TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 28542-4

JUSTICE GIUDICE, PRESIDENT

AM2010/122

s.158 - Application to vary or revoke a modern award

Application by Victorian Employers' Chamber of Commerce and Industry
(AM2010/122)
Building and Construction General On-site Award 2010

(ODN AM2008/15)
[MA000020 Print PR986361]]




Melbourne

10.39AM, FRIDAY, 22 OCTOBER 2010

Continued from 24/08/2010

PN197

JUSTICE GUIDICE: Appearances please.

PN198

MR MCKENNY: I appear for the applicant.

PN199

MR D. GREGORY: I seek leave toe appear on behalf of the Australian Chamber of Commerce and Industry.

PN200

MR G.P. JOHNSON: I appear for the Australian Meat Industry Council, primarily in matter 2010/174 the Modern Meat Industry Award.

PN201

MS B. MURDOCH: I appear on behalf of (indistinct) Australia.

PN202

MR J. FETTER: I appear on behalf of the Australian Council of Trade Unions.

PN203

MR L. COX: I appear for the Australian Federation of Air Pilots.

PN204

MR S. MAXWELL: I appear on behalf of the Construction Forestry Mining and Energy Union, Construction and General Division.

PN205

MR M. PERICA: I appear for the CPSU.

PN206

MR A. KENTISH: I appear for the CEPU.

PN207

MR W. FRIDELL: With me is Mr J. Nucifora for the ASU.

PN208

MS V. WILES: I appear for the TCFUA.

PN209

MR M. MCLAY: I appear for the Health Services Union.

PN210

MS S. DESILVA: I appear for Workforce Victoria.

PN211

JUSTICE GIUDICE: Are there any appearances in another location?

PN212

MS J. GRAY: I appear for the CFMEU Mining and Energy Division in Sydney.

PN213

MR M. BURNS: I appear for the TWU in Sydney.

PN214

JUSTICE GIUDICE: Thank you. Yes, Mr McKenny.

PN215

MR MCKENNY: Your Honour, this morning I had a discussion with Mr Fetter about the further management of the applications and I'm aware as of this morning an application has been sent to the Tribunal.

PN216

JUSTICE GIUDICE: Yes, that arrived in my chambers. I'm not sure if it was intended to be filed but presumably it was.

PN217

MR MCKENNY: Perhaps Mr Fetter could address that but he made me aware of it and I have a copy, your Honour, of the document and its consistent with the matters that he raised on the last occasion that he wished to press in the applications.

PN218

JUSTICE GIUDICE: Yes.

PN219

MR MCKENNY: Your Honour, I did provide to Mr Fetter a copy of some proposed directions. If I could hand you a copy of what I provided to Mr Fetter this morning.

PN220

JUSTICE GIUDICE: Yes. Is something happening outside the window?

PN221

UNIDENTIFIED SPEAKER: There appears to be a significant fire at the top of the next building. I'm not sure if it poses any danger but we have sent someone to call the fire brigade, just to let you know.

PN222

JUSTICE GIUDICE: Yes. As long as you're undistracted, Mr McKenny.

PN223

MR MCKENNY: You can see the smoke and I can see the fire as well, so I'm distracted on two fronts. I can hand you a copy of the direction I gave to Mr Fetter this morning.

PN224

JUSTICE GIUDICE: Yes. Yes, I've read that.

PN225

MR MCKENNY: Your Honour, the purpose of the proposed direction one is to enable the applicant to continue its evidence gathering. Your Honour will be aware from the material that's been filed thus far there is not evidence in relation to all of the awards subject to the application and it’s a process that's ongoing and the applicant is seeking further time to provide that material, your Honour, by that date. It also would be convenient from the applicant's point of view if the other entities that support the applicant in these proceedings provided their material by that time as well.

PN226

The other factor, your Honour, that's emerged from my discussions this morning with Mr Fetter is he will be looking to have his application to have the matter, to use his words, struck out dealt with in the next month or so and what has been suggested to me, your Honour, by 5 November the ACTU would file its material in support of its application and then he is proposing that two weeks be given to the applicant and other parties to respond and then subject to the Tribunal's convenience and availability to have his application - the ACTUs application determined some time in December. Your Honour, as to whether that's convenient to the Tribunal is a matter for it, as to whether it deals with the application basis first or whether it hears it as part of the whole case is a matter for the Tribunal. But subject to what the Tribunal sees as the appropriate course, your Honour, if your Honour is minded to have the applications determined by the ACTU on the basis that's put by them, those directions I have handed to your Honour would still be workable in the event that the application by the ACTU is unsuccessful.

PN227

JUSTICE GIUDICE: Can I ask about the management of the case generally. A number of the applications have been withdrawn, what is the current number?

PN228

MR MCKENNY: Your Honour, on my calculations there was 81 awards, initially 16 have been withdrawn, so effectively about 64 awards, 64, 65 or thereabouts and if I put it this way, your Honour, we're half way there because we've got statements in relation to 32 awards but we don't have statements yet in relation to 33 of the awards. But that process has been ongoing, your Honour, since the matter was first lodged and further material is being obtained post the material that's been filed. So there are further statements that have not yet been sent to the Tribunal but there's further statements, your Honour.

PN229

JUSTICE GIUDICE: I suppose the issue that arises is whether it's practical to deal with applications to vary 64 awards and evidence in relation to each of those awards in one omnibus proceeding.

PN230

MR MCKENNY: Yes, your Honour, and Mr Fetter and I did have a discussion about that this morning how that might be managed, about whether it's clustered in some way so that certain parts of the case are dealt with in relation to particular awards. I think the ACTU have in mind by unions who are involved in awards and clustering it that way, your Honour. Obviously it is a practical matter and your Honour is looking for guidance as to how that would be managed, but I think your Honour it's going to be significant in terms of the time that might be required to deal with each of those awards, no doubt about that, because Mr Fetter has indicated to me he would be calling his own evidence, wanting to cross-examine some of our witnesses, et cetera, your Honour. But in terms of some - I am happy to have discussions with Mr Fetter about perhaps trying to get some agreed understanding about how the case would be managed to deal with the Tribunal's concern about that, but his idea of clustering by particular unions and particular awards might be one way in which we could progress the matter, your Honour. I would be happy to have some discussions with him to work out a sensible way to try and deal with it.

PN231

JUSTICE GIUDICE: What has often been done in cases which might be described as test cases, I don't know whether that's any longer an appropriate description, is to focus on generalities using a number of awards as a vehicle for that sort of focus. I don't know whether under the Fair Work Act that's still something that's appropriate or useful or indeed whether it's appropriate in this case, where there might need to be a decision in relation to each award as to whether the relevant statutory criteria are met for variation outside of a four yearly review. But I don't really want to do anything other than express some apprehension about a manageable process where we can all deal with it in a reasonably civilised way and - - -

PN232

MR MCKENNY: Yes, your Honour, and on the last occasion I think I told your Honour that from the applicant's point of view there are obviously certain principles that underpin the application that are common to all the applications, your Honour. Your Honour will need to be addressed on those issues as matters of principle, if I can use that term, in terms of how section 134 in particular operates and the criteria that the applicant has identified that we rely upon, your Honour, and to make submissions about that. It may be appropriate, your Honour, to have those matters determined on that level of principle and generality perhaps as a first step. But obviously then we have to descend into particular awards to make good the case, your Honour, in terms of the evidential burden. But I think your Honour I would try to manage it such that issues of general principle and the importance of those issues can be emphasised and then the Tribunal might then be in a position to determine, rule on those issues and then it might be a matter, your Honour, of looking at particular awards in more detail.

PN233

JUSTICE GIUDICE: The issue is there for further consideration.

PN234

MR MCKENNY: I am certainly happy to have dismissal with Mr Fetter to try and come to some agreed approach about that, subject to what the Tribunal may feel is appropriate.

PN235

JUSTICE GIUDICE: Thank you, Mr McKenny. Any other submissions about - are people aware of these proposed directions Mr McKenny has handed up to me? Have you seen them, Ms Gray and Mr Burns?

PN236

MS GRAY: No, we haven't, your Honour.

PN237

JUSTICE GIUDICE: Perhaps you might just read out what is involved so that it appears on the transcript.

PN238

MR MCKENNY: Yes, your Honour. The directions that the applicant proposes are these, firstly, provision of further evidence by the applicant and submissions and evidence from those organisations or entities in support of the applications to be filed by Friday, 17 December 2010. The second proposed direction is there be provision of submissions evidenced by organisations and entities opposed to the applications to be filed by Friday, 18 February 2011. There then be a direction number three that submissions and evidence in reply from the applicant and any other organisations or entities in support of the applications to be filed by Friday, 18 March 2011, and then proposed direction number four is the time tabling for the hearings of the matter by the Tribunal post-April 2011.

PN239

JUSTICE GIUDICE: Yes, thank you, Mr McKenny. Perhaps I should turn to you next, Mr Fetter, because of the issue concerning your application lodged this morning and how you propose that should be dealt with.

PN240

MR FETTER: Yes, your Honour. This morning I provided to your Associate what was a draft application for these applications to be struck out, to use language that I used at the mention. I did intend to sign the application and file it properly with Fair Work Australia at the end of these proceedings but I understand that your Associate has quite helpfully posted the draft application on the website, so the parties in Sydney in particularly would access it. I'm not sure if you are able in Sydney to - if they are able to see a copy of the application but in any event I can go through it orally quite quickly and I also note that it's materially in conformity with the outline that I've provided at the mention I think on 24 August which is to say that the ACTU seeks to have the whole of the current proceeding struck out by the Tribunal, that's language of course borrowed from juridical proceedings but we do refer to the power in section 587 of this Tribunal to dismiss an application on particular grounds and we also rely in the alternative or in addition on the general power of the Tribunal to refrain from hearing matters in the sense of implementing a permanent stay on proceedings, or else to dismiss an application on the grounds of an abuse of process.

PN241

We say that those powers are inherent or come out of fair statutory provisions of the Acta and we are happy to canvas that in our written submissions. The order we are seeking is that the matters that are still on foot, although there is some uncertainty about which matters they are, that the Tribunal refrain from hearing those matters and/or dismiss those applications without receiving further evidence from the respondent, and of course that's the respondent to our application for the strike out. The context, your Honour, of why we say that this matter should be dealt with without hearing further evidence is that at the mention, as we said, we outlined the grounds on which we would proceed to have the matters struck out.

PN242

Your Honour then made a direction that VECCI should file an outline of its submissions, together with the witness statements an other material on which it would seek to rely, and so we understood that direction essentially as asking VECCI to show its hand in relation at least to the written material and the evidence on which it will rely in the case. So VECCI has had a full opportunity to put the basis of its case. Of course if this matter were to proceed to full hearing they might seek to call some of those witnesses and have further oral evidence, but in our view assuming that VECCI has fully complied with the direction they have put in all the material on which the case ought to be based and on which we are entitled then to bring our strike out application.

PN243

JUSTICE GIUDICE: I think they've said that they haven't.

PN244

MR FETTER: Your Honour, I did hear Mr McKenny say that and in that case there seems to be an admission of non-compliance with the direction because we did read that direction as asking you are to put, as far as possible, the written case on which it relies so that we could then process the strike out. If VECCI are allowed to keep dribbling in evidence then at what point will we be able to bring a strike out application on the basis that the evidentiary case that the applicants are bringing is so hopeless that it could never result in an order in their favour. In any event, your Honour, as I go through the grounds you will actually see that two of our grounds do not rely on reference to the witness statements and other evidence that VECCI have put in.

PN245

So that is another reason why we say it's proper to consider our strike out application before moving to consideration of the material, whether it's complete or not, that VECCI have put in to date. So we have listed three grounds which were adverted to at the mention. I might start with the second ground because in a sense it's the easiest. We assert the respondent does not have standing to bring certain of these applications because it lacks standing within the meaning of section 158, item 1 of the Fair Work Act. If it's the case that the applicant does not have standing in relation to those awards then it's clear it cannot bring these applications. I believe following the mention VECCI were asked to spell out in submissions some detail of their entitlement to represent employers covered by the award.

PN246

We concede they have put in some material that satisfies us of their eligibility in respect of some of the awards but not all of the awards and what we propose is that VECCI be given a further opportunity to put in evidence only in relation to this issue of standing in order to satisfy the Tribunal that it does indeed have the capacity to bring all of the applications that it has moved. Of course if it does satisfy the Tribunal it has standing in respect of every award then this ground of our strike out application won't be made out, but we do suspect that there are a number of awards at least in respect of which VECCI does not have a properly enrolled member who is covered by the award.

PN247

Although it's normally a burden for the applicant, your Honour, to establish that particular grounds are made out, in the circumstances of this ground the knowledge of whether a person is or isn't a member of VECCI lies with them and its difficult, if not impossible for us to ascertain so we suggested it's appropriate that they be put to further proof as to their coverage of various employers. I have some proposed directions which can go to that. Turning then to the second ground, which is listed first on our draft application, we seek to have the entirety of the applications that may remain after any issues of standing are dealt with struck out on the basis the respondent to this application, the applicant in these proceedings is essentially seeking to re-litigate matters that it had an opportunity to engage with during the award modernisation process in circumstances where rulings were made on the substantive issue in this case, which is what the appropriate minimum shift entitlement should be under each award and now they are seeking inappropriately to re-litigate these matters.

PN248

In our written submissions we will flesh out our view that this Tribunal has the power to control such an abuse of process, either specifically under section 587 of the Act or under a broader power relying on other provisions of the legislation to prevent an abuse of process. So this is the second matter, your Honour, that I said would not need reference to the witness statements that we've filed, although some evidence will need to be put in by both sides about the award modernisation process, what was put to this Tribunal and its predecessor and what rulings were made. But no evidence in terms of witness statements from employers will be needed. The third ground on which we base our application is, as I said, on our understanding that the applicant VECCI have been asked to show the full evidentiary case which they seek to put, leaving aside questions of witness evidence, but certainly on the basis of the evidence that's been filed to date it's our contention that the case is hopeless and is bound to fail in the sense that the evidence put in could not move the Tribunal to vary the awards in the way that VECCI is seeking.

PN249

Given that there are no reasonable prospects of success on the basis of the evidence put in, we seek to have the matter struck out. I acknowledge that Mr McKenny has suggested that there is further evidence to be put in, but this goes back to the question of what was the point then of the mention and the direction to put in evidence, and also to the extent that the applicant wishes to put in more evidence it's hard to see, although it's a matter for Mr McKenny, whether the evidence would just be a repeat of what we have which are template witness statements from employers that include material that is irrelevant, that is inadmissible and to the extent that it does constitute evidence is of extremely limited weight.

PN250

So if that is all the applicant were seeking to put in, more of these witness statements in relation t other awards, we would say there is essentially no point, your Honour, because that would not improve the applicant's evidentiary case. It might broaden it in the sense of how many awards they would then have evidence for and we acknowledge that at the moment there is no evidence at least in relation to 29 awards that are the subject of applications but it would certainly not deepen the evidence. We say that in the absence of any deepening of the evidence this case is bound to fail. The applicants have had an opportunity to put in the best evidence they could collect within a six or eight week period which we contend is a fair period and this is the best that they have been able to come up with and on that basis we shouldn't be delayed as the applicant suggests until April next year waiting for the applicant to try and collect some better evidence if in fact its just going to be more of the same.

PN251

So, your Honour, given as I said that two of our grounds for having these matters struck out do not relate to the witness statements put in by the applicant we think that it's most appropriate the Tribunal hear our strike out application in advance of the substantive hearing of VECCIs applications. Of course if our strike out motion is successful there will be no need to proceed to hearing of the case, but if we are unsuccessful then we are content to proceed in the matter which Mr McKenny has set out.

PN252

If the Tribunal is minded to bring the strike out application forward for hearing, then as Mr McKenny suggested we would be happy with directions along the lines that the applicants and those supporting the applicants for the strike out have two weeks to put in any submissions and evidence on which they are relying in relation to the strike out, that those opposing the strike out have an equivalent period of time, taking us to 19 November to respond, and in that response, your Honour, I would expect that VECCI would then put in further evidence as to their entitlement to represent employers covered by all of the modern awards that are the subject of its applications. We would then be able to have a hearing some time in December at the Tribunal's pleasure to address these issues.

PN253

JUSTICE GIUDICE: Why would you call evidence on a strike out application?

PN254

MR FETTER: Your Honour, it wouldn’t be evidence going towards the merits of the case, it's simply - - -

PN255

JUSTICE GIUDICE: No, any evidence.

PN256

MR FETTER: Your Honour, there is some - in a sense it is a concession to VECCI that at the moment they have made applications in relation to approximately 30 awards without giving any evidence as to their entitlement to bring the case. We put them on notice that we challenged their entitlement to bring the case and they haven't put in any evidence. So as a concession to VECCI we would not object to an order that they be permitted to provide further evidence only on that ground. However, of course, if the Tribunal was of the view that the failure to submit evidence in relation to any award would be treated in a sense as failing to meet the threshold for establishing eligibility to bring the application then it is correct that we would not need to actually put that issue to proof.

PN257

JUSTICE GIUDICE: The point of my question was that strike out applications usually are brought on the basis that on the face of the application, or applications in this case, they couldn't succeed. Normally courts don't determine questions of fact in such an application. Once you get into evidence you're getting into the body of the proceeding, so the point of a strike out application is lost. So the suggestion we're going to have some mini preliminary proceeding which takes evidence about what happens in modernisation or what areas of coverage VECCI has or other related questions really destroys the whole point of a strike out application which is you simply say this is what's been filed, the application can't succeed. It seems to me if you need to call evidence in relation to that you are really losing the whole point of the strike out application, you're hearing half the case and I don’t think that’s appropriate.

PN258

MR FETTER: Yes, your Honour, in fact again going over our grounds the first ground would require no evidence of any sort be led.

PN259

JUSTICE GIUDICE: Yes.

PN260

MR FETTER: The second ground perhaps is not an independent ground to have the application struck out but is made - could be recast as a submission that VECCI have failed to establish the threshold issue in relation to at least a number of awards, that is to establish that they have eligibility to bring the applications that they have. If the Tribunal were prepared to rely on the material that's been filed today then that submission could be pressed without further evidence. So there are two grounds that wouldn’t require any evidence. The third ground would require some evidence about what happened in award modernisation, and so your Honour to deal with your point it may then be appropriate that just the first two grounds of our application are dealt with in any strike out motion that is brought forward and that the third ground be considered if the first two grounds are unsuccessful, if there's any full hearing of the case given that it will require traversing some of the evidentiary issues, only in relation to what was said in past proceedings, not in relation to the merits or otherwise of the applicants' applications in relation to the minimum shift entitlement. I would then suggest to the Tribunal the first grounds could be dealt with without evidence in advance of any further hearing of the case.

PN261

JUSTICE GIUDICE: I'm sorry, Mr Fetter, I didn't quite understand what submission you were putting about the timing of dealing with your application. What is your preferred timing on dealing with it?

PN262

MR MCKENNY: Yes, your Honour. Our proposal is that at least these first two grounds be brought forward, that the applicants for the strike out and those supporting a strike out be directed to file submissions by 5 November, that those opposing the strike out be directed to file their material by 19 November and that the matter be set down for oral argument some time in early December at the Tribunal's convenience. At that point if the first two grounds of our application were successful and sufficient to have the matter struck out, then clearly that would be the end of the case. But if we were unsuccessful on the first two grounds we would not oppose Mr McKenny's suggestions for further time tabling of the case and our third ground for the strike out could then be considered at the same time that the Tribunal was receiving evidence and material in relation to the substance of the applications.

PN263

I should say I share your Honour's concern about the management of such a big case. It's our preliminary view that should this matter proceed to substantive hearing there is really no other way to get around this except to have some examination, if not award by award but at least cluster of awards by cluster of awards so that the question of whether or not the variation is necessary in the circumstances of a particular industry or class of workers can be contested. So although we are in the Tribunal's hands it would seem that given the number of awards involved these matters would have to be split up and sent to single members of the Tribunal to deal with and perhaps for instance you might cluster together all of the awards in which the one union had an interest so that there could be a group, but that is only a suggestion and of course it is subject to the submissions of other parties.

PN264

Perhaps also there would be utility in having some general submissions by the peak councils at the commencement of that process because there would be matters that would be common to all of the applications, but we can't see any way around having some process of award by award examination of the merits of the claim. At the end of that process, your Honour, obviously we would be seeking a decision on the third ground of our strike out application along with a decision on the merits of the case, and of course if at that time our third ground was upheld then the case could be disposed of without reference to any further material.

PN265

JUSTICE GIUDICE: Mr Fetter. Before asking for other submissions about the program, Mr McKenny, could I come back to you for a moment. I don't now clearly recall the basis on which the direction was made that your client file witness statements and other material on which it will seek to rely by 8 October.

PN266

MR MCKENNY: Yes, your Honour.

PN267

JUSTICE GIUDICE: I think that possibly there as general agreement with that or whether that was a date proposed by you at least.

PN268

MR MCKENNY: Yes, your Honour, I indicated the time table would probably take about four to six weeks from memory, your Honour, and I opted for a longer period and your Honour was able to give us until 8 October. Your Honour, the situation is that we don't have all the evidence we would like to bring, so we are seeking further time on that, your Honour.

PN269

JUSTICE GIUDICE: Is that all you've got to say about that issue?

PN270

MR MCKENNY: We would like to have a further opportunity, your Honour, to bring evidence in relation to those other awards. I accept that was the direction to put what material we had but the way it's turned out, your Honour, is more time is needed for the organisation to garner additional evidence.

PN271

JUSTICE GIUDICE: How many awards have been dealt with in the material that's been filed?

PN272

MR MCKENNY: My calculation, your Honour, is there are statements affecting 32 of the awards and there is no evidentiary material in relation to 33 of the awards, your Honour, and the other 16, your Honour, have been withdrawn.

PN273

JUSTICE GIUDICE: Is it proposed that any further directions that might be made would apply to the 33 awards in relation to which no statements have been filed or is it anticipated that more material might be filed in relation to which some material has already been filed.

PN274

MR MCKENNY: Your Honour, I'm aware that post 8 October there are some more statements that have been prepared in relation to the existing awards in which there is material. Your Honour, it is my expectation there will be further statements coming in about the awards we've already got evidence in. My concern obviously, your Honour, representing the applicant is to have an opportunity if the Tribunal is minded to focus principally on obtaining material in relation to the awards where there is no evidence currently. But there will be some additional evidence in relation to the awards where there is already material filed. But I can assure the Tribunal that if given the further opportunity, your Honour, the evidence will be obtained in relation principally to the 33 awards.

PN275

JUSTICE GIUDICE: Thank you. I will ask now for any other submissions about the program and any other relevant matter. We might start with the other employer representatives for the sake of having some system. Mr Gregory, do you have anything to say

PN276

MR GREGORY: Your Honour, we don't have anything further to put at this stage in response to what Mr McKenny has put, we are happy to rely upon the submissions he has put before the Tribunal.

PN277

JUSTICE GIUDICE: Yes, thank you. Mr Johnson.

PN278

MR JOHNSON: I think our position is much the same, although I hear what has fallen from your Honour that it is very peculiar having regard to some of the cases that have been referred to in some of the submissions, such as the CPSU at how you could strike out a matter when evidence has been filed. But that's a matter for the Tribunal. Concerning the management of the matter, that's a matter for the applicant and the Commission, but I should say in one particular matter, and it's the only one I represent really which is the Meat Industry Award. While there is no evidence there is a history in the matter whereby at a great period of time in relation to certain casual groupings there was a two hour casual spread of hours or limit that one could use. It appears in the simplification process in the meat industry in 2000 that escaped through that cracks, so to speak, and it wasn't picked up in the award modernisation process. But having regard to the history going back the last two, three decades there was that limitation of two hours in the awards and it may be relevant at some stage to bring that to the attention of the Commission should the matter go forward.

PN279

JUSTICE GIUDICE: Any other employer submissions?

PN280

MS MURDOCH: Nothing else from us at this time, your Honour.

PN281

JUSTICE GIUDICE: Very well, perhaps we might - yes, Ms DeSilva?

PN282

MS DESILVA: We make a submission on behalf of Workforce Victoria which has public sector awards that apply in the public sector, that we (indistinct) in the Victorian government which will start on (indistinct) and so that they would (indistinct) to make submissions after (indistinct).

PN283

JUSTICE GIUDICE: You can say what the start of the caretaker period is, that's 2 November is it?

PN284

MS DESILVA: 2 November, and the (indistinct) to be held on 22 November and depending on the outcome of that (indistinct) so it will have to be around December.

PN285

JUSTICE GIUDICE: We have had recent experience with estimates of that kind.

PN286

MS DESILVA: Indeed.

PN287

JUSTICE GIUDICE: Thank you, Ms DeSilva. Yes, Mr Perica.

PN288

MR PERICA: If ever there was a case with public sector exceptionalism it's this, your Honour, given the caretaker mode. I need just to add to Mr Fetter's argument on your point of why you need to do a strike out application after evidence has been filed. It's really a function of the way the procedure of this proceeding has been done in circumstances where they said we've done 32 and there's 33 to come, you don't know what purports to be evidence until the evidence is filed. In those circumstances it's common in 587 proceedings and their predecessor in the previous iterations of the act that there is evidence before the Tribunal when these applications are made. It doesn't have to be made at the time the application is in, but after what passes for evidence is filed we don't know whether or not reasonable cause has been made until what passes for evidence has been filed. In those circumstances as a matter of logic what you say is true, but it's just a function of the way the process of this proceeding has been run so far. As far as our position is I mean we don't want to be the fifth wheel in these proceedings, we will comply with the directions as Mr Fetter has sight. We would like to meet a case, we just don't know what it is at the moment in relation to the matter of our award, 198 of 2010. We support Mr Fetter's submissions, so we will be making our own submissions that will be consonant with the program that Mr Fetter - thank you.

PN289

JUSTICE GIUDICE: Thank you. Yes, Mr Maxwell.

PN290

MR MAXWELL: Thank you, your Honour. Your Honour, generally the CFMEU Construction and General Division supports the submissions of the ACTU in regard to the strike out application. I would just like to briefly respond to the directions sought by the application should the strike out matter not proceed. We oppose the directions put forward by the applicants. We do not believe they should be given any further time to provide witness evidence. We note that these applications were made on 1 August of this year. We are now three months down the track and they failed to provide evidence in regard to a number of those applications, and indeed the evidence that has been provided in regard to a number of the awards is at best flimsy, at worst irrelevant to the actual applications that are before your Honour.

PN291

JUSTICE GIUDICE: I am not actually hearing that application today, Mr Maxwell.

PN292

MR MAXWELL: Sorry?

PN293

JUSTICE GIUDICE: I'm not actually hearing that application today.

PN294

MR MAXWELL: I understand that, your Honour, but in terms of the directions we oppose the applicant be given further time. We submit that the applicant should be required to provide full submissions within a fortnightly period and then we proceed on that basis. The other point I would make in regard to the directions sought by the applicant, obviously if the applicant is seeking to wait until April 2011 to have the matter heard there is no urgency to this application and we fail to see why these applications cannot then be dealt with in the two yearly reviews of the modern awards that will then be due to commence within the next six monthly period.

PN295

JUSTICE GIUDICE: Don't remind me about that, Mr Maxwell.

PN296

MR MAXWELL: We do have some concerns that this could then lead to a flood of applications before the Tribunal where parties I suppose seek to start adding material that they then wish to rely on in two yearly reviews, and that's the extent to which we see a possible abuse of process, but they are the submissions we wish to make.

PN297

JUSTICE GIUDICE: Yes, thank you Mr Maxwell.

PN298

MR KENTISH: If your Honour pleases.

PN299

JUSTICE GIUDICE: Yes, Mr Kentish.

PN300

MR KENTISH: The CEPU is supportive of the program suggested by Mr Fetter, we have nothing further to add.

PN301

JUSTICE GIUDICE: Thank you, yes Mr Cox.

PN302

MR COX: Similar, your Honour, we would support the general direction and thrust of Mr Fetter's application.

PN303

JUSTICE GIUDICE: Is there any disagreement with the ACTUs position?

PN304

UNIDENTIFIED SPEAKER: Not from the (indistinct), your Honour, and we concur with all the (indistinct) so far.

PN305

MR MCLAY: Nor from the HSU, your Honour.

PN306

JUSTICE GIUDICE: Thank you, Mr McLay. Yes, Ms Wiles.

PN307

MS WILES: Similarly from the TCFUA, your Honour. I just add that we also oppose the directions put by VECCI. In our view VECCI chose to file applications in relation to 80 modern awards, it should have been quite obvious to it what the evidentiary burden was going to be in proving those applications. I can only use an analogy that's used in criminal jurisdictions which is where prosecutions kind of throw the hamburger with the lot, hoping that some of the charges might stick and we say that in an industrial context this has been a similar process. So yes, we do support the time table put by the ACTU.

PN308

JUSTICE GIUDICE: Thank you, Ms Wiles. Anybody else in Melbourne. Ms Gray, do you have any submission to make?

PN309

MS GRAY: This is only on the proposed programming I take it, your Honour?

PN310

JUSTICE GIUDICE: Yes, and anything else you think is relevant at this stage but mainly it's an issue of programming and perhaps future directions, yes.

PN311

MS GRAY: Your Honour, we support what the ACTU has put except where Mr Maxwell dithered in terms of programming. We support what Mr Maxwell has said. We note that in the transcript at paragraph 164 your Honour made it clear to VECCIs representative that the better course was for the outline of submissions and all of the material VECCI was going to rely on to be put and Mr McKenny at 169 said that's acceptable to the applicant. The two awards my division of the union are interested in, your Honour, which remain subject to the application are 2010/155 which is the Electrical Power Industry Award and 2010/178 Oil Refining and Manufacturing. There has been no material relevant to those awards.

PN312

There has been no evidence or submissions placed by VECCI which demonstrate that it is an organisation that is entitled to represent the industrial interests of one or more employers or employees who are covered by the modern awards that we're interested in so we don't think they should be given more time, your Honour. We think the Tribunal should determine at least in respect of the two awards that I make submissions in respect to that should refrain from further hearing those matters without the requirement to have further material put in. There is one issue of general application, your Honour, which I would raise now because although depending on whose submission on programming finds favour with the Tribunal I don't want an issue to be raised later which will then put things back and simply inconvenience all of the parties. We're of the view, your Honour, that on the basis of the submissions made by VECCI that the application has not been made with proper authority of VECCI.

PN313

We note that its specific power of the board of directors under VECCIs rules which is identified page 8 of VECCIs submissions - sorry, page 9, "The board of directors may, by resolution, give the consent of the organisation to the lodging of any documents under the Workplace Relations Act 1996 or like Act." We also note that at paragraph 49, your Honour, that VECCI discloses that a resolution was passed on 30 September 2010 endorsing the recommendation. I don't know what recommendation, but that the applications be pursued in Fair Work Australia. You can't, on my submission, your Honour, retrospectively authorise an action that's a specific power of the board of directors and if that authorisation was made on 30 September the applications were made on 1 August, so we say they haven't been made with proper authority and we raise that now so if VECCI wants to remedy that failing in its application in accordance with its rules that it do so without delaying any programming that is eventually made.

PN314

JUSTICE GIUDICE: Mr Burns.

PN315

MR BURNS: Your Honour, the TWU supports the submissions of Mr Fetter from the ACTU. We do note some concern with the stretching of the VECCI time tabling out into next year, the concern being we're just going to be embarking on an endless process of award variation, rehashing what was already dealt with in the modern award process at the start. But to the extent of the time table for the immediate application my view is no further evidence should be filed. The strike out application should proceed immediately in accordance with Mr Fetter's direction and that's all I have to say.

PN316

JUSTICE GIUDICE: Thank you. Any other submissions? Yes, Mr Fetter?

PN317

MR FETTER: Your Honour, would be able just to clarify one thing in relation to our third ground. As set out in the draft application that ground is predicated on the assumption that the process to date has been that VECCI lodged their applications. There was a mention. At the mention the ACTU advised the Tribunal that it wished to bring a strike out application. In response your Honour directed the applicants to put in certain evidentiary material and it's our belief that that direction was made so that we could see VECCIs case and that we were entitled then to make a decision on the strength of the material put in as to whether we would seek to have the case struck out on the basis that the material does not disclose a reasonable hope of success.

PN318

The fact, your Honour, there is material at all in this case is because that was the process taken by this Tribunal. Otherwise we would have insisted that the matter proceed straight to a strike out in the absence of any evidence. But we understood that your Honour thought that VECCI should disclose their case as much as that case could be put in writing. So we read the second direction or the direction in paragraph 2 of your Honour's statement as comprehensive. It directs VECCI to file its submissions together with other material on which it would seek to rely and what is missing of course is rely in the substantive hearing of the applications. We have then crafted the third ground of our application on the view that your Honour has asked VECCI to put its entire case or at least its entire written case and having done that we are then entitled to add a ground to the strike out application along the lines that the evidence disclosed to date shows no hope of success for VECCI and on the basis of the material we've seen we do press that case, we don’t think the Tribunal should sanction VECCI putting in any further evidence.

PN319

They appear not to have complied with the direction made and it would be unfair in the context of the circumstances in which the direction was made, which was to allow the ACTU to decide whether to press this claim for them to put in further evidence. So in summary, your Honour, that third ground there appears only because your Honour directed VECCI to put in certain evidence. We would have been prepared to run the strike out on the first and second grounds, and in fact I adverted to that at the mention. It is simply because your Honour asked VECCI to produce some material that we now believe we have a third ground. But of course that will only hold if your Honour holds to the direction that no further evidence - that VECCI should not have a further opportunity to put additional evidence. They have been asked to show their hand, they have revealed what they've got and we're entitled to bring a strike out on the basis that the evidence put in in a very generous time frame could not meet the statutory tests.

PN320

JUSTICE GIUDICE: It might be one thing to say a party is in breach of a direction to produce material, it doesn't necessarily follow that they shouldn't be given some further opportunity to produce material. It does happen fairly often, Mr Fetter, in cases and it may be that even the ACTU has occasionally asked for an indulgence to file further material.

PN321

MR FETTER: Yes, your Honour, I accept that this Tribunal can waive non-compliance with the direction and give a further opportunity to VECCI but the point is that it may be unfair on us given that we did advise that we wished to bring a strike out application and it was then a direction of the Tribunal that that application not be progressed on the papers as it were, but that VECCI would be allowed to put in evidence. If we are now precluded from bringing a strike out application or if we're somehow prejudiced because evidence has been put in, then it does seem to be unfair in that we're in a worse position than we would have been if we had moved straight from a mention into strike out application.

PN322

JUSTICE GIUDICE: Yes, all right. Anything else? Yes, Mr McKenny.

PN323

MR MCKENNY: Just briefly, your Honour. I want to emphasise that in terms of the further evidence that will be provided if the Tribunal provides us with that opportunity, your Honour, it will be of the same flavour, it will just be in relation to different awards. We know the evidentiary task in front of us in terms of 134 and we will try and identify material relevant to those issues, your Honour. We won't be seeking to do anything that will come as any surprise or is different in the themes, your Honour, in that further evidence and the ACTU and the Tribunal will have seen what we have produced thus far, your Honour. So that is I think a point that should be emphasised. Your Honour, I don't intend to respond to some of the issues raised by some of the other participants today, your Honour, but I will in due course should it be necessary.

PN324

JUSTICE GIUDICE: Yes, very well. I should indicate I intend to constitute a Full Bench to deal with these applications and that the members of the Bench will be provided with obviously all of the material to date, including the transcript of the two mentions and that Full Bench will in due course issue directions based on that material. If there was a submission the Full Bench should sit separately to effectively hear what has been put today, then obviously I would entertain that or the Full Bench might entertain it, but it seems to me the most practical course is to simply get the Bench to look at all the material and what people have said and then issue some directions or take some further step as it is best advised. Does anybody think that procedure is unsatisfactory or otherwise worthy of criticism? Very well, thank you all for your assistance. I apologise for the late start but it was unavoidable and I will now adjourn.

<ADJOURNED INDEFINITELY [11.40AM]