Re: Australian Municipal Administrative, Clerical and Services Union & Ors Ex Parte Public Transport Corporation

[1995] HCATrans 357

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M67 of 1995

RE:     AUSTRALIAN MUNICIPAL
  ADMINISTRATIVE, CLERICAL
  AND SERVICES UNION AND
  OTHERS

ex parte:

PUBLIC TRANSPORT CORPORATION

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY THE 29TH DAY OF NOVEMBER 1995

DR C. JESSUP QC:   I appear on behalf of the prosecutor applicant with my learned friend, MR G. A. DEVRIES.

MR H. BORENSTEIN:   I appear in this matter for the third, fourth, fifth, sixth and seventh respondents.

MR P. J. GRANO:   Sir, in this matter I appear on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.  That is no known as the ‑ ‑ ‑ 

HIS HONOUR:   Mr Grano, is it?

MR GRANO:   Yes, sir.

HIS HONOUR:   Yes.

MR GRANO:   Sir, we are not actually noted as being a respondent on the documents but we have been involved in the matter since January 1993, sir, and I believe that we are permitted to and the understanding of my learned friend that it is right for us to appear in this matter as we are an interested party.

HIS HONOUR:   On what basis?

MR GRANO:   Sir, we have been a party to the awards to the - we have our complaint, a log of claims that is being dealt with before the Industrial Relations Commission that brought about the decision and that it is one of those decisions that is in fact requested that be remitted to the - that the prerogative writ is being sought again.  So we believe that we have the - submit that we have the right to attend to submit why that prerogative writ should not be or why a stay should not be given for that prerogative writ, sir.

HIS HONOUR:   You wish to support Mr Borenstein, is that right?

MR GRANO:  That is right, sir, yes.

HIS HONOUR:   Yes.  Well, I will reserve my decision on your application for leave but I understand the position which you take and will deal with the matter and then I will come back to that.

MR GRANO:  Yes, sir.

DR JESSUP:   Your Honour, my learned friend's client ought to have been named as a respondent and it was purely by way of an oversight.

HIS HONOUR:   Do you want to add ‑ ‑ ‑ 

DR JESSUP:   Yes, your Honour, we have no objection to that at all and it would be appropriate if that could be done.

HIS HONOUR:   Well, I will give leave to add the name of the relevant organisation and then you do not have to have leave to appear, Mr Grano, you can appear as a right.

MR GRANO:   Thank you, sir.

DR JESSUP:   Your Honour, this case raises the question of appointments under the principle in the State Employees Case.  The Commission's decision, that is the decision of the Full Bench dated 24 August 1995 is an exhibit to the affidavit on which we move.  I will just tell your Honour in a moment what exhibit number it is.  It is JC36, your Honour.  Does your Honour have that decision?

HIS HONOUR:   Yes, I do.

DR JESSUP:   On the second page of the print, page 2, the Commission sets out the substance of the orders which have been made by Commissioner Eames in relation to a number of awards to which the corporation was respondent and they are set out in those indented lettered paragraphs A to D, your Honour, on the second half of that page.

HIS HONOUR:   Yes.

DR JESSUP:   Now, probably the main thing which these awards did was to require the employee - the employer to appoint permanently to a position anyone who had been acting in that position for a total period of six months or more in any one 12 month period.  Now, we would say that touches directly question of the right to determine the identity of persons who will be employed, but it also touched the question of internal appointments, transfers and promotions and that sort of thing.

HIS HONOUR:   It is also in the context of redundancy, is it not?

DR JESSUP:   Also?

HIS HONOUR:   In the context of redundancy in the sense that ‑ ‑ ‑ 

DR JESSUP:   Yes.

HIS HONOUR:   ‑ ‑ ‑ the problem arises out of the reduction in the workforce.

DR JESSUP:   It does, your Honour.

HIS HONOUR:   Yes. .

DR JESSUP:   In the light of your Honour's earlier ruling I do not think I can say anything about the question of remitter although for the reasons advanced earlier our client would prefer to have the matter deal with in this court but I understand the way - I would understand your Honour would want to treat this in the same way as you treated the first one.

HIS HONOUR:   One cannot draw any useful distinction between this case and the other.

DR JESSUP:   This is probably not as strong a case as that was, if anything, your Honour ‑ ‑ ‑ 

HIS HONOUR:   Yes.

DR JESSUP:   ‑ ‑ ‑ for retention in this court.

HIS HONOUR:   Thank you, Dr Jessup.

DR JESSUP:   Unless your Honour would be disinclined to do it, I do not think I can usefully add anything further.

HIS HONOUR:   Thank you.  Mr Borenstein.

MR BORENSTEIN:   My clients would have sought a remitter to the Industrial Relations Court as the appropriate Tribunal to deal with this in the first instance and so we would be in favour of the course which your Honour took earlier and which we would ask your Honour to apply in this case.

HIS HONOUR:   Yes.  Mr Grano?

MR GRANO:   Sir, likewise we are in favour of your Honour proceeding to remit the matter.

HIS HONOUR:   Yes, well I will make the order remitting the matter to the Industrial Relations Court and I make the order in the usual form and for the reasons which I gave in the previous matter. 

AT 10.20 AM THE MATTER WAS ADJOURNED
INDEFINITELY