C2016/5980, Transcript of Proceedings [2017] FWCTrans 259 (15 June 2017)

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PN1

THE VICE PRESIDENT: Thank you. Good afternoon everybody, I am just checking on the phone. I have Mr McKenna of counsel? Good afternoon everybody, I will just confirm who is on the line. Do we have Mr McKenna of counsel?

PN2

MR N MCKENNA: Yes.

PN3

THE VICE PRESIDENT: With you, you have Mr White?

PN4

MR MCKENNA: That's correct.

PN5

THE VICE PRESIDENT: And I have Mr McCullough?

PN6

MR S MCCULLOUGH: Good afternoon, your Honour.

PN7

THE VICE PRESIDENT: I brought this matter on this afternoon for this purpose; since filing your application elsewhere in the Commission an application on similar terms has also been filed by another union in Victoria and it is progressing also in the system, and similar questions are raised. While obviously it's a different individual the actual legal questions for determination are the same, and they are significantly important decisions.

PN8

Having thought about the matter and the other application which is before another member who raised it with me in my capacity as panel head it seemed to me that this matter and the other matter, given that the legal issues are the same, consideration should be given to consolidating those matters and perhaps referring them to a Full Bench given the importance of the legal issue. Mr McKenna, do you have a view in relation to that?

PN9

MR MCKENNA: I certainly would not be against that, your Honour.

PN10

THE VICE PRESIDENT: Mr McCullough?

PN11

MR MCCULLOUGH: That's interesting, your Honour. I don't think we would oppose that course.

PN12

THE VICE PRESIDENT: Yes. As I say it's another union but it's exactly the same question, and what would trouble me we would be getting for example two different members hearing the same legal point coming up with a different answer, and also trying to get consistency, and I think having now read the material in this matter in anticipation of the original hearing date the importance of it. So what I propose to do then is to - - -

PN13

MR MCCULLOUGH: Sorry, your Honour, there is just one point I would like to raise if I could.

PN14

THE VICE PRESIDENT: Yes.

PN15

MR MCCULLOUGH: It's Mr McCullough speaking. My only query would be as to whether that creates any issue of inconsistency with the dispute resolution clause.

PN16

THE VICE PRESIDENT: Yes, I follow that quite clearly, Mr McCullough, but the actual ultimate legal question - you can still run them together it seems to me without affecting the legal question at the end, because they are clearly filed separately as different disputes, that is absolutely correct. In your case there is one individual, in the other case there are two individuals affected. But the facts in the large degree are not going to be that controversial, and indeed in this case you have got an agreed statement of facts for the purpose of the exercise, and presumably that will be the same in the other case when it has progressed, but the end question is the critical question that the Commission is going to be asked to decide.

PN17

MR MCCULLOUGH: Yes. My concern, your Honour, was a little bit more limited just to my recollection of the dispute resolution procedures under both agreements has a staged dispute resolution procedure which talks about matters being determined by a single member. I don't know whether that creates an impediment or not.

PN18

THE VICE PRESIDENT: Yes, I see. So your jurisdictional point is would that cause a difficulty that someone would then take the point and say, well actually you haven't followed the dispute resolution clause because it should have been a single member first.

PN19

MR MCCULLOUGH: That's correct, your Honour.

PN20

THE VICE PRESIDENT: Do you have a view about that, Mr McKenna, as to whether that's going to be the sort of point that is going to be taken down the track?

PN21

MR MCKENNA: Your Honour, I am just looking at clause 13.7 in our agreement. It seems very unlikely that would be a point that would be taken, but it might be a matter of absolute caution that both Mr McCullough and I seek instructions on that point and can provide a firm position to the Commission in due course.

PN22

THE VICE PRESIDENT: Yes, that would be preferable, because obviously we want to deal with the main game, we don't want to be dealing with somebody then saying technically because the parties didn't agree to that point they are now reserving their rights to take that point by not following the dispute resolution clause.

PN23

MR MCKENNA: Yes, your Honour.

PN24

THE VICE PRESIDENT: All right. Perhaps what I will do is give the parties seven days to sort that out, and on the basis it is sorted out then I will seek to refer this matter with the parties consent to the president to consider whether it is appropriate for this matter and the other matters to have a Full Bench deal with them simultaneously.

PN25

MR MCKENNA: I think your Honour has already addressed this, but by simultaneously we anticipate that the proceedings would be heard concurrently.

PN26

THE VICE PRESIDENT: Concurrently, yes.

PN27

MR MCKENNA: And remain as separate - - -

PN28

THE VICE PRESIDENT: They will remain as separate numbers. It is not obviously one matter because they can't be, they're different industries, but the factual matters in both cases are pretty simple, and then the advocates in the matters will then focus in each case on the legal position, and without obviously guessing, because I haven't got the other matter at this point, I would anticipate that the union interests in the other matter are going to be the same. They will be arguing the same points, and the implications for the construction points in any event are widespread, they are not going to be limited to the individual dispute when it is ultimately determined.

PN29

MR MCKENNA: Yes.

PN30

THE VICE PRESIDENT: Any other - - -

PN31

MR MCCULLOUGH: On a practical note, your Honour, just as to whether we will continue to work our way through the directions as they presently are?

PN32

THE VICE PRESIDENT: That's a good question. It would be unlikely if the president was minded that the questions were of an important nature to reconstitute that we would - given the stage where the other matter is as I understand it that we would be ready for the 20 April date.

PN33

MR MCCULLOUGH: Thank you.

PN34

THE VICE PRESIDENT: So it may well be that what we do as a matter of absolute caution is that we freeze the timetable and vacate the hearing date for the moment until we sort out these other steps first.

PN35

MR MCCULLOUGH: Thank you, your Honour.

PN36

MR MCKENNA: Yes. The applicant will be content with that as well, thank you.

PN37

THE VICE PRESIDENT: All right. Thank you very much for your attendance today. The Commission is otherwise adjourned.

PN38

MR MCCULLOUGH: Thank you, your Honour.

ADJOURNED TO A DATE TO BE FIXED [1.17 PM]

Fair Work Commission Transcripts

C2016/5980, Transcript of Proceedings [2017] FWCTrans 259 (15 June 2017)