BP2007/4723, Transcript of Proceedings [2008] AIRCTrans 25 (21 January 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17999-1
18000-1

COMMISSIONER BLAIR

BP2007/4723 BP2007/4785

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Quality Maintenance Services Pty Ltd
(BP2007/4723)

s.430(9)(a) - Application for order to suspend or terminate a bp (other circs)
Quality Maintenance Services Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(BP2007/4785)

MELBOURNE

10.03AM, MONDAY, 07 JANUARY 2008

Continued from 17/12/2007

PN32

MR J WIELADEK: I appear for the AMWU and with me is MR G WARREN and MS E ROBERTS.

PN33

MR N HARRINGTON: I seek leave to appear for Quality Maintenance Services, the respondent to the union application today but also the applicant in the section 430 application and with me is MR S AMENDOLA.

PN34

THE COMMISSIONER: Thanks, Mr Harrington. Mr Wieladek, Mr Harrington is seeking leave, what do you say?

PN35

MR WIELADEK: We don't oppose that, sir.

PN36

THE COMMISSIONER: Thank you. Leave is granted, Mr Harrington.

PN37

MR HARRINGTON: Thank you, Commissioner.

PN38

THE COMMISSIONER: I thought you were trying to hide your identity behind that beard.

PN39

MR HARRINGTON: It's called that pretending that you're still on holidays sort of.

PN40

THE COMMISSIONER: Okay. Well, as long as you're not wearing Stubbies and thongs you'll be fine.

PN41

MR HARRINGTON: Commissioner, may I address you on a matter just to start with?

PN42

THE COMMISSIONER: Yes.

PN43

MR HARRINGTON: You issued directions in this matter on 18 December 2007 and it states as follows:

PN44

The Commission hereby directs that on or before 12 pm, Thursday, 3 January 2008 each party file in the registry and serve upon the other a copy of an outline of that party's argument in support of the application.

PN45

I might just stop there; this is the proposed protected action ballot application -

PN46

(b), the names of any witnesses which a party intends to call and an outline of the evidence they will give.
(c), a copy of any documentation upon which a party intends to rely.
(d), a list of authorities.

PN47

And then it says:

PN48

On or before 4 pm, Friday, 4 January each party file and serve upon the other an outline of any other arguments in response to original submissions if necessary.

PN49

I'm instructed that QMS in the ballot application, if I can call it that, filed material in the Commission pursuant to the directions on Thursday, 3 January 2008 and that is an outline of argument and a statement by Mr Matthew Borghesi. Do you have those on file, Commissioner?

PN50

THE COMMISSIONER: Yes, that's the document dated 3 January and it's an outline of argument and argument in respect of both applications.

PN51

MR HARRINGTON: Yes, filed by my client, QMS, and Mr Borghesi's statement which has quite a few attachments.

PN52

THE COMMISSIONER: Yes, I've got those, thanks.

PN53

MR HARRINGTON: Okay, thank you, Commissioner. In that sense QMS has complied with the directions given in respect of the ballot application but it also sought to address matters, and there is a fair amount of overlap in the section 430 application in that material and nothing further at this stage other than oral evidence, there's nothing further that QMS intends to file in the Commission this morning. However the reason I arise to address this matter is that my instructing solicitors, Blake Dawson, did not receive anything from the union by 12 pm, Thursday, 3 January 2008 and it didn't receive anything by 4 pm, Friday,
4 January 2008.

PN54

What we have received this morning at about 9.50 was witness statement of Gregory Robert Warren in the section 451 application re protected action ballot and that is all we have received. I haven't read this statement. I've looked at a few paragraphs towards the back of it, but I assume it's a statement dealing with matters in response to Mr Borghesi's various factual assertions, but there has been no outline of any argument or any other material served upon us. Commissioner, that is in flagrant breach of the directions that were made. Now, these directions were made in respect of the union's own application and these directions were made at that time of year which is difficult for everyone because it's leading into Christmas. They were made on 18 December and compliance with the directions was at another difficult time of year because it was two days after the new year if you like on 3 January.

PN55

Now, a lot of people are trying to take holidays or are actually taking holidays. My client has responded to the union application and did comply. The union has not complied with these directions in its own application and now comes to the Commission this morning and says, well, here's a statement from Mr Warren and we're ready to proceed on that basis. In my submission, Commissioner, that's simply not fair and there are a number of courses that are open to you as a result. Just excuse me, Commissioner. Commissioner, I'll leave my submissions there for the moment and hear what Mr Wieladek has to say and how he submits the Commission should proceed in the circumstances and then perhaps you might want to hear me further.

PN56

THE COMMISSIONER: Right, thank you. Yes, Mr Wieladek.

PN57

MR WIELADEK: Thank you, sir. I've looked through the applicant's in the ballot's file, I don't have the directions. I don't doubt that they - I take
Mr Harrington's word that they were made. I don't have the directions with me. I did seek to get Mr Warren's statement together as soon as possible. He's been on annual leave and I think he still is on annual leave. Other than that we can't really add very much further. We haven't received, I don't think, submissions from the company or the witness statement. I haven't, I don't know if they've made it to the office, I just don't have them with me, so sir, I'm a little bit in the dark as far as their paperwork is concerned as well.

PN58

THE COMMISSIONER: Right. Let me say that Mr Harrington has more than what the Commission's got in terms of anything from the AMWU, the applicant in the ballot application. When the matter was first dealt with on Monday,
17 December the Commission did indicate in the last paragraph at PN31 that it will set today's date at 10 am and if needed we can probably go over onto the 8th. It then says:

PN59

All right. What will happen is that the appropriate directions will be issued by the Commission in regards to providing any outline of argument, any witness statements, notices to be placed on the noticeboard ...(reads)... and will reconvene at 10 am, Monday, 7 January.

PN60

Directions were issued and they were issued on 18 December at 11.39 am and the directions are very clear and we have an indication that in issuing the directions that all the parties that were part of the listings had received those directions. Now, if Mr Harrington says they haven't been complied with and all that has happened is that this morning at about 9.50 a statement from Mr Warren which the Commission doesn't have is presented, what does the union suggest that we do in terms of firstly non compliance with the directions and these particular proceedings, both proceedings, that is, the application for the ballot and the application for the suspension or the termination of the bargaining period, which the Commission would indicate that it's read the material provided by the respondent in the ballot application and the application in the suspension or termination application? Mr Wieladek?

PN61

MR WIELADEK: Sir, could I just get some brief instructions?

PN62

THE COMMISSIONER: Sure.

PN63

MR HARRINGTON: Commissioner, can I just observe that I think I see that my instructing solicitors did serve the material on the AMWU and that remains the position. I understand Mr Wieladek says that he doesn't Mr Borghesi's statement or the outline of argument?

PN64

MR WIELADEK: Sir, I received the outline of argument from Mr Harrington this morning, that's me myself.

PN65

THE COMMISSIONER: Right.

PN66

MR WIELADEK: And the witness statement I don't have.

PN67

THE COMMISSIONER: Did you get a folder that - - -

PN68

MR WIELADEK: I understand that folder may be at the office but - - -

PN69

THE COMMISSIONER: - - - can hold open doors and leap tall buildings and bend steel with its bare hands, it's that big, did you get that?

PN70

MR WIELADEK: The union might have got it but I have never got it so I don't know.

PN71

MR HARRINGTON: Yes, it was served, Commissioner. Look, you've been holding it up and making your comments about how weighty it is. There's a bit in there. It's a full ring binder folder. They're mainly attachments.

PN72

THE COMMISSIONER: Sure.

PN73

MR HARRINGTON: And it's mainly background too, to be fair.

PN74

THE COMMISSIONER: I notice the argument is relatively confined.

PN75

MR HARRINGTON: It is, yes. It is, to some things that were said on
1 November and 22 November about prohibited content. That's what we say in any event.

PN76

THE COMMISSIONER: Yes.

PN77

MR HARRINGTON: It will come to you, Commissioner, but it's curious that
Mr Wieladek says that he hasn't - I mean, I believe him when he says he hasn't seen it, but Mr Warren's statement goes directly to the very issues that are addressed in Mr Borghesi's statement which para 29 you don't have.

PN78

THE COMMISSIONER: Yes.

PN79

MR HARRINGTON: Headed Prohibited Content and it refers to the meetings and what Mr Warren says was said about - - -

PN80

THE COMMISSIONER: And infers that someone's seen it.

PN81

MR HARRINGTON: Well, it's just curious because the statement from what I've read of it right here goes directly to the very heart of the matters that are going to be contested and in issue before you today, but there you go.

PN82

MR WIELADEK: Sir, just in response to that, I based the taking of that statement on the company's application under 430, not from the ring bound materials.

PN83

THE COMMISSIONER: Right. So what does the union suggest we do given their application and that of the respondent and the applicant in the termination/suspension?

PN84

MR WIELADEK: Sir, I've been instructed that the union could ask for an adjournment of the matter so we can go and comply with the directions that have been issued by the Commission. After that we'd be ready to proceed as per normal. These, like Mr Harrington said, it's really based around quite a narrow issue and that covers both applications.

PN85

THE COMMISSIONER: Yes.

PN86

MR WIELADEK: So we say there's really not much between it. It will be
Mr Borghesi's evidence, Mr Warren's evidence, submissions on legal points and that will be that.

PN87

THE COMMISSIONER: Right. Mr Harrington.

PN88

MR HARRINGTON: I'm happy to proceed. We're in your hands, Commissioner.

PN89

THE COMMISSIONER: Well, you've raised the objection in terms of non compliance with the directions issued. I think it's appropriate that for whatever reason the union hasn't complied that they be given an opportunity to at least provide their argument. So what I'm intending to do is to adjourn until Monday, the 14th, next Monday at 10 am. In the interim the union is to provide their outline of argument and any witness statements to the respondent in their application and the applicants in the suspension application by the close of business Thursday, the 10th, that's this week, and copies to the Commission of course and we'll reconvene at 10 am, Monday, the 14th.

PN90

Now, what I would also hope is given that the issues that have been identified by the applicant in the termination or suspension application are somewhat narrow and it seems to me that the parties could at least have maybe two more goes at trying to reach some settlement, particularly over the prohibited content matter and also the general issue about reaching an agreement for an enterprise agreement, you don't need the Commission to hold your hands about that and hopefully the matter might be settled come Monday. Is there any issue arising from that?

PN91

MR HARRINGTON: If you would just excuse me, Commissioner?

PN92

THE COMMISSIONER: Sure. Just whilst you're chatting, I can indicate that the Commission would be available on the 14th in conciliation if the parties felt it was of some assistance. Mr Harrington.

PN93

MR HARRINGTON: Commissioner, I just wanted to check the availability of my witnesses of course for next Monday and that seems to be fine. My witnesses have travelled up from Sale for today, Commissioner, and given that they're here and given that you are making all the obvious but the right noises about parties conciliating and trying to resolve what's been going on for years and I'm sure you're aware of that too because you've been in and out of it, the QMS position at this point is that it would be open to utilising your services for a period of time this morning at least to see if there's anywhere we can go with conciliation because we are all here and if there's nowhere to go we'll be back on Monday and we'll all be running our applications, Commissioner.

PN94

THE COMMISSIONER: Right.

PN95

MR HARRINGTON: That's one possible way forward. I'm just putting that on the record at this point of time because of the reality that the people are in Melbourne, are in town and we thought that we would be running today, although we knew that because we hadn't received any material something might happen this morning that would change all that.

PN96

THE COMMISSIONER: Okay.

PN97

MR HARRINGTON: If it please the Commission.

PN98

THE COMMISSIONER: All right. Mr Wieladek?

PN99

MR WIELADEK: Sir, we're fine with that course and if you had some time we'd be able to participate in conciliation.

PN100

THE COMMISSIONER: Okay, all right. Well, what the Commission will do is adjourn into conciliation. Thanks.

<SHORT ADJOURNMENT [10.20AM]
<RESUMED [11.02AM]

PN101

THE COMMISSIONER: The Commission has had an opportunity to have a discussion between the parties. Arising from that the filing time frame has been agreed to between the parties. That is, (1), the union is to provide a finite list of matters that they intend to discuss with QMS. That list is to be provided by no later than 5 pm today, 7 January 2008 with a copy to the Commission. The Commission will set down conciliation proceedings commencing at 11.30 am tomorrow, Tuesday, 8 January, 2008. The union is to provide an outline of argument and any witness statements they intend to rely on in both applications, that is BP2007/4785 and BP2007/4723, by no later than the close of business, that is 5 pm on Wednesday, 11 January 2008 - sorry, 9 January 2008.

PN102

If tomorrow's conciliation proceedings are unable to assist the parties in reaching an agreement the Commission will set down 9 am, Friday, 11 January 2008 to commence hearing the substantive argument in both applications that are currently before the Commission. Now, is that the agreed time frame between the parties?

PN103

MR HARRINGTON: That is, yes, sir.

PN104

MR WIELADEK: Yes, sir.

PN105

THE COMMISSIONER: All right, thanks. The Commission will meet the parties tomorrow at 11.30 am. Thank you.

<ADJOURNED ACCORDINGLY [11.04AM]