C2008/2513, Transcript of Proceedings [2008] AIRCTrans 317 (27 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18674-1

COMMISSIONER RAFFAELLI

C2008/2513

s.496(1) - Appl’n for order against industrial action (federal system).
Sydney Ferries Corporation
and
Australian Maritime Officers’ Union, The Maritime Union of Australia, The Seamens’ Union of Australia NSW Branch
(C2008/2513)

SYDNEY

4.09PM, THURSDAY, 29 MAY 2008

PN1

MR GOOT: I seek leave to appear with my learned friend MR T SAUNDERS on behalf of Sydney Ferries Corporation.

PN2

MR C BIRCH: I seek leave to appear with my learned friend MR M GIBIAN on behalf of the Australian Maritime Officers' Union.

PN3

MR A HATCHER: I seek leave to appear for Maritime Union of Australia and the Seaman's Union Australia New South Wales.

PN4

THE COMMISSIONER: Yes. Leave is granted. Yes, Mr Goot.

PN5

MR BIRCH: Before my learned friend proceeds with his application, Commissioner, I wanted to make a preliminary application in effect to adjourn these proceedings probably to a time convenient to the Commission tomorrow. The gist of it is to do with the application that is, as I understand it, now being listed at 10.15 tomorrow morning in the Federal Court. And perhaps I need to elaborate a little bit further on that.

PN6

THE COMMISSIONER: Yes.

PN7

MR BIRCH: If I could perhaps tender these two documents. One is a filed notice of motion, copy of a filed notice of motion that has been filed in the Federal Court by the Maritime Union of Australia and the Seaman's Union of Australia New South Wales branch. That is a motion that, as I understand, has already been listed at 10.15. It doesn't have named as a party to it my client, the Australian Maritime Officers' Union, but my client will be seeking to appear and will have a motion either filed this evening or to file in court tomorrow in the same terms, or similar terms.

PN8

Could I also tender this. It's a copy of the application that was made by Sydney Ferries Corporation, or has been made by Sydney Ferries Corporation in the Federal Court which is the initiating process for the proceedings to which the motion relates.

PN9

THE COMMISSIONER: Yes.

PN10

MR BIRCH: And can I then, Commissioner, give you the following brief background.

PN11

THE COMMISSIONER: Before you go on, Mr Birch, the first document you gave me is a notice of motion from Sydney Ferries Corporation.

PN12

MR BIRCH: I think .....

PN13

THE COMMISSIONER: That says applicant.

PN14

MR BIRCH: Sorry. They are the applicant in the proceedings.

PN15

THE COMMISSIONER: I see, yes I understand. Yes, follow the same head notes. Yes okay, I understand that.

PN16

MR BIRCH: And on that the applicant for the relief on that motion is, I understand, the Maritime Union of Australia.

PN17

THE COMMISSIONER: Yes. So Mr McNally is representing them?

PN18

MR BIRCH: Yes.

PN19

THE COMMISSIONER: Yes, okay. Sorry.

PN20

MR BIRCH: And my client will either have a motion which it will seek to file in court tomorrow morning returnable ..... or will have filed one by that time.

PN21

THE COMMISSIONER: Yes.

PN22

MR BIRCH: Commissioner, if I could take you to the Federal Court application. You will see that that seeks in the first paragraph an interpretation of a clause that the Sydney Ferries Corporation Maritime Officers' Enterprise Agreement, it seeks various consequential relief which will flow from the interpretation of that clause. If you turn to page 2 it indicates that the source of the court's jurisdiction is, amongst other things, section 849 of the Workplace Relations Act which confers upon the Federal Court how to interpret a collective agreement and make a binding and conclusive determination as to the interpretation.

PN23

If you turn to page 4 of that application you will see there a claim for interlocutory relief which includes in section B paragraph 1:

PN24

Until trial or further order the respondents to be restrained from engaging in industrial action as defined in the Act or, (b) organising or directing.

PN25

Et cetera. And various other ancillary forms of interlocutory relief. I won't read all that out in detail. But it's probably sufficient because I think you, Commissioner, have some background knowledge of some of the dealings between these parties and you can see that the nature of the matter that is brought before the Federal Court concerns the issue of the rosters. If I turn to the document which is the form R17 application which has been used to initiate the proceedings that are now before you this afternoon.

PN26

THE COMMISSIONER: Yes.

PN27

MR BIRCH: I'm not sure, Commissioner, whether you have the copy of the letter of the solicitors for Sydney Ferries that accompanies and annexed that application?

PN28

THE COMMISSIONER: Addressed to Mr Thiess?

PN29

MR BIRCH: Yes.

PN30

THE COMMISSIONER: Yes.

PN31

MR BIRCH: And that sets out the reason why they have come to the Commission this afternoon and refers to the issue of rosters. In effect the same matter that is the subject of the interpretation application that is contained in the Federal Court application that they have also filed. And then the application for an order to stop or prevent industrial action in turn seeks relief. I won't go through it in fine detail unless you would like me to, but in effect orders of a nature similar to those that have been sought in the Federal Court application. In effect what we have are the Federal Court application to interpret that provision of the collective agreement that relates to what I might call the rostering issue and ancillary orders and an application now before you on that very same matter.

PN32

THE COMMISSIONER: This is new to me. Is the restraining on industrial action something that was sought in the Federal Court prior to the decision by the judge, or subsequent to his decision?

PN33

MR BIRCH: I've only really told you that that's launched that application. What I now need to tell you is this. That yesterday before Sackville J who was the duty judge in the Federal Court, that Sydney Ferries made their application for interlocutory relief in the form contained in the document that I have just shown to you. That was argued in the course of the day and as you may well know, the Federal Court is often reluctant to make final determinations on interlocutory matters. It prefers impossible to give an early hearing date, hence obviate the necessary for an interlocutory regime. As the day progressed what happened was that the Sydney Ferries made the decision to withdraw their application for interlocutory relief and the court fixed the matter for hearing on a final basis on
13 June, about approximately two weeks time.

PN34

Nothing was said at any time during the day up until the court adjourned about any intention on the part of Sydney Ferries to later that day initiate any matter before this Commission in order to agitate essentially the same question. Now, having then received notification this morning of the matter that is being brought before this Commission, those instructing me and those instructing the second respondent have contacted the Federal Court in order to have the matter relisted before the duty judge, which again will be Sackville J as I understand it, for the purpose of seeking orders from Sackville J to restrain Sydney Ferries from taking further action in the matter that is instituted in this Commission.

PN35

And the court has listed that for 10.15 tomorrow. The court has its own limitations of time. Now, the point of my application is this. What we wish at 10.15 tomorrow to do is to invite Sackville J to grant orders which will have the effect of restraining my learned friend Mr Goot and his client from taking further action in this Commission on that application. There will, of course, be the final hearing in the Federal Court in approximately two weeks time. If you, Commissioner, proceed this afternoon that may have the effect of rendering nugatory the exercise that we would like to undertake at 10.15 tomorrow. It would deprive us, in effect, of the opportunity of inviting Sackville J to decide priority between the two tribunals.

PN36

We would urge you to adjourn until tomorrow because it will not seriously inconvenience this Commission in being able to resolve the matter in accordance with its statutory obligation. The Federal Court has listed it at 10.15. There is no reason why it will not be able to determine swiftly whether or not it will issue any injunctive orders against Sydney Ferries. If it does, that will be a consequence of a determination by the Federal Court as to an appropriate and orderly way which ..... should be the way the matters should be decided and determined. The Commission will then be able to decide whatever action it considers appropriate in accordance with its statutory obligations in the light of any order that's been made by Sackville J and I'm aware of the 48 hour time frame created by the Act which would expire on Saturday morning.

PN37

So there would be no practical impediment to the Commission being able to still satisfactorily fulfil its obligations. If on the other hand the ..... and the alleged actions, the substance of the controversy, doesn't start until Monday in any event. If the Commission proceeds this afternoon it will just quite possibly be deprived of the opportunity of exercising rights to go to the Federal Court. Now, when we go to the Federal Court - it's not the place here perhaps lay out the argument, but it's worthwhile indicating to you, Commissioner - we say it's a serious point, not a frivolous one. Sydney Ferries commenced as applicant in the proceedings in the Federal Court sought and invoked the court's power to determine the meaning of the relevant agreement under section 849 of the Act.

PN38

When the court does indeed determine the meaning of the relevant provision in the agreement under 849. That would give rise to a decision that is final, conclusive and binding. One of the points we'll make tomorrow before Sackville J is that we would not, we think it would be inappropriate for both the Federal Court and the Commission to be placed in the position where the Commission is invited to make some sort of finding about the agreement today and then we have a Federal Court matter proceed in a fortnight which may come to a different conclusion about the meaning of the agreement which by virtue of section 849 can't be conclusively binding determination as to the meaning of the agreement.

PN39

THE COMMISSIONER: Yes.

PN40

MR BIRCH: And the potential for confusion by parties and the employees in the mean time as to exactly what their rights are in that situation. We would in any event say this. That having gone and invoked the jurisdiction of the Federal Court which has the power to decide the substantive issue and power to give appropriate ancillary relief it is inappropriate, indeed improper, to have come here and started this further matter on essentially the same subject matter.

PN41

THE COMMISSIONER: Yes.

PN42

MR HATCHER: Commissioner, if I might be joined in that application. I adopt the submission my friend made.

PN43

THE COMMISSIONER: Thank you.

PN44

MR GOOT: Mr Commissioner, the application to adjourn these proceedings is opposed. It's opposed for the following reasons. Firstly my client is entitled to invoke the jurisdiction of the Commission for orders under section 496 in relation to industrial action and that is what the application is for. The relief under section 496 can not be given by the Federal Court. There is no potential for confusion as submitted by my learned friend if we are successful in relation to our section 496 order against the AMOU and the MUA/Seaman's Union and/or the employees as defined, being members of those unions employed by Sydney Ferries Corporation and a determination, when it is made, by the Federal Court as to the meaning of certain sections of various industrial agreements relating to rosters.

PN45

Conversely the Commission can't give a binding declaration in relation to those meanings. As you are already aware, Mr Commissioner, having made orders pursuant to section 496 against another of the unions and its members employed by Sydney Ferries Corporation on Tuesday, there is no potential and no impediment, there is no impediment to your making those orders now. Indeed you are enjoined under the statute if it appears to you that industrial action by an employee or employees that would not be protected is threatened, implied or probable or is being organised you must make an order that the industrial action not occur and not be organised. You must do that within 48 hours after the application is made and if you are unable to determine it within that period you must make an interim order.

PN46

Of course, you are not unable to determine it. You are here, the parties are here and the parties are represented. The matter can proceed and should proceed. If tomorrow for some reason his Honour Sackville J restrains my client, then that will be the end of the matter. We do not believe, however, that his Honour will do so because whilst it is true that in our application which you have before you we sought orders pursuant to section 494 from his Honour yesterday it became clear that the MUA, for reasons that the details of which I needn't go into, that the MUA submitted to his Honour that no orders under 494 could be made against it, that's Mr Hatcher's client and when I say MUA I mean both the MUA and the Seaman's Union New South Wales branch, because so they submitted the MUA was not a party to a collective agreement and as soon as the New South Wales branch, which was the party for the collective agreement, was not an organisation.

PN47

His Honour indicated - and counsel then appearing for the AMOU submitted that there was no industrial action, or alternatively if there was in the absence in an order being made against the MUA/Seaman's Union NSW branch, no order ought to be made against the AMOU. My client instructed me in those circumstances to withdraw the application and it was withdrawn so that what is now before his Honour Sackville J, if you can go to the applicant your Honour, what is before Sackville J on page 2 of the application is paragraphs 1, 2 and 3, not paragraphs 4, 5 and 6, and none of part B of the application on page 4 and 5 dealing with interlocutory relief. So that there is no application under section 494 before Sackville J and the application we make here is not capable of being made before Sackville J let alone granted by him.

PN48

Now, when we withdrew the application for interlocutory relief before Sackville J yesterday we did not do it on any terms, nor were any terms imposed. In particular nothing was said as to a retention of the status quo pending hearing. We were entitled in light of the submissions made by my learned friend
Mr Hatcher and my learned friend Mr Crawshaw at the time to withdraw that application and to make an application under 496 to this Commission, which is what we did. That application ought to be now heard on its merits and determined in accordance with the statute. It is an application which is directed at industrial action. And regardless of what determination is made at some point in the future by his Honour Sackville J before he retires, we are entitled to invoke the jurisdiction of the Federal Court and at the same time to exercise our rights to prevent industrial action taking place pending that determination. And that's all we seek to do.

PN49

The statute provides deliberately different remedies in different forums and we are seeking one remedy which this Commission can't grant in the Federal Court. We are seeking another remedy which the court can't grant in this Commission. And there is nothing wrong with that, let alone improper, as my learned friend submitted. Nor can the Federal Court grant ancillary relief in the nature of section 496 orders.

PN50

THE COMMISSIONER: Mr Birch.

PN51

MR BIRCH: I'll briefly respond to that. Firstly Mr Goot says that his client is entitled to invoke the jurisdiction of the Commission. One could say that in almost every case where there's a stay for an injunction granted against a party that they have invoked the jurisdiction which they are entitled to invoke. It's just that the nature of such matters that obviously where there is an act which confers a right upon a party to do something, unless and until a court makes some determination that there has been an improper exercise of the power or a basis for staying. One could say there's a statutory power there that they're entitled to invoke. That, with respect, doesn't take the matter anywhere.

PN52

The second point was it was said section 496 relief can not be given in the Federal Court. Now of course in one sense that's absolutely correct, but really with respect it is beside the point. What is important here is the way in which the substantial controversy between the parties should be resolved. Now Commissioner, everyone knows what this boils down to is a question about which roster should be applied in regard to the Ferries and whether action by the employer in insisting upon a particular roster would or wouldn't be lawful. When one - and the contention, as I understand it, that is made by the application here is that it is acting lawfully in insisting on the particular roster that it proffers from Monday.

PN53

Now, when the Commission comes to exercise its 496 power it of course would do one of two things. It could under 496(9) in making an order that industrial action stop, not occur and not be organised, not specify the particular industrial action. In other words you could make an order in general terms which did specify precisely what it was that had to be done or not done. The problem of course is there are two contentions about what is, two opposing contentions, about what is lawful for this particular matter and the view strongly held on one side is that certain conduct can be engaged in and won't be industrial action. The view held by Mr Goot's client is that it would be industrial action. And indeed there is the ironic twist that if Mr Goot's client is not lawfully entitled to insist upon its new roster, that employees who acted in accordance with the new roster might be engaging in industrial action in the same way that employees who turned up in accordance with the old roster might be engaging in industrial action in its right.

PN54

So if this Commission made an order in general terms it would leave a situation where parties wouldn't, employees wouldn't know what it was that they were legally obliged to do. And in fact it's a general form of order that is sought in the application that's been made by the applicant before this Commission. And that's sought in circumstances where the definition of what would or wouldn't be industrial action or what would or wouldn't be unlawful is presently before the Federal Court. So it wouldn't be particularly a well adjusted solution to the controversy for the Commission to make an order in those general terms. The Commission could seek to resolve the matter by determining the very issue of the interpretation which is presently listed for hearing on 13 June in the Federal Court. And that would be the other solution to the dilemma.

PN55

And therefore what Mr Goot has to do in order to resolve his first problem is to invite you, Commissioner, to decide the very matter that will be decided by the court on 13 June. Now, it is not a desirable position for the Commission to be in, in our submission, and it should at least be left to a Federal Court judge tomorrow morning to review the position and determine the appropriate course to take and whether or not there should be an order made in joining the applicant in this Commission. And if that order is made, while it won't be directed to this Commission, this Commission would then be able to deal with the matter tomorrow in the light of the reasons and judgment that have been made by the Federal Court in an attempt to resolve this particular controversy.

PN56

So for those reasons we'd say at this stage we're seeking to have it adjourned at a time convenient for the Commission tomorrow. That is the plainly convenient course to take.

PN57

THE COMMISSIONER: Yes, thank you. Well, in my view the Corporation has chosen the Federal Court and I don't say that in a critical way. Perhaps it's a reasonable alternative given that previous decisions of the Commission in relation to the rostering and so called rostering agreements. But the matter has not since then come back to the Commission for conciliation, and again I don't say that in any critical way. But of course it now chooses to come back or has a right to come back on 496 grounds. Now, the Commission is well aware of what it ought to do and I trust that the unions understand that there providing some jurisdictional questions are met. There is no alternative but for the Commission to make certain orders as applied for.

PN58

However, in the current circumstances and given the proximity of proceedings in the court I see no adverse consequence for the Commission to adjourn these proceedings until 3 o'clock tomorrow afternoon given that the industrial action feared or anticipated is to occur on Monday, 2 June. I think it puts, it's of no prejudice. Secondly it's still shorter than the 48 hours suggested by the legislation. Finally, because this isn't a court, it's still a tribunal to deal with industrial relations let me say that I've had some knowledge of how hard it is being to change existing arrangements amongst the Ferries, and I make no criticism of either side or the four sides, but it has been a tortuous process.

PN59

The employer is entitled to promote its position. It now has a situation where a judge of the Federal Court is perhaps able by his interpretation to almost provide a fait accompli to the union and its employees. It may not be that way, but if it goes according to Sydney Ferries Corporation's plans it may very well be the end of the road for its desires for a new roster. In those circumstances let me say I am surprised that the Corporation or the government hasn't decided, perhaps in further discussions with the unions, decided that perhaps instead of promoting its position on Monday, 2 June it holds its horses. It has waited a long time and we're only about two, possibly three, weeks away from having the matter possibly finally determined.

PN60

But anyway, they're all nice words. That means nothing to anybody. 496 requires me to do certain things without any views as to fairness or otherwise and at
3 o'clock tomorrow I guess I will have to deal with that unless the matter is perhaps settled or there's an order that restrains me. On that basis these proceedings are adjourned.

<ADJOURNED ACCORDINGLY [4.44PM]