RE2015/106, Transcript of Proceedings [2015] FWCTrans 403 (6 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052103

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DEPUTY PRESIDENT GOSTENCNIK

RE2015/106
RE2015/107

s.512 - Application for a right of entry permit

Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch
(RE2015/106)

Melbourne

4.18 PM, TUESDAY, 5 MAY 2015

Continued from 29/04/15

PN401

THE DEPUTY PRESIDENT: Mr Massey, are you staying for the next matter as well?

PN402

MR MASSEY: I am.

PN403

THE DEPUTY PRESIDENT: And Mr Herbert likewise?

PN404

MR HERBERT: Yes, your Honour.

PN405

THE DEPUTY PRESIDENT: We re not expecting anybody else?

PN406

MR MASSEY: No, your Honour.

PN407

MR HERBERT: No, your Honour.

PN408

THE DEPUTY PRESIDENT: Are we able to deal with that matter on the same basis?

PN409

MR MASSEY: Yes, your Honour.

PN410

MR HERBERT: Yes, your Honour.

PN411

THE DEPUTY PRESIDENT: All right, excellent.

PN412

MR HERBERT: Yes, your Honour, I m reminded that the decision in the matter relating to Mr Ong which was remitted that s the penalty proceedings in relation to which there was an agreed statement of facts and other matters. I don't know if your Honour had time to absorb that, along with everything else that s been happening, but that decision or a decision was handed down in relation to that matter, which was confined to the question as to whether the Barbaro point applies in relation to civil penalty proceedings, and the Full Court held that it did.

PN413

THE DEPUTY PRESIDENT: Yes.

PN414

MR HERBERT: And it also held that it was a significant component of the agreed penalties that were in the statement of agreed facts and agreed penalty. All of that component of the agreed penalties was quite impermissible to be placed before the court and would not be regard could not be had to that material. And the court has also sought from the parties, significant further materials relevant to the exercise of the sentencing discretion and the sentencing discretion in that regard is to be exercised by the Full Court at first instance.

PN415

THE DEPUTY PRESIDENT: Yes.

PN416

MR HERBERT: And that - I don't think that it answers any of the questions that were raised in the Ong proceedings, other than to say that there is to be yet a further delay in relation to the question of whether those facts, having been agreed between the parties and placed before the court, will be accepted by the court or will be rejected by the court, and there are it appears there are going to have to be some further proceedings in relation to that matter, to have that issue determined because the court has called for some more material.

PN417

THE DEPUTY PRESIDENT: Yes.

PN418

MR HERBERT: It doesn't really settle that question. They did not rule, as I read it, either way on whether they would or would not accept the agreed statement of facts as being relevant facts. But there is certainly material that the court can take into account and they re provided for under the Evidence Act. So that, whilst there s been some movement at the station, as it were, in relation to that matter, that case did not provide a resolution to the question that was raised in the proceedings.

PN419

THE DEPUTY PRESIDENT: Yes, all right.

PN420

MR HERBERT: It s before your Honour - - -

PN421

THE DEPUTY PRESIDENT: Mr Massey?

PN422

MR MASSEY: I should say, your Honour - - -

PN423

THE DEPUTY PRESIDENT: Yes.

PN424

MR MASSEY: In relation to that matter, after having determined the matters of law about agreed penalties and joint submissions from the parties as to those matters, the Full Court has expressly indicated that the parties may wish to consider their positions in light of the admissions that have been made. My clients have not made any decision in respect of how they propose to proceed, in light of that. And it will take some time, I think, to come to a position on that.

PN425

THE DEPUTY PRESIDENT: So, Mr Massey, is it then your client s position that I should hold off until that issue is clarified?

PN426

MR MASSEY: It is not at this stage, your Honour.

PN427

THE DEPUTY PRESIDENT: All right. Does your client wish to make any further submissions about the import of the Full Federal Court s decision on the proceedings before me?

PN428

MR MASSEY: No, your Honour.

PN429

MR HERBERT: And I misled your Honour, it was actually in Bateman s matter. Mr Bateman declared those matters. Mr Ong s matter, your Honour will recall, was in a different level because in his case, the relevant statements of agreed facts have, in effect, been adopted by the court as the facts that were found by the court to have occurred. It was Mr Bateman and the disclosure there s been disclosure of the matter in the Bateman application. It s paragraph (d) in the declaration by Mr Simpson and it is likewise item (d) in the declaration of Mr Bateman. It s that matter which was, at that time, unresolved and in that respect, in the respect it s important for your Honour s determination that was raised in the proceedings, it remains unresolved. But it was Bateman, not Ong, and I apologise for that.

PN430

THE DEPUTY PRESIDENT: That s okay. All right. Thank you, Mr Herbert. Thank you, Mr Massey. We ll deal with this matter on the same basis as the previous matter. I ll have a look at the Full Federal Court s decision in detail and if I have any concerns about it, I will communicate that to the parties and invite them to make short submissions about any concerns that I might have. I m not suggesting I will, but not having read the judgment in detail, other than being aware of it, I won t close the door on my having some issues.

PN431

All right, thank you again for your assistance. We ll adjourn on the basis as indicated.

PN432

MR HERBERT: Thank you.

PN433

MR MASSEY: Thank you.

ADJOURNED INDEFINITELY [4.24 PM]