TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 27543-2

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

9.31AM, TUESDAY, 24 AUGUST 2010

PN1

JUSTICE GIUDICE: Could I have the appearances, please.

PN2

MR M. McKENNEY: If your Honour pleases, I seek permission to appear on behalf of the applicant.

PN3

JUSTICE GIUDICE: Mr McKenney.

PN4

MR C. ISSA: If it pleases your Honour, Issa, initial C., appearing on behalf of MGA.

PN5

JUSTICE GIUDICE: Mr Issa.

PN6

MR J. FETTER: Joel Fetter seeking leave to appear on behalf of the Australian Council of Trade Unions and a number of affiliates who've advised by letter that they wish to be represented by the council, your Honour.

PN7

JUSTICE GIUDICE: I think we've got letters from the TWU; CFMEU, Mining and Energy; National Union of Workers; Australian Manufacturing Workers Union; the AWU; LHMU; and the Textile, Clothing and Footwear Union.

PN8

MR FETTER: Yes, I think that's the complete list at this stage.

PN9

JUSTICE GIUDICE: Yes.

PN10

MR D. COLLY: If your Honour pleases, Colly, initial D., appearing for the Australian Education Union.

PN11

JUSTICE GIUDICE: Yes, Mr Colly.

PN12

MR N. BLAKE: If your Honour pleases, Blake, initial N., for the Australian Nursing Federation.

PN13

JUSTICE GIUDICE: Mr Blake.

PN14

MR M. GALBRAITH: If your Honour pleases, Galbraith, initial M., for the SDA.

PN15

JUSTICE GIUDICE: Mr Galbraith.

PN16

MS R. READ: If your Honour pleases, Read, initial R., for the CFMEU, Forestry Division.

PN17

JUSTICE GIUDICE: Yes, Ms Read, thank you. Yes?

PN18

MR J. NUCIFORA: If your Honour pleases, I appear for the Australian Services Union, Nucifora, initial J, with MR FRUDELL.

PN19

JUSTICE GIUDICE: Yes, Mr Nucifora. Anybody else in Melbourne? Yes, I'm sorry?

PN20

MS E. MURDOCH: Yes, on behalf of the Master Builders Association of Australia, Murdoch, initial E., from the Master Builders Association of Victoria in support of the application by VECCI this morning.

PN21

JUSTICE GIUDICE: I'm sorry, I didn't catch that last bit.

PN22

MS MURDOCH: In support of the application by VECCI.

PN23

JUSTICE GIUDICE: Thank you. Any other appearances in Melbourne? No? In Sydney?

PN24

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

PN25

JUSTICE GIUDICE: Yes.

PN26

MR D. MAKINS: If your Honour pleases, Makins, initial D., from the Australian Federation of Employers and Industries.

PN27

JUSTICE GIUDICE: Yes, Mr Makins. Are there any objections to the appearances and the application for permission to appear? Very well. Mr McKenney, these applications have been listed today to provide me with some information so that decisions can be made about how the applications are to be dealt with. So I'd be interested in your ideas about that first, obviously.

PN28

MR McKENNEY: Certainly, your Honour. What VECCI would like to do, your Honour, is to put together some material over the coming months by way of evidence in support of its application. It would then provide that to the tribunal and to the other parties. And what VECCI has in mind, your Honour, is to have a further mention, perhaps listed in late September, so that once the other parties and the tribunal have the material, it can then decide on issues of the programming in terms of the future hearing of the applications.

PN29

I can say, your Honour, that because there's a large number of applications - that VECCI would identify those awards upon which it would focus for the purposes of the application and try and therefore give some realistic management to the applications being heard. But the tribunal and the other parties would be in a better position to understand that once that exercise has been gone through and VECCI has identified the awards it would focus on and garnered the material that - it already has commenced, I must say, your Honour, in terms of VECCI getting from its constituent members material that would support the applications for variations.

PN30

So that's broadly what the applicants have in mind in terms of the disposition of the matter in terms of the evidence-gathering exercise and then the further programming of the matter.

PN31

JUSTICE GIUDICE: One matter of administrative importance is how you intend to make various interested parties aware of the applications and also any material you file. We're no longer in an environment where parties are identified with the facility that they once were. So it's important that anyone with an interest is aware of the applications and the relevant material - indeed, any directions. So I'd be interested in your views about that at some stage.

PN32

MR McKENNEY: Yes. I think that's what sits in our minds, that we probably could do that conveniently, your Honour, in between now and perhaps if there's another mention, as to how that might be achieved.

PN33

JUSTICE GIUDICE: Yes.

PN34

MR McKENNEY: But certainly my client will consider that.

PN35

JUSTICE GIUDICE: Yes. Well, there's potentially a very large number of people affected.

PN36

MR McKENNEY: Yes.

PN37

JUSTICE GIUDICE: It may not be as easy to identify as - if we have a list of respondents or something like that.

PN38

MR McKENNEY: Yes, your Honour.

PN39

JUSTICE GIUDICE: Yes, all right. Thanks, Mr McKenney. Mr Issa, do you have anything to say about the position?

PN40

MR ISSA: If it pleases your Honour, MGA has (indistinct) supported an application to intervene as of yet. However, should your Honour so choose to hear this matter, we would request that MGA be granted permission to seek leave to intervene after the decision that has been made in 210, 4310 and 4432.

PN41

JUSTICE GIUDICE: Which awards are they?

PN42

MR ISSA: The General Retail Industry Award, in relation to the hearing that was last week.

PN43

JUSTICE GIUDICE: Yes.

PN44

MR ISSA: We support the application by VECCI in relation to the General Retail Industry Award. That's as far as I (indistinct)

PN45

JUSTICE GIUDICE: Very well.

PN46

MR ISSA: Thank you.

PN47

JUSTICE GIUDICE: Ms Murdoch, do you have anything to say at this stage?

PN48

MS MURDOCH: Only, your Honour, that we wish to support the application in relation to the Building and Construction General On-Site Award by VECCI this morning and also in relation to the Joinery and Building Trades Award, which is MA000029.

PN49

JUSTICE GIUDICE: Mr Makins, do you have anything to say about the situation?

PN50

MR MAKINS: Not much, your Honour, other than supporting the submissions made by Mr McKenney today on behalf of VECCI and the submissions made in respect of timetabling this matter. AFEI will support those submissions. Thank you.

PN51

JUSTICE GIUDICE: Yes. What's the extent of AFEI's interest in the application?

PN52

MR MAKINS: Your Honour, we have a number of members affected by the awards that have been listed and certainly our members would have significant views on the proposals and the inflexibilities that those proposals could represent.

PN53

JUSTICE GIUDICE: Yes. Well, in due course there'll be a need to identify perhaps a bit more precisely what AFEI's interest is, but there's no need to do that this morning.

PN54

MR MAKINS: Thank you, your Honour.

PN55

JUSTICE GIUDICE: Are there any other employer representatives that appear? Perhaps Mr Fetter, I might turn to you first.

PN56

MR FETTER: If it pleases your Honour, we object to this application. In our submission, it's fundamentally misconceived; indeed, so flawed that we wish to apply for the matter to be struck out before any further hearing, and I can briefly indicate the three grounds on which we think that the application is flawed.

PN57

First of all, it's not clear to us how the applicant has standing in relation to a large number of these awards. Under section 160 - your Honour, section 158 item 1(b), which appears to be the relevant provision of the Fair Work Act under which the applicant is proceeding, the applicant needs to be an organisation that is a registered organisation that is entitled to represent the industrial interests of one or more of the employers that are covered by the modern award, and a quick look at VECCI's eligibility rule suggests that it's principally confined to the clerical industry, with some other coverage, and so - - -

PN58

JUSTICE GIUDICE: I don't think that's exactly what it says.

PN59

MR FETTER: Well, no, your Honour - - -

PN60

JUSTICE GIUDICE: It's employers of clerks more, isn't it, even though the industry may not be the clerical industry. But, anyway, perhaps that's a matter for argument.

PN61

MR FETTER: Yes, there is an industry rule and the eligibility rule then attaches to the industry, but it's our - I mean, in any strike-out application - I mean, we submit it's incumbent upon VECCI to establish its eligibility anyway to bring the application that is brought. And in relation to a whole host of the awards listed, without any further material from VECCI, we struggle to see how they are entitled to bring the application. That's the first ground.

PN62

The second ground is that the application ought to be dismissed under the tribunal's discretion to dismiss an application which is an abuse of process, and we don't think that that discretion is limited by section 587 of the act. It's our submission that public interest considerations are at play here, in that the substance of this matter, which is minimum shift engagements for casuals and part-timers, were traversed very recently in the making of the modern awards.

PN63

In some cases VECCI and its members actively made submissions in these matters and there were rulings adverse to their interests, and we say that, as a matter of the public interest in certainty of decision-making, VECCI should be precluded from bringing these applications to relitigate an issue that they have already run and lost.

PN64

In other cases - and we say that the issue is that they had a full opportunity to put these matters to the tribunal in award modernisation and, indeed, they failed to take the opportunity to make those submissions and now it's against the public interest to allow a party to appear here and seek to make good on errors or omissions that were made in the process. So, in brief, that's our second ground.

PN65

The third ground on which we seek to have the application struck out is that, pursuant to section 587(c) of the act, there are no reasonable prospects of success in this case. First of all, to the extent to which the application is said to be made under section 160 of the act, which permits Fair Work Australia to make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error, we say that there's nothing on the face of the application which discloses any ambiguity or error. On the face of the awards, their only complaint seems to be that there is some dissatisfaction with the way in which awards are operating in the businesses covered by the award and that the employers would prefer if the awards had some different content. And it would be our submission, when we have an opportunity to make it in full, that that does not constitute an ambiguity within the meaning of the section. Indeed, your Honour, this provision cannot be used for a party to try and run a merits based case.

PN66

The second way in which we say the case is hopeless and has no reasonable prospects of success is in relation to the other ground under which VECCI is proceeding, which is section 157 of the act, which allows Fair Work Australia to vary awards in between the four-yearly review period if it is necessary to achieve the modern awards objective. We say that there is no arguable case here that it is in fact necessary, but this goes back to the question of how this case relates to some other applications which have already been heard in relation to the same issue. Just last week, as your Honour would know, we were here running a very similar case in which questions of what that word "necessary" means were in play and, indeed, a case in which the merits - the underlying merits of whether awards should or should not contain minimum shifts were in play.

PN67

So, although we will be making a full application that the application here under section 157 is hopeless, we do think there is some merit in Mr McKenney's suggestion that the hearing of this case, including the strike-out application, be put off by some period of time in order to await the decision of the full bench in the retail minimum shift case, because it is likely that - well, possible, I should say, that the case will - that the decision in the case will involve a ruling on what the test of necessity means in section 157, and we say that that is likely to be directly on point in relation to the threshold issue here under section 157.

PN68

So, at least in relation to this part of the strike-out application, there may be some merit in delaying the hearing of our application until after the full bench has ruled in the retail appeal, because VECCI may wish to reconsider their application in light of that decision.

PN69

I have a number of other minor points to make in relation to concerns about the proper form of these applications and some errors that we've noticed, but, your Honour, I'm in your hands as to whether you want to hear a response from the employers first or, indeed, hear from the other union parties before I proceed.

PN70

JUSTICE GIUDICE: Well, I think I'd like to hear everything you've got to say, so that it will avoid - - -

PN71

MR FETTER: Yes, okay. Well, your Honour - - -

PN72

JUSTICE GIUDICE: But can I just ask a question before you go on to your other points?

PN73

MR FETTER: Of course.

PN74

JUSTICE GIUDICE: What section do you make - what you refer to as a formal strike-out application - what section do you make that under?

PN75

MR FETTER: Well, your Honour, because of the redrafting of the act and the change from the former legislation, some of the provisions with which we're all familiar and comfortable have disappeared, including the old "refrain from hearing" ground.

PN76

JUSTICE GIUDICE: You can say that again!

PN77

MR FETTER: We now believe that the source of the power to dismiss any application comes from the tribunal's general power under section 577 to "perform its functions and exercise its powers in a manner that is fair and just; quick, informal", et cetera, and that, in performing these functions under section 578, a range of considerations must be taken into account.

PN78

So it's our submission that the power to dismiss applications or refrain from hearing comes from those two sections. Then, if one turns to section 587, there are some additional express grounds on which Fair Work Australia may dismiss an application, but the covering - the chapeau there does make it clear that those express powers are without limitation, and we say that that is a reference back to the general powers of the tribunal to perform its functions in a way which is fair, just and in the public interest.

PN79

In some cases our application to strike out - these applications fall within section 587. As I said, we think that the application has no reasonable prospects of success to the extent to which it asserts an ambiguity on the face of the awards and to the extent that it claims that the variations are necessary, but the abuse of process ground does not seem to be traversed by section 587, and so we do rely on the notion that Fair Work Australia has a more general discretion, acting in the public interest, to control the conduct of proceedings in the tribunal.

PN80

Similarly, section 587 subsection (1)(a) gives an express power to strike out an application that is not made in accordance with the act. So, your Honour, that would attach to our assertion or, more properly, question as to whether VECCI in fact has standing within the meaning of section 158 subsection (1) item 1.

PN81

JUSTICE GIUDICE: That might have to be an award-by-award issue, though, mightn't it?

PN82

MR FETTER: I think it would, your Honour.

PN83

JUSTICE GIUDICE: It seems to me that there are - and I don't want anticipate too much what other people might say, but it seems to me there are two things which make it rather difficult to deal with a strike-out application or even to assess it at this stage. One is that there's no decision in relation to the application in the Retail Award and, depending on the outcome of that case, the strike-out application might be stronger or weaker, as indeed might the main applications. The second is that the applicant wishes to put on more material. It would be a bit premature to go striking anything out when we haven't really got all the material.

PN84

So it may be that the unions would want to reconsider the strength of their case when those two things are known or at least - well, I can't see into the future. For example, the retail matter is adjourned, and I think provision was made for the Australian government to make submissions. When that might occur is becoming increasingly problematic.

PN85

MR FETTER: Yes, your Honour.

PN86

JUSTICE GIUDICE: So there are quite a few unknowns which I think it's fair to signal to you - - -

PN87

MR FETTER: Yes.

PN88

JUSTICE GIUDICE: It would be rather difficult to deal with a strike-out application at the moment.

PN89

MR FETTER: Your Honour, just to be clear, we're not asking that the application be determined today.

PN90

JUSTICE GIUDICE: Yes.

PN91

MR FETTER: We agree that - well, it's our submission that it should not be heard before there is a decision in the retail appeal case, whenever that is.

PN92

JUSTICE GIUDICE: Yes, I see.

PN93

MR FETTER: Indeed, we'd seek your Honour's directions as to how a strike-out application would proceed; whether the tribunal would prefer for us to make a formal application with grounds or whether you've heard enough today and the respondent has heard enough to know the case that is made against it; whether the tribunal would want written submissions put in or is happy to traverse these issues orally.

PN94

JUSTICE GIUDICE: Well, I'll give a bit of consideration to that.

PN95

MR FETTER: Just in relation to some of the more minor issues - sorry, before I turn to that, on the question of whether VECCI should go to the trouble and expense of preparing additional material, if our strike-out application is successful obviously the case - the evidentiary case will not be necessary, and so it's our submission that there's no need for VECCI to prepare such material. But, as your Honour would know, often in these strike-out applications the tribunal takes the view that it's necessary to know a little bit more about the case before one can consider whether or not it's hopeless.

PN96

So it's our preference that the strike-out application be heard just on the basis of the material that's been filed at the moment, but we wouldn't oppose some further time for them to put some more material in writing setting out exactly what the evidence is that they would be relying upon.

PN97

In relation to those minor matters, at the moment the unions are not exactly clear which awards are the subject of applications by VECCI because, as your Honour has adverted, there's been no formal service of the applications on any of the unions, and I don't believe at this stage that the applications are up on the web site. So, however this matter is to progress, we do ask that there is some facility by which we can establish which applications have been made in relation to which awards.

PN98

I did make contact with the applicant last week and get some copies of the material that was said to be filed and, on the basis of that material, which I'm not sure is complete - it may be, but I'm not sure - there do seem to be a number of errors on the face of the documents which ought to be corrected, but that's something I can progress with VECCI offline if the matter is to proceed.

PN99

For instance, in relation to the application to vary the Clerks Award, although that's the heading to the application, the content of the document refers in fact to variations sought in relation to the Horse and Greyhound Training Award. So there seems just to have been a mistake there, but it's not clear indeed if VECCI are making an application in relation to the Clerks Award or the Horse and Greyhound Award. And similarly in relation to the application to vary the Joinery Award, the content of the application actually makes reference to the Live Performance Award.

PN100

So these are all things of course that can be corrected, but it's just a question of the unions needing to know the case that is made in relation to these awards. So we are seeking some directions from the tribunal about correction to the applications that have been made and a process by which VECCI can serve or otherwise bring to the attention of affected unions the four corners of their applications.

PN101

JUSTICE GIUDICE: Yes, thanks, Mr Fetter.

PN102

MR FETTER: If your Honour pleases.

PN103

MR COLLY: If the tribunal pleases - - -

PN104

JUSTICE GIUDICE: Yes, Mr Colly.

PN105

MR COLLY: - - - the Australian Education Union appears today in general terms to support the submissions of the ACTU in this matter. The AEU has members in the industries the subject of many of the applications. We concur with the ACTU that we do not know yet formally the extent of the applications. They appear to be in template form; the same grounds, et cetera, advanced in respect of each of the applications.

PN106

We are concerned that the applications, as we currently understand them, appear to us at least to be without a proper basis. VECCI, we understand, in the particular awards that we are concerned with - and I'll list them. They are Educational Services (Post-Secondary Education) Award; Supported Employment Services Award; the Social, Community, Home Care and Disability Services Industry Award; and, to a limited extent, the Labour Market Assistance Industry Award.

PN107

We have doubts about VECCI's standing in relation to some of those industries, but of course we take your Honour's point that it may be a matter of evidence in each of the cases should they proceed.

PN108

In general terms, your Honour, we support an adjournment of this proceeding until a decision in the retail case is known. It will have some bearing on this outcome. We also support the strike-out application and concur with the ACTU's submissions that that should be brought on at a convenient time to be dealt with initially. If the commission pleases.

PN109

JUSTICE GIUDICE: Mr Blake.

PN110

MR BLAKE: Thank you, your Honour. I come today in respect of the Nurses Award 2010. We also support the submissions of the ACTU in relation to a strike-out and also dealing with this application more generally.

PN111

To the best of our knowledge, we can't identify any members of VECCI that would have an interest in the Nurses Award 2010. We would welcome further details of their interests in that award. We are concerned that the application in relation to our interests goes to addressing a deficiency in the award in regard to the minimum engagement of part-timers and casuals. We'd like to make the point that, as far as we can tell, there are no restrictions in relation to the period of engagement of part-timers and the only restriction in relation to casuals is that the casual employees are paid a minimum period of two hours. So we're at a loss to understand the extent to which the applicant alleges that there is some lack of flexibility in relation to that award.

PN112

We also note for the record that we don't recall the applicant being involved in the award modernisation processes. We certainly make no comments at this stage in relation to the exposure drafts in relation to the Nurses Award. If the tribunal pleases.

PN113

JUSTICE GIUDICE: Mr Blake. Mr Galbraith?

PN114

MR GALBRAITH: Thank you, your Honour. Your Honour, firstly we have a number of members who will be affected by this application, and I'm here today just to support the applications of the ACTU. If the commission pleases.

PN115

JUSTICE GIUDICE: Yes, thanks, Mr Galbraith. Ms Read?

PN116

MS READ: Thanks, your Honour. I appear in relation to the applications regarding the Timber Industry Award and the Joinery and Building Trades Award. CFMEU, Forestry Division, supports the position put by the ACTU in the proceedings today, in particular in relation to the Joinery and Building Trades Award, where we note the deficiency which Mr Fetter has drawn to the tribunal's attention, such that we can't be certain of the nature of the variations sought because the application appears to refer to another award entirely. If it please the tribunal.

PN117

JUSTICE GIUDICE: Yes, thanks. Mr Nucifora?

PN118

MR NUCIFORA: Thank you, your Honour. The ASU equally supports the ACTU's submissions. We have a number of awards that - members covered by a number of - about 15 or so awards, as we have been informed that there are applications that have been lodged, although, as indicated earlier, we haven't been served with those applications.

PN119

We would also challenge the standing that VECCI has with a number of those awards - of course the Clerks - Private Sector Award, sir, and possibly Contract (indistinct) Award. But we do raise that issue of standing as well.

PN120

We do note, your Honour - and we have raised concerns about these types of applications, that seem to be on the increase, particularly from employers, and seem to be going further than removing ambiguity and uncertainty but are, rather, rearguing issues that - where there were opportunities to put further argument through the award modernisation process.

PN121

Now, VECCI, I think, did appear earlier on in the award modernisation process. I'm not aware that they had made regular appearances like some organisations, like our own, but they're now seeking to - rather than address what they might claim anywhere is an issue of ambiguity or uncertainty, but actually rearguing an issue that's already been determined. And it does raise that question about, each time an application like this comes before Fair Work Australia, whether there is in fact a challenge to the integrity of the original process.

PN122

So there was an award modernisation full bench and a modern award to issue in a short time frame. There were some ambiguities and uncertainties in that process, but in other cases there were arguments put, won or lost, and we live with those until the award review. So we have raised concerns that we have these sort of applications - four applications before Fair Work Australia. If there are genuine issues, then they ought raise them with other parties before lodging an application. That's not the case with any of these. If your Honour pleases.

PN123

JUSTICE GIUDICE: Yes, thanks, Mr Nucifora. Mr Maxwell?

PN124

MR MAXWELL: Thank you, your Honour. Your Honour, the CFMEU, Construction and General Division, generally supports the submissions of the ACTU and the CFMEU, Forestry Division. We would like to add a couple of matters, however.

PN125

Firstly, we would submit that VECCI should be required to identify under which parts of its eligibility rules it has standing to vary each of the awards that it seeks to vary with these applications. We note that during the - whilst we know that VECCI was a vested employer respondent to the previous National Building and Construction Industry Award and Joinery and Building Trades Award, it was never a respondent to the Mobile Crane Hiring Award and, in all my experience, never appeared in any matter involving either the Mobile Crane Hiring Award 2002 or joined the award modernisation proceedings.

PN126

We would also point out that during stage 2 of the award modernisation proceedings, which involved the building and construction industry - from our perusal of the Fair Work Australia web site, there are no written submissions from VECCI and, as far as we're aware, VECCI did not appear in any of the proceedings that were conducted before either a single member of the commission or the full bench, and we say that that is further proof that this is an abuse of process.

PN127

Your Honour, the final point I wish to make is that I note that Mr McKenney submitted that VECCI would identify those awards on which it would focus. We submit that VECCI should be required to provide material in regard to every award that they seek to vary by this application, not just on a select group of awards that they wish to focus on. Other than that, your Honour, we have no further submissions at this stage.

PN128

JUSTICE GIUDICE: Thanks, Mr Maxwell. Are there any other submissions before I come back to Mr McKenney? No? Mr McKenney, you've heard what the ACTU and the others have said about the arguments that they will seek to raise, so to that extent your client is on notice about a number of issues that will be raised. Of course, it's a matter for you how you deal with those issues.

PN129

The other thing that I should say is that the case in the retail industry before Watson VP did take some days. Now, I'm not sure how many awards there are in the list. Between 70 and 80, I gather.

PN130

MR McKENNEY: There are 80, your Honour - - -

PN131

JUSTICE GIUDICE: 80?

PN132

MR McKENNEY: - - - attached to those listings, I understand.

PN133

JUSTICE GIUDICE: Yes. Well, allowing for a few additions and subtractions, depending on what - the sorts of issues that Mr Fetter raised, if one multiplied the number of days taken for the retail industry application by the number of awards that you're seeking to vary, one would end up with a very long case indeed.

PN134

How a case is run is obviously a matter for the applicant, but I would be assisted by some indication in the material that I'll make provision for you to file of the process that you would see being employed to deal with the applications. That's something that to this point nobody's addressed. Obviously, you will need to do so.

PN135

MR McKENNEY: Yes, your Honour.

PN136

JUSTICE GIUDICE: Before I say anything about further directions and how we might proceed, is there anything you want to say as a result of the submissions of the unions?

PN137

MR McKENNEY: Your Honour, just in a sense by reference to - that your Honour has brought about the focus - the need to focus on the application - - -

PN138

JUSTICE GIUDICE: Yes.

PN139

MR McKENNEY: - - - and the underlying principle that VECCI will identify as important in the case is the provision in section 134, Social Inclusion.

PN140

JUSTICE GIUDICE: Yes.

PN141

MR McKENNEY: That would be a major focus of the applications. Your Honour - - -

PN142

JUSTICE GIUDICE: Well, the applications are said to be for the benefit of employees. Is that right?

PN143

MR McKENNEY: Yes. Yes, that is so, your Honour. Obviously I've heard what Mr Fetter has said about the issues concerning the strike out of the application. Your Honour, there are two responses to that, essentially. One is that it's premature when at this stage what has been provided to the tribunal is the applications themselves, not the material in support of those applications.

PN144

And it would be submitted, your Honour - I don't want to get into a long debate about it today, because this is a mention, but issues concerning whether an application has got reasonable prospects of success, frivolous or vexatious - the sort of things that are referred to in section 587, your Honour, I would submit are very high thresholds to meet to disentitle an applicant to have its case heard and determined. So it's premature at this stage for those issues to be raised.

PN145

The other issue, your Honour, is - obviously the full bench decision that will be issued at some point in relation to the Retail Award will be of significance, and I think your Honour made the observation that both parties will need to be cognisant of that in terms of how they approach these applications, and that's a point that's not lost upon the applicant. The applicant says, your Honour, that there's a substantial number of applications beyond the Retail Award. So we're not just talking about that award. So that needs to be borne in mind as well.

PN146

As to alleged errors in the application, I'm told, your Honour, that some of those have been corrected and they've been advised to the tribunal. We'll take up Mr Fetter's kind invitation to perhaps have some discussions offline, to use his words, about any other issues that might be relevant there.

PN147

In relation to particular issues raised by some of the individual unions - for example, the Australian Nursing Federation - that's a matter that can be followed up and - VECCI can follow that up with the representative of the ANF. Any other issues that need to be ironed out, so to speak, your Honour, can be the subject of discussions between the parties if there are questions of technical issues concerning the form or manner of the applications.

PN148

As to standing, your Honour, obviously the applicant is on notice that that's an issue that's going to be raised. And obviously we will need to address that if that's an issue that's issued by the other parties, progressing the applications, and we will do so.

PN149

JUSTICE GIUDICE: Well, one of the points I think that Mr Fetter made was whether you wanted to - or your client wanted to go to the extent of setting out all of the evidence and contentions or submissions in relation to all of the awards, to the extent you wish to, prior to hearing some debate on this strike-out application that's been referred to. Again, that's a matter for you, but one approach I could take would be simply to require - issue some directions that require your client to set out an outline of submissions and to file all of the material on which it will rely by a certain date - let's say a month or so.

PN150

If I made such a direction, it would then be a matter for all parties to consider the next step at a further directions hearing. Is that generally what you had in mind?

PN151

MR McKENNEY: Broadly speaking, your Honour. If I might just get some brief instructions about that.

PN152

JUSTICE GIUDICE: Yes.

PN153

MR McKENNEY: Your Honour, if that is the course which the tribunal might take, it might be prudent then to allow some further time beyond - - -

PN154

JUSTICE GIUDICE: Yes.

PN155

MR McKENNEY: - - - the four weeks or so that I suggested, your Honour, if that's the case, to put that material together.

PN156

JUSTICE GIUDICE: Yes. How long do you think?

PN157

MR McKENNEY: I think probably something probably more akin to a couple of months, your Honour, would be more comfortable in the circumstances.

PN158

JUSTICE GIUDICE: All right.

PN159

MR McKENNEY: Six to eight weeks - something of that magnitude, your Honour.

PN160

JUSTICE GIUDICE: Yes.

PN161

MR McKENNEY: And, your Honour, also in relation to an outline of submissions about perhaps the points that have been raised by Mr Fetter - I'd be happy to provide that, if that's what your Honour had in mind in terms of submissions dealing with those issues, in the sense that - - -

PN162

JUSTICE GIUDICE: I didn't have in mind making any directions in relation to Mr Fetter's application.

PN163

MR McKENNEY: Yes.

PN164

JUSTICE GIUDICE: It seems to me the better course is for you to set out the outline of your submissions and all of the material you're going to rely on.

PN165

MR McKENNEY: Yes.

PN166

JUSTICE GIUDICE: And everybody will then be better informed about what course they might take.

PN167

MR McKENNEY: Yes.

PN168

JUSTICE GIUDICE: It seems to me that, if we do it any other way, we run the risk of going over the ground several times and having multiple proceedings.

PN169

MR McKENNEY: That's acceptable to the applicant.

PN170

JUSTICE GIUDICE: All right. Does anybody else have any comment on that approach? Mr McKenney, there is something else, though, and that's the question of how people are to be kept informed of these proceedings.

PN171

MR McKENNEY: Yes.

PN172

JUSTICE GIUDICE: What's been done on a number of occasions in relation to modern awards is to create a web address and to compile, by some means or another, a database of interested people who could then be notified when something was filed, or certainly could be notified of the web address so that they can keep up to date themselves. But it's rather problematic in this case, because we don't have a database of people who might be interested. What do you suggest we do about that?

PN173

MR McKENNEY: Your honour, if I may just have a moment.

PN174

JUSTICE GIUDICE: Yes.

PN175

MR McKENNEY: Your Honour, the best that I could suggest on instructions is to have the constituent organisations that are here represented today to advise its constituents about the applications. The web address is obviously a very sensible - - -

PN176

JUSTICE GIUDICE: There is a small site that's been established, but it's - I won't use the word "rough", but - you know, what we've got here is potential applications in 80 awards - - -

PN177

MR McKENNEY: Yes.

PN178

JUSTICE GIUDICE: - - - and really, if we followed the course we've taken in the past, we'd have 80 sites or 80 subsites, so that material relevant to each of those could be systematically dealt with. I mean, these are the sorts of issues - - -

PN179

MR McKENNEY: That web site came to my attention yesterday.

PN180

JUSTICE GIUDICE: Yes.

PN181

MR McKENNEY: I have seen that, your Honour. Certainly from VECCI's point of view in terms of advising its constituents and making them aware of the applications, it will do so.

PN182

JUSTICE GIUDICE: Yes.

PN183

MR McKENNEY: I'd perhaps suggest that the ACTU and its affiliates do likewise.

PN184

JUSTICE GIUDICE: Yes, thank you. I'm sorry, there was one other matter, Mr McKenney.

PN185

MR McKENNEY: Yes.

PN186

JUSTICE GIUDICE: When do you think you could give me some advice about the kind of procedure that you would envisage? Would that be at the same time as you file the outline?

PN187

MR McKENNEY: I can do that earlier if that's the tribunal's wishes. Whatever is convenient to the tribunal, your Honour.

PN188

JUSTICE GIUDICE: Perhaps if you deal with that in the material that's filed, we can deal with it at the next mention.

PN189

MR McKENNEY: Yes.

PN190

JUSTICE GIUDICE: All right. Mr Fetter, I think that probably leaves you and the other unions who wish to make a pre-emptive strike in the position where at least you'll be better informed about the matters you've raised - - -

PN191

MR FETTER: Yes, your Honour.

PN192

JUSTICE GIUDICE: - - - and what will be put by VECCI, and then you can take your own counsel as to the course you follow at the next mention.

PN193

MR FETTER: Exactly, your Honour. Thank you.

PN194

JUSTICE GIUDICE: Is there anything else before I adjourn? I will issue a short statement, Mr McKenney - - -

PN195

MR McKENNEY: Yes, your Honour.

PN196

JUSTICE GIUDICE: - - - including the direction as to filing, and we'll make that available on as broad a basis as possible, and that will also have some information about the web site. So hopefully that will spread the word to people who might potentially be interested. All right. If there's nothing else, I'll adjourn. Thank you.

<ADJOURNED INDEFINITELY [10.20AM]