C2007/2942, Transcript of Proceedings [2007] AIRCTrans 385 (3 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17171-1

JUSTICE GIUDICE, PRESIDENT

C2007/2942

s.120 - Appeal to Full Bench
Appeal by Programmed Maintenance Services Limited
(C2007/2942)

MELBOURNE

2.40PM, FRIDAY, 20 JULY 2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR J D'ABACO: I seek leave to appear on behalf of Programmed Maintenance Services Limited.

PN2

JUSTICE GIUDICE: There is no need to stand in Sydney; Mr Bukarica, is it?

PN3

MR BUKARICA: It is, your Honour.

PN4

JUSTICE GIUDICE: Yes.

PN5

MR A BUKARICA: Your Honour, I seek leave to appear on behalf of the respondent, the Construction Forestry Mining Energy Union.

PN6

JUSTICE GIUDICE: Yes. Is there any objection to Mr D'Abaco appearing as counsel?

PN7

MR BUKARICA: No, there isn't, your Honour.

PN8

JUSTICE GIUDICE: Very well. Yes, Mr D'Abaco, do you want to go first?

PN9

MR D'ABACO: Yes, thank you, your Honour. Thank you for accommodating the parties in bringing on the matter at such short notice. There have been some discussions between myself and Mr Bukarica of the CFMEU. On the basis of an undertaking which Mr Bukarica will be providing to you in due course, I have instructions from my client to withdraw its application for a stay of the operation of the orders Commissioner Lewin issued on 2 July of this year, as varied by variation orders dated 18 July.

PN10

We also do not oppose the request which will be made by Mr Bukarica of the CFMEU that the hearing of the appeal be expedited, subject of course to the availability of the Commission in terms of the listing of the hearing of the appeal.

PN11

JUSTICE GIUDICE: Yes. The question of when the appeal might be heard is something that I might be able to say a bit more about in a few moments. But perhaps we can hear from the CFMEU.

PN12

MR BUKARICA: If the Commission pleases, your Honour, Mr D'Abaco has correctly stated the position and I might, with the leave of the Commission, make the following undertaking, to which Mr D'Abaco referred earlier; and it's in the following form. In the event that the CFMEU, subject to the PAB orders issued by Commissioner Lewin in PR 977507 and PR 977699, approve the ballot questions contained in the orders, the CFMEU and its members undertake not to issue notices of intention to take protected industrial action; and not to take any industrial action in respect of the proposed collective agreement in bargaining period 2006/3775, pursuant to section 441 of the Act until the appeal before the Commission has been determined or is otherwise brought to an end.

PN13

Your Honour, there are some amendments to the correspondence which I believe your Honour has before you.

PN14

JUSTICE GIUDICE: Yes.

PN15

MR BUKARICA: I hope in reading that undertaking that I've accurately incorporated some amendments to which the parties have agreed; but no doubt my friend will correct me if I haven't. The basis, I think, of the undertaking is fairly clear and on that basis I would ask the Commission to, in respect of the request for an expedited hearing, if at all possible accommodate the parties. The matter which, in our understanding of the nature of the points of the appeal, should not be a lengthy appeal and my friend may perhaps comment about that; perhaps in the order of half a day to a day.

PN16

JUSTICE GIUDICE: Yes.

PN17

MR BUKARICA: I think it's one of those appeals as well, your Honour, where there won't be a great deal of evidentiary material to be ...... So if the Commission is in a position to accommodate the parties, we would certainly appreciate it.

PN18

JUSTICE GIUDICE: Yes, thank you. Firstly on the undertaking, it might be desirable if you could get a written version of that to us, to my associate, with a copy to Mr D'Abaco; just so we can be clear exactly what it is.

PN19

MR BUKARICA: Yes.

PN20

JUSTICE GIUDICE: But certainly I've understood the thrust of it and I take it that undertaking is satisfactory to your client, Mr D'Abaco?

PN21

MR D'ABACO: Yes, it is, your Honour.

PN22

JUSTICE GIUDICE: Yes. Well, I think the question of the hearing might depend on a couple of things. I take it that the grounds of appeal to be relied on are those which are set out in the notice? In other words it appears to be, if I could summarise it, this issue of the employees covered by pre-reform AWAs in respect of which the nominal expiry date has passed.

PN23

MR D'ABACO: Yes, your Honour.

PN24

JUSTICE GIUDICE: Yes.

PN25

MR D'ABACO: The appeal is brought on a very, very narrow basis.

PN26

JUSTICE GIUDICE: Yes.

PN27

MR D'ABACO: It does not take issue with a number of the reasons and conclusions which were reached by Commissioner Lewin in his two decisions.

PN28

JUSTICE GIUDICE: Yes.

PN29

MR D'ABACO: It's on that very narrow issue, so I would agree that this is an appeal which should be disposed of within half a day.

PN30

JUSTICE GIUDICE: Yes.

PN31

MR D'ABACO: One day, I think, would be probably unduly lengthy; half a day should be more than sufficient.

PN32

JUSTICE GIUDICE: All right, and I raise another issue; it's really just to make sure we iron out any potential hiccups. The notice of appeal in the form I have it, if you look at the body of the notice which is in two paragraphs, it does not seem to pick up all of the orders. Now is that deliberate?

PN33

MR D'ABACO: It was only brought specifically in relation to that part of the order in relation to the compilation of the role of voters, as it were.

PN34

JUSTICE GIUDICE: Yes.

PN35

MR D'ABACO: Because we've taken the view, somewhat perhaps erroneously, that the remaining parts of the orders really flow from that. So that in the event that there was a stay in relation to - - -

PN36

JUSTICE GIUDICE: Yes, I understand that, Mr D'Abaco, and look I won't persist with it.

PN37

MR D'ABACO: No.

PN38

JUSTICE GIUDICE: It's a mater for you to have a look at. I just didn't want any sort of technical issue to arise, because I see that the stay was actually sought against more orders than you have appealed against.

PN39

MR D'ABACO: Yes.

PN40

JUSTICE GIUDICE: But maybe there's a good reason for that.

PN41

MR D'ABACO: I will give consideration to what your Honour has indicated to me and in the event that we were to decide to amend the notice of appeal, that would be filed within very short notice.

PN42

JUSTICE GIUDICE: Yes, all right. I mean, I think the issue is clear enough.

PN43

MR D'ABACO: Yes.

PN44

JUSTICE GIUDICE: It's just a question of making sure that detail is attended to. The hearing of the appeal itself, there won't be too much flexibility from the Commission's part if it's to be dealt with quickly, and I have in mind at the moment next Thursday in Melbourne, and I can confirm that probably before the end of the day. If that is not acceptable there would need to be a pretty good reason, Mr D'Abaco.

PN45

MR D'ABACO: I don't have a sufficiently good reason, your Honour.

PN46

JUSTICE GIUDICE: Yes.

PN47

MR D'ABACO: The 27th of July is acceptable to us.

PN48

JUSTICE GIUDICE: Mr Bukarica, is that okay by you?

PN49

MR BUKARICA: It is acceptable, your Honour.

PN50

JUSTICE GIUDICE: Yes, very well.

PN51

All right. Is there anything else, gentlemen?

PN52

MR D'ABACO: That will be 26 July, your Honour?

PN53

JUSTICE GIUDICE: It is. Thursday the 26th and I would anticipate it would be 10 o'clock here in Melbourne. If it was thought necessary to have the video-link we can do that as well, but I will leave that to be attended to after we've confirmed that that will be the date and time. Is there anything else?

PN54

MR BUKARICA: No, your Honour.

PN55

JUSTICE GIUDICE: All right, thanks gentlemen.

PN56

MR D'ABACO: Thank you, your Honour.

PN57

JUSTICE GIUDICE: I shall adjourn.

<ADJOURNED ACCORDINGLY [2.49PM]