C2014/7886, Transcript of Proceedings [2015] FWCTrans 341 (12 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051885

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VICE PRESIDENT WATSON

C2014/7886 C2015/1736

s.604 - Appeal of decisions

Serco Sodexo Defence Services Pty Ltd (SSDS) v United Voice & National Union of Workers

(C2014/7886)

Melbourne

4.06 PM, WEDNESDAY, 11 MARCH 2015

PN1

THE VICE PRESIDENT: May I have the appearances, please, commencing in Sydney.

PN2

MR T SAUNDERS: May it please the Commission, Saunders, initial T, counsel for the appellant with your permission.

PN3

THE VICE PRESIDENT: Mr Saunders.

PN4

MS C PULLEN: Pullen, initial C, for the Fire Brigade Employees Union.

PN5

THE VICE PRESIDENT: Thank you, Ms Pullen.

PN6

MR S BULL: Steven Bull for the United Voice.

PN7

THE VICE PRESIDENT: Thank you, Mr Bull. In Melbourne?

PN8

MR A SNOWBALL: Snowball, initial A, for the National Union of Workers.

PN9

THE VICE PRESIDENT: Mr Snowball.

PN10

MR J MURPHY: Jeremy Murphy for the Firefighters Union.

PN11

THE VICE PRESIDENT: Thank you very much, Mr Murphy. Any objection to Mr Saunders' application for permission to appear?

PN12

MR BULL: No.

PN13

MS PULLEN: No.

PN14

MR SNOWBALL: No, your Honour.

PN15

MR MURPHY: No.

PN16

THE VICE PRESIDENT: Permission is granted, Mr Saunders. I make the necessary finding for the purposes of section 596 of the Act. I've called this matter on for mention, I think, at your client's request, Mr Saunders, to clarify the course of action that I think is agreed by the parties.

PN17

MR SAUNDERS: Yes, your Honour, thank you for bringing the matter on. The parties have agreed on some proposed directions for your Honour's consideration to deal with the matters practically and hopefully Mr Snowball has a copy of those directions he can hand to your Honour in a moment. The essence of them is that when (indistinct) the Full Court of the Federal Court handed down a decision in the matter concerning FBIS because the outcome of that case (indistinct) outcome of the appeals in this Commission.

PN18

THE VICE PRESIDENT: The FBIS case, has that been the subject of a single member of the Federal Court or has it gone straight to a Full Court?

PN19

MR SAUNDERS: Full Court of the Federal Court, your Honour. It was heard on about 9 or 10 March, Jessop J was the presiding member of the Full Court and the indication of the hearing on that day, so I'm told, is that the parties in that proceeding expect a judgment in relatively quick time.

PN20

THE VICE PRESIDENT: Yes, I think Jessop J retires before too much longer so that might be a reason, and I have been handed a document or two documents; one being directions and another being undertakings and I have them in front of me.

PN21

MR SAUNDERS: The directions document deals with the procedural directions the parties request the Commission to note in respect of the two matters before the Commission at the moment. In respect of the first one, proceeding 2015/1736, it's currently listed for hearing on 22 April 2015. That concerns the New South Wales (indistinct) proceedings and we ask that that hearing be vacated until after the Full Court hands down a decision.

PN22

There were also procedural directions made in that matter concerning filing and serving of submissions and the like (indistinct) that matter. Thirdly, the other appeals in relation to the Queensland employees, that's 7886/2014, that appeal's been filed but has not yet been listed here so we ask that (indistinct) FBIS handed down and no procedural directions be made in that matter.

PN23

THE VICE PRESIDENT: There's no useful purpose in having the directions regarding outlines complied within the meantime, noting that there may well need to be supplemented when the Full Court's decision is handed down?

PN24

MR SAUNDERS: We think not, your Honour, because it would involve the parties going to a bit of expense to do that when we are of a view that the outcome of the FBIS case is likely to have a very significant bearing on these proceedings, such that if the FBIS case goes in one way it might be that these proceedings don't go any further.

PN25

THE VICE PRESIDENT: The parties would file outlines once rather than effectively having to turn their mind twice to the same matters.

PN26

MR SAUNDERS: That's so, your Honour, yes.

PN27

THE VICE PRESIDENT: Yes, I understand. The undertakings appear to be undertakings by the appellant?

PN28

MR SAUNDERS: Yes, the undertakings in part by the appellant and in part by the Union (indistinct) to the appeals.

PN29

THE VICE PRESIDENT: I see.

PN30

MR SAUNDERS: Undertakings in substantially the same form were agreed between the parties in respect of the earlier appeal, that is the appeal concerning the Northern Territory employees. These are inter partes undertakings, there doesn't need to be an order made by the Commission in relation to them. They simply recognise the undertakings given by each party to avoid there needing to be a hearing for (indistinct) application.

PN31

THE VICE PRESIDENT: Yes. I need do nothing more than note those undertakings and you are seeking the directions in the other document.

PN32

MR SAUNDERS: That's so, your Honour. (Indistinct) additional I need to tell your Honour, and that is I accept the directions are by consent. They're certainly by consent in relation to each of the parties who appears today before you but we don't have an appearance from the Transport Workers Union. I'm not sure why that is the case but I can't say that these directions are by consent of that union. I just want to make that clear.

PN33

THE VICE PRESIDENT: Yes, thank you. I trust the Transport Workers Union are aware of today's hearing.

PN34

MR SAUNDERS: They are, your Honour, and we've sent these (indistinct) directions and undertakings to the Transport Workers Union today. I'm not sure why they haven't appeared today.

PN35

THE VICE PRESIDENT: I notice the notice of listing for the matter today was sent to Mr Sheldon and Mr Fawner and probably the legal branch of the TWU as well. Yes, thank you. Ms Pullen, should I call on you next?

PN36

MS PULLEN: Only briefly but thank you. Just to note that we've made - suggested and have accepted two very minor amendments to the documents. Firstly, to the undertakings to note a typographical error in 1(a) where the second last line said "ATC" instead of "ACT/New South Wales". Also to the undertakings and to the directions, correction to our name. We are the Fire Brigade Employees', with apostrophe, Union of New South Wales.

PN37

THE VICE PRESIDENT: Yes. Appearing twice I think in undertaking No.2 and also at the signature line.

PN38

MS PULLEN: That's right.

PN39

THE VICE PRESIDENT: Yes. Thank you, Ms Pullen.

PN40

MS PULLEN: Thank you.

PN41

THE VICE PRESIDENT: Mr Bull.

PN42

MR BULL: Probably two matters. One is that I don't think this needs an amendment to the document but we would like some notification of the amounts that are deposited into the interest bearing bank accounts and when they're deposited. If Mr Saunders is able to give an undertaking that we'll just be notified of the amounts that are deposited that would be useful. The other one is - perhaps this is the longer undertaking and specifically the undertaking in relation to the union documents in civil penalty proceedings. The last sentence talks about:

PN43

Until the appellant's appeal to the Full Bench of the Fair Work Commission in proceedings 1786 and 1736 are heard and determined.

PN44

It might be appropriate just to have the words "are determined" rather than "heard and determined", because there's a possibility that these matters won't be heard if the decision is such in the Federal Court that the appellant believes that it's not appropriate to prosecute these matters. So if the words "are determined" should be - I would have thought. That and we'd like to just know when the money's deposited is all I want to raise.

PN45

THE VICE PRESIDENT: Would a change such as "are heard and/or determined" cover the point you've raised?

PN46

MR BULL: I just want it to be "are determined" because there's a possibility that these matters - you know, whether that is conjunctive or disjunctive, it's perhaps a minor point but I think just "are determined" is the appropriate wording. Because they might be determined by the appellant withdrawing its appeals, that would necessarily mean that there isn't a hearing.

PN47

THE VICE PRESIDENT: Yes. These are undertakings for the parties so I'll refrain from saying anything more about that. I'm sure Mr Saunders has taken that on board. Mr Snowball.

PN48

MR SNOWBALL: Your Honour, there's probably not much to say. We agree with and consent to the proposed undertakings and directions and we would also support the amendments proposed by Mr Bull.

PN49

THE VICE PRESIDENT: Thank you. Mr Murphy.

PN50

MR MURPHY: I don't have a lot to say either. The directions seem sensible to me.

PN51

THE VICE PRESIDENT: Mr Saunders, do you wish to say anything in response to what's been raised?

PN52

MR SAUNDERS: We can accommodate Mr Bull's requests in both aspects.

PN53

THE VICE PRESIDENT: Yes, thank you. Thank you for that. I am satisfied that the directions that are agreed by the parties represented today should be made and I will make those directions. The matters will remain in abeyance pending the decision of the Full Court of the Federal Court. Perhaps the appellant can advise my chambers once the decision is handed down and it might be appropriate to have a further mention at that stage to determine what further directions should be made. Probably more convenient for everybody that that be a telephone directions hearing so people aren't put to the expense of attending the Commission. It should be only quite short. I think that's probably a worthwhile process to follow. If there's nothing further, I will make those directions and we will adjourn the proceedings.

ADJOURNED INDEFINITELY [4.19 PM]