C2008/2578, Transcript of Proceedings [2008] AIRCTrans 347 (9 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18702-1

SENIOR DEPUTY PRESIDENT ACTON

C2008/2578 BP2008/2022 BP2008/3118

s.496(1) - Appl’n for order against industrial action (federal system).
Refined Sugar Services Pty Ltd
and
The Australian Workers’ Union
(C2008/2578)

s.423 - Notice of initiation of bargaining period
The Australian Workers’ Union
and
Refined Sugar Services Pty Ltd
(BP2008/2022)

s.451 - Application for order for protection action ballot to be held
The Australian Workers’ Union
and
Refined Sugar Services Pty Ltd
(BP2008/3118)

MELBOURNE

12.39PM, THURSDAY, 26 JUNE 2008

Continued from 25/6/2008

PN405

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan?

PN406

MR WHEELAHAN: I seek leave to appear on behalf of Sugar Australia Pty Ltd.

PN407

THE SENIOR DEPUTY PRESIDENT: I think we're just continuing from yesterday.

PN408

MR WHEELAHAN: Yes. Yesterday you asked me to get - - -

PN409

THE SENIOR DEPUTY PRESIDENT: Sorry, you're right. You're appearing for both companies now?

PN410

MR WHEELAHAN: Yes, and I'm formally seeking leave.

PN411

THE SENIOR DEPUTY PRESIDENT: Is there any objection to the application for leave?

PN412

MR WINTER: No, your Honour.

PN413

THE SENIOR DEPUTY PRESIDENT: Leave is granted.

PN414

MR WHEELAHAN: Thank you, your Honour.

PN415

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan?

PN416

MR WHEELAHAN: Your Honour, I'll hand up a brief outline of submissions which hopefully will crystallise what I put yesterday, and I want to deal with the 496 application, all three together. I also take it these matters are being heard together so that the evidence by Mr Christensen will be taken by you in the 496 application. Now, I've put these into writing because of the concessions made yesterday, which really reduces the issues between the parties.

PN417

There is now no dispute that Refined Sugar Services is the employer of the Australian Workers Union's members and employees eligible to be their members at 264 Whitehall Street, Yarraville. Refined Sugar Services is the party bound by the relevant certified agreement, and I take it the Australian Workers Union also accepts that Sugar Australia Pty Ltd is not the employer of persons who are its members or eligible to be its members.

PN418

The state of affairs before you, and that word of course - that phrase I use because it's in the amending legislation - the state of affairs is that the bargaining period - there has been no bargaining period initiated between Refined Sugar Services and the Australian Workers Union. That follows by reference to section 423, which requires a bargaining period to be initiated with the employer. And the employer, the parties agree, is Refined Sugar Services.

PN419

To the extent that there is what purports to be a notice under section 423(3) against Sugar Australia Pty Ltd, that on the union's own concession is now invalid because Sugar Australia Pty Ltd is not an employer, which is a mandatory requirement of section 423. What follows from these agreed facts is that the industrial action that has been notified by Australian Workers Union in its letter of 24 June 08 to commence at midnight on Friday is not protected action, and what follows from that is the section 496 application by Refined Sugar Services Pty Ltd ought to be granted and appropriate orders made.

PN420

Now, as to the two applications before you, as to the application to vary the ballot order of 2 June 08, what the AWU is seeking to do is to substitute a different party. The collateral purpose of that substitution is to render the industrial action that has been notified protected action, whereas as it currently stands it is not protected. Pursuant to 469 a variation of a ballot order can only be made before the order expires. It can't be contested that that order in fact has expired. And I refer you to the timetable there in the carrying out of the ballot and the declaration of the ballot. So that application is invalid.

PN421

Alternatively - and I just refer to it because the first point should be the end of that matter. Sections 488 and 499 apply to restrict any challenge to the order or the ballot, and the union has not made out grounds for your Honour to exercise any power that might exist under those provisions. The third basis - - -

PN422

THE SENIOR DEPUTY PRESIDENT: Can I just turn those up Mr Wheelahan?

PN423

MR WHEELAHAN: Yes, your Honour. I might say, your Honour, before we - the reason I just referenced them in the written submissions is that there's been nothing put to you as to how section 469 is to be overcome, that being the expiry of the order.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes.

PN425

MR WHEELAHAN: Thirdly, the actual grounds of the application put by the union is that there is an ambiguity in the order. I'll just have handed to you the authority of Tenix Defence Systems Pty Ltd at PR917548, a Full Bench decision, , and the passages from paragraph 29 to 31. In short, there's no ambiguity in the name Refined Sugar Services Pty Ltd, it just doesn't exist. There's no ambiguity in the name Sugar Australia Pty Ltd, that's the name of the company. And that authority is relied on.

PN426

Fourthly, and I apply this across the board, the principles on Project Blue Sky v Australian Broadcasting Authority. And I know your Honour's well aware of this but I'll just hand a copy for completeness and refer your Honour to paragraph 70. Of course as your Honour would know with the pre reform Act and provisions such as 170LK and the certification of agreement, all these type of prescriptive elaborate provisions are mandatory. As to the second application to vary the initiating notice - - -

PN427

THE SENIOR DEPUTY PRESIDENT: Just before you get to that, yesterday was raised with you the application of section 111(1)(m) to the orders of Deputy President Hamilton.

PN428

MR WHEELAHAN: I understood that 111(1)(m) certainly in the application is relied on with respect to the initiating notice, not with respect to the ballot order.

PN429

THE SENIOR DEPUTY PRESIDENT: The Commission can't raise it of its own motion?

PN430

MR WHEELAHAN: Well, it hasn't been put by the union. If your Honour's now looking for another means by which you might substitute the party of course I'll answer that.

PN431

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think you should take it that the Commission is raising section 111(1)(m) of its own motion in respect to the orders.

PN432

MR WHEELAHAN: All right, your Honour. Well, that is dealt with in my next part of the submissions dealing with the notice in any event.

PN433

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN434

MR WHEELAHAN: Again, what is sought here is the substitution of the named respondent in its notice pursuant to section 423. There is a collateral purpose, in my submission, for this retrospective substitution, and that is it's an attempt to change the status of its notified industrial action from protected to not protected. Once again the grounds in the application are said to be an ambiguity, and I refer to the submissions I've already made about that.

PN435

The powers relied upon expressly by the union there are 111(1)(l) and (m). And I'll return to that more fully, your Honour. What I say in short - well, there are a number of things to say about this. The retrospective substitution, and that's what's being sought, to a bargaining period, that's not properly within the scope of section 111(1)(l) and (m). And I rely on Project Blue Sky at paragraph 70.

PN436

THE SENIOR DEPUTY PRESIDENT: What part do you rely on?

PN437

MR WHEELAHAN: Paragraph 70.

PN438

THE SENIOR DEPUTY PRESIDENT: Yes, I know. But what do you say it says there?

PN439

MR WHEELAHAN: Well, it refers to the way that you should look at the legislation and the mandatory way in which it's expressed and its purpose. As you know, your Honour, since after the reforms to the Act there is an elaborate procedure that must be complied with, strict compliance, not a matter for, as I've said yesterday, when one obtains an immunity under section 447 to be free from prosecution and torte under the Act that requires strict compliance with the legislative provisions. Now, in this case what's being sought, and you'll see when I refer to it, is a substituted party, there's a failure to initiate a bargaining period against the employer whom I represent.

PN440

Now, what I also put, your Honour, which I said yesterday with respect to these powers generally, is that there is in fact not a proceeding before you to invoke the powers under section 111(1)(l) and (m) in the way that the union is seeking in its applications to amend the ballot order and the notice under section 423(3). I'll just hand up to you a memorandum. What you must remember, your Honour, is we have a state of affairs of initiation of a bargaining period not between Refined Sugar Services Pty Ltd but Sugar Australia Pty Ltd, and we don't have the foundation of jurisdiction to then substitute a different party into a bargaining notice that was drafted and filed, and the consequences of that put by the union. Now, I'll hand up to you as you go through this memorandum, your Honour - - -

PN441

THE SENIOR DEPUTY PRESIDENT: This is a memorandum from whom?

PN442

MR WHEELAHAN: This is a memorandum to me from my instructors. Obviously we're at short notice, your Honour, in preparing a response to the matters you put to us last night, and I rely on it as its set out there and the cases cited therein.

PN443

THE SENIOR DEPUTY PRESIDENT: So do you want to go through it? Obviously I haven't had the chance to.

PN444

MR WHEELAHAN: Yes, we'll go through it, your Honour. The key point here is, what we have at the moment, as I said, it's the state of affairs. What is before you is not a bargaining period that has been initiated between Refined Sugar Services who is a named party bound by the certified agreement, and then an application to amend for example Refined Sugar Services 64 to Refined Sugar Services 67. That's not the application before you. These are different entities. So there's no foundation there, there's no proceeding. What we have is just a state of affairs.

PN445

Paragraph 2 of this memorandum explains that and gives the two examples, for example, of an industrial dispute or a bargaining period. Now, the phrase state of affairs you will see is to be contrasted with a proceeding or a matter, and reference there is made to Schedule 4 of the Workplace Relations Amendment WorkChoices Act, and the fact that they adopt that language to differentiate between the two. I'll just hand you that other case, sorry, the ministerial review application. I won't go through that case now, your Honour, but obviously these are matters that you will consider I expect if the decision is reserved.

PN446

Paragraph 4 amplifies what I've already put to you about the bargaining period just being a state of affairs. And let me say that the bargaining period, this is not curable. We cannot somehow obtain jurisdiction in this proceedings and say, well, this is a proceeding that adopt the bargaining notice as though it had Refined Sugar Services. It just didn't. And that's in effect what the union's attempting to do. Paragraph 5 more articulately sets out what I've just said to you about the precondition being necessary for the exercise of that jurisdiction, and the conclusion at paragraph 6 that the submission that the Commission doesn't have the power and jurisdiction under 111 as put by the union. And that applies - I put that submission with respect to both matters as in the ballot order.

PN447

THE SENIOR DEPUTY PRESIDENT: Is the section 496 a proceeding?

PN448

MR WHEELAHAN: Is it a proceeding?

PN449

THE SENIOR DEPUTY PRESIDENT: Yes.

PN450

MR WHEELAHAN: Yes, it's a proceeding. It's a proceeding by Refined Sugar Services to obtain an order for unprotected industrial action, but it doesn't have as its foundation a bargaining period initiated by the union against a different entity, against an entity that's not the employer.

PN451

THE SENIOR DEPUTY PRESIDENT: Section 111 says:

PN452

The Commission may do any of the following in relation to a proceeding under this Act, to correct, amend or waive any error, defect or irregularity whether in substance or form.

PN453

MR WHEELAHAN: Yes.

PN454

THE SENIOR DEPUTY PRESIDENT: Under section 496 one of the matters that I'm presumably required to consider is whether any action is protected action.

PN455

MR WHEELAHAN: Yes.

PN456

THE SENIOR DEPUTY PRESIDENT: Do you go so far as to say that in the event that I came to the view that the name of the company on the order and the bargaining period notice was wrongly cited in error, that I couldn't therefore pursuant to section 111(1)(m) alter it in the proceedings in section 496?

PN457

MR WHEELAHAN: Correct, yes. It's not curable.

PN458

THE SENIOR DEPUTY PRESIDENT: Right.

PN459

MR WHEELAHAN: It's not curable. It's the wrong party. If I can give an example of a case in the Federal Court post reform, your Honour, CSBP Limited v Liquor, Hospitality and Miscellaneous Union, reported at 162 IR 81. Now, we've tried to do a search for a case in the Federal Court post the reforms, and this case was an interlocutory injunction of course. They don't make any conclusive findings, just that there was a serious issue to be tried. But his Honour seems to find and disagree with the findings of Vice President Lawler, and has dealt with initiation of bargaining period.

PN460

And what I adopt in this case, you will see at page 93 at point 3, and this is this issue about just - you'll see there bolded, an error in just naming the negotiating parties.

PN461

THE SENIOR DEPUTY PRESIDENT: Sorry, where are you?

PN462

MR WHEELAHAN: You'll see it's actually bolded in the decision on page 93.

PN463

THE SENIOR DEPUTY PRESIDENT: And it's halfway through the paragraph?

PN464

MR WHEELAHAN: Yes. Now, my friend puts that this is just some sort of technical issue. But it's not. It's not just a technical issue. We have a wrong party. It's a different party requiring an order for substitution, not an order to amend the name of the party, your Honour.

PN465

THE SENIOR DEPUTY PRESIDENT: In terms of this decision though are you going to take me further, because that just sets - - -

PN466

MR WHEELAHAN: Yes. No, I know that, it does. And the reason I do it, these arguments are the arguments I adopt which are similar to what I'm putting here. They're just articulated at paragraphs 3, 4 and 6 by the applicant. Then the reasoning is at page 96, with no findings, but you'll see that the serious question to be tried is whether circumstances of the initiating notice is valid.

PN467

THE SENIOR DEPUTY PRESIDENT: So where are you there?

PN468

MR WHEELAHAN: At paragraphs 76. And it's the wrong naming of parties, and what his Honour finds is that, well, there is a serious issue to be tried about whether or not that notice is valid. So if, for example, the very present matter that's before you was before the Federal Court, the submission that I would be making to a judge is that there is a serious issue to be tried about whether or not the bargaining notice that names Sugar Australia Pty Ltd, if it was to be relied on by the union, which it is, is a valid notice that would result in the ballot also having the substituted correct employer, and then one step along again result in the industrial action being protected.

PN469

Now, I note your Honour's thought, because it's an extremely complicated way when the easy fix - and I address this in discretion - is for the union simply to initiate another period, another notice under section 423(3), and that's the end of it. Now, I say that in light of the agreement reached last Friday, your Honour, which there's a public statement about withdrawing their earlier notice for industrial action. There is a very path of least resistance here to rectify all these matters. Now, the union is asking you in a very complicated way and collateral purpose, the substitution of a party.

PN470

And the whole purpose is to try and render the proposed industrial action which, as I stand now without any order yet from you, your Honour, is unprotected, and that can't be disputed because the bargaining notice on the union's own concessions, it just cannot be protected.

PN471

THE SENIOR DEPUTY PRESIDENT: Well, that may be arguable Mr Wheelahan if one takes the view that there is merely an error in the citing of the party. You see, it may be if that's the case it doesn't matter who's the named party, that it is protected.

PN472

MR WHEELAHAN: Well, it's not just a matter of looking at errors, your Honour. What one has to do and what the courts do and what they've done with, for example, 170LK and so forth, and Merkel J and others, is that these - and this is the whole point of Project Blue Sky - these are mandatory requirements. Now, if the union names the wrong party and comes here on the eve of industrial action after having an agreement the week before that they would withdraw their notices and they're trying to retrospectively substitute - and that's what it is, it's the substitution of another party - in my submission it just can't be done, your Honour, let alone the ballot order. I mean, I haven't heard a submission as to how they overcome the amendment to an expired ballot order.

PN473

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan, is the penalty provisions under the Act potentially available against the employer for conduct which led to the conducting the ballot?

PN474

MR WHEELAHAN: I haven't looked at that, your Honour, off the top of my head because it hasn't been a relevant issue in my argument to meet the union's application. If I had some time I could look that up.

PN475

THE SENIOR DEPUTY PRESIDENT: Because what's happened in this case is Sugar Australia Pty Ltd has provided a list of names of, as I understand you say, the employees of Refined Sugar Services Pty Ltd, and on that basis the ballot has been conducted, and of course the union has incurred costs in the conduct of that ballot.

PN476

MR WHEELAHAN: That's correct, your Honour. But there are, I might say, which won't apply now, there are provisions. Let's say that this was brought to the union's attention next week. There are provisions providing immunity to employees who take industrial action in good faith on the basis that they thought it was protected. But that's not the case now because of what's been brought to the union's attention, this very 496 application and the 496 application of last week, your Honour.

PN477

THE SENIOR DEPUTY PRESIDENT: And in any instance you haven't looked at the potential penalty action that might be available against Sugar Australia?

PN478

MR WHEELAHAN: In the limited time, your Honour, no. I'm prepared to meet the case put to me to obtain the 496 order.

PN479

THE SENIOR DEPUTY PRESIDENT: Yes.

PN480

MR WHEELAHAN: Finally, your Honour, if I can deal with discretion? In my submission a proper exercise of your discretion, if you decide that you do have the power and you reject the earlier submissions, would be to decline the union's two applications. That is consistent with the agreement that was reached last Friday evening, which is attachment 6, that they would withdraw their notice for industrial action which relied on the bargaining period which they now seek to have a substituted party.

PN481

Secondly, as to your discretion, your Honour raised various industrial action. The evidence of Mr Christensen is that the industrial action that was carried out on Tuesday and Thursday of last week was accompanied by unlawful pickets, so that evidence is before you. Thirdly, your Honour, by acceding to the union's application it really creates an uncertainty not only for employees at large but also the employees. For the employees, particularly in light of the statement put out last Friday, one can only imagine that there will be uncertainty as to whether or not action is protected or not protected through this very complicated process to try and retrospectively substitute a party to, by collateral attack, render the proposed strike action protected.

PN482

Given all of that, your Honour, in my submission the proper exercise of discretion would be to decline the union's two applications, one to amend the ballot order and one to substitute the party in the initiating notice that it issued.

PN483

THE SENIOR DEPUTY PRESIDENT: So apart from the inability of the company to rely on section 496, if I was to find that pursuant to section 111(1)(m) the name of the company should be changed in the bargaining period notice and the orders of the Deputy President, which orders I might add I think extend beyond just a ballot order. There was also an order to the authorised ballot agent, the AEC.

PN484

MR WHEELAHAN: Well, your Honour, I haven't heard a contrary submission to what I put, that the order's expired.

PN485

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN486

MR WHEELAHAN: I haven't heard a submission from the union to answer the submission that the order's expired.

PN487

THE SENIOR DEPUTY PRESIDENT: Yes. No, I'm putting to you this issue of prejudice to the company from the change to the name pursuant to 111(1)(m). Is there any prejudice beyond the then inability it would seem of the company to rely on section 496?

PN488

MR WHEELAHAN: Yes. Your Honour, Mr Christensen gave evidence about prejudice, and if I recall he said no. In my submission though that's not what is before you, that's not the test under the Act. The Act doesn't have a requirement for prejudice. It has mandatory requirements to be complied with.

PN489

THE SENIOR DEPUTY PRESIDENT: So the short answer to the question is there's no prejudice apart from the 496?

PN490

MR WHEELAHAN: Well, if you're putting to me if there's a substitution of the parties, what's the prejudice in terms of the ballot?

PN491

THE SENIOR DEPUTY PRESIDENT: No, I'm just putting to you I know you say it's not relevant and therefore presumably it's easier for you to answer, that if section 111(1)(m) is used and the name is changed of the company on both the bargaining period and the orders of Deputy President Hamilton, whether that causes any prejudice to either company beyond their ability to rely on section 496.

PN492

MR WHEELAHAN: Well, the answer to that, it will in terms of your Honour referred to penalty provisions that might apply to the company and if your Honour was to do that it's not just changing the order. There's actually been a vote and there's been a declaration that has been made. There will have to be changes on the section 488 and 489 to that. The flow on effect - - -

PN493

THE SENIOR DEPUTY PRESIDENT: Changes to what? Sorry, changes to what?

PN494

MR WHEELAHAN: Well, there's been a declaration of the ballot, your Honour, which names the wrong company.

PN495

THE SENIOR DEPUTY PRESIDENT: Yes.

PN496

MR WHEELAHAN: Something will have to be done with that.

PN497

THE SENIOR DEPUTY PRESIDENT: Yes.

PN498

MR WHEELAHAN: It's not just a matter of changing the names of the party on the order. I mean the union hasn't taken you to all the consequences of doing that and it's a matter for them because it's their case to put, but in answer to your Honour's question, well - - -

PN499

THE SENIOR DEPUTY PRESIDENT: This is a declaration by the Electoral Commission, isn't it?

PN500

MR WHEELAHAN: It's attachment to the 496 application.

PN501

THE SENIOR DEPUTY PRESIDENT: Yes.

PN502

MR WHEELAHAN: And I'm only putting this as one of a number of consequences that might flow, your Honour.

PN503

THE SENIOR DEPUTY PRESIDENT: Yes. But what's the detriment to the company, the companies plural?

PN504

MR WHEELAHAN: Well, the detriment to Refined Sugar Services Pty Ltd, your Honour, is that they now have to as the employer, they'll no doubt see what their position is and what they're going to do about negotiating a certified agreement.

PN505

THE SENIOR DEPUTY PRESIDENT: That's a detriment?

PN506

MR WHEELAHAN: Well, the immediate consequences, your Honour, as you've pointed out is the section 496 application. The industrial action is, if I follow your Honour's reasoning is that you're going to find that it's now protected. But that's not the end of it. I mean in the short time available, I haven't gone through, but this is the problem, it's not just a substitution of a party. Everything that's happened - well, it's not the short answer because the union hasn't considered to you what are the consequences that flow. In the time available I couldn't tell you all the consequences that flow but I can say it's not just limited to the 496 application.

PN507

THE SENIOR DEPUTY PRESIDENT: But you can't point to anything else?

PN508

MR WHEELAHAN: Well, I have, your Honour, in terms of compliance with the order. It's not just a substitution. There's been a declaration that has the wrong entity. The other detriment is at the moment, your Honour, and you'll recall there's issues about the indemnity under section 447 and if you're simply to substitute the name, this is the problem that there has been industrial action that has happened and you're changing the status of people's legal rights about that action which in my submission was unprotected and I'm talking about the action of 17 and 19 June, so - - -

PN509

THE SENIOR DEPUTY PRESIDENT: This is the action in which the company has said they won't take any legal action?

PN510

MR WHEELAHAN: Yes, your Honour, but that's a contractual matter and I'm answering it to you because what you're proposing to do, you know, it really is a web. There are so many complexities and consequences it's just all the more reason why the discretion ought be exercised, even if you consider you have the power to decline the application because you may well effect legal rights that already exist over past actions. For example, with Union Solidarity also being present on these pickets. There might be issues about whether the protected or unprotected action that we've given immunity or an agreement for that's already carried out what was the involvement of Union Solidarity in that. That may render it unprotected.

PN511

THE SENIOR DEPUTY PRESIDENT: You'll have to elaborate on that. I don't understand that submission.

PN512

MR WHEELAHAN: Well, your Honour, under the Act if what you're trying to do is now render action protected there might be an argument that it's not protected because of some involvement of Union Solidarity in that.

PN513

MR WINTER: I object in relation to that. I don't even know who Union Solidarity is.

PN514

THE SENIOR DEPUTY PRESIDENT: But if there's been parties involved
that - - -

PN515

MR WHEELAHAN: Well, there was, your Honour. There was evidence of
Mr Christensen.

PN516

THE SENIOR DEPUTY PRESIDENT: Yes, but if there has been how does the name on the protected action ballot order have effect on the other persons?

PN517

MR WHEELAHAN: I'm answering your Honour's question going through the complex consequences of trying to rewrite history.

PN518

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that and I'm asking you I can't see how changing the name affects persons who may not be associated with the union or the employer.

PN519

MR WHEELAHAN: I'm saying it's one of the matters that if industrial action is carried out in concert with people who, for example, non employees of the AWU like Union Solidarity, that is an exclusion that makes the action not protected. So for the 496 application - - -

PN520

THE SENIOR DEPUTY PRESIDENT: But that's not protected regardless of whose name is on the ballot order, is it?

PN521

MR WHEELAHAN: Your Honour, we're undoing a state of affairs, that's the difficulty.

PN522

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wheelahan.

PN523

MR WHEELAHAN: Well, I've put to you my submissions, your Honour.

PN524

THE SENIOR DEPUTY PRESIDENT: Okay. Is that all you wish to put on the totality of the application?

PN525

MR WHEELAHAN: Of the matters before you that are listed, yes, your Honour.

PN526

THE SENIOR DEPUTY PRESIDENT: Yes, okay, thank you. Mr Winter.

PN527

MR WINTER: Thank you, your Honour. After last night's lengthy hearing it was mentioned by the gentleman beside me there was raised an issue of a decision handed down in the Federal Court in regard to Pilkington's. I don't think a copy was handed up to the Bench, there wasn't a copy available at that time I don't think.

PN528

THE SENIOR DEPUTY PRESIDENT: Yes.

PN529

MR WINTER: If I can provide the Commission with a copy.

PN530

THE SENIOR DEPUTY PRESIDENT: Before you do that I'll mark the documents that have been handed up by Mr Wheelahan.

EXHIBIT #RSS4 BRIEF OUTLINE OF SUBMISSIONS
EXHIBIT #RSS5 MEMORANDUM OF 26/06/2008

PN531

THE SENIOR DEPUTY PRESIDENT: Yes.

PN532

MR WINTER: Thank you, your Honour. This is a decision in relation to a matter before the Construction, Forestry, Mining and Energy Union by the name of the CFMEU v Pilkington Australia. It was mentioned by the gentleman beside me in the proceedings last night. My submission, your Honour, is this decision really goes to the heart of the matter and basically this decision related to an error made in the CFMEUs bargaining period notice to Pilkington's and that Pilkington's then tried to take proceedings against the CFMEU based on that error and the judge in this case found clearly, and I'll bring your attention to point 6 or paragraph 6 on page 4:

PN533

The employer contends that the notice did not validly initiate a bargaining period because it was not given to each other negotiating party. The ...(reads)... addressed to either the wrong or non existing entity.

PN534

It then goes on in relation to this matter, Commissioner, in 8 and it goes on to say that:

PN535

His Honour's approach to this issue seems to me with respect to be entirely correct.

PN536

And they're referring to a decision there in the Australian Meat Industry Employees Union case -

PN537

It accords with the objects of the Act. This is not bankruptcy insolvency legislation. The Act is plainly intended to be implied in a broad ...(reads)... of the nuances of corporate designations.

PN538

It then goes on at 9 and 10. Your Honour, the history of this matter I suppose can be summed up a lot by the evidence given by Mr Christensen last night. We had a senior manager or human relations manager, or the most senior manager giving evidence in relation to the structure of the companies that operate at Sugar Australia at Whitehall Street, Yarraville. Not only was it confusing for me and my colleagues to my right, it was also confusing for him. There was debate whether he was employed by Sugar Australia or Refined Sugar Services. His cards and the material that he used as a basis, or his representatives used as a basis for negotiating with the union was in fact on Sugar Australia letterhead and not Refined Sugar Services in many regards.

PN539

The business cards that the managers have state Sugar Australia and not Refined Sugar Services. But put all that aside, put all that aside, the key point from our point of view in relation to this matter is that did the appropriate individuals get the bargaining notice, did the appropriate individuals participate in the negotiations following the giving of that bargaining notice, did they then participate in the ballot process. If you put aside the technical issue of getting a name slightly wrong the union has complied with all aspects of the Act in relation to these proceedings and it was interesting yesterday when I put the question in relation to when did Mr Christensen first become aware of it, it was in fact well and truly down the track after we'd initiated the notices to take the industrial action and it would be fair to say that if certain advice hadn't been given he wouldn't have known and we wouldn't be here. We'd all be saying it was protected action.

PN540

I've been in this job for 20 years and I notice the Act gets bigger and bigger all the time and it talks about forward with fairness. I believe we've acted in a fair manner. We've attempted to comply with all aspects of the Act in relation to these proceedings. We did make an error. We've made application to try and correct that ambiguity in relation to the error and what was interesting in the evidence given by Mr Christensen when it was asked what would be the detriment, what would be the detriment of correcting that and there isn't any. All we're doing is we're asking you to do is correct a mistake and if you're unable to do that and correct that mistake I would argue what you would be doing, your Honour, is handing over industrial relations and industrial law to the people in the expensive suits.

PN541

You would be handing them the ability to come in here, interfere with the negotiations between us and the employer and them looking over every piece of paper we lodge which are thousands and they're put together by non lawyers. You'd be giving the power to the people in the expensive suits to come here and interfere on a daily basis and that's what it's got to. The decision in the Federal Court makes it clear that it is laypeople putting together these notices and the evidence that was put before you last night showed there was confusion in regard to names. It wasn't that we named some other company that has no association of Whitehall Street, Yarraville. Sugar Australia operates down there.

PN542

In relation to what we're seeking, your Honour, we are seeking that correct an error in relation to the order in relation to our bargaining period in accordance with section 111(m). I would argue that those powers have been in previous Acts. They are wide and varied and they do allow you to correct errors in certain situations and this is a situation where clearly it's a simple mistake. And the Act is clear in regard to another point and it's always been again going back to the Conciliation and Arbitration Act of 1904, the Act stated that the Commission must act without regard to technicalities and legal forms. I can remember what was in the Conciliation and Arbitration Act 1904 and then the Industrial Relations Act. We are making industrial relations so technical that it's getting to the stage where laypeople can't be part of the proceedings.

PN543

If this forum is only going to be open to legal practitioners then, well, again it's the working class and the worker who's going to have greater difficulties because in many aspects laypeople, workers themselves appear before this jurisdiction and are expected to in somehow deal with some of the legal technicalities. Your Honour, we believe that under section 111(l) and (m) you have the powers to correct what we would say has been an error and if you do so there hasn't been any evidence to the detriment, what would be the detriment to the employer in relation to this matter. Mr Christensen made it clear in his evidence there wouldn’t be any. Now, we would seek for the Commission to use its discretion in accordance with 111 to grant our applications. If your Honour pleases.

PN544

THE SENIOR DEPUTY PRESIDENT: I'll hand down in these matters at
3 o'clock. I'll now adjourn.

<LUNCHEON ADJOURNMENT [1.25PM]
<RESUMED [3.26PM]

PN545

THE SENIOR DEPUTY PRESIDENT: These matters concern an application under section 496 of the Workplace Relations Act 1996 Commonwealth by Refined Sugar Services Pty Ltd for an order against the Australian Workers Union and certain employees for the stopping and non occurrence of industrial action by the employees employed by Refined Sugar Services Pty Ltd and engaged the company's premises in Yarraville in Victoria on work regulated by a certified agreement and award. They also concern an Australian Workers Union notice of initiation of bargaining period being BP2008/2022 and an AWU application for a protected action ballot order being BP2008/3118.

PN546

Section 496(1) requires the Commission to make an section 496(1) order if it appears to the Commission industrial action by employees that is not or would not be protected action is, amongst other things, happening, is threatened, impending or probable and is being organised. Accordingly, whether or not industrial action is protected action is relevant to the Commission's making of a section 496(1) order. The grounds on which the company made their section 496(1) application were in summary that the AWU had named Sugar Australia Pty Ltd rather than Refined Sugar Services Pty Ltd in their section 423(3) written notice initiating a bargaining period and their section 451 application for a protected action ballot order.

PN547

Protected action ballot orders subsequently issued by Deputy President Hamilton named Sugar Australia Pty Ltd rather than Refined Sugar Services Pty Ltd, as did the Australian Electoral Commission's 11 June 2008 declaration of the result of the protected action ballot and Sugar Australia Pty Ltd has no employees, hence they maintain there has been no protected action ballot and declaration in respect thereof, or notice initiating a bargaining period concerning Refined Sugar Services Pty Ltd. As a result that the action or any action proposed cannot be protected action.

PN548

On 24 June 2008 the Australian Workers Union notified Refined Sugar Services Pty Ltd that following the outcome of the ballot conducted and declared by the Australian Electoral Commission on 11 June 2008 from 12 am on 28 June 2008 members of the AWU engaged at the company's operations in Yarraville would commence and indefinite stoppage in performance of all work. As I've indicated, the company maintains this is not protected action as no bargaining period exists between the AWU and the company. The bargaining period ballot orders of Deputy President Hamilton and Australian Electoral Commission declaration of 11 June 2008 are in respect of the AWU and Sugar Australia Pty Ltd, not the AWU and Refined Sugar Services Pty Ltd.

PN549

I am satisfied there is an error, defect or irregularity in the company named in the AWUs section 423(3) written notice initiating a bargaining period being BP2008/2022 in their section 451 application, being BP2008/3118, in Deputy President Hamilton's orders arising from that section 451 application, being PR981812 and 981854 and the Australian Electoral Commission 11 June 2008 declaration of the results of the ballot. The company named in those documents is Sugar Australia Pty Ltd, it should be Refined Sugar Services Pty Ltd.

PN550

Pursuant to section 111(1)(m) of the Act I will correct that error, defect or irregularity and order that the company name of Sugar Australia Pty Ltd appearing in those documents be replaced by the company name Refined Sugar Services Pty Ltd from the date cited on the documents. I have no doubt that Sugar Australia Pty Ltd and Refined Sugar Services Pty Ltd knew or should have known that the names on those documents should have been Refined Sugar Services Pty Ltd rather than Sugar Australia Pty Ltd. The section 423(3) notice cited an employee of Refined Sugar Services Pty Ltd as the contact person.

PN551

The AWU has been conducting enterprise bargaining negotiations with employees of Refined Sugar Services Pty Ltd. Sugar Australia Pty Ltd appeared in the proceedings before Deputy President Hamilton leading to the ballot orders and did not oppose them being made whilst it knew or should have known that Refined Sugar Services Pty Ltd was the proper company to be named in the orders. A list of eligible employees of Sugar Australia Pty Ltd provided to the AEC pursuant to Deputy President Hamilton's protected action ballot orders was of employees of Refined Sugar Services Pty Ltd, not employees of Sugar Australia Pty Ltd and the persons who voted in the protected action ballot pursuant to Deputy President Hamilton's orders were employees of Refined Sugar Services Pty Ltd.

PN552

There was nothing persuasive put before me that either Sugar Australia Pty Ltd or Refined Sugar Services Pty Ltd would be prejudiced by the correction of the error, defect or irregularity in the company named in the document, apart from its potential effect on Refined Sugar Services Pty Ltd ability to succeed in a section 496 application, an application, I add, which to the extent of it is based simply on Sugar Australia Pty Ltd rather than Refined Sugar Services Pty Ltd being named in the aforementioned documents is not made with clean hands. Without the correction however the AWU would be prejudiced not the least by having to incur the costs of making and pursuing another section 451 application and if a protected action ballot was ordered, by the costs of conducting another ballot of the same employees who took part in the ballot order by Deputy President Hamilton on 2 June 2008.

PN553

With respect to the Refined Sugar Services Pty Ltd section 496 application, while I intend to make a section 111(1)(m) correction I had indicated I need to consider the transcript of proceedings in the Commission of yesterday before I determine if there is other grounds relevant to the granting of the section 496 that was sought. The transcript of those proceedings should be available tomorrow. Subsequent upon reviewing that transcript I will endeavour to make a decision in respect of the section 496 application. I now adjourn.

<ADJOURNED INDEFINITELY [3.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RSS4 BRIEF OUTLINE OF SUBMISSIONS PN530
EXHIBIT #RSS5 MEMORANDUM OF 26/06/2008 PN530