaches.

PN143

Then your Honour will see that in subsection (1):

PN144

The permit-holder may for the purpose of investigating the suspected breach during working hours enter the premises if -

PN145

and then there's two conditions:

PN146

firstly, that work is being carried out on the premises by one or more employees who are members of the permit-holder's organisation.

PN147

There's evidence in one of the statements filed that my client has members working at that site:

PN148

Secondly, that the breach relates to affect the work of any of those employees.

PN149

As it becomes clear from the evidence as to the nature of the suspected breaches, it affects those employees.

PN150

Can I just ask your Honour at this stage to note importantly the use of the word "investigating" in subsection (1) of section 747. That is this power is different from the power, for example, to enter premises simply to communicate with members ..... in time. It's for the purpose of investigating whether breaches have occurred on the basis of the reasonable suspicion.

PN151

We'll be submitting in due course that in determining whether the request here, which I'll come to, was a reasonable one and if it was not reasonable whether the order should be made, your Honour needs to bear in mind that the purpose is investigation not merely communication with members and that carries certain consequences upon it.

PN152

I'll be submitting in due course that the investigation is necessarily a proactive not a reactive exercise, that is, it's not simply a matter of sitting back and waiting to see as to whether somebody wants to talk to you. Investigation under its ordinary meeting involves a proactive exercise of carrying out inquiries to obtain information relevantly here to find out whether there is a basis or not with respect to the suspected breaches. When your Honour comes to the request that was made here we say your Honour will need to bear that power and the purpose of the powers described in the legislation clearly in mind.

PN153

The evidence will demonstrate that there has been, with respect to this site, over the last couple of months some issues with respect to right of entry and in particular we'll be calling evidence to suggest that right of entry has been sought to be exercised in the past, in the last couple of months, and that right of entry has been refused. That has led to proceedings in this Commission. Firstly, there was some conciliation conducted by Commissioner Larkin of this Commission and ultimately an order was made pursuant to section 772 of the Workplace Relations Act requiring right of entry to be granted. Your Honour will see that the order which Commissioner Larkin made was dated 30 March 2007 and is attached as annexure C to the application itself.

PN154

Following the making of that order by Commissioner Larkin on 30 March, right of entry was attempted to be exercised on 3 April 2007.

PN155

THE SENIOR DEPUTY PRESIDENT: I don't know that I have it as
annexure C. I know I have a copy but I want to make sure that I'm dealing with the content in the same application that you think is on the file. The only annexure to the application as filed is the draft order.

PN156

MR HATCHER: Does it have a letter on the top, your Honour?

PN157

THE SENIOR DEPUTY PRESIDENT: Does it have what?

PN158

MR HATCHER: A letter on the top.

PN159

THE SENIOR DEPUTY PRESIDENT: A letter, from the TWU?

PN160

MR HATCHER: I'm sorry, a letter of the alphabet on the top.

PN161

THE SENIOR DEPUTY PRESIDENT: I see. No.

PN162

MR VERNIER: Your Honour, my paperwork is consistent with yours. I don't have a draft either.

PN163

MR HATCHER: Apparently it was initially sent without attachments and later sent with attachments.

PN164

THE SENIOR DEPUTY PRESIDENT: Is that right? Just a minute and I'll see if I - yes, you're quite right. So the one that we've marked is filed with a filing date. It seems subsequently some hard copy has been forwarded. Yes. Mr Vernier might not have received that second bundle. Yes, A, B, C.

PN165

MR HATCHER: The order made by Commissioner Larkin ultimately was C and your Honour will see that that's an order made pursuant to section 772 of the Act and that's an order which effectively gives effect to the right of entry provision of the Act but it does not go, as it were, beyond the specific rights set out in the Act itself. That order was made on 30 March.

PN166

There was then an attempt to exercise right of entry by two officials, Mr Aird and Mr Crosby on 3 April. Upon those two officials attending at the premises, a requirement was imposed upon them that any interviews with employees that were sought to be conducted pursuant to the section 747 right of entry were to be conducted in the company's boardroom on the site and at no other location, otherwise access to the premises for the purpose of interviewing employees was refused. There'll be some evidence about the location of the boardroom as relevant to the premises as a whole, but I don't think it will be controversial that the boardroom is located in a first floor section of the premises above, as it were, the shop floor in an area where the senior management of the site are located.

PN167

The consequence of that, we say the evidence will show, is that only one employee attended the boardroom for the purposes of discussions with the union representatives and that person communicated to the union representatives that other employees felt intimidated by the requirement that they had to go upstairs to the management area and attend in the boardroom and as a consequence weren't prepared to go there. As I said I don't think there's any dispute that that requirement was in fact opposed.

PN168

Under section 771, if I can ask your Honour to turn to that, the Commission as constituted by your Honour as a presidential member, has a broad discretion to make orders under subsection (1) subject to two conditions precedent being satisfied. The first is that set out at paragraph (a) of subsection (1):

PN169

Namely that an affected employer or occupier of premises has made a request for a permit-holder as mentioned in section 751.

PN170

For relevant purposes, we say the request was the one I've just described, namely the requirement for any interviews to be conducted in the company's boardroom. If your Honour just needs to turn to section 751, which we say is apparently the section pursuant to which the request was made. I think the relevant provision is subsection (3), that is:

PN171

A division does not authorise a permit-holder to enter or remain on premises if (a) an affected employer or the occupier ...(reads)... both of the following -

PN172

And then there's (i):

PN173

To conduct interviews in a particular room or area of the premises and (ii) to take a particular ...(reads)... fails to comply with the request.

PN174

As we understand it, this was a request which would fall under that provision, subject to the question of reasonableness.

PN175

THE SENIOR DEPUTY PRESIDENT: Just pause there for a moment. Is that conceded, Mr Vernier?

PN176

MR VERNIER: What, your Honour? What's the concession, sorry?

PN177

THE SENIOR DEPUTY PRESIDENT: What Mr Hatcher said, that the request has been made by you, it's a request envisaged by section 751(3) that interviews be conducted in the employer's boardroom and in no other place.

PN178

MR VERNIER: No, that's not conceded. What the evidence will show is that when the two representatives of the unions turned up on 3 April they were asked to go into the boardroom. That's what the evidence will show.

PN179

THE SENIOR DEPUTY PRESIDENT: What are your instructions in relation to any further attendance by the TWU as to the place or places where they are to conduct any interviews?

PN180

MR VERNIER: My instructions, as I understand them, which were relayed to Mr Aird on the last occasion that we were before Commissioner Larkin at the end of which she made her orders, was that it would depend on the day as to see which room was available because they don't know what's going on on the site all the time. It depends on if there are clients coming on, who's there, what's available.

PN181

THE SENIOR DEPUTY PRESIDENT: That's going to be your evidence from the witnesses whose statements have been filed?

PN182

MR VERNIER: It will be, yes.

PN183

THE SENIOR DEPUTY PRESIDENT: On 3 April the request was for the interviews to be conducted in the boardroom and no other place, but that was a request operative only in relation to that visit on 3 April and had no ongoing - not validity, that's the wrong word, but - - -

PN184

MR VERNIER: I can't really answer that question. All I can say, your Honour, is that the request on that day, there is no evidence that that particular request that they interview employees in the boardroom was unreasonable on that day. We have no evidence of that.

PN185

THE SENIOR DEPUTY PRESIDENT: I understand this. We started this exchange via by understanding, at least for today's purposes, if you conceded the matter that I addressed earlier in these terms, that under section 751(3) the employer has made a request that the interviews by the TWU persons exercising the right of entry, be conducted in the employer's boardroom and in no other place. You go so far today only as to say that the answer to that is yes for 3 April?

PN186

MR VERNIER: Yes, for 3 April.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN188

MR VERNIER: And that for any other visits that are legal visits, it will depend on - - -

PN189

THE SENIOR DEPUTY PRESIDENT: Would the two of you like to have
10 minutes and see if we need to entertain ourselves with a lot of the very interesting and nice legal points that we're going to have to tackle between now and whatever time it takes today to finish this matter?

PN190

MR HATCHER: I'm happy to do that and I suspect - - -

PN191

THE SENIOR DEPUTY PRESIDENT: I want to make sure that - you've both been around long enough to know why I'm adjourning for 10 minutes. You have a discussion about this. I'll come back again in that time.

<SHORT ADJOURNMENT [11.09AM]
<RESUMED [11.32AM]

PN192

THE SENIOR DEPUTY PRESIDENT: Mr Hatcher.

PN193

MR HATCHER: For our part that discussion really hasn't advanced the matter and we would like to proceed with the application. I think my learned friend wants to make an application for your Honour to conduct some conciliation. I indicate that we would not object to that if it takes a relatively short period of time because, I think, as we've indicated earlier, we're anxious to have this application, if it's necessary to have it dealt with, dealt with as soon as possible.

PN194

The other thing which is of concern to me is that, just looking at it, I wasn't sure if there remains a provision in the Act giving a right of automatic disqualification if conciliation occurs, but in any event - - -

PN195

THE SENIOR DEPUTY PRESIDENT: If it is, it's around about the 100s so before we proceed let's at least all agree - - -

PN196

MR VERNIER: We can probably avoid looking that up because we will not be challenging that, your Honour.

PN197

THE SENIOR DEPUTY PRESIDENT: They might.

PN198

MR VERNIER: I was just going to say, if both parties give that undertaking, I think that deals with .....

PN199

THE SENIOR DEPUTY PRESIDENT: I always like to check this Act. My level of confidence in knowing precisely which section is which is perhaps not the same as all of the provisions that I was more familiar with so each time any issue like this arises I like to again read the relevant sections, so just please bear with me for a short time. This is good, isn't it. What say you make your application, Mr Vernier - well, you say whatever you wish to, including it seems like some application is going to be made, we deal with that and decide what we do next.

PN200

MR VERNIER: We're simply asking that you come off record, your Honour, and just listen as to what we have put to the union and try and conciliate a resolution. We will not object to you undertaking a conciliation and then if that fails, to hear the matter as well.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, and I know what Mr Hatcher says about that. Sorry, for the series of short adjournments, but I'm going to take another short one. I suspect I won't be very long, and I think I'll probably have to resume on transcript, whatever happens, and then I suspect I'll come down and join you at the bar table. I adjourn again for a short time.

<SHORT ADJOURNMENT [11.36AM]
<RESUMED [2.40PM]

PN202

THE SENIOR DEPUTY PRESIDENT: Mr Hatcher.

PN203

MR HATCHER: If it please the Commission, I thank the Commission for both the adjournment and the assistance offered by way of conciliation. On the basis that both parties make undertakings in the form of an executed document to be provided to your Honour by your associate, we are prepared not to press our application further today but to ask the Commission to stand it over generally with leave being granted to the parties to have it restored to the list at short notice. If it please the Commission. I don't propose to address the document on this your Honour - - -

PN204

THE SENIOR DEPUTY PRESIDENT: No, I have it in front of me and perused it briefly before coming into court. Mr Vernier.

PN205

MR VERNIER: Your Honour, our preferred position is that these proceedings be discontinued or dismissed. If that's not what your Honour would prefer, then we'll take whatever your Honour - - -

PN206

THE SENIOR DEPUTY PRESIDENT: I suppose I won't discontinue them, but I will not dismiss them and I think we can guess that Mr Hatcher won't - I'll start again. I won't dismiss them and we can assume Mr Hatcher won't discontinue them.

PN207

MR VERNIER: Then what Mr Hatcher proposes is - - -

PN208

THE SENIOR DEPUTY PRESIDENT: Very good. The matter will be adjourned on that basis and with the understanding about liberty of each party to apply to have the matter relisted. The Commission now adjourns.

<ADJOURNED INDEFINITELY [2.41PM]