C2007/2933, Transcript of Proceedings [2007] AIRCTrans 505 (1 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17429-1

VICE PRESIDENT LAWLER

C2007/2933

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
United Firefighters' Union of Australia
and
Transfield Services Australia Pty Ltd
(C2007/2933)

MELBOURNE

10.04AM, TUESDAY, 18 SEPTEMBER 2007

Continued from 12/9/2007

PN669

THE VICE PRESIDENT: Mr Bromberg, I note you are attending. Mr McDougall, I note your appearance in place of Mr Bourke.

PN670

MR MCDOUGALL: Thank you, Commissioner.

PN671

THE VICE PRESIDENT: Yes, Mr Bromberg.

PN672

MR BROMBERG: Your Honour, we've - - -

PN673

THE VICE PRESIDENT: Apologies for the lateness of the proceedings, Mr Bromberg, for a lot of reasons.

PN674

MR BROMBERG: Yes, your Honour. Unfortunately it's meant that we've not had an opportunity to do anything but read the decision. We haven't got instructions at the moment as to what the union may want to do. It seems to me that there are a number of possible alternatives.

PN675

THE VICE PRESIDENT: An appeal being one of the most obvious.

PN676

MR BROMBERG: Yes, well an appeal would be one of the matters that I would be wanting to seek some instructions about. But my no means at this stage are we conceding that even within the parameters of the construction that your Honour has made, that the relief that we seek could not be given.

PN677

THE VICE PRESIDENT: That was why I thought we were here today, for you to advance that case.

PN678

MR BROMBERG: Yes. The difficulty with that is twofold. First of all I need to get some instructions as to whether the union's position is that the preliminary issue, the termination of the preliminary issue, should be appealed and the rest of the matter await that determination; or whether in the alternative the union's position would be that, because of the nature of the matter insofar as we want to advance arguments within the construction that you have provided, ought to be dealt with before the agitation of the appeal.

PN679

THE VICE PRESIDENT: Well that would be the ordinary course. In fact there would be a risk that leave would be refused precisely because it's an interlocutory decision.

PN680

MR BROMBERG: Yes.

PN681

THE VICE PRESIDENT: It's better to deal with all issues on appeal at one time.

PN682

MR BROMBERG: Yes. I'm conscious of that, your Honour, but nevertheless it's not a matter that I have had an opportunity to canvass.

PN683

THE VICE PRESIDENT: Do you want a brief adjournment to get some instructions?

PN684

MR BROMBERG: Well the difficulty is that a brief adjournment is not going to help us much. The union secretary, as I understand it, is in a meeting. We would need some time. The other problem, your Honour, is that if the matter is to be advanced prior to any appeal, that is, advanced on the basis of the construction that your Honour has arrived at, we are to give some consideration, your Honour, to a number of things.

PN685

This is a construction, your Honour, that the employer did not contend for in at least one respect. The employer contended, in our respectful submission, a different proposition. The proposition that your Honour has ultimately accepted is the conclusion that conditions of employment extends to benefits and entitlements affirmatively conferred on employees by their contract of employment or any applicable award or collective agreement.

PN686

The conditions of the contracts of employment of the affected employees, for instance, are not matters that are squarely in evidence before you. There may need to be further evidence put before you about that matter.

PN687

THE VICE PRESIDENT: I don't know what the particular arrangements are between the employees and Transfield in terms of individual contracts of employment.

PN688

MR BROMBERG: That's right. My punt, but it would only be a punt, is that there aren't separate contracts that in any extensive way provide for terms and conditions of employment, but rather it's the certified agreement that governs the employment relationship, and the contract of employment is probably fairly bare bones. But, I mean, that's just a guess. There's no evidence; I don't know.

PN689

MR BROMBERG: I don't know either is my problem.

PN690

THE VICE PRESIDENT: Yes.

PN691

MR BROMBERG: That's why we need to get some further instructions and it may require some further evidence to be - - -

PN692

THE VICE PRESIDENT: Mr Bromberg, is the bottom line that you are seeking to adjourn today?

PN693

MR BROMBERG: I certainly am, your Honour, yes. I don't think - - -

PN694

THE VICE PRESIDENT: I don't know that Transfield is very happy having to brief counsel and engage in that expense in order to be ready to proceed to a - given that Mr Bourke was going overseas. But what is your attitude, Mr McDougall? Mr Bromberg I think identifies at least one substantive matter there that would favour the granting of an adjournment, that mainly there is a lacuna in the evidence because of the construction that I've adopted. The lacuna is the absence of evidence about terms and conditions of employment under any contracts of employment, as distinct from the certified agreement or the award.

PN695

MR MCDOUGALL: Your Honour, I apologise for not being as well prepared as I wish to be.

PN696

THE VICE PRESIDENT: I understand exactly. I have stood in your shoes in the past.

PN697

MR MCDOUGALL: I read paragraph 11 of your Honour's decision in which you refer to Transfield submitting the proper construction of the expression "contract of employment", as referring only to benefits and entitlements expressly conferred on employees in their contract of employment, the 2005 Agreement or the Victorian Firefighting Industry Employees Interim Award 2000. I think I understand my learned friend to be saying that that is in fact not quite what - - -

PN698

THE VICE PRESIDENT: Transfield was submitting.

PN699

MR MCDOUGALL: - - - Transfield contended.

PN700

THE VICE PRESIDENT: I understand that that was what Transfield was contending but I may be wrong.

PN701

MR MCDOUGALL: Well if that is what Transfield was contending, then your Honour - - -

PN702

THE VICE PRESIDENT: I don't think I've actually seen the transcript yet but I suspect that a review of the transcript will show that Mr Bourke put something to that effect, as the argument evolved.

PN703

MR MCDOUGALL: In that case, your Honour, it would appear that the decision that you have reached as to the construction point is precisely what the employer contended for. To that extent, I'm not sure - - -

PN704

THE VICE PRESIDENT: Well Mr Bromberg seeks an adjournment and he puts forward a variety of bases for it, but one of the substantive issues is that this construction, having been adopted and whether I'm right or wrong in characterising that accurately as Transfield's position, the reality is that there's no evidence at the moment and no instructions have been obtained in relation to the terms of contracts of employment affecting the particular workers; that that may in fact have an impact on the availability of the union's arguments in relation to the breach of clause 1.6; and that there's a need to investigate that; or else we run the risk that if we proceed today, that we will be just having to come back on yet another occasion and do a piecemeal case.

PN705

MR MCDOUGALL: Yes, well firstly your Honour - - -

PN706

THE VICE PRESIDENT: You really need just to take some instructions to ascertain whether or not Transfield is happy to and not oppose that adjournment application.

PN707

MR MCDOUGALL: I have instructions to the effect that Transfield would certainly oppose any lengthy adjournment. Transfield, as your Honour is
aware - - -

PN708

THE VICE PRESIDENT: ie. an adjournment beyond today?

PN709

MR MCDOUGALL: Yes.

PN710

THE VICE PRESIDENT: Yes, okay.

PN711

MR MCDOUGALL: I can't immediately put my finger on it but I'm fairly sure that I did see, as one of the attachments, as an attachment to at least one of the witness statements that has been provided in this matter, a pro forma contract of employment. So it may be that there is in fact material that - - -

PN712

THE VICE PRESIDENT: Are you able to get some instructions as to whether or not that document reflects the pro forma contract for the relevant employees?

PN713

MR MCDOUGALL: I would need a few minutes, your Honour.

PN714

THE VICE PRESIDENT: Yes.

PN715

MR MCDOUGALL: But within the space of a short adjournment, by which I mean something like 15 or 20 minutes, I think that the respondent would be in a position to proceed at least on that issue.

PN716

THE VICE PRESIDENT: Okay. Mr Bromberg, I think it's desirable if we have a short adjournment initially. You might be able to make some inquiries and see whether or not you can get some instructions in any event, in a relatively short time. I appreciate the union secretary might be tied up in a meeting but there are presumably others who can give relevant instructions as well.

PN717

MR BROMBERG: But your Honour I need instructions from the union secretary about a number of things.

PN718

THE VICE PRESIDENT: I'm not satisfied that the prospect of an appeal is a proper basis to adjourn today.

PN719

MR BROMBERG: I understand that, your Honour, but I need to do a number of things. I need to get some instructions about the terms of employment contracts. I then need to be able to give advice as to whether, based on the contract of employment, there's any argument that ought to be run in these proceedings. I need to generally advise my client about your Honour's decision and its consequences and where the client wants to go from here. I don’t even know whether my client wants us to bat on today, your Honour. I don’t know that. I have not had an opportunity to get any instructions. We've only just received your Honour's decision. We've read it and I don't know if my client has even read it.

PN720

THE VICE PRESIDENT: Mr Bromberg, I'm going to adjourn for half an hour. It will give Mr McDougall an opportunity to get some instructions about the terms of the contracts, and it will give you an opportunity to at least start obtaining instructions in relation to those matters. The situation we face today is not one that is outside the bounds of predictable outcomes at the time that today's hearing was agreed on the last occasion. I mean there was, I thought a consensus between the parties when we had the discussion at the end of the last hearing date, that the separate question would be determined one way or the other. If it was determined in your favour, that was the end of the matter. You were entitled to relief.

PN721

MR BROMBERG: Yes.

PN722

THE VICE PRESIDENT: If it was determined in favour of Transfield, then that left you with potential arguments that you would still want to advance, even within the scope of a narrow construction. We've been working towards today for that to occur. The things that you are identifying, apart from the issue of terms of individual contracts of employment, are all matters that would have been in contemplation. I'm concerned about the costs thrown away to Transfield, given that it is ready to proceed and wants to proceed; and just adjourning it on the basis that you put at the moment. If you are happy to give an undertaking to pay some portion of the costs thrown away, then that would obviously be a proper basis for an adjournment.

PN723

MR BROMBERG: Your Honour, the proper basis for the adjournment is that in circumstances where the Commission has handed down a decision this morning, there needs to be a proper opportunity for my client to consider the decision, be advised about it, come to a position as to what it intends to do with the rest of the matter, whether it intends to proceed or not. If it intends to proceed, how it intends to proceed and it seems to me, your Honour, that there's at least one area where further evidence might be relevant and if my client intends to proceed, then there may need to be instructions obtained about that.

PN724

We are talking about quite a number of employees. My friend has pointed to a standard pro forma contract that I think was put in the evidence. Whether the contract is complete in terms of the terms and conditions of employment, whether there are oral terms and conditions that are part of the contract of the relevant employees, I don't know; and there are about 50 employees involved I think; something in the order of 50 employees.

PN725

THE VICE PRESIDENT: I see. I understand. I understand.

PN726

MR BROMBERG: The prospect of getting instructions - - -

PN727

THE VICE PRESIDENT: Mr McDougall, at the end of the day, if this is a contested adjournment application, and I'm not entirely clear that it is; I understand that you expressed your client's position - but that was without the benefit of Mr Bromberg's further elucidation - then at the end of the day it has got to be determined in accordance with the principles that the High Court has laid down in the State of Queensland v JL Holdings. It's the interests of justice, at the end of the day, and Mr Bromberg has articulated more fully there some bases that certainly would be tipping the interests of justice pointer on the scale back towards an adjournment. What do you say in opposition to it?

PN728

MR MCDOUGALL: Well, your Honour, there is an issue that - - -

PN729

THE VICE PRESIDENT: Just before you do. Mr Bromberg, I take it that one of the potential outcomes is the union decides not to proceed further with this particular application, but pursue and appeal or not, as the case may be?

PN730

MR BROMBERG: That's a potential outcome, yes.

PN731

THE VICE PRESIDENT: As you stand here today, are you able to construct any arguments on the basis of the material that you do have familiarity with, the certified agreement and the award, to say that there is, even with the construction that has been adopted, still a case for relief for the union?

PN732

MR BROMBERG: I do. Yes, I do, your Honour. I don't know that I want to elaborate on it at the moment, but I do have a basis for believing that under the current application the union has arguments that it can run, which would justify the relief that it's seeking - - -

PN733

THE VICE PRESIDENT: So we are in a position to proceed in relation to that - with the case, to some extent. The real difficulty is you are saying it may end up resulting in a split case if we proceed today, on those arguments that you do have available to you, based on the certified agreement and the award, because there may be a need to call evidence in due course about the individual contracts of these up to 50 employees.

PN734

MR BROMBERG: Yes. But fundamentally I'm in the position where I haven’t had a chance to get instructions as to what the client wants to do. I don’t know whether the client wants a split proceeding or - - -

PN735

THE VICE PRESIDENT: Mr Bromberg, it's a bit cute, isn't it? I mean, this decision hasn't been handed down in a vacuum. We had an argument and a hearing and there was a clear articulation of the way in which the matter was going forward.

PN736

MR BROMBERG: Yes.

PN737

THE VICE PRESIDENT: You may remember you made representations with Senior Deputy President Hamilton to get the timetable and another matter changed, so you would be in a position to do the necessary preparation to be here today to argue it, depending upon the outcome of the separate question. The outcome is really, you know, a bipolar circumstance. You know, there's only one of two available outcomes; either the broad construction which you were contending was going to be embraced, or the narrow construction which Transfield was contending was going to be embraced.

PN738

The idea that you are sort of, as it were, starting from scratch in light of the decision is just overreaching a little, isn't it?

PN739

MR BROMBERG: I suppose, your Honour, I'm just showing my discomfort, your Honour, at being on my feet in circumstances where the Tribunal has made a decision which I haven't had an opportunity to either advise my client about or get instructions about. It does put me in a difficult position, your Honour, because at the end of the day I can't tell your Honour that I know the union wants to proceed, in light of your Honour's decision. I don't know that. I'm just very reluctant to say anything or proceed further until I've got those instructions. Perhaps I'm being overly cautious, your Honour, but instructions - - -

PN740

THE VICE PRESIDENT: Well I'm going to give you an hour to get those instructions and either the matter is important to the union or it's not. It's either important enough for the secretary to come out of the meeting for the time that it's necessary, in order to be able to give instructions. It's either that important or it isn't. but you have got one hour to get some instructions as to what you want to do. But at the present I'm inclined, having regard to the costs consequences both for the taxpayer and the respondent, to proceed with those arguments that you can proceed with, based upon the certified agreement and the award today.

PN741

Having said that, I can tell you I would like nothing more than to have the time myself, but I think that's the appropriate outcome. So I'm going to adjourn for an hour at this point.

<SHORT ADJOURNMENT [10.23AM]
<RESUMED [11.37AM]

PN742

THE VICE PRESIDENT: Yes, Mr Bromberg.

PN743

MR BROMBERG: Your Honour, Mr Marshall, who is the secretary of the union, I've had some contact with him. He is in enterprise bargaining negotiations and he has not been able to come up but I can tell your Honour this much, that the union does intend to proceed. It intends to consider your Honour's determination further and it may or may not appeal, but in any event - - -

PN744

THE VICE PRESIDENT: That's fine. That's its right.

PN745

MR BROMBERG: That's right.

PN746

THE VICE PRESIDENT: I'm far from infallible.

PN747

MR BROMBERG: Yes. It intends to proceed and I'm instructed to proceed. We continue to maintain that an adjournment is appropriate and if I might, I would like to explain to your Honour the means by which - the manner in which we intend to proceed, the argument that we intend to rely upon as best as I can put it at the moment.

PN748

THE VICE PRESIDENT: Yes.

PN749

MR BROMBERG: It's clear - and I don't want to put words in my learned friend's mouth - that until there's a better understanding of that I don't know that my learned friend can say he is ready to proceed either. For instance, he doesn't know whether he wants to cross-examine any of our witnesses at this stage, because he does not know the way in which we now put the argument.

PN750

The argument is somewhat changed, your Honour, because of the nature of the determination that your Honour has made. Can I say this, your Honour, as a starting point. Your Honour's determination, I think, found perhaps some middle ground between the parties rather than took up my learned friend's construction. I say that because the construction that was put by Mr Bourke, set out in his outline, has not elaborated or not moved away from, as I understood it, in oral submissions, the construction of clause 1.6(ii); which construed conditions of employment as conditions which were dealt with by the agreement.

PN751

Your Honour might have a look, for instance, at paragraph 18 just as an example of the outline of submissions of the respondent, where in the second line it said:

PN752

Clause 1.6(2) merely prevents Transfield from pursuing claims for changes to the conditions of the employment dealt with by the agreement. It does not prevent the implementation of change of a kind contemplated by the agreement itself.

PN753

Now I do recall that in his submissions Mr Bourke referred you to that clause in the agreement, which incorporates the award.

PN754

THE VICE PRESIDENT: Yes.

PN755

MR BROMBERG: So his argument extended to a construction that conditions of employment meant conditions in the agreement and/or award.

PN756

THE VICE PRESIDENT: Yes.

PN757

MR BROMBERG: But in our respectful submission it stopped there. That's how we understood it, in any event. I should say there is nothing in the outline - - -

PN758

THE VICE PRESIDENT: My recollection may be faulty but I thought that during the course of the argument the contract of employment got wrapped up in that as well.

PN759

MR BROMBERG: As I recall it, your Honour - - -

PN760

THE VICE PRESIDENT: In any event, so far as I'm concerned I'm confident that it ought to be wrapped up into it.

PN761

MR BROMBERG: Yes. Now from an evidentiary point of view, your Honour, facing what we thought we were facing, and at the time that the evidence was prepared we only had the outline, we didn't have any further elaboration that might have been provided by our friend in his submissions. As I say, I don't think he went to the contract of employment but even if he did, when the evidence in this case was prepared it was prepared on the basis that on our construction, conditions of employment was a broad concept. On my learned friend's construction - - -

PN762

THE VICE PRESIDENT: Pardon me one moment, Mr Bromberg. Yes, Mr Bromberg.

PN763

MR BROMBERG: On my learned friend's construction as we understood it by reference to his outline, conditions of employment meant conditions in the agreement. So I think it's fair to say, your Honour, that we weren't focussed on conditions in contracts of employment, because we did not contemplate that there would ultimately be - - -

PN764

THE VICE PRESIDENT: So you are on a position to proceed in relation to conditions granted by the agreement or the award, conferred by the agreement or the award, but not in respect of the contract?

PN765

MR BROMBERG: No, your Honour, and the difficulty is there are some 70 employees. Their contracts might all be standard, I just don't know. I just haven't had the position, we just haven't had the capacity to get instructions. I open with that, your Honour, in order to make it clear that the terms of the contract of employment appear to us to have some obvious importance now, given your Honour's construction, and some potential for overlap with the argument we want to put in relation to conditions in the agreement or award.

PN766

Can I explain that by giving just an outline of the way in which we say the employer is seeking to change the conditions of employment. It's our contention, your Honour, that it's a condition of employment within the meaning that your Honour has ascribed to it, it's a condition of employment that Transfield not expose employees to the unreasonable risk of harm or injury.

PN767

THE VICE PRESIDENT: Sorry, unreasonable risk of harm or injury?

PN768

MR BROMBERG: Yes, and that arising out of that overarching - - -

PN769

THE VICE PRESIDENT: Which particular terms in the agreement or the award do you say give rise to that condition of employment?

PN770

MR BROMBERG: Well, can I come to that, your Honour? But before going there can I say that it's our contention that under that umbrella of the obligation not to expose the employee to unreasonable risk of harm or injury, there is the implied condition that Transfield provide sufficient manning to enable the employee to work in a manner which reasonably protects the employee's health and safety.

PN771

THE VICE PRESIDENT: That allows the employee to work in a manner - - -

PN772

MR BROMBERG: Which reasonably protects the employee's health and safety.

PN773

THE VICE PRESIDENT: That's an implied condition?

PN774

MR BROMBERG: Yes. We say both are implied, your Honour. This is a subcondition, if you like, of a paramount implied condition that the employee not be exposed to unreasonable risk of harm or injury. The condition - - -

PN775

THE VICE PRESIDENT: Can I say, Mr Bromberg, it seems clear to me that sooner or later Transfield is going to have to grapple with the merits of the safety issue.

PN776

MR BROMBERG: Absolutely.

PN777

THE VICE PRESIDENT: Whether it's here or whether it's in the context of a 496 application or whatever.

PN778

MR BROMBERG: Yes.

PN779

THE VICE PRESIDENT: The safety issue you raise is going to have to be grappled with.

PN780

MR BROMBERG: It certainly is, your Honour, and if Transfield hasn't heard it loud enough yet, they would need to understand that this issue is not going away.

PN781

THE VICE PRESIDENT: Yes.

PN782

MR BROMBERG: One way or another the union, on my instructions, is determined to protect the employees from what it regards as the imposition upon them of unsafe work practices.

PN783

THE VICE PRESIDENT: Yes, and I think it's implicit in what you have said today and on the last occasion that the union's position is that members will not be going into structural fires unless there's a two in two out approach; and then there's also an issue about whether or not at East Sale aviation fires will be attended to if there isn't a fire fighter in the watch room.

PN784

MR BROMBERG: It's perhaps not as easy as that, your Honour. It's not as easy as that because if you read the material, what these firefighters say is that faced with the need to rescue someone, they will go in and they will disobey an order in order to go in and save someone, despite the fact that there isn't the two people outside - - -

PN785

THE VICE PRESIDENT: Did you see Crikey, by the way?

PN786

MR BROMBERG: No.

PN787

THE VICE PRESIDENT: There was a fire incident at HMAS Cerberus. A trainee using a cigarette lighter to light flatulence managed to get their dressing gown on fire.

PN788

MR BROMBERG: I just heard about that. I just heard about that, about 10 minutes ago.

PN789

THE VICE PRESIDENT: The secret report has been leaked to Crikey and been published last week.

PN790

MR BROMBERG: Yes. The fact is, your Honour, that this employer is requiring the employees to respond and respond they will. At the end of the day they are not going to stand by and watch a child burn in a structure. They are going to go in and if they are not provided with the resources necessary to ensure that risks are reasonably confined and minimised, then we say that the employer will be breaching its implied obligation and an implied term and condition of the employment.

PN791

That implication arises, we say, as a matter of law. It arises out of the common law requirement or common law obligation upon an employee, that an employee is only required to obey a reasonable direction. It is a matte that we want to contend arises by implication out of the contract of employment and/or is to be implied as a term of the agreement itself.

PN792

So far as the contract of employment is concerned it may be, your Honour, that at the end of the day we won't have very much evidence to put before your Honour. It may be that we will. We would need to look at policies and other manuals, for instance, that may be relevant. It may be that at the end of the day we would say to your Honour that even if there is no documentary support for the implication that we seek to rely on, it's an implied term that arises either as an implication implied by law or arises - - -

PN793

THE VICE PRESIDENT: in accordance with the conventional principles for the implication of terms.

PN794

MR BROMBERG: Yes. Yes, and it may be - and I don't want to put the position highly - I don't know what the materials, the documentary materials insofar as there are any, including the contracts of employment themselves, I don’t know the extent to which those may shed light. But even if they shed no further light than we have at the moment, we would still maintain the argument.

PN795

THE VICE PRESIDENT: Yes.

PN796

MR BROMBERG: We would say that the implication, the condition, is implied from the very nature of the agreement between the parties. So that's the way that we would now seek to put the case. There are some conditions in the agreement and the award that we would rely on as well. I can identify them to the best of my capacity at the moment if it helps, but it would seem - - -

PN797

THE VICE PRESIDENT: It would help.

PN798

MR BROMBERG: It would seem, I should say, odd if we were to split the case in the sense of - - -

PN799

THE VICE PRESIDENT: I understand what you are saying.

PN800

MR BROMBERG: Yes.

PN801

THE VICE PRESIDENT: Yes.

PN802

MR BROMBERG: So far as the agreement is concerned, we would rely on 2.1.1(iv). This provision in essence brings into the agreement the employer's right to manage, the right to direct and control the operations to organise the work et cetera. In our respectful submission, it would bring in what we say is an implication from the common law, and that is that the right to manage is a right to responsibly manage and a right to manage in a way that would not expose employees to unreasonable risk of harm or injury. So that the common law starting point if you like, your Honour, is brought into the agreement and becomes part and parcel of a condition in the agreement.

PN803

In addition, we would draw attention to the terms of 2.1.3, dealing with occupational health and safety and the concerns that the parties had about that. You will see it's said in the third paragraph that:

PN804

The primary objectives of the occupational health and safety committee will be to develop a management system that promotes the safety, health and improved lifestyle of the employees.

PN805

We say that all supports the implied term that we would seek to rely on. In addition, if your Honour goes to 3.2.1 to the capacity to direct an employee:

PN806

…is a capacity to direct the employee to carry out duties and use tools and equipment that are within the limits of the employee's skill competence and training.

PN807

We would say that also involves an implied recognition of the implied term that we advocate for. In the award itself - I'm not sure if your Honour has the award.

PN808

THE VICE PRESIDENT: 3.2.1 adopts a form of words that comes from the structural efficiency ground of the National Wage Case of whenever it was, some years ago now.

PN809

MR BROMBERG: Yes.

PN810

THE VICE PRESIDENT: I understand where your Honour is going.

PN811

THE VICE PRESIDENT: It's got a pretty well developed meaning, hasn't it?

PN812

MR BROMBERG: But these words are replicated in the award in a different context.

PN813

THE VICE PRESIDENT: Yes.

PN814

MR BROMBERG: We will be - - -

PN815

THE VICE PRESIDENT: Anyway, 3.2.1 you also rely upon.

PN816

MR BROMBERG: Yes. The award, your Honour, contains - we can hand up a copy for your Honour.

PN817

THE VICE PRESIDENT: Thank you.

PN818

MR BROMBERG: So far as it applies to Transfield, your Honour, the award applies to Transfield by reason of the fact that it's a common rule and there's a common rule declaration that should be attached to the back of the award. The award is in two parts. Part 1 applies to the Metropolitan Fire and Engineering and Emergency Services Board, you will see that on page 3.

PN819

THE VICE PRESIDENT: Yes.

PN820

MR BROMBERG: Part 2, which is on page 32, applies to the Country Fire Authority. But what the common rule declaration does, if your Honour looks at 3.1 of the common rule declaration on page 98, it draws a distinction between work performed within a metropolitan fire district and work performed outside of the metropolitan fire district. You will see that 3.2 is not in the metropolitan fire district and so it's part 2, given that we are dealing with areas that are outside the metropolitan fire district, that would have application other than for the particular clauses that are here identified in 3.2.

PN821

In part 2 on page 38, clause 6.1, there's a clause in similar wording to the one that was headed Structural Efficiency but it's not confined to a structural efficiency exercise, it's dealing, as the heading identifies, with work organisation. We would rely on that. That's as far as I can go at the moment, your Honour. There may be other provisions but that's as far as we can go at the moment.

PN822

Your Honour can see that the implication that might be brought into play by the contract of employment - - -

PN823

THE VICE PRESIDENT: Just let me see if I'm formulating the argument correctly in my head. You say the task that the Commission is undertaking as arbitrator is akin to seeking declaratory relief from the Court, that the contractual entitlements conferred on the employer by clause 6.1 and the other clauses you referred to in the agreement, are limited and do not extend to an exercise of discretion that exposes the employees to an unreasonable safety risk. Have I got that right?

PN824

MR BROMBERG: Yes, but also that if the implied condition that we - - -

PN825

THE VICE PRESIDENT: No, I see. You also then have a separate second limb that there's an implied condition that has that affirmative obligation imposed on the employer.

PN826

MR BROMBERG: That's right, and that the conduct the employer now intends to carry out would in effect change that condition. It would no longer be providing the benefit that we say is a condition of employment, and that is sufficient manning to enable the employee to work in a manner which reasonably protects the employee's health and safety.

PN827

THE VICE PRESIDENT: Thank you.

PN828

MR BROMBERG: I don't know what Transfield's reaction is to all of that. I don't know whether they maintain their opposition to an adjournment. Perhaps we should hear from my learned friend about that but our position, as I say, is we are likely to be prejudiced if we don't seek the further instructions and/or bring the potentially further evidence that we may want to bring. If we are forced on, your Honour, we will be forced on.

PN829

THE VICE PRESIDENT: No, no, Mr Bromberg, I've thought about it further and the adjournment as well.

PN830

Mr McDougall, just from a hard nosed practical perspective, it seems to me that the following is the case. One, the union is raising an issue which it treats seriously and which it's going to pursue by hook or by crook in some fashion or other, such that Transfield is going to have to engage at some point with the safety argument.

PN831

Secondly, that if the union is pressed on today or forced on today in circumstances where parts of its evidence, as Mr Bromberg has explained, are just unavailable, all we are doing is facing the prospect of a fresh dispute being raised. It's hard to see how it would be fair to the individuals concerned, who have rights and interests independently of the union, to shut them out on an application by analogy of some ..... estoppel principle. So that sooner or later we are going to have to grapple with this, and that the most efficient course for all concerned is to have an adjournment, and for you to have the case and the evidence against you articulated with clarity, pursuant to directions.

PN832

There's no prospect of the evidence being completed today, even if Mr Bromberg is pushed on. So there is going to have to be an adjournment at some point and the most efficient way of proceeding is to adjourn it now and to have a proper set of directions, that means that you are properly appraised of the case you have got to meet in its totality. Those are my provisional views.

PN833

MR MCDOUGALL: Yes, your Honour.

PN834

THE VICE PRESIDENT: If you want to try and persuade me to the contrary.

PN835

MR MCDOUGALL: If I might have a few moments' opportunity, your Honour, yes.

PN836

THE VICE PRESIDENT: Yes, please.

PN837

MR MCDOUGALL: First, again turning to paragraph 11 of your Honour's decision.

PN838

THE VICE PRESIDENT: I'm in the embarrassing position, Mr McDougall, of not actually having a copy of the decision here because it's on the computer, which I have left upstairs.

PN839

MR MCDOUGALL: We have all been guarding our copies jealously.

PN840

THE VICE PRESIDENT: Yes, paragraph 11.

PN841

MR MCDOUGALL: Paragraph 11. Perhaps first, your Honour, go to the last page and paragraphs 25 and 26 where your Honour refers to the narrower meaning to which you refer. Like I think my learned friend, I take that narrower meaning to be the one expressed in paragraph 11.

PN842

THE VICE PRESIDENT: Yes.

PN843

MR MCDOUGALL: My friend says 13.

PN844

MR BROMBERG: Well, it might be both.

PN845

THE VICE PRESIDENT: Yes.

PN846

MR MCDOUGALL: There is a difference in fact. There is a difference and if I can just refer to what is in paragraph 11. There your Honour speaks in reference to the submissions by Transfield:

PN847

of a narrower meaning which refers only to benefits and entitlements expressly conferred.

PN848

Not those which are impliedly conferred.

PN849

THE VICE PRESIDENT: I confess that I had not turned my mind to the subtlety of that distinction. But the intent of this is that there are obligations that arise from the contract that are identifiable and precise, and it's those obligations which are the ones we are concerned with. I would have difficulty - I think you would have difficulty defending in another place the proposition that only express terms are properly within the ambit of what we are talking about, and they don't extend to obvious implied terms. Just take the implied term of reasonable notice, for example, on termination.

PN850

MR MCDOUGALL: Well, in that case your Honour- - -

PN851

THE VICE PRESIDENT: Anyway, so there's that point.

PN852

MR MCDOUGALL: There is that point. But your Honour in saying it would be difficult to defend in another place, I'm certainly not suggesting that there are not implied terms of contract. That's far from being my submission. But what I would like to do, your Honour, is return to clause 1.6 of the agreement.

PN853

THE VICE PRESIDENT: Yes.

PN854

MR MCDOUGALL: Because it's on the application of this clause that the dispute is founded. Clause 1.6(ii), which is the one that I believe my friend relies on, talks about seeking changes to conditions of employment. If the question is does the employer, Transfield, seek to change conditions of employment in saying there is no implied term or the terms of the agreement or the terms of the award do not apply, no that is not the case. With respect, what my learned friend is putting - - -

PN855

THE VICE PRESIDENT: I understand the point you are making but Mr Bromberg's rejoinder to that is, "Well, look you know, the caravan has moved on and it's necessary for the union to reformulate its case". Not only based upon clause 1.6, but to say that there is a case now on the basis that you are not complying with implied terms. I appreciate that that is a new case and you can therefore say, "We want to have an opportunity to meet it". But again you won't' be able to escape having to meet it at some point, even if the argument you have just articulated were embraced, and the approach that on a sort of a strict pleading basis, "Well, this is not the case that you've filed in the Commission", there's going to be nothing to prevent the union from filing that case, and we are going to be back where we started.

PN856

MR MCDOUGALL: Your Honour, there are two witness statements that have been filed in this matter. One of Mr Ron Last and one of Mr Terence Collins.

PN857

THE VICE PRESIDENT: Yes.

PN858

MR MCDOUGALL: The witness statement of Mr Ron Last - I'm told that we have said we are not relying on Last. I just wish to refer to one matter and my learned friend will pick me up if he says that I cannot refer to it, and that is an undertaking which has been given by the employer, Transfield.

PN859

MR BROMBERG: I've got no problem about that.

PN860

MR MCDOUGALL: That's exhibit RNL10.

PN861

THE VICE PRESIDENT: Yes.

PN862

MR MCDOUGALL: The effect of that undertaking is that until the final determination of this matter - - -

PN863

THE VICE PRESIDENT: The maintenance of the status quo. Yes.

PN864

MR MCDOUGALL: The maintenance of status quo. There are commercial consequences. Those commercial consequences are twofold. First, the imposition continued and significant additional costs to Transfield, which it cannot recover under its contract with the Department of Defence. The second consequence is that Transfield is in fact not compliant with its contract with the Department of Defence. That's a matter that is referred to in the witness statement of Mr Terence Collins.

PN865

The consequence is that the longer this matter remains open the less viable the performance of the contract is for Transfield, that the company is already in the position of losing money under the contract, which has been in performance since 13 August of this year.

PN866

THE VICE PRESIDENT: Mr McDougall, you can make the assumption that I recognise that Transfield has a legitimate interest in seeing this matter resolves as quickly and efficiently as possible, and that the Commission should accommodate that.

PN867

MR MCDOUGALL: The only further matter, your Honour, is that as you have said, if there is an OH&S issue there are other ways in which it may be brought. I'm not saying that it is not a proper topic for dispute or discussion or debate at all. Simply that it is not one that properly arises under the clause 1.6 and that this is not a matter of the application of the agreement; this is a matter of seeking to argue a new and different issue.

PN868

THE VICE PRESIDENT: You are asking effectively, bringing that submission, for a General Steel type no case to answer submission.

PN869

MR MCDOUGALL: In effect, yes.

PN870

THE VICE PRESIDENT: No case to answer ruling, and I just don't see how the General Steel standard could be satisfied in the particular circumstances. It's not possible to conclude that there's no arguable case or that it's manifestly untenable.

PN871

MR MCDOUGALL: Well, your Honour, that's a matter that may become a matter for a formal submission at a later point and I conceded that at this point I can't make that formal submission.

PN872

THE VICE PRESIDENT: Look, Mr McDougall, can I just ask you for your client's position in relation to various circumstances that exist at the moment. Mr Bromberg has articulated a case now in the remarks he made a few moments ago which is somewhat different, somewhat expanded from the case that is contained within the dispute notification.

PN873

Strictly speaking, there is an argument that the dispute resolution procedure has to be followed in relation to that new aspect, which I might summarise in this fashion; that Transfield is in breach of terms in the agreement, implied and the other terms that Mr Bromberg has identified. So that you would be entitled to at least argue that the Commission sitting as private arbitrator had no jurisdiction in relation to that expanded part of the case. But all that's going to do is, if you are successful in that regard, just put the union in a position where it simply activates a dispute through the process and we find ourselves back here, once the dispute has been carried through.

PN874

It seems to me that what you are saying is that Transfield wants, to the extent that issues are capable of being raised, those issues resolved as quickly as possible. So is Transfield happy that we have a - assuming I'm disposed to grant the adjournment because of the practical circumstances, but it has to be a short adjournment and we have to gear up with appropriate directions a case that can be heard and determined as quickly as possible; and one that means that you know exactly the case you have to meet and you are not subject to the sort of movable feast that has been emerging thus far. What is the company's position? Does it want to stand on the formalities of compliance with the procedure in the dispute resolution process? Or, assuming I'm minded to grant a brief adjournment, does it want to see everything dealt with in a global fashion?

PN875

MR MCDOUGALL: I might seek some fresh instructions, but the position I think is that the company would be forced into insisting the formality, simply so that it could say that there has in fact been a final determination of the mater which is currently before you, so that it can proceed with calling, as it had begun to do, for expressions of interest in redundancy and redeployment; so that it can maintain its compliance with its contractual obligations. This further dispute, which - - -

PN876

THE VICE PRESIDENT: Do the contractual obligations oblige Transfield to reduce manning levels, as distinct from merely require it to provide lesser levels, which it would be satisfying if it retained the existing complement?

PN877

MR MCDOUGALL: Your Honour, I'm not in a position to answer that directly. I think that the closest I can come is to refer to the words that are in the witness statement of Terence Collins, and I know that he has not been - - -

PN878

THE VICE PRESIDENT: Yes, which paragraph?

PN879

MR MCDOUGALL: Paragraph 77. It's not a direct answer to your Honour's question.

PN880

THE VICE PRESIDENT: It's an assertion of conclusion without an explanation as to why that's so. Yes, okay. Anyway that's reflected with the instructions you have, in any event.

PN881

MR MCDOUGALL: Yes. Yes, your Honour. It arises from the difficulty that Transfield faces because it is currently banned by the undertaking it has given in relation to the dispute that has been brought. What is now being found is to - - -

PN882

THE VICE PRESIDENT: Well, I don’t think you can be held to that undertaking. Mr Bromberg can't have has cake and eat it too. The union cannot hold to that undertaking whilst at the same time expanding the case from that which in respect of which the undertaking was given.

PN883

MR MCDOUGALL: Your Honour, perhaps if I could have a very brief adjournment.

PN884

THE VICE PRESIDENT: Yes.

PN885

MR MCDOUGALL: I gather there may be some instructions that I may be given.

PN886

THE VICE PRESIDENT: Can I just urge the parties to take a practical approach, that there's just no prospect that we are going to finish the case today if we press on. So it's going to have to go over to another day in any event. It seems to me that the practical course is to allow the union to articulate the full extent of its case, including a case that goes beyond the dispute which has been strictly notified, that Transfield should contemplate waiving any jurisdictional objection in that regard, because that's the route to getting maximum finality as quickly as possible. That what ought to be agreed is a time that's convenient to the parties; it's as soon as possible.

PN887

Mr Bromberg, you are going to have to accommodate a tight timetable and there's going to need to be some directions that means that this case doesn't go off the rails, but is very confined and there is precision about what the issues are, what the evidence is; so that Transfield knows the case that it has got to meet and it can be dealt with to finality and that that can occur promptly.

PN888

MR BROMBERG: Yes. Yes, your Honour.

PN889

THE VICE PRESIDENT: Okay. I will adjourn for 10 minutes. Is that suitable?

<SHORT ADJOURNMENT [12.18PM]
<RESUMED [1.03PM]

PN890

THE VICE PRESIDENT: Yes, Mr McDougall.

PN891

MR MCDOUGALL: Your Honour, I think the ball is in my court. What the parties would appreciate, your Honour, is if you could be available to assist the parties in, effectively, a mediated process this afternoon.

PN892

THE VICE PRESIDENT: Yes, but is that going to give rise to a disqualification potentiality and does that matter?

PN893

MR MCDOUGALL: Well first, your Honour, what Transfield will be seeking assistance with, and I think my learned friend is content with this proposition, is that we look at a process by which all matters, if I can put it that way, that the union wishes to bring into dispute in relation to the OH&S issue can be brought in, in an effective proceeding, where this Commission will make a determination that will resolve the matter.

PN894

THE VICE PRESIDENT: Yes.

PN895

MR MCDOUGALL: So it's not something that would lead to a determination of the merits in any sense.

PN896

THE VICE PRESIDENT: Yes.

PN897

MR MCDOUGALL: Secondly, from the Transfield perspective, no it would not lead to any thought that your Honour should be disqualified from further - - -

PN898

THE VICE PRESIDENT: No, that's fine. 2 o'clock?

PN899

MR BROMBERG: Yes, your Honour. I should just indicate that I do need to get some instructions but I think that would be fine. What I understand my friend has in mind is that we, together with your Honour's assistance, try and arrive at some mechanism by which your Honour does get at the merits. My friend might have put that differently but that's what we had in mind, that your Honour does get at the merits of the issue and it's only in relation to trying to find a mechanism and getting your Honour's assistance that conciliation would go to at this stage. It might go further but that's what we think our fiend has in mind and we are happy to cooperate in that.

PN900

THE VICE PRESIDENT: Yes.

PN901

MR BROMBERG: It probably all needs a little bit more thought but we do think that your Honour's assistance might assist.

PN902

THE VICE PRESIDENT: Well I'm more than happy to do all that I can, particularly in terms of structure. Okay. So 2 o'clock?

PN903

MR BROMBERG: 2 o'clock.

PN904

THE VICE PRESIDENT: Fine.

<NO FURTHER PROCEEDINGS RECORDED