C2015/2118, Transcript of Proceedings [2015] FWCTrans 169 (25 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009

COMMISSIONER ROBERTS

C2015/2118

s.418 - Application for an order that industrial action by employees or employers
stop etc.

Toll Transport Pty Limited

and

Transport Workers' Union of Australia
(C2015/2118)

Sydney

4.40 PM, TUESDAY, 17 MARCH 2015

PN1

THE COMMISSIONER: Good afternoon. I’ll take the appearances.

PN2

MR D SLOAN: Commissioner, if it please, my name is Sloan, initial D, appearing for Toll. With me is Ms Alam, initial K, from my office, and behind me is Mr Josh Peacock, a manager with the business, Toll Priority.

PN3

THE COMMISSIONER: You’re entering an appearance in all three matters?

PN4

MR SLOAN: That is correct.

PN5

THE COMMISSIONER: Okay. Thank you. Mr Fagir?

PN6

MR O FAGIR: Yes. Thank you, Commissioner. I seek permission to appear for the TWU in each matter, with Mr Arjonilla.

PN7

THE COMMISSIONER: Is permission opposed?

PN8

MR SLOAN: As tempting as it is, Commissioner, no.

PN9

THE COMMISSIONER: Yes. Hopeless is the temptation it would be in a matter as complex as this. Permission is granted to Mr Fagir. I’ll tell you I was at home at 1.15 peacefully writing a decision, or working my way up to writing a decision when this matter came on, so it better be good.

PN10

How are we going to handle this? Do the parties want to go straight to full hearing on the matters, particularly on the 418? Do they want to confer amongst themselves, try and reach some resolution first? What do they want?

PN11

MR SLOAN: Commissioner, before we get into the merits, if I can just raise one procedural/housekeeping matter.

PN12

THE COMMISSIONER: Right.

PN13

MR SLOAN: You kindly made an order for substituted service, beginning of the day.

PN14

THE COMMISSIONER: Today?

PN15

MR SLOAN: Today.

PN16

THE COMMISSIONER: Yes.

PN17

MR SLOAN: Unfortunately the form that I sent to your Associate mis-described the address of the employees and so the order came out requiring that ‑ ‑ ‑

PN18

THE COMMISSIONER: That doesn’t take you far, does it?

PN19

MR SLOAN: Sorry?

PN20

THE COMMISSIONER: That doesn’t take you very far.

PN21

MR SLOAN: Commissioner, if I may, the application correctly described that the employees were based at Erskineville in New South Wales. When your Associate asked me for a word copy of the document I inadvertently sent her one with the wrong addresses. That’s probably the – it’s slovenly, I’m the first to admit that. It’s the symptom of doing something in haste, based on previous documents. I can say, Commissioner, that the first part of the order has been met, in that the documents have been served on the Federal office and the State office of the Transport Workers Union.

PN22

The documents have been posted at the Erskineville site, as in accordance with the intention of the order albeit not strictly in accordance with the letter of the order, and obviously the relevant agreement has to be the Toll Group TW Enterprise Agreement 2013, not the Armoured Express Agreement referred to in the order. So, as I say, Commissioner, we have complied with the order in spirit, but not strictly in accordance with the terms.

PN23

THE COMMISSIONER: So I take it the major problem is that the employers are at Erskineville and my substituted service order refers to Kings Grove in Mascot; is that ‑ ‑ ‑

PN24

MR SLOAN: Largely. It refers to the Australian Armoured Express Enterprise Agreement as opposed to the Toll Group Enterprise Agreement in (iii).

PN25

THE COMMISSIONER: Yes. The second one doesn’t worry me much. Do you have anything to say about that, Mr Fagir? Is it something which need detain us?

PN26

MR FAGIR: Firstly, I don’t have instructions from the individuals so it’s difficult for me to say anything other than this: in other cases perhaps this type of issue might not detain us, but given the consequences of this type of order, it must.

PN27

THE COMMISSIONER: In reply?

PN28

MR SLOAN: I fail to see why it must, given that the purpose of the order for substituted service is that the other parties are made aware of the orders that are being sought. The unions is aware of the orders being sought, as evidenced by the fact that Mr Fagir is here today, and if necessary I can show you the email that I sent to Tony Sheldon and to Michael Aird attaching the relevant documents.

PN29

MR FAGIR: It’s not a question about that.

PN30

THE COMMISSIONER: No, wait till he’s finished.

PN31

MR FAGIR: It’s not a question about service on the union.

PN32

THE COMMISSIONER: Wait. You heard me the first time, didn’t you?

PN33

MR FAGIR: Yes.

PN34

THE COMMISSIONER: Wait till he’s finished.

PN35

MR FAGIR: I apologise, Commissioner.

PN36

THE COMMISSIONER: Go on.

PN37

MR SLOAN: The second issue is whether the employees themselves are being made aware. What I sought to explain before, and if I’m not clear let me make it clear, the documents referred to in the order for substituted service had been posted at the Erskineville site, which is the site at which the relevant employees are based.

PN38

THE COMMISSIONER: All right. Let’s go to this, have you complied with the B(ab)? It’s the last bit of the substituted service order?

PN39

MR SLOAN: Yes. Yes.

PN40

THE COMMISSIONER: So you’re telling me, as I take it, that you’ve served it on the two branches of the union.

PN41

MR SLOAN: Correct.

PN42

THE COMMISSIONER: You’ve placed on the notice board or notice boards of the relevant places at the Erskineville site.

PN43

MR SLOAN: That is correct.

PN44

THE COMMISSIONER: That, on the face of it, that would appear to do it, Mr Fagir, despite the mischaracterisation at the top. It probably falls on me, I think, that I issued the order, having received an application referring to Erskineville, and I didn’t query the Kings Grove in Mascot bit. As he’s said, it’s all done in a terrific rush.

PN45

MR FAGIR: Yes. The reasons why errors were made are not really relevant. It’s a question of whether the substituted service has, in fact, been effected in accordance with the order. I should have said this a moment ago, I don’t have a copy of the order.

PN46

THE COMMISSIONER: The substituted service order?

PN47

MR FAGIR: Yes.

PN48

THE COMMISSIONER: You’ll have mine, now. I know it’s very hard to read these things on your feet. Do you want a couple of minutes to read it, Mr Fagir?

PN49

MR FAGIR: Could I?

PN50

THE COMMISSIONER: I’ll adjourn just for five minutes while you have a look?

PN51

MR FAGIR: Thank you, Commissioner.

PN52

THE COMMISSIONER: Yes. Okay.

SHORT ADJOURNMENT [4.47 PM]

RESUMED [4.51 PM]

PN53

THE COMMISSIONER: Mr Fagir, you’ve had a chance to familiarise yourself with the document?

PN54

MR FAGIR: Yes. Thank you for that time, Commissioner. But with the risk of repeating myself, firstly, I ‑ ‑ ‑

PN55

THE COMMISSIONER: It’s a lawyers’ thing, Mr Fagir.

PN56

MR FAGIR: I am not instructed by the individuals, so I can’t say much more than service does not appear to have been effected in accordance with the order and it will therefore appear that the individuals have not been served, and it follows that no order could be made against them.

PN57

THE COMMISSIONER: How do you come to the conclusion that the order hasn’t been complied with as to service?

PN58

MR FAGIR: That there’s been a failure to comply with the order insofar as the order refers to employees based at different sites and covered by a different agreement.

PN59

THE COMMISSIONER: But, note, they don’t see the order. The order is permission for the employer, the applicant, to do certain things. There’s an error in the order which, is my error as much as theirs, in that I signed it, but they have carried out the order as if the correct location of the persons were involved. It could be a fascinating appeal point for you, but, in my view, the order has been complied with in a manner which is acceptable, given the urgency of its drafting and service in this matter.

PN60

MR FAGIR: If the Commission pleases.

PN61

THE COMMISSIONER: All right. Temporarily we’re over that hump. Mr Sloan?

PN62

MR SLOAN: Commissioner, coming back to your opening question.

PN63

THE COMMISSIONER: Yes, my opening question. I’d forgotten it. Go on.

PN64

MR SLOAN: I think the gist of it was do we launch straight into it or do we have a chat, Commissioner. We would have ‑ ‑ ‑

PN65

THE COMMISSIONER: It was Winston Churchill who said that jaw jaw is always better than war war. Right.

PN66

MR SLOAN: I might write that down before I leave, Commissioner.

PN67

THE COMMISSIONER: You have a stark choice, the parties have here, to battle on with this or to make an attempt to sort it out.

PN68

MR SLOAN: Commissioner, I think you can take it from the fact that we filed an F10 with the 418 application that the issue – as much as we object to unprotected industrial action being taken, at the heart, we want to understand what the issue is and try to resolve the dispute in accordance with the enterprise agreement, so we are more than happy to have that discussion, equally, though, we don’t want to be having that discussion with the Sword of Damocles, as it were, hanging over our head, that the employees might, at any stage, take unprotected action if they’re the not happy with the way the discussions proceed.

PN69

THE COMMISSIONER: Yes. But I’m not going to allow that to happen. I will help in facilitating discussions, but I’m not going to force you to abandon the field of your 418 application.

PN70

MR SLOAN: No. That's right. I’m just putting our position. So ‑ ‑ ‑

PN71

THE COMMISSIONER: So you’re doing it in a state of perfect safety. All you’re doing is potentially possibly delaying the issuing of an order if I decided to issue it eventually. If I decide to refuse the order, you have wasted nothing.

PN72

MR SLOAN: That is correct. That is correct.

PN73

THE COMMISSIONER: Let’s hear from Mr Fagir about that. I take it you probably got this file about as late I did?

PN74

MR FAGIR: I was having a picnic in the Domain at 2.30 when I got the phone call. That means a couple of things: firstly, we have some difficulty in grappling with this application, and dealing with any evidence that might be forthcoming this afternoon; secondly, and regrettably I don’t know enough about it to say that the matter can be resolved through discussions now.

PN75

THE COMMISSIONER: That’s the peril of 418 applications.

PN76

MR FAGIR: Yes.

PN77

THE COMMISSIONER: That I’m reading the application on an iPhone while dressed in a manner which is very different to the way I’m dressed now, trying to work it out on a two inch by two inch screen, so we’re all in that situation.

PN78

MR FAGIR: Yes. It seemed that one way forward might be to come back tomorrow when we’re in a better position to deal with both ‑ ‑ ‑

PN79

THE COMMISSIONER: Tomorrow I’m substituting for Riordan C on the Full Bench, and I’m doing the same on Thursday, and one of those is with the President presiding so I’m probably not available. We’re going to do it today.

PN80

MR FAGIR: Yes.

PN81

THE COMMISSIONER: To the best of our ability. All I want to know from you now, we’re going to do it in bite sized chunks, do you see utility in the two parties conferring about this matter prior to formal litigation?

PN82

MR FAGIR: Yes.

PN83

THE COMMISSIONER: Okay. Go ahead and do it. I’m adjourned. My Associate will supply the Chambers number, and you will tell us when you’re ready. But if you’re just trading accusations at each other, well, that’s pretty pointless. We’ll come back and I’ll impose a solution on you. Okay. I might say I haven’t read your two 739 applications, or the two 739 applications yet, and I’m going to take this opportunity to do so.

PN84

MR SLOAN: Thank you very much, Commissioner.

PN85

THE COMMISSIONER: I’ll adjourn.

SHORT ADJOURNMENT [4.57 PM]

RESUMED [5.49 PM]

PN86

THE COMMISSIONER: This matter is now resumed. At my urging the parties have spent some considerable time together conferring about this matter, or the three matters, the major matter being the section 418 application. I’ve been informed now that the outcome of those discussions is that the TWU agrees to the issuing of an interim order prohibiting industrial action to be effective from this evening until 5 pm Friday, 20 March 2015. These matters will reconvene by way of hearing at 1.15 pm on Friday, 20 March.

PN87

Is there anything the parties wish to add to my very bare summary?

PN88

MR SLOAN: Not for us Commissioner, no. Thank you.

PN89

MR FAGIR: No. Thank you, Commissioner.

PN90

THE COMMISSIONER: You can confirm, Mr Fagir, that it’s by consent?

PN91

MR FAGIR: Yes. We accept that the application can’t be determined within the 48 hours for reasons that we touched on earlier, and it follows the interim order route must be made.

PN92

THE COMMISSIONER: Okay. The interim order will broadly follow the draft order supplied by Toll. I’m adjourned till 1.15 pm Friday, 20 March 2015.

ADJOURNED UNTIL FRIDAY, 20 MARCH 2015 [5.51 PM]