C2008/2016, Transcript of Proceedings [2008] AIRCTrans 192 (2 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18405-1

JUSTICE GIUDICE, PRESIDENT

C2008/2016

s.120 - Appeal to Full Bench
BGC (Australia) Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(C2008/2016)

MELBOURNE

11.57AM, FRIDAY, 18 APRIL 2008

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

PN1

MR G DOUGLAS: I seek leave to appear for BGC.

PN2

MR G MCLEAN: I seek leave to appear for the CFMEU.

PN3

JUSTICE GIUDICE: Very well. Leave is granted in each case. It’s your application, Mr Douglas, I think.

PN4

MR DOUGLAS: I’m sorry, your Honour, but we actually didn’t hear anything of what you just said because of the video link problems.

PN5

JUSTICE GIUDICE: Well, I said that leave was granted in each case. Did you hear that?

PN6

MR DOUGLAS: Sir, perhaps you can hear us, although I heard that leave was granted. We seem to not have very good audio at our end. Maybe I should just proceed with my submissions.

PN7

JUSTICE GIUDICE: Well, I’d like to iron our this problem if we can. Can you hear me now?

PN8

MR DOUGLAS: Yes, sir.

PN9

MR MCLEAN: Perfectly, your Honour. I think when you face the microphone there doesn’t seem to be a problem on our end.

PN10

JUSTICE GIUDICE: Very well. I shall attempt to discipline myself in that respect. Mr Douglas.

PN11

MR DOUGLAS: Yes, your Honour. Sir, this is an application for a stay of the orders of Watson SDP made 31 March 2008 in relation to a request made under section 765(3) of the Workplace Relations Act regarding the right of entry under section 760 of the Act. I ask if your Honour is familiar with the facts of the case from the appeal book, or whether you would like me to rehearse those as an introduction?

PN12

JUSTICE GIUDICE: Yes. Well, you could give me a brief summary if you wouldn’t mind.

PN13

MR DOUGLAS: Yes, your Honour. On 22 January 2008 this year the officers of the CFMEU attended the applicant’s site which is the building of a brick works under section 760 of the Act to hold discussions with the employees. They were granted entry to the site and they were shown to a location, which the evidence says was 190 meters from the crib room where the meeting was to take place. They were told that the meeting was to take place there and that the request was pursuant to section 765(3). The CFMEU officers were then informed that BGC would tell the workers that they were on site and that any workers who wished to attend the meetings could do so.

PN14

The evidence on the day was that it was between 30 and 31 degrees at the time of the entry to the site. An application was made that this request was unreasonable and Watson SDP made orders that future visits or future rights of entry under section 760 ought to take place under particular conditions and these conditions were that they needed to be within 20 meters of the crib room, and in circumstances inclement weather they were to take place under cover and if no other suitable location was available, they would be inside the crib room or on the veranda outside. The Senior Deputy President also made orders that BGC ought to announce in particular terms the presence of the CFMEU officers on the site.

PN15

BGC have appealed this order on the grounds set out in the notice of appeal dated 15 April 2008. Among those grounds of appeal we sought that a stay be made on the order, on the operation of the order, pending the appeal. I might now proceed to the submissions in relation to that stay application.

PN16

JUSTICE GIUDICE: Yes, thank you.

PN17

MR DOUGLAS: The relevant principles to apply in a stay application are contained within a decision of McIntyre VP, the Australian Workers’ Union and Another v CFMEU S5111. I have provided a copy of that decision. Briefly:

PN18

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

PN19

And that is at paragraph 16 of the decision. The notice of appeal sets out the grounds of appeal and the merits that are to be assessed by consideration of those grounds. I'll just take you in particular to some of those. The applicant submits that the reason for exercising its right to make a reasonable request for the location of the meeting is pursuant to requests from employees that the meeting doesn’t take place in the area where they rest and have their lunch. The evidence from employees was clear that at least in the case of the three who gave evidence they did not want the meeting to take place in the area set aside for meals and resting. It’s our submissions in the grounds of the appeal that the learned Senior Deputy President had insufficient regard to the employees’ interests in this regard.

PN20

In particular, he appeared to misunderstand, or to confuse rather, the evidence that the employees - the employees gave evidence that they didn’t want to be forced to attend meetings. And it’s clear from the evidence that what they are referring to here is they didn’t want the meetings to take place around them in the area designated for resting and meals. I could refer your Honour there to page 10 of the appeal book where the Senior Deputy President rehearses the evidence of the workers. I might just read from one or two of them. And this is the first dot point on paragraph 22 of the decision of the Senior Deputy President on page 10 of the appeal book:

PN21

I would prefer if the union meetings were not held in or around the crib room because I would like to be able to choose whether or not to attend the meeting. If a meeting is held in the crib room then I am forced to be part of it, when sometimes I would just prefer to have my lunch break.

PN22

Now, the submissions there was that in relation to that evidence is that it’s not that the workers were in some way being, that the union were using force to take the workers to a meeting, it was that the very fact of having the meetings in the crib room or around the crib room in the amenities area. Those workers who were there to rest or take their lunch inadvertently became part of the meeting. And at paragraph 44 and 46 of his decision on page 16 of the appeal book the learned Senior Deputy President says that:

PN23

The evidence discloses that when objectively viewed there is no reasonable basis for such concerns.

PN24

And those concerns referred to there are being forced to be part of the meeting.

PN25

There was no evidence of any employee on the site having been required or forced to attend a meeting of the union against their wishes, or having to see or talk to union representatives. And there is evidence to the contrary.

PN26

Then it’s clear from this that the Senior Deputy President has concluded that an absence of being forced in this latter sense is the relevant issue. The other point we would take from our grounds of appeal in particular is that the learned Senior Deputy President, in our submission, incorrectly assessed the evidence with regard to the weather conditions and made orders regarding an definition of inclement weather that was not open on the evidence. If I could refer you to our appeal grounds at paragraph 5(c). I think it’s adequately set out there what our submission is. First, there was no evidence that temperatures of 30 degrees and above are too extreme for the holding of a meeting outside.

PN27

The learned Senior Deputy President made orders that inclement weather ought to be defined as a temperature in excess of 30 degrees. And this is having regard to the definition of inclement weather for the purposes of where it should stop in clause 19(1)(c) of the Building Trades Construction Award 1997. The Senior Deputy President also took account of his own subjective experience of the climatic conditions during an inspection on 27 February 2008 in circumstances where the temperature was substantially higher on the relevant day. And the Senior Deputy President’s subjective experience of the temperature is likely, in our submission, to be materially different to the workers of the relevant construction sites.

PN28

For reasons including that the Senior Deputy President arrived in Perth from Melbourne less than 24 hours before the site visit and he attended the relevant site wearing a dark suit and tie on a hot day. And so his comments that it was uncomfortable or extremely uncomfortable to move around in those conditions, in our submission, are not relevant because of the fact that he was not properly dressed and acclimatised. Whereas as we say at paragraph (iv), the employees working conditions being predominantly outdoor require them to wear appropriate clothing and take other measures, such as wearing sunscreen, to protect them from the sun and weather.

PN29

We also submit, your Honour, that the mean maximum daily temperatures for January, February and March 2008 were in excess of 30 degrees. And to define inclement weather as being in excess of 30 degrees mean that most days during the summer months are likely to be inclement on this definition. Our other submission in relation to the arguable case is that in the hearing before Watson SDP it was submitted that if the Senior Deputy President was to find that the particular request on 22 January was unreasonable, that it was submitted that the Senior Deputy President ought not necessarily make an order that a particular place be named as the future meeting place.

PN30

Yet the Senior Deputy President at paragraph 52 of his decision, that’s on the appeal book page 17, he sets out the test on which he bases his decision to make an order in relation to the location of future meetings and he says that unless he is confident that future exercise of the right would be exercised reasonably, he ought to make orders. Yes, it’s about the third sentence:

PN31

To accede to the submission I would need to be confident that any future request would be exercised reasonably.

PN32

It’s our submission that there is no authority for this test and it takes an express statutory right away from the appellant, as well as being an inductive fallacy to insert that one unreasonable request means that future requests will be unreasonable. Especially where future requests would be made in the shadow of the reasons and decision of the Commission about the principles to apply in establishing reasonableness. I will now address the issue of the balance of convenience. The balance of convenience requires a consideration of all the circumstances as they apply for a particular case, including the impact of the order on the parties and whether or not the maintenance of the status quo favours the granting of a stay.

PN33

And here I refer to the case of Vitasoy Australia Products Pty Ltd 14 October 2005. It was provided and that’s at paragraph 25 of that decision. The authorities on balance of convenience emphasise, including the one I’ve just cited, that it’s a case of considering the particular circumstances of each case when deciding whether or not a stay ought to be granted and where the balance of convenience lies. In this case it’s submitted that the balance of convenience concerns each of the two parties as well as the public interest and there interests of the workers on site. It’s our submission that the status quo pending the appeal is that the order ought to be stayed.

PN34

The status quo is maintained because the order constrains our client’s statutory right to make reasonable requests. And I'll just address the interests of each of the three parties I have named briefly. First of all the interests of the appellant, BGC (Australia). The appellant has, as I’ve said, a right to choose a reasonable location for meetings pursuant to 765(3). It’s submitted also that the appellant has a right to accede to reasonable requests from its employees and subcontractors that meetings do not take place in the area set aside for rest and meals. With regard to the respondent, CFMEU’s interest, the respondent has a right of entry and to hold its meeting free from interference and have access to any employee who wishes to attend. It’s our submission that a stay would not prejudice any of these rights.

PN35

Also, the respondent has submitted that one of its interests is to hold meetings in an area that is not in direct view of the site management. I can refer you to the appeal book page 11 paragraph 16 where that submission is made in the CFMEU’s opening submissions.

PN36

The crib room and the amenities area is for use by management -

PN37

And that was found on the evidence:

PN38

- and it is adjacent to the site office.

PN39

And I can refer you to the relevant bits of evidence there if that would assist you. Finally, the balance of convenience depends on the interests, in our submission, of the workers.

PN40

The crib room surrounding area is set aside to be used by the workers to rest and have meals. It is not unreasonable for workers to insist that it be kept for this reason alone. As for workers who wish to participate in discussions, the evidence in the application before Watson SDP was the appellant made every reasonable effort to inform workers that the meeting was on and that they could attend if they wished.

PN41

In particular I could refer to the appeal book page 75, the evidence of Mr Hinkley at PN614. I asked Mr Hinkley:

PN42

In your view did you make every effort to go and find all the workers who were having lunch to let them know?

PN43

And he responds:

PN44

Yes, well I reckoned I easily spoke to 60 workers. There was two separate shifts for lunch there and during that time there was a bit of a duration between the time of speaking to Mr Cavanough and Mr Kennedy and we kept an eye on the guys rotating the shifts and I think we made an exceptional effort.

PN45

There was further evidence in particular about Mr Smedley and Mr Hinkley visiting the crib room and addressing groups of workers. Finally, it’s submitted that in the interests of the workers a third party to this application ought to be given substantial weight with regard to the balance of convenience. Your Honour, unless you have some particular questions that ends my submissions.

PN46

JUSTICE GIUDICE: Yes. Well, the Senior Deputy President’s finding that the company’s position in relation to the meeting which caused the CFMEU application was that that meeting location was unreasonable and he’s made an order in the terms we’re all familiar with now. But the issue that’s exercising my mind is if a stay were granted, what would the position be in the meantime in relation to site visits?

PN47

MR DOUGLAS: Sir, the position would be that BGC (Australia) would be required to permit proper right of entry according to 760 and it would have under section 765(3) a right to make requests that the meetings take place in an area that is reasonable. In the circumstances of the decision of the Senior Deputy President where it’s been flagged that the issues of distance and inclement weather are to be given some weight when choosing a reasonable position, our client would be mindful of that in choosing a location. So the two competing criteria for choosing reasonable location is one that it not be too far and that the weather not be a factor and the other that it not take place where the workers have been designated an area to have their meals and their rest.

PN48

The issue of heat has now subsided somewhat because it’s unlikely that we are to have any particularly hot days and the six month order was designed, it appears, by the Senior Deputy President to coincide with the completion of work at that construction site, which is estimated to be finished up by September. So the issue of hot weather is not likely to come up.

PN49

JUSTICE GIUDICE: Yes, thank you. Mr McLean.

PN50

MR MCLEAN: I think your Honour has identified a pertinent issue, that is what would happen in the event that the stay order was granted. That would essentially mean that the parties would be left to their own devices to impose some type of a regime controlling right of entry. There has already been a demonstration that the parties were unable to come up with a suitable regime themselves and the conditions which attached to it were demonstratably unreasonable. Watson SDP took into account some of the prior conduct and the prior troubles in exercising right of entry on that particular site and he has formed the view that he can’t be confident that in the absence of some type of order a suitable regime would be put in place.

PN51

I think that was a perfectly appropriate exercise of his discretion. And on the basis of the matters raised in the notice of appeal it doesn’t seem to us that there was any prospect of a successful outcome for the applicant. The starting point in matters like this is always the view that the order has been validly made. The applicant in the original application is entitled to the fruits of the litigation. The appeal, in my submission, has a fundamental flaw. The points raised in the notice of appeal seem to reflect a consideration of a decision that Watson SDP didn’t actually make. I will take your Honour to point 2 in the notice of appeal.

PN52

There’s a reference there to Watson SDP being in error because he had implicitly found that it was unreasonable not to grant union access to the crib room. That’s fundamentally wrong. And a mistake which permeates the position of the appeal in this matter is a focus on a denial of entry to the crib room being unreasonable, whereas the decision itself was firmly focused on the actual geographical position that BGC made available for the conduct of meetings and discussions. That’s what the decision focused on. The appeal, in my submission, focuses on something quite different. It certainly can not be argued that Watson SDP formed the view that it was unreasonable to grant access to the crib room and that’s reflected in his orders.

PN53

He made no order that the CFMEU would necessarily have access to the crib room. He made, in my submission, a common sense balancing of the respective interests and found that it would be proper to allow the CFMEU to hold discussions within 20 meters of where the employees ordinarily take their breaks, as opposed to a location in the open, subject to climatic conditions, with no shade, no amenities, no water, some 200 meters from the crib room in an open construction site. That’s what the decision was premised on and jurisdiction to make orders flowed from that position. And that’s reflected in the orders granted by Watson SDP.

PN54

I note that the notice of appeal at point 2(a) through to (f) lists a number of matters which are said to be of concern to employees, that is the crib room have some type of sanctity and be free of union meeting activity so that it can exclusively be used for meals and the break time had by employees. There is nothing inconsistent between those points and a decision of Watson SDP. And again, in my submission, this view misconstrues what the orders of the Senior Deputy President actually were. There is no requirement that union officials actually enter the crib room, there is no requirement that the sanctity of the crib room be breached by union officials going in there and conducting meetings which people having their lunch are then forced to overhear and become involved in.

PN55

There is simply an order that the location identified by BGC is unreasonable in the circumstances and this is the solution that Watson SDP put in place. His power to put in place a regime which guaranteed that conditions on right of entry would be reasonable is an unfettered discretionary power and a discretion which was exercised quite properly in the decision. Point 3 in the notice of appeal the view that Watson SDP was incorrect in finding that the meetings should be closer to the crib room. It sets out a view that the decision is inconsistent with the more correct view that there’s nothing unreasonable with requiring employees to have meetings closer to where they actually work.

PN56

It presses the view that distance considerations go to convenience rather than the idea of reasonableness. In answer to that I note that a right of entry can only be held during breaks, discussions can only occur under the Act when employees are actually having a designated break. It follows from that that it’s more logical that a discussion with employees should occur where employees ordinarily have their breaks, that is closer to the crib rooms. And that is, after all, where the various amenities on the site are located and there were none of these located in the area put aside by BGC. There was also nothing to indicate that the authorised area identified by BGC is actually closer to where employees perform their work.

PN57

There was evidence that it’s a large, scattered site and it certainly must be true that there would be a proximity problem involving the area identified by BGC and at least where some of the employees ordinarily do their work. In our submission the decision did not concern so much the unreasonableness to require discussions closer to the crib room, the decision concerned the unreasonableness of requiring meetings and discussions to be held in the area that was actually identified. What flowed from that were the orders that Watson SDP put in place. I also note that Watson SDP was not singularly concerned with the distance issue from the crib room. It was a significant matter, but there were a number of other points identified by the Senior Deputy President and I think he conducted a logical and certainly a defensible balancing act of those various competing considerations and competing interests.

PN58

His substantive finding was that the location identified by BGC simply had the effect of discouraging discussions. Given the location and the circumstances of the site, that finding was certainly open, if not logically unavoidable. If a better location had have been provided by BGC, one that did provide shade and water and other amenities, then it would be quite open for the Senior Deputy President to have found that meetings there, regardless from the distance from the crib room, may well have been reasonable in the circumstances. However, that didn’t happen. There was that fundamental misdirection by BGC as to where the meetings were to occur that then opened the jurisdictional power of the Commission to make orders.

PN59

After point 4 on the notice of appeal the considerations then go to the proper exercise of Watson SDP’s discretion. The notice of appeal as phrased contemplates that the crib rooms will now be available in inclement weather. That again is a fundamental misstatement of what the orders and the decision actually involved. In inclement weather, under the order now put in place, access can either be given to the crib room, an area outside of the crib room under cover, the veranda of the crib room, or another suitable covered area within 20 meters of the crib room. That seems to me to be a fundamentally common sense place to arrive at.

PN60

And describing that three part solution as though it only involves one aspect of those three options is to misstate the order and, with respect, is to appeal against a decision that Watson SDP didn’t actually make. The order itself is hardly expansive. It’s quite a restricted order. It simply guards against employees being subjected to extreme heat, or getting rained on, when they’re having discussions with union officials. If the alternative were true and meetings could only be conducted in the open, subject to the elements on this particular site, then that would have the fundamental effect of discouraging those discussions from ever taking place.

PN61

It has to, of course, be remembered that the right to hold discussions is a substantive right under the Act and a regime for the conduct of discussions under section 760 of the Workplace Relations Act has to be something that can effectively work. If a regime with reservations, protocols and exceptions is put in place which in substance does away with an effective right of entry to hold discussions, then that is contrary to the objectives of the Act. We can’t have a situation where there is effectively no right of entry because of the number of reservations placed upon the exercise of that right of entry. And with respect, that was the situation on the BGC side up until the decision we are considering today.

PN62

I note at point 5(b) of the notice of appeal there’s a view expressed that if the weather is inclement or places difficulties upon meetings being held in the open, then union officials would simply wait until the weather gets better. With respect, in the summer season that would simply require the union officials to wait for spring. The temperatures are extreme and the conduct of the meeting in the sun is simply unreasonable. And with respect, it is not cured by an observation that the employees regularly work in the open, have sun protection and are dressed for exposure to the elements. I find that observation at point 5(c)(iv) somewhat surprising.

PN63

The common sense view, in my submission, is if you have a situation where the employees work in the sun, then they’re entitled to a break in the shade. It doesn’t follow that if you work all day in the sun you should have your meetings in the sun. It’s simply contrary to common sense. There is also a point made as to the Senior Deputy President’s definition of inclement weather. I think a reading of the decision makes it clear that this was not a technical phrase it was trying to adopt, but rather it was a common sense observation that where the weather has the effect of discouraging discussions, then discussions should be held somewhere more appropriate.

PN64

The fact that Watson SDP’s definition of inclement weather is somewhat different from the definition found in Awards is beside the point and has no real relevance. In my submission the Senior Deputy President’s observations as to inclement weather could have equally been made from a court room as they were after he was informed by the geography following the site visit. It’s simply a matter within the common knowledge of society that having a meeting in 30 degree heat in the sun discourages those discussions. It’s a common sense observation that the Senior Deputy President was certainly entitled to be informed by.

PN65

I note at point 6 of the appeal notice, and this is a point taken up also by my friend, there is a reference to what his described as a test the Senior Deputy President applied in determining whether or not to issue orders in this case. The test is said to be expressed in these terms, and I quote from point 6 of the appeal notice:

PN66

The appropriate test was that unless he was confident that any future request made by the appellant pursuant to section 765(3) was reasonable he ought to make an order as to the location of any future meetings.

PN67

With respect, this test was simply not proposed by Watson SDP. So an appeal based upon the application of this test is doomed to failure. What was said at paragraph 52 of the decision in relation to future requests and the Commission’s confidence that conditions in relation to them be reasonable. It was not expressed as a test to determine whether an order would issue or not. There is simply an analysis of prior conduct on the BGC site. There is a recognition that the lack of evidence from the principle decision maker, Mr Buckridge, left the Senior Deputy President in some doubt as to whether right of entry would be handled properly in the future.

PN68

In our submission this was a perfectly proper analysis to undertake and a perfectly appropriate observation to make in relation to this matter. A stay of these orders simply puts the onus back on the parties and the parties have demonstrated that they are unable to put in place a regime which is reasonable. How to make orders under section 771 is very broad and those powers are activated once it’s found that restrictions of a right of entry are unreasonable. That’s the crucible in this case. It was certainly open to Watson SDP to find that a location 200 meters from the crib room and amenities, exposed to the elements, was unreasonable in the sense that it discouraged discussions. The orders flowed from that position.

PN69

In our submission there is nothing challengeable about that decision. They are our submissions, your Honour, unless you have some specific questions.

PN70

JUSTICE GIUDICE: Thank you, Mr McLean. Mr Douglas, do you have anything else?

PN71

MR DOUGLAS: Sir, I would only make just a couple of comments about the fact that, or my learned friend’s submission that the orders do not focus on the crib room. In fact the guiding principle in order 1 is that it needs to be within 20 meters of the crib area. And as my learned friend did say, if it were the case that our ..... the Senior Deputy President did a site visit and found that there weren’t many places where meetings could be held. There wasn’t really any viable alternatives. Now, being constrained by the 20 meters means that we don’t have the option of providing an undercover area in inclement weather. Apart from the crib room that is the position it finds itself in.

PN72

The other point I just want to pick up is the definition of inclement weather in the order is a technical phrase. We are limited to define inclement weather as rain or temperatures in excess of 30 degrees and an argument in that way. I won’t take up any more of your Honour’s time.

PN73

JUSTICE GIUDICE: All right, thank you gentlemen. In approaching the application for the stay of operation of the order made by the Senior Deputy President on 31 March 2008 I have applied the conventional tests of which there are two. Firstly to investigate whether there is an arguable case that leave would be granted to appeal and the appeal will succeed. And the second test, whether the balance of convenience favours the grant of a stay. There can be some dangers in going too far in expressions of opinion at this stage of the proceedings because clearly I have had the benefit of submissions from counsel, but there isn’t the opportunity to explore the evidence and the cases in the detail which the Full Bench will eventually be required to do.

PN74

So one needs to be a little cautious about expressing conclusions. Nevertheless, turning firstly to the question of whether there’s a sufficiently arguable case. On what’s been put to me today I am not persuaded there is a sufficiently arguable case that leave would be granted to appeal and that the appeal would succeed. Again, on what I’ve heard today the appellant has not shown an arguable case of error in the decision appealed against. The sections of the Act concerned, although one might regard them as having some jurisdictional foundations, nevertheless involve conclusions about what is reasonable and other discretionary decisions and it would be necessary in due course for the appellant to indicate that the discretion in some material respect has miscarried and I’m not persuaded at this stage that it has.

PN75

Perhaps I should rephrase that. I’m not persuaded at this stage that there is a sufficiently arguable case that the discretion has miscarried. Of course both limbs of the test or both tests must be satisfied in order for a stay to be granted. It’s not strictly necessary therefore that I go on to deal with the balance of convenience, but I think it’s appropriate to do so. In the absence of any specific proposals for site visits by the CFMEU during the period that any stay of operation is in force, the balance of convenience does not favour a stay. My conclusion in that regard is based on an assessment that any detriment to the appellant and employees working at the site, should the order be implemented, does not outweigh the probable disadvantage to the CFMEU and employees who might wish to have discussions with it if the order is stayed.

PN76

I mention the balance of convenience for a particular reason, and it’s this. That evidence of things said or done in the course of site visits conducted pursuant to the Senior Deputy President’s order might be relevant to the disposition of the appeal. I'll say no more about it than that because obviously that would be a matter for the appeal bench. Thank you, gentlemen, for your submissions and for your forbearance with the technical difficulties we have had. As I have indicated, the application for a stay of the order is dismissed. I will now adjourn.

PN77

MR MCLEAN: Your Honour, there is an application. We make an application for costs in relation to the application for a stay proceeding simply on the basis that there was no prospect that a stay proceeding in these circumstances would be successful and that it was unreasonably brought and lacked any merit.

PN78

JUSTICE GIUDICE: Well, it’s not a matter that I would be disposed to deal with at this stage, Mr McLean, because it would be somewhat pre-emptive. If, for example, the appellant was successful in whole or in part on the appeal, it might be rather difficult to have made a decision at this stage based on what I have heard so far.

PN79

MR MCLEAN: Although I would make the point, your Honour, that an application for a stay is somewhat equivalent to an application for an interlocutory injunction. And if there’s not a proper basis for those applications, irrespective of the merits of the substantive claim, it is in my submission appropriate in some circumstances for a grant of costs if the jurisdictional basis is made out. In this case it wouldn’t - - -

PN80

JUSTICE GIUDICE: Well, if you press your application I will hear what
Mr Douglas has to say and then we’ll see where we go from there. Mr Douglas.

PN81

MR DOUGLAS: Thank you, sir. Well, we would say that in relation to the submission of the application for a stay was completely without merit, we would obviously say that that’s not the case. And as your Honour pointed out, that is to be tested by the subsequent appeal in some ..... essentially which means that the issue of costs on this stay ought to be, in the cause, ought to be reserved until that later date.

PN82

JUSTICE GIUDICE: Yes. Mr McLean, what section do you make the application under?

PN83

MR MCLEAN: Unfortunately I haven’t got the Act in front of me, your Honour, but the provision in the Workplace Relations Act essentially which provides that costs can be awarded in limited circumstances. That is, and I’m not sure if I’m quoting this with any real precision, but substantially where an application is maintained unreasonably or where an application is made without any real merit.

PN84

JUSTICE GIUDICE: Yes. But even in such a case, if the jurisdictional foundation for an order were made out there would still be a discretion I take it?

PN85

MR MCLEAN: Costs is always a discretionary matter as I understand it, your Honour.

PN86

JUSTICE GIUDICE: Yes. Mr McLean, is there anything else you want to put to me on this application?

PN87

MR MCLEAN: No thank you, your Honour.

PN88

JUSTICE GIUDICE: No, very well. What I intend to do is simply reserve the issue to be raised should you wish to do so after the determination of the appeal, either with me or with the Full Bench. And I'll adjourn on that basis.

<ADJOURNED ACCORDINGLY [12.50PM]