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TRANSCRIPT OF PROCEEDINGS



ON THE OCCASSION

OF

THE COMMISSION'S SWEARING IN

AND WELCOME OF

DEPUTY PRESIDENT McCARTHY

and

DEPUTY PRESIDENT BLAIN

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PERTH

THURSDAY, 1 NOVEMBER 2001

JUSTICE JUIDICE, PRESIDENT

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

COMMISSIONER O'CONNOR

MR J. LLOYD FOR MINISTER ABBOTT

MR L. ROWE FOR CCI WA

MS S. MAYMAN FOR UNIONS OF WA

MR T. COOKE FOR UNIONS OF WA

* * *

JUSTICE GIUDICE: Deputy President McCarthy.

PN1

DEPUTY PRESIDENT McCARTHY: I have the honour to announce that I have received a commission from His Excellency, the Governor-General, appointing me as a Deputy President of the Australian Industrial Relations Commission. I present the Commission.

PN2

JUSTICE GIUDICE: Mr Deputy Registrar, I direct that the Commission be recorded. Deputy President Blain.

PN3

DEPUTY PRESIDENT BLAIN: I have the honour to announce that I have received a commission from His Excellency, the Governor-General, appointing me to be a Deputy President of the Australian Industrial Relations Commission. I present the Commission.

PN4

JUSTICE GIUDICE: Mr Deputy Registrar, I direct that the commission be recorded. Mr Lloyd.

PN5

MR LLOYD: Thank you, your Honour. It is my pleasure, on behalf of the Commonwealth, to welcome the new members to the Commission. The Commission plays an important role in the conduct of workplace relations in Australia. Australian workplaces have seen extensive change in work practices and organisation in recent years. The Commission has helped this change through its oversight of the workplace bargaining and reform agendas.

PN6

We live in uncertain times and flexibility and adaptability are crucial to our economic prosperity. If Australian workplaces are considered to be uncompetitive, the appropriate levels of investments and growth will be threatened. It is important we continue to reform and to look for more efficient ways of working. The Commission will continue to play an important role in achieving those goals that are so important to the future of the nation. The importance the Government attaches to the role of the Commission is reflected in the appointments it has made this year which total eleven new members.

PN7

I turn now, briefly, to the two new members. If a report in the Brisbane Courier Mail of 29 September commenting on these appointments had proved accurate, I would be welcoming former Premier Richard Court to the Commission. While Richard Court is a famous West Australian, the two new members, whom I have the pleasure of knowing and working with personally, have more compelling credentials for appointment to these positions.

PN8

Turning first to Mr McCarthy DP, you come to the Commission from the position of Director, Operations, with the Chamber of Commerce and Industry, WA. You have held this and similar senior positions since 1990. In fact your career since 1969 has been with the CCI WA or one of its antecedent organisations, the Confederation of WA Industry. Your experience over those years covers every facet of workplace and human relations. As a role would emanate from an employer association, your seniority and skills has meant that you have been called to serve on numerous State and national committees and advisory bodies.

PN9

I know from personal experience that you carry out your duties with a high degree of professionalism. Throughout my career, I have dealt with many employer organisations as they interact with Government. I can say that the CCI WA was the most effective of the organisations I have encountered. This, I believe, is largely due to your drive, skills and integrity. You and your organisation have the enviable reputation of telling it as it is. While at the time this may not please those receiving the message, over time you and your organisation are respected for the highly responsible manner in which you have represented employer interests. I always placed great store on your advice.

PN10

Turning now to Dr Blain DP, you have had a long and continuous professional involvement in workplace relations. This starts with your university studies. You graduated with a string of impressive qualifications in workplace relations and economics from the University of WA and the London School of Economics. In the earlier professional phase of your career, you have taught, commented on, consulted and written about the field. You have reached the position of Head of Industrial Relations at the University of WA during this period.

PN11

In 1993 your career then turned to the Government sector. You held the position of Chief Adviser to Graham Kierath who held the labour relations portfolio for much of the term of the Court Government. This was a time marked by fundamental reform of the State's workplace relations system; reform that you were intimately involved in. It is obvious that as the CEO of a State Department from 1996 in the position I held until earlier this year, I had regular contact with you including in particular our participation on the Cabinet Standing Committee on Labour Relations. The Committee had far reaching influence on the management and reform of the WA public sector. I found your detailed and thorough knowledge to be an asset to the functioning of the Committee and of assistance to the Minister.

PN12

On behalf of the Commonwealth and Minister, Tony Abbott, I wish you both well in your new appointments. Thank you.

PN13

JUSTICE GIUDICE: Mr Rowe.

PN14

MR ROWE: Mr President and Members of the Commission, I am delighted to be here on behalf of the Australian Chamber of Commerce and Industry and employers generally to participate in this ceremonial sitting of the Commission. It may surprise some to know that I think this is the first time I have ever actually appeared before either this Commission or the State Commission. I have in the distant past had supporting roles where my economic advice or indeed my words may have been presented by one of CCI WA's senior advocates but in those days it was considered much too risky to let a mere economist speak directly to the Commission. I have to be honest and say that my lack of appearance at the Commission is not something I have missed.

PN15

Indeed I am reminded of my late father's words many years ago when we returned from our first and only caravan holiday. He said something like, "I hope you made the most of it. It was two trips in one. The first and the last." I have similar thoughts with respect to my appearance today. However, I am genuinely delighted to be here, particularly to welcome and recognise my long time friend and now former colleague, Deputy President McCarthy. Before turning to Brendan, let me first, on behalf of employers, note and acknowledge the appointment of Deputy President Blain.

PN16

Dr Blain brings to the role a diverse background in industrial relations. He has been an academic with a strong interest in industrial relations and labour economics. He has appeared as an advocate before the Commission and more recently he has played a role in the political sphere as an adviser to the former State Minister for Labour Relations. Nick, on behalf of employers, we wish you well in your role as Deputy President of the Australian Industrial Relations Commission.

PN17

While the Chamber of Commerce and Industry of Western Australia and ACCI and indeed the Australian Industry Group, of which I will say in a moment, will miss the very significant contribution that Deputy President McCarthy had played on behalf of employers in Australia, I can say that the reaction of all that I have met to Brendan's appointment has been one of absolute acknowledgment of the appropriateness of this appointment and genuine pleasure that this appointment is an appropriate recognition of Brendan's contribution, not just to employers but to the entire wider community.

PN18

The other very common comment is that it is hard to think of someone, who in terms of experience, intellectual capacity and understanding of Australia's industrial relations, is more suited to the task. Brendan has served CCI WA and its predecessors with distinction for nearly 33 years. In that time he has played a major role in the industrial relations arena, as an advocate before the Commission, as an employer representative arguing strongly the need for change in industrial relations, with Governments, Oppositions, and the community at large, and indeed within the employer community itself, not all of whom could see the merit of his arguments immediately.

PN19

And, finally, as a contributor the broader community debate, through published articles, presentations at professional conferences and through the media, he has represented employers in numerous capacities at State, national and international levels, not just in industrial relations narrowly defined, but in areas such as workers compensation and occupational safety and health. In all of those tasks he has brought with him a strong commitment, a sharp and incisive intellect and a strong feel for what is in the broader interests of the entire community. I am sure that those same attributes will serve him well in his new role. He has also been a strong agent for change and I will watch with interest what role that characteristic plays in his role as Deputy President. I hope it is a strong one.

PN20

I mentioned earlier that the Australian Industry Group has welcomed Deputy President McCarthy's appointment. The Chief Executive of AIG, Mr Bob Herbert, was hoping to be here on this occasion and welcome Brendan in person and, Brendan, he sends his apologies. He has asked me to make some comments on behalf of AIG and I can do no better than read from a letter I received from Bob Herbert:

PN21

I would be enormously pleased if you could include in your remarks the high regard the Australian Industry Group has for Brendan and to express to him our very best wishes for what will be a well deserved but challenging appointment. Brendan is one of those persons who has made his life's work the relationship of employers and employees, albeit from the perspective of a representative of industry. He has made an extremely balanced contribution to public policy in the industrial relations field and the betterment of industrial relations generally. Everyone from within the AIG Group believes this is a significant appointment for Brendan but also one which will enhance industrial relations within Australia.

PN22

We wish him well in his new role, one which he will fill with great distinction and acumen.

PN23

Brendan, on behalf of all your friends, I congratulate you on your appointment and I wish you well in your new role for I know you will make your mark in a very positive way as you have in all aspects of your career to date.

PN24

Finally, Mr President and Members of the Commission, in welcoming the two new Deputy Presidents, I would like to make some brief comments on what their role might or should be. It is well known that CCI WA has argued strongly for a different and, indeed, lesser role for the Australian Industrial Relations Commission. I have personally argued the case,as in the past has Deputy President McCarthy. In particular we have expressed concern about the arbitral role of the Commission and its impact on productive industrial relations.

PN25

That does not mean that we do not see a role for this Commission, but that role should be more as a facilitator or conciliator rather than as an arbitrator. I would like to use a sporting analogy. Tennis. One that I know Deputy President McCarthy will relate to, given his enjoyment of, as well as he tells me, some considerable ability at the game. There will be some in this room who will liken the role of the Commission to the umpire who is there to make rulings and keep the score. That is not the role I would see. At the end of the game of tennis, it is up to the players to determine the outcomes and accept responsibility for how they play. Neither of them would want that decision to be made by the umpire.

PN26

So it is, in my view, in industrial relations. It should be up to the parties to seek to resolve their differences and accept responsibility for decisions, rather than have those decisions imposed on them by a third party, providing both parties with the opportunity to deny responsibility for the outcome. Rather, I liken the Commission's role to that played by the ball boys and girls. In major tournaments, they are an essential part of ensuring that the game is run smoothly and efficiently. They facilitate but don't determine the outcome. It is this emphasis I would like to put on the role of the Commission. Like the ball boys and girls, the Commission can play a very positive role in facilitating the process by which the parties achieve an outcome they are responsible for and accept.

PN27

And like the ball boys and girls at the Australian Open, the Commission is likely to do its best work when hardly anyone notices that they are there. In conclusion, Mr President, Members of the Commission, can I offer one final piece of gratuitous advice. Not just to Deputy Presidents McCarthy and Blain, but with respect to all Members of the Commission. Don't take yourself too seriously. Thank you.

PN28

JUSTICE GIUDICE: Ms Mayman.

PN29

MS MAYMAN: Mr President and Members of the Commission, Unions WA has taken the unusual step today of having two people at the Bar table for the welcoming ceremony. I have only recently taken over the position of Acting Secretary and, therefore, do not feel sufficiently qualified to comment in respect of Deputy President Blain. For that comment I would call on my friend and colleague, Tony Cooke, who has been Secretary for the last six years of Unions WA, to comment.

PN30

I turn now to Deputy President McCarthy. I am pleased to be at this welcoming ceremony this morning representing unions and would at the outset make a couple of comments, some of which have been directly drawn from the transcript of a previous ceremony:

PN31

The Commission obviously has a critical role in the Australian community, of that there can be no doubt. It is important, therefore, that the Commission has the confidence and respect of the community. It is especially important that those who are directly involved in the processes of the Commission and those both directly and indirectly affected by the outcomes of the Commission proceedings and deliberations have confidence and respect in the Commission. In order to have and keep that respect it depends on the people in the Commission who hold commissions and how they apply themselves to that commission. Some Commissioners bring respect with them on appointment, others earn it.

PN32

Deputy President McCarthy, we believe you fall into the former category. As the Commission will be aware, you were employed for many years with the Chamber of Commerce and Industry in Western Australia and I believe during that time gained the confidence and respect of the tribunals you appeared before and the advocates and unions you worked with. My understanding is that various Secretaries and Presidents of Unions WA have enjoyed at times an informal but always a professional relationship with you and that has allowed a number of important and sensitive industrial relations issues to be dealt with in a way that has benefited not just employers and employees but the community and this State as a whole.

PN33

At a personal level, I was involved for many years in drafting the Occupational Health and Safety Act with you; and other union colleagues have worked with you in the areas of superannuation and workers compensation. My final comment today is that as Federal and State Governments come and go, so too does the support for this country's unique tribunal system wax and wane. We are delighted to conclude today, Deputy President McCarthy, that your acceptance of this appointment is a ringing endorsement of not only your support for the conciliation and arbitration system but also the support of the Government that appointed you for that same system.

PN34

On behalf of Unions WA can I congratulate you on your appointment and wish you well in carrying out the important duties which you have now assumed. I look forward to continuing to work with you in the future.

PN35

MR COOKE: Your Honour and Members of the Commission, I thank you for the liberty of appearing before you today. I do so as the outgoing Secretary of the Trades and Labor Council in Western Australia, not choosing to stand at the expiry of my term this year and, secondly, on the basis of my strong personal association and professional association with both gentlemen concerned today. I thank the Commission for the opportunity. I also make a preliminary statement. This will probably by my last appearance before this Tribunal and I think it is appropriate on that opportunity to express my deep respect for the institution and abiding commitment to its fundamental tenets and to its history and to its function and roles and the important function that it has performed in our community in terms of maintenance of decent standards across that community.

PN36

And if I could just supplement the comments made by my colleague, Ms Mayman, over the appointment of Deputy President McCarthy. Brendan has been a worthy adversary in many, many circumstances over many, many years. He brings to this Bench a degree of skill, a degree of experience and a sharpness and focus of mind which I hope will serve this Commission extremely well and I have got every confidence that is the case. So on a personal and professional level, I welcome Mr McCarthy to the post of Deputy President.

PN37

I also have an association with Deputy President Blain which is of long standing and having expressed my deep and abiding respect to the Commission, I understand that some of what I have to say may be interpreted as disrespectful to that institution and I hope that that would not be the case and I wish to temper that at every turn. But there is a point which I believe a degree of plain speaking is necessary, out of respect for the institution concerned. And to paraphrase Edmund Burke: All that is necessary for evil to prevail, is for good people to do nothing.

PN38

on this occasion, to say nothing. I, therefore, place on the record and reiterate the quote from Mr McCarthy's - Deputy President McCarthy's welcoming address to Commissioner O'Connor and the critical paragraph and the critical sentence in that paragraph is:

PN39

It is especially important that those who are directly involved in the processes of the Commission and those both directly and indirectly affected by the outcomes of the Commission proceedings and deliberations have confidence and respect in the Commission.

PN40

The maintenance of that confidence and respect is obviously a question of respect for the personnel that fulfil the functions of this Commission. Deputy President McCarthy carries that broad respect and will no doubt serve the Commission well.

PN41

For Deputy President Blain, the circumstances, I regret, are somewhat different and the bar is higher in his case because of his deep association with extensive reform which has been referred to at today's welcoming, which demonstrated by word and deed antithesis of the conventions, the objects and the processes by which this Commission has operated throughout its history, perhaps more difficult times in recent times, but has no doubt done its job as best it can in difficult circumstances in recent times. That places me in the position of having to report, as has been mentioned by Mr Rowe in terms of Mr McCarthy's appointment to Deputy President, the response has been, as I have read it, the same as Mr Rowe's. That is, outstanding support for Mr McCarthy's appointment as Deputy President.

PN42

For Mr Blain, for Dr Blain, it has been some concerns as I have stated them that the history is bad, the word and deed is on the record and the bar would be placed particularly high for Deputy President Blain. In reflecting on that personally, I have come to think very hard about your outstanding record as an academic and to hope that that record and that experience has steeped you in the conventions of intellectual rigour and honesty and you know me as a person who speaks plainly. In those terms I hope in considering the acceptance of this extremely important post and commission that you apply those principles of rigour and have accepted the position in very good faith. We cannot reflect on the question of the offer of appointment which is beyond the control of all of us here today, but certainly from the point of view of the acceptance, that is laid in the hands of only one person and that is yourself, Dr Blain.

PN43

So in welcoming you to your new post, I must say and honestly report as a mark of respect for the Commission and as a matter of honesty to yourself that the bar is high from the point of view of establishing your credentials and gaining the confidence of the community in terms of your commitment to the institution. But having said that, welcome to your post and I am a strong believer in rehabilitation.

PN44

So congratulations to both Deputy Presidents and best wishes for the future and thank you again, Mr President, for the opportunity.

PN45

JUSTICE GIUDICE: Deputy President McCarthy.

PN46

DEPUTY PRESIDENT McCARTHY: Well, thank you, President, fellow Members of the Commission, associates and friends and all those for attending this morning. I thank you for attending and I thank you very much for, particularly those at the bar table, for their expressions of support which I hope reflect other views in the room. I will not pretend that the various influences that I have been exposed to in my working and personal life can nor should they be suddenly abandoned by me. I do however hope to have a number of practices that I intend applying in my commission and they include respect which has been spoken of this morning.

PN47

I do not, despite what Stephanie and Tony and others may have said, I do not presume to have the personal respect of anybody at this point in time. I do hope to attain that respect through the manner in which I discharge my duties as, I think, Commissioner O'Connor has over the time that he has been on the Bench. I do intend to try and apply disciplines of integrity and consistency. I have strong views about the rule of law and the law needs to be complied with, to be seen to be complied with, and to be applied diligently and expeditiously; and not to try and invent the law but rather apply it the way it is. It is for others to make the law, for this Commission to apply it as it is.

PN48

Stephanie spoke of occupational health and safety and my involvement in legislation in the 1980s. I recall very vividly the thrust of the principles in the legislation, the outcome of discussions here but similar discussions around Australia. And those discussions led to legislation that developed what were then, and I think still termed, internal responsibility systems within workplaces. That is, the responsibility for applying occupational health and safety primarily rests with those that create the risks or create the work and those that work with those risks, that is, the workers and the employers. And I think that is the best model for employee/employer relationships.

PN49

To the extent that the current legislation allows, that will be the general approach that I would be intending to apply. And the outcomes of anything that occurs in the workplace really is primarily the responsibility of those in the workplace. And, as others have said this morning, I think the role that I would hope to apply within the limitations that legislation allows is to facilitate people coming to their own agreements and own conclusions. In conclusion, can I say I hope I can make a worthwhile contribution. Thank you.

PN50

JUSTICE GIUDICE: Deputy President Blain.

PN51

DEPUTY PRESIDENT BLAIN: Yes, President, I would like to thank you most warmly for swearing me in today, for the friendly welcome that you have given me to the Commission and for being so accessible and helpful in my settling in period. I would like to acknowledge and thank for being here today and for their welcoming remarks the members on the bar table, particularly to John Lloyd and to Lyndon Rowe, Stephanie Mayman and to Tony Cooke. And I acknowledge also Terry Nassios on behalf of the Federal Registrar. I would like to thank the Registry officials who organised the ceremony today with such care and attention to detail which made it much easier for me.

PN52

Next, I would like to acknowledge my family and my absent family. To my wife, Danielle, my son, Alex, my mother, Peggy, my mother-in-law, Blanca, and other family members. Thank you for your love and support over the years. Unfortunately my daughter, Tanya and son-in-law, Simon, are interstate. I believe that my late father, Barney, and my late father-in-law, George, would both have wanted to have been here today. I thank my extended family, my personal guests, my friends and my colleagues. It means a lot to me that you have come today. Thanks for sticking with me through thick and through thin. To me, that is the test of friendship and I value it greatly.

PN53

I have been most fortunate to have had extensive involvement in industrial relations, dare I admit it, over 40 years. It was as an undergraduate at the University of Western Australia under the late Associate Professor Des Oxnam, that I first learned about the Australian conciliation and arbitration system. And one of my exam questions in 1962 was to explain the development of the Commonwealth Arbitration Court prior to 1956. It was Oxnam's vision of the future importance of industrial relations that encouraged me as a young man to pursue a career in this field. In the private sector in the 1970s I gained useful practical knowledge of employers' perceptions towards industrial tribunals.

PN54

Then as was mentioned earlier, as a staff member at the University of Western Australia, I became interested in the Federal Commission from a number of other perspectives. One was teaching. I believe there is no stronger motivation to learn about a subject than to have to teach it. One of my very first students was Bob Laing who has just retired from the Commission and one of my guest lecturers was you, Brendan, in your capacity as a senior employer organisation representative. Research was another activity. Sir John Moore, the then President of the Commission, was gracious enough in 1983 to write the foreword to my book: Industrial Relations in the Air.

PN55

It was through my research consultancy for the Hancock Committee on Australian industrial relations that I first had professional contact with you, Commissioner O'Connor. In your then capacity as the Secretary of the Transport Workers Union, you were most helpful in that research. For about 10 years as a regular media commentator on industrial relations, I followed with keen interest national wage cases and other significant matters in the Commission. In a different role as President of the WA Branch of the Federal Academic Staff Association, I gained useful practical experience on how an employee organisation interacts with the Commission.

PN56

During my time at the University I benefited greatly from contact with many other Federal Commission officials and Members including the former Registrar, Dr Ian Sharp, Jim Coleman, the first Perth based Federal Commissioner, Deputy Presidents Joe Isaac and Keith Hancock, and President Barry Maddern. And it was at that time that I got to know you first, Lyndon, and also you, Stephanie, and you, Tony. In the mid 1990s in Government, I played a small part in assisting the then WA Minister for Labour Relations, the Hon. Graham Kierath to co-locate in Perth for the first time the premises of the WA and Federal Commissions. This was done in particular for the convenience of the users of both Tribunals.

PN57

Graham, thanks to you for coming today. It was during my time in Government that I first met both you, President, and you, Senior Deputy President O'Callaghan. At that time you, Mathew, were also working in Government, and thank you for being here today. And, John, that was the time that we worked together and it was much appreciated to hear your remarks earlier. As recently as this year in my own small business I have faced a new industrial relations challenge altogether. That of providing to a small number of leading organisations strategic advice on successful workplace relations, including advice on how to approach matters that might come before the Commission.

PN58

I am honoured to become a member of an institution which such a rich history spanning nearly 100 years. The Commission is a body with important responsibility for the welfare of people in industry and in the community. I will conclude by quoting from a letter recently received from a good friend and former colleague in which he wished me well on my appointment. He wrote:

PN59

The Australian Industrial Relations Commission will be the most fundamental statutory commission as the century unfolds.

PN60

I will do my best to make a worthwhile and positive contribution to the Commission's work in the years ahead. Thank you.

PN61

JUSTICE GIUDICE: Thank you all.

ADJOURNED [10.40am]