C2008/2593, Transcript of Proceedings [2008] AIRCTrans 356 (11 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18721-1

JUSTICE GIUDICE, PRESIDENT

C2008/2593 C2008/2594 C2008/2595

s.120 - Appeal to Full Bench
Appeal by Refined Sugar Services Pty Ltd
(C2008/2593)

s.120 - Appeal to Full Bench
Appeal by Refined Sugar Services Pty Ltd
(C2008/2594)

s.120 - Appeal to Full Bench
Appeal by Refined Sugar Services Pty Ltd
(C2008/2595)

MELBOURNE

8.31AM, MONDAY, 30 JUNE 2008

PN1

MR F PARRY: I seek leave to appear with my learned friend,
MR P WHEELAHAN, for the appellant.

PN2

MR E WHITE: I seek leave to appear for the respondent.

PN3

JUSTICE GIUDICE: Leave is granted in each case. Mr Parry?

PN4

MR PARRY: If your Honour pleases. Your Honour will have noted that this is an application for a stay of three orders in the context of three appeals. The background in a factual sense is fairly brief, your Honour. There is a joint venture between CSR and Mackay Sugar Cooperative Association Limited to market and sell sugar. There are two companies within that joint venture mechanism, one being a company called Refined Sugar Services Pty Ltd, another being a company called Sugar Australia Pty Ltd. They are separate companies. Your Honour may have noted in the appeal book, the extracts from ASIC in respect of Refined Sugar Services at appeal book 77 and in respect of Sugar Australia at appeal book 87.

PN5

Insofar as they are different companies, your Honour, they have different registered offices, different principal places of business, they share a director but have different directorships and different shareholdings. There is, your Honour will have noted, a service agreement at appeal book 69 and that service agreement makes clear that Refined Sugar Services is the employer and it provides the labour to Sugar Australia Pty Ltd. That Refined Sugar Services is no secret. It is on the pay slips of employees. It is the entity named in the underpinning award. It is the entity named in the enterprise agreement formerly between this union and Refined Sugar Services.

PN6

The background of the Commission proceedings that were on last week were that on 12 February the AWU initiated a bargaining period by serving a notice. That is at appeal book 61 and your Honour will have noted that the other negotiating party referred to therein is Sugar Australia Pty Ltd. That was an error. Sugar Australia Pty Ltd employed no employees. That error was followed by the application for a protected action ballot and that appears in appeal book 111 - I'm sorry, that's the actual order that was made. There was an application for a protected action ballot and the named employer there was again in reliance on the bargaining notice, Sugar Australia Pty Ltd.

PN7

There was an order made by Deputy President Hamilton on 2 June that a protected action ballot be held. There was a ballot held of employees of Refined Sugar Services. They voted for industrial action and the union in reliance on this ballot notified of the taking of what they describe as protected industrial action. Now that protected industrial action was originally in two tranches, one being last week on 17 and 19 June and two more tranches on 22 and 24 June. The appellant made an application for a section 496 order last week - I'm sorry, the week before, and there were proceedings in the Commission and the actual employer, if it ever needed to be, was made clear to both the union and the Commission and the Commission issued a statement on 20 June and that appears at appeal book 118 and the union withdrew its notice and advised that it was not going to take any further action and Refined Sugar Services indicated it wouldn't be taking legal action in respect of industrial action taken on 17 and 19 June.

PN8

Now, thereafter the union gave another notice and that notice was set out in appeal book, page 119 and on 24 June that notice was to the effect that commencing on 12 am Saturday, 28 June employees would commence an indefinite stoppage, and the appellant made an application for a section 496 order and in respect of that application the AWU made applications for a variation of the bargaining notice and an application for a variation to the protected action ballot.

PN9

Now, all those matters were heard together, the evidence given and the Commission decided to grant the application to vary the bargaining notice which in effect meant that the notice that had been given in February by the union was somehow retrospectively varied by the deletion of Sugar Australia and the insertion of Refined Sugar Services and another order was made or indicated that it was going to be made varying the protected action ballot and that meant that again retrospectively the order of Deputy President Hamilton was varied by taking one company out and putting the other company in.

PN10

Now, turn then to the stay - and I'm sorry, in consequence of both those orders which amended the bargaining notice and amended the protected action ballot, the Commission then determined that there was no jurisdiction to issue a section 496 order because the industrial action was protected and the application for a section 496 was dismissed. Now, to then turn - I think your Honour will have seen from the transcript in the appeal book at - and it appears at PN550 which is on page 57 of the appeal book and her Honour said there at PN549, and I quote:

PN11

I am satisfied there is an error defect or irregularity in the company named -

PN12

and I paraphrase, in the bargaining notice being BP2008 in the section 451 application and in - presumably it means in their section 451 application, being BP2008/33118, and the orders arising in the section 451 application being, and she then mentions two print numbers, which would indicate that what her Honour proposed doing was amending firstly the bargaining notice, secondly the application by the AWU under section 451, thirdly the ballot order in print 981812, fourthly the order of the Australian Electoral Commission print 98854 and also the declaration of results pursuant to the ballot of 11 June, 2008.

PN13

Now, we don't take issue with that finding that there was an error, defect or irregularity. That is manifestly correct.

PN14

JUSTICE GIUDICE: I'll just get this clear, Mr Parry. The documents that were to be amended were the bargaining notice, the ballot order, that's the order, the protected action ballot, the AEC order and the declaration of the results, is that right?

PN15

MR PARRY: Well, that follows from if one goes through the - - -

PN16

JUSTICE GIUDICE: I wasn't sure I had them all. I was just asking you to verify.

PN17

MR PARRY: Well, we understand that in 5490, first there are a number of documents, and in 550 she's correcting and ordering that the name of Sugar Australia appearing in those documents be replaced by the company named Refined Sugar Services from the dates cited in those documents.

PN18

JUSTICE GIUDICE: Yes.

PN19

MR PARRY: As I read that that would mean the bargaining notice, the section 451 application, the ballot order, the order to the Australian Electoral Commission and the declaration of the results.

PN20

JUSTICE GIUDICE: The two 451 orders made by Deputy President Hamilton, are they in the documents somewhere? You can come back to it.

PN21

MR PARRY: The order, 98182, is at appeal book page 124. The print 981854 is at appeal book page 123.

PN22

JUSTICE GIUDICE: Thank you.

PN23

MR PARRY: The Australian Electoral Commission declaration of the results is on appeal book page 115. The application by the union, the section 451 application, is not as I recall in the appeal book.

PN24

JUSTICE GIUDICE: Yes, well, we can find that. Yes, thank you.

PN25

MR PARRY: Now, with regard to the serious question to be tried argument that we would want to prosecute on appeal, our primary appeal position is that the Commission has no power or jurisdiction to amend firstly the notice initiating the bargaining period or secondly those other documents, being the documents in respect of the ballot and we will say that section 111(1)(m) does not give power to the Commission to so do. With regard to the bargaining period, your Honour, a notice of initiation of bargaining period under section 423 creates a bargaining period, it creates what we would describe as a state of affairs. That state of affairs being the existence of a bargaining period needs to exist before the Commission can exercise some powers regarding the bargaining period so created and the Commission would be familiar with those powers the Commission has under section 430, 431 to terminate or suspend or otherwise deal with a bargaining period.

PN26

But there is nothing in those sections in that part of the Act that suggests or indicates that there is any power to amend or vary the notice initiating the bargaining period. That notice does not commence a proceeding, nor is it a step in a proceeding. Analogously, your Honour, it may be compared perhaps to a log of claims in the old industrial system. But there is now power in part 9 of the Act to do anything like her Honour did. Now, then, as is clear from her Honour's order, she relies on pursuant to section 111(1) and that does give certain powers to the Commission to do matters in relation to a proceeding and that does not give the Commission power to deal with a state of affairs or an evidentiary fact that is a precondition to a proceeding.

PN27

It may well give power to amend documents that initiate proceedings, are created for the purpose of proceedings, but it does not give a power to vary notice of initiation of bargaining period and the Commission simply did not have power to do what she did, and that's our primary argument, as to why there's error in that order amending the bargaining period notice. With regard to the ballot order and the associated documents we say, on an arguable level, that there is and could have been no valid application for a ballot order as there was no valid bargaining period relied on by the AWU. They made an application for a ballot order relying on the bargaining period that they had created with Sugar Australia that there was no valid or bargaining period created.

PN28

The order made by Deputy President Hamilton under section 462 we contend, there was an order made, 462, granting the application. Now curiously, your Honour, there is a power to vary a ballot order. We would not say it would go so far as to make an invalid bargaining order valid, but section 469 contemplates that there can be variation of the order. That however is very specific in its terms. It reads, and I quote:

PN29

An applicant for a ballot order may apply to the Commission at any time before the order expires to vary the ballot order.

PN30

Now, here, your Honour, the ballot order that was made by the Deputy President set out a process of voting which was to close on 10 June with votes cast on that day with the ballot ultimately to be declared soon thereafter. Clearly all those steps have taken place. In effect, the order had expired. It served its purpose and all the steps contemplated thereunder, although invalid, have been carried out. We would then say that there can be no variation of the order under section 469 if that was the section to be so relied on.

PN31

However, her Honour didn't purport, as I would read her decision, to rely on section 469 in any sense. Again, she relied apparently on section 111. Again we say the section 111 powers cannot be used when there is a specific power given under section 469 which was not available to her Honour because the order had expired. So we say that for similar reasons that the Commission did not have power to order variations to the declaration of results or the order to the Australian Electoral Commission. Indeed, we would contend that the declaration of results is a state of affairs again that can't be varied. In effect, it's something that's occurred. The Senior Deputy President did not have power to vary that either.

PN32

So our arguments are that there is a seriously arguable case. Indeed, we would contend an overwhelmingly strong case to the effect that the Commission did not have power to make orders that she made in respect of the bargaining notice, nor in respect of the ballot orders, and the consequence of that, we would contend, is that there is no valid bargaining period in existence and that there is no protected industrial action that's taken place. Now, these are arguments that we would want to prosecute on appeal. We are of the view, and have told the AWU that we consider their actions are unprotected and that they will be responsible, as will employees, for actions that are taken that are not protected.

PN33

Your Honour, we make an application for a stay of these orders and to evaluate the efficacy of that stay, your Honour, absent a stay we start off with the position, if you do not stay any of these orders, and that's on the assumption that the industrial action continues, and if the industrial action continues on the face of the Commission records, there are documents, being the bargaining period notice and various ballot documents, which are, we say, varied in error but they reflect the position in the Commission. What that would mean is that we could not get a section 496 order, cannot, to stop the industrial action.

PN34

We could not in all likelihood get a section 400 order from the court and there are a couple of reasons for that. Firstly, we would have to take on a collateral challenge in the Federal Court to the bargaining notice as varied. Even if successful on that, your Honour, your Honour might be aware of section 488 of the Act which protects the ballot orders from challenge in a court. So we are precluded from putting the question in a collateral challenge, the variations to the ballot order. In those circumstances we can't go to the Commission, we can't go to the court. The unions and the employees will presumably continue their actions. On my instructions, your Honour, the losses - I'm sorry, not necessarily the losses, but the immediate cost to the joint venture of not producing and transporting sugar is around 200,000 per day, and obviously there's non supply to the various customers of Sugar Australia.

PN35

The industrial action that continues, we say, will ultimately be found, on our argument, which we contend is a strong one to be not protected and that would mean that the employees and the union would continue to be at risk, serious risk, if the case was found in our favour. The union could of course stop the industrial action and commence a proper bargaining period and have a proper ballot. The downside then presumably is delay. Now, if there is a stay granted of these orders, your Honour, firstly staying the variation of the bargaining notice, we would contend that there would not be a valid bargaining notice then and therefore the industrial action can't be taken under section 435 and be protected by the existence of that bargaining notice.

PN36

The ballot order variation could not stand and all the other documents and we would contend it would result in a circumstance where the action was not protected clearly. Now, that then would turn to the stay of the order dismissing the application for the 496 and your Honour would be familiar there, if that application - I'm sorry, if that order dismissing the application was dismissed it would requite the Commission to consider section 496(6) or (7), that is the need for interim orders, and it may well be that if the Commission stayed the order dismissing the application that the 496 application of Sugar Australia would be properly considered by the Commission and the Commission could deal with it under section 496(6) or (7).

PN37

It may well be there would be an order to cease the industrial action. Whatever, we would contend that the staying of the orders would make clear that the action is unprotected and the company could take steps to protect itself in the court process. Now, your Honour, that is a state of affairs, if there were a stay to be granted, if there was, for example, to be a 496 order made by the Commission under section 496(6) or (7), or indeed, 496(1), then that would not be a state of affairs that we would see as desirable to continue for a long period of time.

PN38

Clearly this is a matter that needs resolution of parties' legal rights and obligations fairly quickly. The argument that we've outlined isn't a detailed one, your Honour. If there is to be a stay then clearly there would need to be an expeditious appeal in this matter, perhaps this week, of course depending on the convenience of the Commission, but we would cooperate in any quick appeal with regard to this matter, but we do contend it would be unfair to leave the position where there's an indefinite strike and we have our hands tied with regard to protecting our interests as against the stoppage that is taking place and causing us significant loss and damage.

PN39

So that's our application, if your Honour pleases.

PN40

JUSTICE GIUDICE: I'll just get a couple of matters in the sequence of events straight, please, Mr Parry. The 20 June marked a cessation of hostilities in a sense in that the parties went back to their corners. The situation changed on 24 June, is that right, is that the date on which the further protected action notice was served?

PN41

MR PARRY: Yes, your Honour.

PN42

JUSTICE GIUDICE: Yes, and then your client - who is your client, by the way?

PN43

MR PARRY: The appellant, Refined - - -

PN44

JUSTICE GIUDICE: Yes, yes. Served the 496 application. What date was that?

PN45

MR PARRY: 25 June the document is dated. I'm assuming it was served on that date, filed on that date.

PN46

JUSTICE GIUDICE: Yes, and then the applications that the union made to amend the various documents - - -

PN47

MR PARRY: The same day.

PN48

JUSTICE GIUDICE: The same day?

PN49

MR PARRY: Yes. The application to vary the notice to initiate a bargaining period was dated 25 June.

PN50

JUSTICE GIUDICE: Yes.

PN51

MR PARRY: And the other application was the same date.

PN52

JUSTICE GIUDICE: Yes, thank you. It was brought on that afternoon for hearing and again on the next day, which was last Thursday, and a decision was given on Friday, is that right?

PN53

MR PARRY: The decision with regard to the union's application was heard
on - was given on the Thursday in transcript. The decision dismissing the section 496 application was given late on Friday, just before 5 o'clock. Your Honour, that decision, I don't believe, appears in your appeal book.

PN54

JUSTICE GIUDICE: We have a copy of it.

PN55

MR PARRY: Yes, your Honour. So you have a copy?

PN56

JUSTICE GIUDICE: I have a copy.

PN57

MR PARRY: If your Honour pleases.

PN58

JUSTICE GIUDICE: What's the position in relation to the industrial action? Did the strike commence as indicated?

PN59

MR PARRY: The strike commenced as indicated and it's continuing today.

PN60

JUSTICE GIUDICE: Very well, thank you.

PN61

MR PARRY: As your Honour pleases.

PN62

JUSTICE GIUDICE: Mr White?

PN63

MR WHITE: Thank you, your Honour. Can I hand to your Honour an outline, can I say to your Honour that it hasn't really been edited, given the extreme time constraints that have been imposed on the respondent to this appeal. The appeal, as we understand, well, the union was served with this appeal at about five to 5 on Friday afternoon and we're here at 8.30 Monday morning.

PN64

JUSTICE GIUDICE: Yes. Well, I'm not sure what the correspondence has been between your client and the appellant, but the Commission certainly received a letter with the notice of appeal indicating that the hearing was sought over the weekend or early this week. I don't know whether your client received that indication.

PN65

MR WHITE: No, I'm told five to 5 is the first we knew about - - -

PN66

JUSTICE GIUDICE: Yes, but did you receive an indication that a hearing was sought over the weekend?

PN67

MR WHITE: I'm told no.

PN68

JUSTICE GIUDICE: That's regrettable if that didn't occur. But we did receive that request and early Monday morning seemed better than Saturday or Sunday, but you're slightly better informed as to why it was brought on so quickly.

PN69

MR WHITE: Yes. Well, we're grateful for that.

PN70

JUSTICE GIUDICE: And the basis given was the industrial action.

PN71

MR WHITE: Yes, I understand that. Your Honour, to some extent this outline sets out in the first part of the outline the background which Mr Parry has taken you to. Is it more convenient if your Honour just reads this rather than me speaking to it as your Honour is reading it?

PN72

JUSTICE GIUDICE: I'm sorry?

PN73

MR WHITE: Is it more convenient if you read it rather than me speak to it whilst your Honour is reading it.

PN74

JUSTICE GIUDICE: I think it might be. If you just give me a couple of moments. Yes, thanks, Mr White.

PN75

MR WHITE: The appellant has latched itself onto a technical error which is an error which, in the old days in this Commission, was known as a misnomer, particularly in relation to the logs of claim and service of demands which were corrected almost on a daily basis by this Commission.

PN76

The appellant, Refined Sugar Services Pty Ltd, as a matter of fact, was served with a notice of initiation of the bargaining period. You were told by Mr Parry that Sugar Australia is a joint venture between CSR and Mackay Sugar. It is also the case that Refined Sugar Services Pty Ltd and Sugar Australia have entered into a joint venture themselves. There's only one sugar refinery down at Yarraville and that's the one the joint venture operates. Refined Sugar Services supplies the labour and Sugar Services the other aspects of the joint venture.

PN77

The notification of a bargaining period was served incorrectly on Sugar Australia but you will see in paragraph 7 that it was served addressed to, the contact at Sugar Australia, a Mr Adrian Castameni, the operations manager. You'll see later in the outline that Mr Castameni is in fact an employee of Refined Sugar Services.

PN78

Prior to the notification of the bargaining period that had been over a long period of time discussions as between the parties for the replacement of the certified agreement and they were represented there at all times by officers of Sugar Australia as well as Refined Sugar Services. When the AWU applied for a protected action ballot the appellant was served, the contact person once again
Mr Adrian Castameni. The application included the draft orders and the draft orders you will see in appeal book referred incorrectly to Sugar Australia rather than Refined Sugar Services.

PN79

Sugar Australia appeared at the first day of the hearing of the application for the ballot order, still no misunderstanding as to what was involved or who the parties were or what the intention was. Ultimately, Sugar Australia didn't appear on the last day of the hearing. You may take it, your Honour, that at all relevant times Refined Sugar Services knew of the application and in fact, not only knew, but had engaged industry representatives to act on its behalf. They still chose not to attend.

PN80

The ballot and the requirements for the ballot were all complied with. There was no problem or difficulty providing the list of employees who were employed at the Yarraville refinery. The ballot was declared. Once again the notification was given to Mr Adrian Castameni. It was, one might surmise, only after lawyers got involved that the industrial misunderstanding seems to have arisen, it being clear that up until then, Refined Sugar Services knew precisely that a demand was made of it and that the protected action and the bargaining period all referred to it.

PN81

The evidence before Acton SDP is summarised in paragraph 18 of the outline. Sugar Australia appeared. There had been a number of meetings to resolve the issues between the parties. The appellant had used the name Sugar Australia on a number of other occasions, including applications in this Commission pursuant to section 170LW and other employment related matters, including a disciplinary matter to a worker there. It's not as if this has come as a bolt out of the blue.

PN82

The responses to the union's demands were clearly in respect of employees who are employed at Yarraville. There was clear understanding. Mr Christianson gives evidence that they understood that Refined Sugar Services was the company on whom the demands had been met. They knew that they were talking about Refined Sugar Services when they had discussions and they understood Refined Sugar Services would be the parties to the agreement and it wouldn't have made any difference whether Refined Sugar Services or Sugar Australia had been named in the relevant applications or the notice of initiation of bargaining period. Can I refer you in that regard to AB23 and AB32 referencing subpara 18.7 of my outline.

PN83

The real issue in this case, the core issue, is how to correct the mistake in the name of the party because all else is said by Mr Parry to flow from that. I set out in para 25 of my outline the approach the Commission should take and that's as no surprise to your Honour that my friend in his submission said the situation was analogous to the old logs of claim and service of disputes and so it is. I set out in paragraph 27 the approach taken by Isaasc DP in King Island Scheelite, and that happened that it was a demand made by employers and there was a misnomer.

PN84

The approach taken by the Commission is this, where it is clear, and the parties to the dispute understand what is clear, that the demand in that case was made and in this case the bargaining period, analogous, was initiated, then mere technicality should not stand in the way of the processes of the Act being completed. That's not such an unusual thing. It is an approach taken in courts. I set out there an extract from Bridge Shipping where McHugh J, with whom Brennan and Dean JJ agree, says, "Well, look, if there's a mistake in the name of a party, then quite clearly in order to achieve justice as between the parties, the name should be amended."

PN85

It is not, in my submission, to be properly characterised, as my learned friend would have it, as adding a different party. My learned friend's argument rests on the proposition that by changing the name there is somehow an addition or an alteration to the party. That is not the case and it's not the facts in this case, as your Honour would have seen. Refined Sugar Services had been served and were aware and participated at all times.

PN86

All of the grounds, either refer to in effect the substitution of a different party, which is a mischaracterization of what has occurred, on the one hand and secondly, it has once again an obviously incorrect characterisation of section 11 as applying only to power to correct proceedings. The notice of initiation of a bargaining period, whilst it does create a state of affairs is, nonetheless, in the context of an application for a protected ballot order, a document in relation to that proceeding. There were, no doubt, proceedings before the Commission and equally there can be no doubt that the notice of initiation of bargaining period was a document in relation to that proceeding. In fact, my learned friend's argument hinges on it because the advice which he relies on, so-called, all stems from what he alleges to be the inadequacies of the notice of initiation of bargaining period.

PN87

The only real argument my learned friend might have in relation to this, is the effect of section 469 and to have the effect my learned friend argues for must have the effect of it being a code. There is nothing, in my submission, which would suggest that to be the case. Section 469 deals with, in my submission, the substance of the orders made giving effect to a ballot. It doesn't read down in any way the powers given to the Commission elsewhere. Section 111 is expressed to apply generally in the Commission for the performance of its functions across a whole range of functions it has under the Act. It is my submission, to characterise section 469 either as a code or limiting the specific power the Commission is given under section 111, particularly 111(1)(l) and (m) is to fall into error.

PN88

JUSTICE GIUDICE: The substance of the issue under 469, there would seem to be two things. Firstly, do the general words of 469(1) mean what they say? That's the only basis on which the applicant can apply to vary, that is before the order expires.

PN89

MR WHITE: I'm not sure whether that's a correct reading either.

PN90

JUSTICE GIUDICE: No, well, I'm asking the question.

PN91

MR WHITE: They may apply before then but they're not precluded. This may be a good example of applying at other times. Doesn't say may only apply.

PN92

JUSTICE GIUDICE: There wouldn't be much point in the provision, would there, if that's what it meant?

PN93

MR WHITE: Your Honour, that's right. That points out why it's only dealing with the substantive matters of the order. That's why section 469 is read as dealing with the substantive matters of the order.

PN94

JUSTICE GIUDICE: Then the other question is, assuming a conclusion against you on the first point, on the point we've just been discussing, does that preclude the Commission bearing in any event?

PN95

MR WHITE: No, it doesn't, and in fact Acton SDP, I think at some point in the transcript said she acted on her own motion. In answer to your question generally, the answer is no and specifically I think it was within the contemplation of
Acton SDP that she could act on her own motion. Your Honour, I know I've read that in the transcript. I can't put my finger on that extract immediately.

PN96

JUSTICE GIUDICE: Was there any reference to section 459?

PN97

MR WHITE: Not that I can recall. Can I have a look at section 459. Not that I can recall, your Honour, but I don't know. It seems odd now, your Honour, that an appellant or applicant in this Commission now relies on an extreme technicality to really avoid what the processes of the Act envisage in terms of the negotiation of certified agreements.

PN98

Can I move now to grounds of which a stay is sought. I've set out in the argument the test of the stay and nothing in there is new to your Honour. It was put by my learned friend that the prejudice which the appellant would suffer in the event that a stay was not granted in respect of the orders, is in effect the effect of protected industrial action. In my submission that is not properly a matter of detriment or prejudice which the appellant can rely on.

PN99

Generally speaking when, for example, appellants or applicants seek an extension of time, it's not the case that the prospective respondent can rely on the detriment of having to fight a case or the consequence of an adverse finding once the case is found. It contemplates that protected action be taken. The processes are set down in the Act and they've been gone through. The fact that they are affecting the production of the applicant or the profitability of the applicant is not a matter properly to be taken into account.

PN100

On the other hand, the prejudice to the union, and your Honour would know this, is that bargaining takes place over a long period of time. There is pressure built up over a long period of time. Steps are taken over a long period of time and the process, if it were to be aborted, would be a significant prejudice. The respondent is entitled to rely on its rights under the Act to engage in bargaining as contemplated by the Act. All this is in circumstances where there was no misunderstanding as between the company as to what was being demanded or from whom it was being demanded.

PN101

Your Honour, it boils down to a simple proposition as to the Commission's power to correct a misnomer, a misnomer in the sense as described in King Island Scheelite and in Bridge Shipping and in our submission there's no remarkable question of law there and as a matter of fact the appellant at all times had been served with the notice of bargaining period and as a matter of fact had participated in giving effect to the orders for the protected action ballot and now, it having found a cute legal point, comes and wants the Commission to intervene and interfere with the processes which are provided for by the Act.

PN102

JUSTICE GIUDICE: I've got a couple of questions, Mr White. Just on the substantive issues, firstly, going back to 469. Among the applications filed by the AWU was there an application to vary the order?

PN103

MR WHITE: The protected ballot order.

PN104

JUSTICE GIUDICE: Yes, the order Hamilton DP made for the ballot.

PN105

MR WHITE: Yes.

PN106

JUSTICE GIUDICE: Just at the moment I'm having difficulty seeing why there wouldn't be an arguable case that that application was not permitted by 469(1). I'm not predetermining the outcome, of course, but there seems to be an issue there, a question there.

PN107

MR WHITE: I can't say there's no question, your Honour. The strength of that question, is my submission, is minimal. The discussion we had makes it clear that section 469 is directed to the substantive matters contained within the order, not addressed to formalistic matters such as we're dealing with here. The structure of the section itself points to that - - -

PN108

JUSTICE GIUDICE: If there was an address wrong or something of that kind.

PN109

MR WHITE: Beg your pardon?

PN110

JUSTICE GIUDICE: If there was an address wrong or something of that kind, you'd say it couldn't be intended that 469(1) was to stop that being corrected.

PN111

MR WHITE: Of course.

PN112

JUSTICE GIUDICE: The other question was about the balance of convenience. The submission Mr Parry made that there might be a requirement for the Commission to determine the 496 application within two days, or whatever the time limits are, and he frankly submitted that it might be very unsatisfactory to have that situation go on for too long and suggested perhaps the appeal should be dealt with expeditiously.

PN113

MR WHITE: The appeal might be - sorry.

PN114

JUSTICE GIUDICE: I must say I had some sympathy for that point of view from this perspective, that there should be some finality probably to this question as soon as possible.

PN115

MR WHITE: We're not arguing against the appeal being heard expeditiously but you start from the proposition, in my submission, that section 496 is being dealt with properly and the only basis upon which it hasn't been dealt with properly is there was no power to correct an error in the name, some technical and legalistic proposition that the Commission has sneered at over the years.

PN116

JUSTICE GIUDICE: That's so, but I'm really just trying to address the balance of convenience separately.

PN117

MR WHITE: That question can be dealt with, in my submission, by the expeditious hearing of an appeal. If the Commission is concerned about the need for finality, then so be it. The Commission can accommodate that concern by hearing the appeal expeditiously.

PN118

JUSTICE GIUDICE: Yes. Mr Parry.

PN119

MR PARRY: If your Honour pleases, really this is not about a discretion, it's about an issue of power.

PN120

JUSTICE GIUDICE: You don't say your client has been disadvantaged or in some way taken by surprise. I mean, this is all about the power to vary these instruments, isn't it?

PN121

MR PARRY: That's our primary argument, yes. Ultimately, the parties' views of their legal rights and obligations aren't determinative of their rights and obligations.

PN122

JUSTICE GIUDICE: No, but there appears to be plenty of evidence that there was some interchange in the use of the two names. There's no doubt that the employees who voted were known by your client and the other company to be employees who were part of the industrial action and on whose behalf the claims were being made.

PN123

MR PARRY: We're not appealing this on a discretionary basis, your Honour. We're simply saying that there is an error and it is an error and one can call it a technical error, one can call it a lot of things, but it's an error. At the moment a totally wrong company is named in all these documents and it's simply an error that makes these documents, we would say, invalid.

PN124

The courts sometimes do have power to vary names of parties and they do correct them. Here, there is not that power in this Act on these documents. There is simply the wrong party. Whether you call it a technical or not, it is an error.

PN125

I think your Honour raised section 459. In respect of the ballot order, we would say that doesn't take the Commission to a position where it can vary an order that it has made under section 462 that has passed its expiry date. The order has been made, the Commission has performed its function, there's been a ballot held. The Commission, I think in the jargon, would be described as functus officio. It's performed its functio, it's made the order, the order has expired.

PN126

One cannot then retrospectively go back and start rewriting history. There's no power to do it within section 459 and if there's any indication from the statute as to the power to vary a ballot order, section 469 makes fairly clear the limitations on that power. Those are our submissions, your Honour.

PN127

JUSTICE GIUDICE: Mr Parry, just on the balance of convenience and the question of the relationship between these orders, if I could put them in two categories, the orders in relation to the industrial action documents - the stay order sought in relation to the industrial action documents and the stay order sought in relation to the 496 dismissal. Just look at those two separate categories. It does seem to me that even if the balance of convenience favoured a stay of operation of the orders relating to the industrial action documents, it would be most unsatisfactory if the 496 application was then dealt with when the outstanding issues in relation to the industrial action documents hadn't been finally resolved, more or less put on hold pending the appeal. Do you follow that point?

PN128

MR PARRY: I follow it in part, your Honour.

PN129

JUSTICE GIUDICE: Do you have a comment on it or a submission about it?

PN130

MR PARRY: Yes, your Honour. My learned friend, in effect, concedes that there is a legal issue here and there is. There are very strong legal arguments to the effect that the Commission didn't have power to do what it did and the strength of those legal arguments have to be put into the mix. To deal with the first category, your Honour has identified, that is the variations to the bargaining notice and the variations to the ballot orders, we say there are very strong arguments to the effect that those are invalid and the consequence of that is that there is highly likely to be unprotected industrial action taking place.

PN131

If your Honour were to stay the first set of orders and not the second, then we would be making, presumably, another section 496 application. If your Honour didn't stay the other one then we'd be saying that there is the jurisdictional requirement that there is no protected industrial action that can be taken against Refined Sugar Services. We say in a balancing up exercise it's a fairer balance of convenience if the industrial action ceases or we have the opportunity to get orders to make it cease to allow the Commission to determine this matter and make a decision on whether the action is protected or not.

PN132

All it will involve to the union is a delay in their industrial campaign, and they could have easily facilitated that by coming along today and offering that. Rather, they've come along well aware that there is a real question about their industrial action and they've said they're going to maintain it, they're going to continue it. We're in the position of not being able to go to the court, not being able to go to the Commission with a very strong legal argument to the effect that there's unprotected industrial action and really waiting for the Commission, this Commission to list an appeal so we can present our arguments to that effect.
That could be some period, and as I indicated - - -

PN133

JUSTICE GIUDICE: Could be tomorrow.

PN134

MR PARRY: It could be tomorrow but why couldn't the industrial action then cease? Why should the company and the joint venture continue to sustain the losses?

PN135

JUSTICE GIUDICE: Because the union might be right.

PN136

MR PARRY: That's a possibility, your Honour and I suppose that's the argument that will be there. If there's nothing further, your Honour.

PN137

JUSTICE GIUDICE: I think I'll adjourn for a short time. I have another hearing at 10 but I'll certainly be back before then to make some announcement about the future of this application.

<SHORT ADJOURNMENT [9.44AM]
<RESUMED [9.58AM]

PN138

JUSTICE GIUDICE: These are applications by Refined Sugar Services Pty Ltd for the stay of a number of orders made by Acton SDP. It's unnecessary for me to recite the history of these matters which were set out orally by Mr Parry on behalf of the appellant and by Mr White in his written outline of submissions.

PN139

The issue to which all of these appeals give rise is one of statutory construction. If the appellant is unsuccessful on that question the industrial action currently being undertaken by the AWU and its members is protected action and the appellant's application, pursuant to section 496, for an order that the industrial action stop could not succeed.

PN140

If the issue is resolved in the appellant's favour, the industrial action in which the AWU and its members is involved is not protected action and the Commission would in all probability be required to make an order under section 496 requiring that the industrial action stop.

PN141

I have concluded that there is a sufficiently arguable case that the appeals would succeed. That conclusion is limited to the possible effect of section 469(1) of the Act. It's unnecessary to say more about the question of arguable case.

PN142

Turning to the balance of convenience, because of the mandatory terms of section 496, the balance of convenience does nor favour a stay of the orders at this time. Having heard quite concise argument about the issues, it's apparent that what's required in this case is a speedy determination of the appeal. The situation should not be permitted to continue with the parties' rights unresolved for any longer than is strictly necessary.

PN143

The appeal will be dealt with as quickly as possible. That is likely to be tomorrow morning at 10 am. The parties will receive confirmation later today when the necessary arrangements have been made. I'll now adjourn.

<ADJOURNED INDEFINITELY [10.02AM]