Home | Databases | WorldLII | Search | Feedback Australian Industrial Relations Commission Transcripts

You are here: 

C2002/ 1010 , Transcript of Proceedings [2002] AIRCTrans 1936 (31 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096

TRANSCRIPT OF PROCEEDINGS

O/N WTO4801

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2002/ 1010 

GRACE REMOVALS GROUP

and

TRANSPORT WORKERS UNION
OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re alleged unprotected industrial
action taken by employees in support of two
contractors

PERTH

11.37 AM, THURSDAY, 16 MAY 2002

Continued from 19.2.02

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
FROM PERTH

PN1

MR B. IRONMONGER: I appear with MR WOLTON, who I hope has arrived in Perth .....

PN2

THE DEPUTY PRESIDENT: I don't see Mr Wolton here.

PN3

MR IRONMONGER: He is on his way, your Honour, so he may be a couple of minutes late. There is no need to wait until he comes, I have got instructions from him.

PN4

THE DEPUTY PRESIDENT: Thank you, Mr Ironmonger. Yes, Mr Hodgson?

PN5

MR N.J. HODGSON: I appear on behalf of the Transport Workers Union of Australia and with me is MR J. CAIN.

PN6

THE DEPUTY PRESIDENT: Thank you, Mr Hodgson. I would like to thank the parties for their outline of submissions, which have been helpful to the Commission. I would like to advise the parties that this hearing today is to hear argument from the parties as to why this application should not be discontinued. If there appears to be a useful purpose in adjourning to conference for one final attempt then certainly I would like to hear views in support of that. I remind the parties that the Commission has made an extraordinary commitment of time and resources to this matter over a period of three months, during four conferences that have already occurred and with one independent investigation, which the Commission has provided. So with those introductory remarks I now call upon you, Mr Ironmonger, to make your submission.

PN7

MR IRONMONGER: Well, for a start, I have got nothing, your Honour, ..... other than documentations which I have been provided with you. We say that .....

PN8

THE DEPUTY PRESIDENT: Excuse me, I wonder if you could speak up a little more, Mr Ironmonger.

PN9

MR IRONMONGER: We rely on the submissions that we have already submitted; is that loud and clear?

PN10

THE DEPUTY PRESIDENT: It may be best if you sat down, it may be more friendly to the microphone.

PN11

MR IRONMONGER: Is that better your Honour?

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR IRONMONGER: We rely on the submissions that have been made to you, your Honour, admittedly they are rather brief, but there is a myriad of case law which deals with the Commission's power to deal with contractors. I haven't got chapter and verse with me today, I wasn't expecting to provide any further submissions, which I indicated on my submissions to you. So we would rely on those submissions, your Honour.

PN14

THE DEPUTY PRESIDENT: Does that conclude your submission, Mr Ironmonger?

PN15

MR IRONMONGER: Yes, your Honour, yes.

PN16

THE DEPUTY PRESIDENT: From your written submission you have indicated that you believe that the Commission must establish that it has authority to deal with this matter. Is that correct?

PN17

MR IRONMONGER: That is correct, your Honour, yes. We say that it is the responsibility of any tribunal to establish that it has jurisdiction to deal with the matter before it in terms of the point of jurisdiction be raised at any time with sufficient case law to justify that position.

PN18

THE DEPUTY PRESIDENT: Do you confirm your written submission that this Commission does not have jurisdiction to deal with this matter because there is no employer/employee relationship?

PN19

MR IRONMONGER: That is correct, your Honour. There are other remedies in the Act which we say - the other term you could use, ie, the application to the Federal Court related to contractors.

PN20

THE DEPUTY PRESIDENT: So you are referring of course, as I understand it, that there be no employer/employee relationship in the matter of the two terminated contractors?

PN21

MR IRONMONGER: That's correct, your Honour.

PN22

THE DEPUTY PRESIDENT: Do you make that submission also in relation to what Mr Hodgson might refer to verbally but has already referred to in his written submission, which you have seen, which is that the threat of potential industrial action is high?

PN23

MR IRONMONGER: I see that point, your Honour, I mean that may well be the industrial landscape. I mean if there was to be further unprotected industrial action, I mean the Commission has got remedies to deal with that but we say the Commission's powers are limited pursuant to section 99 as to the employee/employer relationship. I note Mr Hodgson's submission about the settlement of disputes, but again our respectful submission is that that can only relate to the employee/employer relationship.

PN24

THE DEPUTY PRESIDENT: So is it your submission that if there was industrial action that occurred, that would be another matter and that it could be brought before this Commission at that time?

PN25

MR IRONMONGER: Yes, your Honour.

PN26

THE DEPUTY PRESIDENT: Does that conclude your submission?

PN27

MR IRONMONGER: Yes, your Honour, if the Commission pleases.

PN28

THE DEPUTY PRESIDENT: Mr Hodgson?

PN29

MR HODGSON: Thank you, your Honour. It might be useful just to put on the record briefly some of the history here in the sense that it is a fairly unique workplace in that you have got subcontractors working and you've got employees working. Now, how that came about was several years ago the company down-sized its work force and made a number of positions redundant, and the two subcontractors concerned with this matter were made redundant. It was then decided that, for some reason, they continued their relationship with the company, albeit in another form, and they actually, technically became subcontractors, but their duties and work was almost identical to the permanent work force.

PN30

So it is a different enterprise in the sense of the relationships that did exist and that now exist, and that is why there is that ongoing problem with the threat of industrial action. So given that the issue of the stolen bumper bar arose, the parties after the decision was made that these contracts be terminated, the parties did discuss the matter. The Union took a responsible position and we didn't take industrial action at the time, we could have but we thought it would be prudent to bring the matter before the Commission. An agreement was reached that the company would file the application, and I know Mr Ironmonger disputes this, but our submission is that we had an understanding that if this matter was brought before the Commission and if the issues were thrashed out at the Commission and the Commission made a recommendation we would accept that recommendation.

PN31

So if we go back a bit, if we put our submissions to you, your Honour, and then you said: well I'm sorry you haven't got a case, union, we would accept that, we would go away, we would tell our members accordingly. That was sort of the understanding we had, but somehow or other that has got lost in the mix so to speak and we have a situation where the company have applied to the Commission for your assistance. We've put the proposal to the Commission that perhaps the investigation into the matter by the company wasn't adequate, fair and all those natural justice issues and we are extremely grateful that the Commission adopted the view that perhaps an independent person could go out to the workplace and review the decision. As we all know, that happened and we've seen the report.

PN32

Now what we've got here is a classic case of, well the other side doesn't like what the umpire's saying, and that is causing a great deal of frustration to us all I think - I believe. But, nevertheless, if we go the issue of what's in Negus' report, from what I can gather, I haven't read it for a while, but there is a fairly strong view from Mr Negus, and I accept it is only a personal view, that there is a breakdown in the employment relationship almost at workplace. So if we go to the issue of whether you have jurisdiction or not, if we bear those comments in mind, I respectfully submit that you do have jurisdiction to hear this matter and determine it. The dispute is not necessarily about termination of contract, it is about industrial disputation, and the industrial disputation arises out of essentially the lack of job security that our members, the employees have.

PN33

They feel at present if they go out to a house and somebody complains about theft when they're moving furniture, goods or whatever, that their jobs are on the line. So they're feeling extremely vulnerable and that is the issue that we say the dispute is about. There is also the consideration that the people that have been - the subcontractors whose contracts have been terminated are workmates to a certain extent and there are those kinds of issues of support. But really this is about job security. We say that you have the jurisdiction to deal with that matter, it is provided for you in the Workplace Relations Act. We've got an enterprise agreement that, for some reason, I don't know, as I said in my written submissions, I don't know but it was never registered. But, anyway, in that unregistered agreement there is a process to resolve disputes and it clearly ends up in the Commission.

PN34

If Mr Ironmonger, you know, argues that that certified agreement can't apply because it is not registered, and I wouldn't be surprised if he did, then we go to the award and the award is clear. The Transport Workers' Award clearly indicates that there is a process to settle disputes and, you know, again it says that: if the matter cannot be resolved it may be referred to the Commission and while the parties attempt to resolve the matter work will continue as directed. You know, that is the status quo type clause and the Union have honoured that, you know, while the matter has been before the Commission and, you know, while we're invoking the disputes procedure we haven't taken industrial action.

PN35

So we're abiding by our commitments in terms of the awards and unregistered agreements or whatever. So we say that you can hear this matter or determine it, notwithstanding Mr Ironmonger's view that it is about termination of subcontractors. We say it is not about termination of subcontractors, it is about job security. The fact that the workers have seen what has happened to these subcontractors and they are in fear of their jobs and, as I mentioned before, Mr Negus goes to those issues in his report. So we say that you can hear it in terms of clause 10 of the award.

PN36

Now, I will finish on this last point that, I know we're all getting frustrated with this dispute, especially our members, but it seems to be getting almost farcical that if Mr Ironmonger's saying to you now: you can't hear this matter, you haven't got the jurisdiction to hear this matter. So if we go away today after a decision - I am not trying to threaten the Commission or anything like that, don't get me wrong, I'm just making an observation that if say, the decision from the Commission is that, well, you don't have the jurisdiction and that's the end of the matter, it's discontinued and then there is industrial action, we will be back here next week, I'm sure. The employer will file some 127 application or whatever to have the Commission deal with the issue of industrial action, which is what we're saying you can deal with today.

PN37

So to a certain extent we're going round and round the garden with the argument that the company are putting. I mean, simply we say there is a dispute out there, there is a threat of industrial action, that is definitely the province of the Industrial Commission. Federal Court can't deal with matters dealing with industrial action. We say you can hear this matter, you can determine it. I would say there is probably enough evidence in the submissions for a decision to be made, but we would be guided by your Honour if you require further evidence. That is essentially our submissions if it pleases the Commission.

PN38

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Hodgson. I do understand your submission. I did, in my opening comments, say that subject to the views of the parties that I would be prepared to make one final attempt at conciliation if that appeared to be productive and not just a waste of time of the parties, given that there have been four conferences already. I am not proposing to have a fifth just for the sake of having a fifth conference. So before proceeding to consider any other point, I think I would like to seek the views of the parties on whether or not one last attempt at conciliation is something that would be supported by the parties or not. Mr Ironmonger?

PN39

MR IRONMONGER: Just in response to Mr Hodgson. I hope he's not suggesting that we don't come to this Commission with clean hands. Clearly I wrote to you on 18 February outlining our position prior to the first hearing of this matter, in which we expressly said that it was a jurisdictional matter we don't concede to it, but we were happy to participate in the conciliation process. I think it was a bit unfair that we say we would accept the decision of the Commission when from day one we have said we won't. I made that point, but as to whether or not it would be fruitful to have a further conference, my view is and I don't normally say this, but I don't think it would achieve much, your Honour.

PN40

THE DEPUTY PRESIDENT: Okay. Well given, Mr Hodgson, that Mr Ironmonger does not believe it would be productive to have a further conference and given that he represents the applicant, who is the company that terminated the two sub-contractors, I would invite your response to that.

PN41

MR HODGSON: Thank you, your Honour. Well it is a bit hard to have a dance with someone if they don't want to have a dance, you know. I believe that you can always conciliate, conciliate, conciliate to death. It is much better to conciliate than to arbitrate, but I tend to share his pessimism in terms of outcomes. But, as a view, yes I always believe that there is room for negotiation. But I apologise if I was a bit strong in my comments about coming - your comment about coming with clean hands, that was just my understanding of how this matter arose - in arriving at the Commission, your Honour.

PN42

THE DEPUTY PRESIDENT: Well given that the parties have reached these views, given that the applicant does not favour further conciliation, doesn't believe it would be useful and given that you have acceded to that view. Mr Hodgson, I don't propose to convene a further conciliation conference, I think that that could well be counter productive, but what I do return to is that the purpose of this hearing was to hear argument concerning why this application should not be discontinued. I have heard an argument from the applicant and I have heard a response from the respondent, but before inviting the applicant to reply, I would just like to canvas some aspects of the matter. Now, Mr Hodgson, you did draw my attention to clause 10 of the award?

PN43

MR HODGSON: Yes, that's correct.

PN44

THE DEPUTY PRESIDENT: Which does set out a procedure in points 10.1 to 10.4 and my understanding is that, in effect, that settlements of disputes procedure has been applied and is still applying, in the sense that preliminary discussions between the parties didn't resolve the issue, in the sense that it was then referred to the Commission and in the sense that while the parties attempted to resolve the matter while it was before the Commission there has been no disruption to work. So in that sense what I am putting to you is that the dispute procedure under the award is in effect been applying but it has now, as far as I can see pretty well exhausted itself, that there is nothing further - there is no further step in that procedure that is available to me to follow which might provide some fresh idea which could form a basis of further progress or resolution. So I put that to you and just seek your response to that point.

PN45

MR HODGSON: Thank you, your Honour. In terms of 10.3 where it says:

PN46

If the matter cannot be resolved it may be referred to the Commission.

PN47

What my understanding of what that means can be referred for conciliation and/or arbitration. That these clauses generally allow the Commission to hear the matter via conciliation and then if not by arbitration otherwise they would be almost inoperative in the sense that if the matter could not be conciliated it could not be resolved. So hence you could never settle the dispute that could not be resolved by negotiation. So I believe that as is the case in a lot of awards and also in enterprise agreements that do have these sorts of clauses they clearly enable the Commission to hear and to conciliate and/or arbitrate the matter. So that would be our submission.

PN48

I am sorry if I did not make that clear in my submissions but that is clearly what I am inferring is that we are using the disputes procedure clause and we are at the stage now where we believe the Commission can determine the matter on the evidence available, on the submissions available. But if the Commission requires further evidence then maybe that is something we can think about for another day but - sorry, I am just reading the disputes procedure. In terms of the enterprise agreement, again, I accept that it is not registered so it does not really bind the parties, but it clearly indicates the intentions of the parties. I do not know why it was never registered. It has all the appearances of a document that was on its way to be registered. I am sorry, I do not know if you have a copy, your Honour, but in that disputes procedure at clause 13 in the Grace Removals W.A. Transport Workers Agreement 1999, which is unregistered, but at clause 13, sub-clause 3D it says:

PN49

Any matter which cannot be resolved shall be referred by either party to the Australian Industrial Relations Commission. The decision of the Commission shall be accepted by the parties as final subject to any legal appeal procedures.

PN50

And it goes on to say:

PN51

Pending resolution of the matter in accordance with the above procedure work shall continue without disruption - - -

PN52

Et cetera. So we put a fairly strong argument that the disputes procedure clause allows you to determine the matter in the award but also if we go to the agreement it clearly indicates the intentions of the parties. I do not know if it has been signed by the parties. It may be enforceable if it has been signed, I am not sure. But we say that you can determine the matter either by conciliation and that has obviously failed so therefor we say you have the jurisdiction to make a ruling if it pleases the Commission.

PN53

THE DEPUTY PRESIDENT: Thanks, Mr Hodgson. Mr Ironmonger, if I could seek your response to the point that there was a certified agreement which I am advised, in fact, is not actually certified but was only a proposed certified agreement which does contain a dispute resolution procedure which is relevant at this point. Could I seek your comment on that?

PN54

MR IRONMONGER: Yes, your Honour. The first point I would make that clause 3 of the unregistered agreement has parties bound and it is Clause 3(b) binds the people who are employed, the Transport Workers of Australia, its officers and members employed by the Company. We say there is no employment relationship between the contractors and the Company and that's one point. As to the law, and I do not want to be quoting any Victorian decisions in West Australia, far be it from me to do it. But there is a Supreme Court authority in Victoria which says that an unregistered agreement has no legal force and that was the matter of Humphrey Carpets in the Supreme Court of Victoria two or three years ago where there was a redundancy provision in an uncertified agreement which the Supreme Court did not enforce because the agreement was not registered.

PN55

THE DEPUTY PRESIDENT: So, Mr Ironmonger, your submission is that (a) that proposed certified agreement or unregistered certified agreement would not cover the situation of sub-contractors only employees. Is that correct?

PN56

MR IRONMONGER: That is correct, your Honour.

PN57

THE DEPUTY PRESIDENT: And secondly you are saying that in any event you do not believe because it was unregistered that it has legal force?

PN58

MR IRONMONGER: That is correct your Honour.

PN59

THE DEPUTY PRESIDENT: Mr Hodgson - - -

PN60

MR IRONMONGER: Could I just put the proposition to - if we were to concede that there was jurisdiction, I do not say there is, under what section of the Act are they saying you have power to proceed, and what remedy would they be seeking?

PN61

THE DEPUTY PRESIDENT: Mr Hodgson, would you like to respond to that?

PN62

MR HODGSON: Well, we say that under section 99 an application has been made and the remedy is the reinstatement of the sub-contractors that would allay the concerns of the workers in terms of job security and would result in no threats of industrial action.

PN63

THE DEPUTY PRESIDENT: Would you like to respond to that Mr Ironmonger?

PN64

MR IRONMONGER: I believe the power of the Commission would have to be either pursuant to section 170 with that application there or by using a broad definition of 111 which I do not think the Act envisaged giving the Commission the power to reinstate contractors. We would say it would be ultra vires.

PN65

THE DEPUTY PRESIDENT: A response to that, Mr Hodgson, no response?

PN66

MR HODGSON: No response at this stage, your Honour.

PN67

THE DEPUTY PRESIDENT: I would like to move on to the point of whether or not the Commission could fruitfully conduct private arbitration or indeed arbitration. Mr Hodgson, I think you are aware that the company did submit to the Commission on the 18 February that they did not want the Commission to conduct a private arbitration as there were other remedies available to the contractors. And further that the company advised the Commission that it had advised the union to notify a dispute in the Commission and it would participate in the conciliation process but it reserved its right under the Act as to jurisdiction.

PN68

And as you are aware from the latest submission, which was put in by the applicant, it is, as I mentioned earlier, that this Commission does not have jurisdiction to deal with this matter because there is no employer/employee relationship. So I think you are aware of those submissions that were put in by the company. Is that correct?

PN69

MR HODGSON: Yes, that is correct.

PN70

THE DEPUTY PRESIDENT: But, nevertheless, is it your view that those submissions are wrong? Because the purpose of this hearing today is for me to hear the argument in a constructive fashion, that if you believe these submissions from the applicant are wrong, there now is an opportunity to put a submission to - if you like, put chapter and verse, as to why that submission is wrong. But that is a submission which is clearly before the Commission in those respects. You have expressed a view that you do not agree with them. But I am wondering now if you want to actually formally argue against them on the basis that you would like this Commission to give further consideration to what may be somewhat technical, legal type arguments on the matter?

PN71

MR HODGSON: Thank you, your Honour. No, we are fairly satisfied that the submissions that I have provided in writing that were made this morning give you jurisdiction to hear the matter. In terms of private arbitration well that is only a possibility if both parties agree and obviously the - from my understanding the other side is not interested in private arbitration. We accept that there are other remedies available in other jurisdictions but as we indicated at the outset we were hoping to try and resolve this matter through conciliation. And, yes, the company have reserved their right to argue jurisdiction and that is the argument we are having today. I can only repeat the submissions that I have said before. I have not prepared a detailed legal argument other than we say that the issue is about industrial action. Obviously the Commission can deal with those sorts of matters and we have indicated what we believe the remedy - the possible remedy can be. If it please the Commission.

PN72

THE DEPUTY PRESIDENT: Yes, certainly. Well, the difficulty that I have and have had all along is that the two persons are sub-contractors and that is the difficulty. That is where I have been constrained by the Act. If the two persons were employees then it would be much more clear-cut in terms of jurisdiction. But I have to say at the least there is very much a grey area in terms of jurisdiction and that has been very much a factor in my mind throughout the whole of this matter. If it had been clear-cut that I could have much earlier gone to arbitration, then I would have been very much of a mind to do so, rather than to drag this dispute out as I say through an extraordinary commitment of time and resources from the Commission over four conferences and this being another hearing. So I do find myself in a difficult position in the area of jurisdiction. And again that was a factor as to why this particular hearing was called.

PN73

It is not a clear-cut issue at all that I have the jurisdiction to handle this matter any further in a productive way. So, as I say, the applicant will have the opportunity to reply as we reach the end of these proceedings, but I thought I should put that before you on the table, that is the position that I find myself in. That, having heard your submissions, and read them of course, having heard the applicant's position and the lack of enthusiasm for conciliation, I see the Commission now being very close to the end of the road at this point in time with this particular application.

PN74

So I thought today was the opportunity to try and, if you like, bounce that idea around, to try and conclude what has been a long road and to get a position where at least the parties know procedurally where they stand and can make decisions procedurally how they want to go from here given, as I have said, I find myself in a difficult position. It is not clear-cut at all that I have jurisdiction to arbitrate this matter in relation to the two terminated sub-contractors. And I think that whilst there could be a lot more time and effort put into looking at the merits of that particular aspect, again I am not sure that is going to be productive to anyone to go down that route further. so as I said I am being quite up-front to you about that and I would seek your further comments on that before we proceed further.

PN75

MR HODGSON: In keeping with the spirit in which we commenced these proceedings, and we have said, and Mr Cain has said, and others have said that if there is a firm view given by the Commission in regards to this matter then we will accept that. Now if what you are saying to me is that - and I believe it is fairly clear what is being said, and that is you do not have any jurisdiction then we will have to accept that, with respect, we would have to accept that decision. That is the spirit in which we entered the discussions in an attempt to conciliate. We have always said that if the Commissioner made a recommendation we would follow it and we will keep to that commitment.

PN76

I do not think it is an area that, in terms of putting legal argument, that that could be useful in the sense it will take up even more time with the Commission. It is a grey area and it may be prudent to resolve this matter one way or the other today. But as I have said we came here, we said we would accept the recommendation from the Commissioner. And if what is being said is there is no jurisdiction then we would accept that, your Honour.

PN77

THE DEPUTY PRESIDENT: I welcome those comments. I welcome them because I think they are realistic and frank and constructive. In terms of what practically can be achieved in this jurisdiction at this particular point in time, and trying to keep the interests of all of the parties in mind. but I do say to you that is not a formal decision of the Commission. Those are comments which are made in this hearing, from the Bench, it is not a final decision of the Commission, but nevertheless it is certainly a clear view which I have formed even though it is not a final one.

PN78

And certainly I am not seeking to close the door finally, but again I am not seeking to draw matters out for no productive purpose and waste people's valuable time. So I think having just clarified that I just want to make sure that there is a clear understanding of what my comments were. I would ask, Mr Hodgson, if you would just indicate - if you do have a clear understanding of the fact that I am saying that this is not a formal decision of the Commission. But it is a clear view that I have reached at this point of time on the amount of information and the submissions before me. Would you like to comment on that?

PN79

MR HODGSON: Yes. No, I concur, it is a clear view and we respectfully wait the outcome of your decision, your Honour. But- - -

PN80

THE DEPUTY PRESIDENT: I am not actually intending to issue a formal written decision unless that would serve good purpose. If it is understood and accepted by the parties that these comments that I have expressed during this hearing are - give a clear enough indication as to what my thoughts are and the way I am approaching this matter, then I would tend to leave it on the matter that we would finalise this hearing. I would leave the file open for a certain amount of time, perhaps seven days during which time the Commission would continue to be available to respond to any request by the applicant if the applicant wished to seek further assistance from the Commission, which is the usual procedure.

PN81

That is what my intention would be. I think issuing a formal decision - if I reserve my decision today it would just simply delay decisions by the parties waiting for that decision. And I would not intend to do that at this point in time unless there were submissions put to me that would be helpful to the parties. So I would seek your response to that first before I ask Mr Ironmonger to respond.

PN82

MR HODGSON: Well, your Honour, it is fairly clear what your view is so, yes, I tend to concur with your comments that it is probably - it would not be much use putting it in a formal decision or any other form. What I understand you're saying is very clear that you have - that on the information available to you at present there is not enough indication that enables you to have jurisdiction to hear the matter.

PN83

THE DEPUTY PRESIDENT: Thank you, again, that is helpful. I think we have certainly clarified where we are at during the hearing and I would, I think, ask whether you've got any further final comments to make before I ask Mr Ironmonger to respond?

PN84

MR HODGSON: No, your Honour.

PN85

MR CAIN: Your Honour, could I just say a couple of words?

PN86

THE DEPUTY PRESIDENT: Yes, Mr Cain.

PN87

MR CAIN: I find it rather ironic that the company, although they send in a letter in saying that, you know, there's no jurisdiction - make the application, and they make it on the basis of industrial action. That's the first question, or the first issue I would like to raise with you. The second issue is that the company have acquiesced with this Commission for the last three months. These blokes haven't been able to go and get another job and give a commitment to another company that they could work for them. They've been out of work now for some 12 to 13 weeks without pay. They have families and they're behind on their mortgage, the banks are knocking on the door asking for the mortgage payments. They've been coming here to these hearings with some sort of false hope that they could receive justice for an injustice that's been purported on them by this company.

PN88

What we are hearing here today is, with the greatest of respect for your position and I know the jurisdictional arguments, what we are hearing is that there is no natural justice for sub-contractors in this country. There is no natural justice because a boss can turn around and sack someone for no reason whatsoever and get away with it. That's what we are saying here today, that this gentleman behind me can go back to work on Monday and sack another two sub-contractors with absolutely no evidence whatsoever, you don't get the police involved, they don't want to do that. They're not happy to commit to any sort of inquiry.

PN89

They actually agreed under your guidance, sir, for Mr Negus to go out and conduct an investigation, they let that occur and what happens at the end of it, when it doesn't come down in their favour we rock up three months later, when my members have been out of work for three months and not been able to feed their children and had to go and borrow money off their workmates to pay the mortgage, that they turn round and come up with all this legal jargon about, well, at the end of the day you can go to the Federal Court and argue for two weeks on unfair determination of contract because that's what the Federal Court's all about.

PN90

I was brought up, sir, in the belief that there was natural justice in this country, not only whether your an employee, but whether your a worker in this country. These blokes have worked for 10 years and 15 years respectively with this company, given them good service. They were unfortunate and got made redundant by this company because they had no work. Six months down the track after they were laid off, they offered these people to come back, but not as an employee, as a sub-contractor because they couldn't guarantee them 38 hours of work, 38 hours a week work right.

PN91

The employee relationship hasn't changed. The legal obligations may have changed, but the employee relationship hasn't changed. They started the same time everyday as what they started for the last 15 years. They've got a truck with Grace Removals written all over it. They are told what to do. If they try and get a job with someone else on the weekend they get the sack, because the company say to them: you can't do that, you have to come and work for us.

PN92

Now, even with all of that going on, we get told when we rock up, and we agree to cop whatever decision is made in this place and they agree to cop whatever decision's made, because why would we turn up in the first place? What they're saying is: we'll come along and play ball with you so the other people who are terrified of their jobs now, absolutely terrified of their jobs and the job security on the dock over at Grace Removals and we have a situation where we now have these people saying: we can sack anyone we like, anyone we like in this job now. Because we'll just go to the Commission and we'll argue jurisdiction and we'll argue legal this, that and the other. They've not proven the case.

PN93

There's been an investigation into the case which came down in favour of the workers. Well by all means of natural justice, any decent company would be turning round at the moment and saying: well, okay, we understand the jurisdictional argument, but we've got a workplace to get on with, we want to keep Grace Removals' good name going in this industry and we want to get on with our work force. Let's sit back and have a look at what Mr Negus said about this issue. Let's sit back and have a look at the relationship that we have with our workers and let's look forward.

PN94

If the Company don't want to charge the blokes and get the police in to charge them; they don't want to accept the umpire's decision; they don't want to accept Mr Negus' investigation, what do they want out of this? Do they want to be the king of the removals industry, where all the people around, I can sack them willy nilly whenever they like? Because that's what this is about. They've been coming along to this inquiry and to this Commission for three months now. They've sat here, they haven't bargained in good faith when you've asked them to do so. They haven't made an offer to these blokes apart from: we'll buy the truck off you for the same price that you paid for it anyway, which is not an offer of settlement.

PN95

I believe they've treated the Commission with utter contempt and I believe it is an absolute disgrace of where they've gone with this. I understand, sir, that you're restrained in what you can do, because of the legal argument that they put up. But I'm putting the position of a worker in this country to you today. I'm putting the position of where a worker can be thrown out the door, lose his house and all the social implications that go with that by a company that has no regard whatsoever for the people that it employs and I think it is an absolute disgrace.

PN96

THE DEPUTY PRESIDENT: Thank you, Mr Cain.

PN97

MR CAIN: You're welcome.

PN98

MR COTTAM: Your Honour, if it pleases, I would just like to ask Mr Richard Wilton a few questions and clarify one or two points if I could please.

PN99

THE DEPUTY PRESIDENT: I don't think that would be appropriate. This is a hearing on why this matter should not be discontinued. Mr Hodgson is your representative, he has the opportunity to make submissions on the matter before the Commission. Certainly if there was a conference then that would be quite a different situation. But in a hearing, unless it is something that Mr Hodgson on your behalf could put as being relevant to whether this matter should be discontinued or not, then I don't think it would be appropriate in this forum.

PN100

MR COTTAM: Could I ask Mr Hodgson to ask the question for me, is that acceptable?

PN101

THE DEPUTY PRESIDENT: Well, certainly Mr Hodgson is still able to make submissions on the matter before me and that would be - if he so wishes that would be appropriate.

PN102

MR COTTAM: Well he might not wish, your Honour, but we will ask.

PN103

MR HODGSON: Your Honour the matters - I've read the material that Mr Cottam seeks. There are a number of questions that he wants to clarify, reasons as to why his contract with the company was terminated. I will be guided by your Honour as to whether it is appropriate to raise them now, but I can say they don't deal with the substantive issue that is before us today and this is whether or not the matter can continue looking at the jurisdictional issues.

PN104

THE DEPUTY PRESIDENT: Yes, it is with regret that I conclude having heard Mr Hodgson's comments that it wouldn't be appropriate because this is the purpose of this hearing, this was clearly indicated to the parties in advance as to what the purpose of this hearing was and it is a formal hearing before the Commission. The conciliation conferences are the informal forums where you can have frank dialogue on a whole range of issues. But given that this matter has been proceeding, as I said, for so long before the Commission and we've reached this point, this is a formal hearing I could only suggest to you that you seek assistance from your representative, Mr Hodgson and Mr Cain, subsequently to proceed to put those matters privately outside the Commission.

PN105

MR HODGSON: Thank you, your Honour.

PN106

MR CAIN: Sir, could I just make one more - I forgot to say one thing.

PN107

THE DEPUTY PRESIDENT: Yes, yes Mr Cain.

PN108

MR CAIN: What it is. I find it rather ironic that next week, when we take this decision back to the blokes tomorrow and I understand there may be a meeting tomorrow, I'm not sure yet, that if the workers decide to withdraw their labour because of the job security issue, I can see the link between this case of the two sub-contractors and my members who work for Grace Removals having a problem with a management that thinks it can do what it likes to the workers. And they may, for whatever reason take industrial action over that. And I find it rather ironic that the company will then be coming in to this Commission, if that does occur, and asking you to send us back to work. Because what are they going to argue then?

PN109

Because these two issues are inextricably linked we say, and we understand where you are legally, but we say that the issues are linked and we very well may find ourselves in a bit of a pickle some time in the future if the blokes decide to take industrial action over an issue where they feel as though their jobs are not secure any more because of the way the management conducts themselves on the site. And I think you should take that into consideration.

PN110

THE DEPUTY PRESIDENT: Certainly, thank you, Mr Cain. I was aware, prior to the hearing, as I did say earlier, of the threat of potential industrial action occurring and that was actually contained in Mr Hodgson's outline to the Commission and I asked Mr Ironmonger was he aware of this as well. To which, my recollection is that he said "yes" that he was aware that this matter might - that this could happen. So I think the point you have raised is out there, it is on the table, it is understood. As I said, it is with regret that I have had to reach the view that I am constrained by the Act, that this is not a black and white situation.

PN111

It is with regret, and in a sense I see in relation to this application, this being close to the end of the road. Now what happens in the future of course is another matter and the parties reserve their rights under the Act and those rights are there and they can be utilised at any point. So I just want to assure you that I have noted the submissions that have been made and it is only after a long period of time that regrettably we have got to this point. That, given the submissions before me, I do not see that I have any other clear path to follow. I take it your comments, Mr Cain, were really supplementary to those of Mr Hodgson?

PN112

MR CAIN: No, they were, yes, just back - - -

PN113

THE DEPUTY PRESIDENT: They were not alternative submissions, they were an elaboration, but perhaps not inconsistent with his comments?

PN114

MR CAIN: Yes.

PN115

THE DEPUTY PRESIDENT: Given that, then I think the position of the respondent is very clear. Mr Ironmonger has been very quiet over there in Melbourne listening to various contributions here, but of course you do have a reply on the matter which is before the Commission. Mr Ironmonger?

PN116

MR IRONMONGER: Thank you, your Honour. Well, I reject the notion that Mr Cain is making that my client is a reckless employer. Quite clearly we said from day one we would assist the union in notifying the dispute. It is not our practice to come to this Commission and then run away from it. We said from the outset it was a jurisdictional problem and we did not delay or cause the delays in these proceedings. We said from the outset that there was a problem, we would try and assist the process, but at the end of the day it is a matter of jurisdiction. So for Mr Cain to say that we are an employer of bad repute I reject that outright. Unless Mr Wolton wants to add anything, I believe he is in the courtroom?

PN117

THE DEPUTY PRESIDENT: Yes, Mr Wolton is here. Mr Wolton?

PN118

MR WOLTON: I have nothing else to add.

PN119

MR IRONMONGER: Finally, your Honour, there is no disrespect to the Commission as constituted, this is a difficult matter - a difficult matter with contractors. The contractors do have rights in various States have legislation dealing with contractors. The Act provides a section for contractors in which they can review their contracts and we would say that is the most appropriate process in this matter. If the Commission pleases.

PN120

THE DEPUTY PRESIDENT: Sorry, I did not quite hear you at the last bit about the Act and the- - -

PN121

MR IRONMONGER: Well, the Act does have a section there which protects the rights of contractors to mean clearly a contractor gets an advantage by being a contractor for taxation purposes and they can't have it both ways in every situation. You can't be an employee one minute and a contractor the other. Now there are provisions in the Act which deals with contractors which evokes the jurisdiction of the Federal Court. We have said from day one that is the appropriate jurisdiction and we are quite happy to put our arguments before the Federal Court.

PN122

THE DEPUTY PRESIDENT: Thank you, Mr Ironmonger.

PN123

MR IRONMONGER: One further point, your Honour, if there is further industrial action it does not necessarily mean the company will notify this Commission, it may well be there are other remedies available to the company which may lose further employment. That is not a threat, that is a comment.

PN124

THE DEPUTY PRESIDENT: Thank you, Mr Ironmonger. Well I now formally come to the point that this is an application before me pursuant to Section 99 of the Workplace Relations Act 1996. The application was filed by the applicant on 14 February 2002. An extraordinary commitment in time and resources has been made by this Commission with an independent investigation and report being undertaken and provided and four conciliation conferences over the three months apart from this hearing today.

PN125

I regret that there appears to be no final resolution to this matter but I am satisfied that there is nothing further that the Commission can usefully do at this point in time in relation to this application. I say that is with regret. Nevertheless I intend to leave the file open for seven days during which time the Commission would be available to respond to any request by the applicant for any further assistance. After that seven days the file will be closed. We will now adjourn.

ADJOURNED ACCORDINGLY [12.36pm]