|
|
|
TRANSCRIPT OF PROCEEDINGS
ON THE OCCASION OF
FAIR WORK AUSTRALIA'S CEREMONIAL SITTING TO FAREWELL
JUSTICE GIUDICE, PRESIDENT
JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SMITH
COMMISSIONER LEWIN
COMMISSIONER HARRISON
COMMISSIONER GAY
COMMISSIONER BLAIR
COMMISSIONER CRIBB
COMMISSIONER CARGILL
COMMISSIONER DEEGAN
COMMISSIONER SPENCER
COMMISSIONER WILLIAMS
COMMISSIONER MCKENNA
COMMISSIONER CAMBRIDGE
COMMISSIONER ASBURY
COMMISSIONER CLOGHAN
COMMISSIONER GOOLEY
COMMISSIONER RYAN
COMMISSIONER HAMPTON
COMMISSIONER ROE
COMMISSIONER BISSETT
COMMISSIONER SIMPSON
COMMISSIONER LEE
COMMISSIONER BOOTH
COMMISSIONER JONES
MELBOURNE
10.00 AM, FRIDAY, 24 FEBRUARY 2012
PN1
JUSTICE GIUDICE: The Minister.
PN2
MR B. SHORTEN: Mr President, Justice Geoffrey Giudice and the members of Fair Work Australia, members of the judiciary, representatives of employer and employee organisations, ladies and gentlemen. I wish to acknowledge the traditional owners of the land on which we meet today, and pay my respects to their elders both past and present. I extend that respect to other Aboriginal and Torres Strait Islander peoples who are here today, and good morning, everyone.
PN3
It is terrific to be here on such a historic occasion. We've gathered to acknowledge and salute and reflect on the distinguished public service of the highest order. I'd like to begin by quoting Justice Giudice from a speech he gave to the Australian Labour and Employment Relations National Conference in Fremantle in October of 2007. At the beginning of the speech, he told his audience that he often found it difficult fulfilling expectations of conference organisers. He said their primary objective was to generate controversy, while his principal aim was to avoid it. He went on to say:
PN4
PN5
Sir, both before then and since, you've been a man interested in nothing more or nothing less than being disinterested and being the independent umpire that Australia has profoundly needed you to be. The matters that have come before you from time to time have, of course, been most controversial, but your capacity to discharge your and the Tribunal's duties with wise detachment has never been. And for all of this, you've been a tad self-deprecating, offering proceedings an odd remark and jovial civility, but most importantly always apolitical and deeply respectful of the law of the land.
PN6
Justice Giudice, on behalf of the Australian government, I want to thank you for improving the industrial relations landscape of this country. As sunburnt and sweeping as our land is, you've warmed our Commonwealth to a milder climate through your intellect. Thanks in no small part to you and Fair Work Australia, we have a prosperous, stronger and fairer Australia; a prosperous, stronger and fairer Australia that meets the needs of working people and businesses today and tomorrow. You've made a lasting contribution to our society.
PN7
Adlai Stevenson once said that a free society is one where it is safe to be unpopular. In a time of economic transformation, of the mining boom and of the global financial crisis, a time of acute political tussle and societal questioning, as much if not more than ever before in this great land, your tenure is a timely reminder for so many of us that judiciously doing what is right, that justice tempered by mercy, productivity, progress, the rule of law, the genius balance of compromise - these are things that endure far beyond popularity. They endure and prevail because they serve country and community and give us all a greater confidence in the future.
PN8
In saying this, your Honour, it is all the healthier credit to you that, in leaving us today, it's a departure undertaken as much as a popular friend as a deeply respected judicial officer. Your energy is formidable and your intellect is to be admired, and Australia is a better place as a result of your contribution.
PN9
Ladies and gentlemen, I doubt that there will be much else left to say at the conclusion of the speeches by the others this morning, but I would like to particularly mention several things. First of all, it's been a remarkable 14 years for Justice Giudice. As President of the Australian Industrial Relations Commission and then as the inaugural President of Fair Work Australia, he's carried out his responsibilities with distinction. They have been heady days: Work Choices, the creation of the Fair Work Act and the modern award system. Your stewardship of the Tribunal at this time, I'm sure people will furiously concur, has been exemplary. Future Presidents of Fair Work Australia shall have some big shoes to fill.
PN10
Your Honour's influence has touched so many Australians: the implementation of the Workplace Relations Act, Work Choices and now the Fair Work Act; the involvement in key test cases, many of which now form the basis of National Employment Standards - reasonable hours, redundancy and family-friendly provisions; your leadership of full benches of the Australian Industrial Relations Commission and Fair Work Australia in determining minimum wages for the nation's most vulnerable; and just this year as head of the full bench which delivered the first equal remuneration decision under the Fair Work Act.
PN11
Ladies and gentlemen, I know that most of you here probably don't need reminding, but this is a substantive record and I can apprise you, all the same, of what was involved in the creation of the Fair Work system, the major rewriting of the constitutional basis of a system: gone are the days of logs of claim, ambit disputes and the like; the formation of a national tribunal with new members joining from the states; and last but by no means least, award modernisation. So much for the cries that it couldn't be done. It has been done, and the government, with Justice Giudice at the legal helm of Fair Work Australia, has accomplished this.
PN12
You, your Honour, proved the naysayers wrong. The government never underestimated the enormity of the task and the commitment of leadership that we asked of you and of all of your colleagues at Fair Work Australia.
PN13
A couple of quick figures illustrate this point. We're a nation of 23 million people who have previously had more than 3700 state and federal awards or, said another way, 197,000 pages or so of regulation. If you put all the old awards on top of each other, it was about as high as an eight-storey building. While in Exhibition Street you have a few neighbouring buildings here with elevators that count beyond eight, back in Bendigo an eight-storey building is most definitely a tall one.
PN14
I don't believe there are many people in this country with the intestinal fortitude of yourself and your colleagues to undertake and complete such a task as modernising our award system, but certainly country boys and Xavier College scholars never lack for endurance and determination.
PN15
Justice Giudice, on behalf of the Australian government I wish you and your family well in the next stage of your life. Please pass from a grateful government thanks to your family for the 14-year loan of you to Australia from them. I've got no doubt that you will continue to contribute to public life and economic life in Australia in a positive way. May the walls of this room continue to whisper with your wisdom. I believe you have been, in bumpy times, what Abraham Lincoln called "one of the better angels of our nature" in the workplace, in the economy, in the society.
PN16
May the Melbourne Football Club's on-field endeavours in the next few months begin to match your in-court performance over the last 14 years. May we all thank you for your service to the law and, through it, to all of us right across Australia.
PN17
JUSTICE GIUDICE: Thank you, Minister. Mr Anderson.
PN18
MR P. ANDERSON: Minister, your Honour Justice Giudice, Presidential Members and Commissioners - past and present, I note - practitioners, colleagues from the business community and from the trade union movement, ladies and gentlemen: on behalf of members and the secretariat of Australia's peak employer council, the Australian Chamber of Commerce and Industry, and our wider business network, it is indeed an honour to address this fullest of full benches.
PN19
It is not uncommon for a practitioner, when having to appear for the first time before a new member, to seek out an old stager and ask, "What is he or she like?" So it was in 1997 that I asked the same question, firstly to a colleague. "He's a Geoff from Victoria who came onto the scene in the late 80s and made a name for himself in the early 90s," the colleague replied. Sensing my quizzical look, he quickly added "but not that Jeff". Interesting, I thought; perhaps a little reassuring, but not quite insightful enough for me. So I went to an accompanying office, right at the top, and posed the same question direct to the appointing authority no less - the Minister. "A top barrister, a good brain, not an activist, knows the Commission's job is set by statute," I was told. A pretty good formula, I thought.
PN20
As we assemble here 14 years later, so it has turned out. Those 14 years have been punctuated by significant cycles of contested change and counterchange, as the Minister has just said, to constitutional frameworks, to statutory frameworks and, importantly, to economic and industrial circumstance. The business community hasn't liked every decision, but what we have liked is the fact that his Honour has kept himself above the fray and, indeed, recognised that this Tribunal is indeed a creature of statute, exercising the powers asked of it by the parliament. This does not mean that the issues or cases presided over have been pedestrian or unimportant; indeed, the contrary. In many respects the task has become steeper, even over that 14 years, as arbitral discretions have been limited, with more procedural and substantive rules, processes and even ministerial directions.
PN21
The President's first major case under the 1996 Act, the 1997 National Wage Case, controversially was not unanimous. A 1997 award simplification test case soon followed. It was a portent of things to come. The more recent award modernisation process was daunting, awkward and, at some times, chaotic, but President Geoff ensured that even that chaos was organised. For employers, other significant decisions have been made in test cases and in wages cases: as the Minister has noted them already, the Working Hours Case, the Family Provisions Case, the redundancy cases and, recently, the Equal Remuneration Case, amongst others that come to mind.
PN22
As both an advocate and business leader, each of these cases worried me for different reasons, but knowing that the President was heading the bench gave us confidence that a judicious weighing of material and submissions within the statutory framework would at least be the methodology. That hasn't stopped his Honour from making even seasoned practitioners experience the odd heart palpitation; court, not genetically, induced ones, I might add.
PN23
It wasn't too many years ago, when I was presenting in the National Wage Case with our senior economist, Dr Kates, who I notice is here this morning - good morning, sir - that his Honour sitting up there, all bow tie as usual, became impatient. Through pursed lips and then a raising of the right eyebrow, which I always found a bad sign, his Honour said words to the effect, "So do you wish to plough on with this, Mr Anderson?" Whilst a layperson might think that an invitation, an advocate needs to see it as it is; let's say time to draw the blinds. Fortunately, I noticed a second eyebrow just in time. The blinds were duly drawn.
PN24
Apart from trying to read this scrupulous body language, perhaps the next-best advice I have given to young employer advocates appearing in Geoff's chambers or courts is simply to get the name right; that is, its pronunciation. His Honour has probably been called many things as frequently as he's been misspelt by Christian or surname, but it's not common in the English language to pronounce conjoining letters "i" and "u", so on behalf of my colleagues we have appreciated your Honour's forbearance.
PN25
Colleagues - like many of us, even those in leadership positions - we are simply stewards of institutions for a period of time. I think I can speak on behalf of many that there is an authority but humility in the manner in which President Geoff has presided. This is a characteristic of leadership that has strengthened, not weakened, this institution. We thank his Honour for this stewardship and for his contribution to the orderly application of law and of industrial conduct through these demanding cycles of change and counterchange.
PN26
No doubt future challenges for industry and the system lie ahead. However that future shapes or moulds this Tribunal, its arbitral arm is left in good shape by this President. That is perhaps the best legacy. Thank you, your Honour. We echo the Minister's words, even those about the Melbourne Football Club. We too wish you all the best.
PN27
JUSTICE GIUDICE: Thank you, Mr Anderson. Mr Lawrence.
PN28
MR J. LAWRENCE: Your Honour, members of Fair Work Australia, ladies and gentlemen: it is an honour, on behalf of the ACTU, to be here today to express our appreciation of the work of the second-longest-serving President of this Tribunal and to reflect on the contribution that your Honour has made to what I believe is one of Australia's most important institutions. This occasion, of course, is much more formal than last Friday night, but the fact that that occasion took place - that the three organisations were able to come together, and about 450 others who were present without much encouragement from us - I think was an indication, a clear indication, of the regard that you are held in.
PN29
In preparing today's speech I thought it would be useful to go back and look at the speech that the then president of the ACTU, Jennie George, made in October 1997 at your initial hearing. I must say there was even a bad joke about bow ties in that speech, a tradition that we continued, of course, last Friday night with name tags in the Melbourne colours. Jennie said on that occasion, as you commenced your presidency:
PN30
The whole country is watching to see how this uniquely Australian institution evolves under your leadership and adapts to the challenges of the new Act and, more significantly, the new millennium.
PN31
The new Act she was referring to, of course, was the Workplace Relations Act 1996. Little did she know that your Honour would preside over two more significant legislative changes, Work Choices and the Fair Work Act. In fact, your Honour said very recently that industrial relations has been an area where in fact there's been revolutionary rather than evolutionary change, and it's in those times, of course, as the Minister and Peter have said, when leadership is tested, and I believe that your leadership has been significant in the historic context of this Tribunal. Your Honour has always acted impartially, fairly and respectfully.
PN32
As I said last Friday night, if you look at some of those changes, they are significant: Work Choices, the formation of Fair Work Australia, the taking off and then the restoration of minimum wage setting powers, award modernisation, the role in collective bargaining, the changes in technology that have helped the Commission work through the award modernisation process, for example. Your Honour has made sure that throughout those changes the Tribunal has continued to be an institution of integrity and deserving of respect. You've stood by your fellow commissioners, you've worked hard to create a collegial spirit and you've supported the development of judicial skills and expertise. In fact, I'd like to use a phrase that I haven't used very much in the Commission - and this comes from my sources within Fair Work Australia - you are, in fact, a good boss I think.
PN33
Throughout all of these changes you've been driven by the priority to maintain respect for the institution. The Tribunal has been sustained during its life by a fragile consensus between employers, unions and government that our unique industrial relations system was essential to an Australian society which has been more equal than most. That consensus has been under pressure many times and fractured during the Work Choices period. It's essential, I think, that we have an activist Fair Work Australia which maintains a fair minimum wages system which protects the lowest-paid, which defends the comprehensive safety net of the award system, which promotes the right to collectively bargain and promotes the spread of bargaining throughout industry and, finally, which ensures that our workplaces are more equal and reflect changes in society, as you have done in the recent Pay Equity Decision.
PN34
Of course, not all the Tribunal's decisions have been agreed with, but, as an institution, the Tribunal remains one of the most important vehicles for a fairer, more equal society. It's an institution which has withstood sustained attacks because I think it speaks about the sort of society we want Australia to be, it speaks about a fair go for all. As I've said, the Tribunal has evolved and your Honour has played a positive part in that modern evolution. You've presided over numerous important test case minimum wages hearings that have maintained or improved the wages and conditions of working Australians, particularly over issues relating to work and family balance.
PN35
There are three particular areas I wanted to mention briefly. The first is the first minimum wage decision of the new Minimum Wage Panel under the Fair Work Act, which was significant in defining a fair and relevant safety net. The decision made a clear distinction that the primary consideration was no longer to be the promotion of economic prosperity alone, as defined by the Howard government's Fair Pay Commission, but the primary consideration to be dealt with by Fair Work Australia was the safety net, the maintenance of a fair safety net, a relevant safety net, and one which addressed the needs of the low-paid.
PN36
Whilst, of course, the previous decision of the Fair Pay Commission had actually frozen the wages of the lowest-paid, a freeze that lasted for 18 months, the first decision of the Tribunal's panel recognised the hardship that that wage freeze had caused and awarded a $26 a week wage increase; I might say only $1 short of the ACTU claim. I have to say we've not usually been so on the money with our claims in Fair Work Australia and perhaps we won't be again soon, but that decision, I think, was a recognition of the Tribunal's roles in maintaining the safety net.
PN37
Secondly, the recent Pay Equity Decision was possibly the greatest advancement in pay equity since the Tribunal's decision 30 years ago, because it recognised not just equal pay for equal work but equal pay for comparable work. This long-established concept now has a modern practical outcome delivered through this significant decision.
PN38
Thirdly, of course, as others have mentioned, the very difficult award modernisation process, and your leadership was instrumental in ensuring that that difficult task was achieved. What seemed an impossible task at the time, of bringing together those thousands of state and federal awards, was dealt with in a practical and conciliatory way. Over one million workers who rely on the award system can now expect that that system will be protected for the future.
PN39
Can I say in conclusion that when Jennie George gave her welcome speech she stated that the role of the Commission must continue to change and evolve, but she also said:
PN40
It's fundamental, as an institution, that its responsibility remains to defend fairness and equity in the workplace and advance the interests of society generally into the next century.
PN41
I believe it was in no small part because of your leadership and the integrity that you've shown that this has been the case. Jennie asked on that occasion, on behalf of working people, that your Honour tackle your new job with strength, courage and compassion. Your Honour has excelled in this and delivered this through patience, respect and impartiality. On behalf of Australian unions we express our appreciation for the job that you have done.
PN42
JUSTICE GIUDICE: Thank you, Mr Lawrence. Mr Smith.
PN43
MR S. SMITH: If the Tribunal pleases, it is a great honour and pleasure to be here today addressing this ceremonial sitting of Fair Work Australia on behalf of Australian employers. His Honour has had a truly extraordinary career and has made an enormous difference in making Australia a fairer and more productive country. Throughout it all you have maintained the utmost integrity and professionalism. His Honour has stood above the political debates of the day and applied parliament's laws with fairness and wisdom.
PN44
I first appeared before your Honour in 1997 in the Award Simplification Case. At that stage, of course, you did not realise that you'd still be simplifying and modernising awards nearly 15 years later, but there was a lot of politics surrounding that case, as we would all remember. The government's Workplace Relations Act 1996 had recently been implemented and awards were required to be simplified down to 20 allowable matters. Employer groups and unions had strong views, as did the federal government and state governments of different political persuasions. In that case the judge and the rest of that full bench applied the new laws with fairness and impartiality without being drawn into the politics, and that has been a hallmark of his Honour's time as President.
PN45
Over the past 15 years we've seen the introduction of the Workplace Relations Act 1996, the Work Choices legislation in 2006, and the Fair Work Act in 2009. Those three major changes to Australia's workplace relations system move the system in very different directions and it would have been easy for the judge to stray into political debates, but his Honour never did so. He always applied the law with respect for parliament and without being drawn into the politics, even when parliament decided that the role and powers of the Tribunal would be changed substantially.
PN46
In addition to the Award Simplification Decision, another memorable decision from the early years of the judge's term as President was the Coal and Allied decision of 1999. That decision ended up being reviewed by the Full Federal Court and the High Court. Even though the Full Federal Court found error in the decision, ultimately the High Court decided that the judge's interpretation of the law was correct, and that decision and many others highlight his Honour's analytical and judicial approach in applying the law.
PN47
That case, of course, was about the Tribunal's powers to terminate industrial action when there's a significant threat to the economy, a decision that is as relevant today as it was 13 years ago.
PN48
Over the past 14½ years, the judge has headed full benches which have heard so many major cases. These cases have shaped Australia's workplace relations system and will continue to do so for many, many decades to come. As the Minister highlighted, many of the principles and outcomes from those cases have been incorporated into the national workplace relations laws by governments of both of the major parties. Those cases include, just to name a few, the Reasonable Hours Case of 2001 to 2002, the Redundancy Case from 2002 to 2004, the Family Provisions Case from 2003 to 2005, the Equal Remuneration Case from 2010 to 2012, and numerous national wage cases and annual wage reviews.
PN49
Between 2008 and 2010 his Honour faced perhaps his biggest challenge during his term as President, with the award modernisation process. Many hundreds of industry and occupational awards had to be converted into 122 modern awards in an extremely short time frame. We believed at the time that the task looked impossible, but his Honour's leadership and wisdom and practical approach led to a very successful outcome being delivered, and that reform will provide enduring benefits to the community and will be built on over the years ahead, and there's certainly no way of going back to the past.
PN50
On many occasions Ai Group has been happy with his Honour's decisions; on other occasions, less so. No doubt the unions have had similar experiences, as Mr Lawrence has highlighted, but their times of happiness no doubt haven't aligned with our times of happiness. But this is to expected in any court or tribunal. If one side always wins, the other side loses faith in the system. The interests of employers, employees and representative bodies lie in the Tribunal determining matters in accordance with those words that are written on the doors outside this courtroom:
PN51
Equity, good conscience and the substantial merits of the case.
PN52
These words epitomise the approach that his Honour has consistently demonstrated over the past 14½ years.
PN53
The President of Fair Work Australia will always have a very difficult balancing job. Of course, the interests of the nation lie in employers being able to operate productively and competitively so they can continue to employ Australians and continue to pay fair wages and conditions, but the President of the Tribunal also needs to be very mindful of the low-paid and the disadvantaged in society. Justice Giudice has worked tirelessly in balancing these two often competing objectives and his Honour has demonstrated a strong sense of social justice, while at the same time recognising that workplace relations laws need to be applied in a productive, flexible and practical manner and in a manner that's fair for both employees and employers.
PN54
His Honour has respected the important role of business organisations like Ai Group and the important role of unions. We have greatly appreciated being consulted by your Honour in matters relating to the workings of the Tribunal and the organising of major exercises like the award modernisation process. When appearing before your Honour we have never felt that we did not have a fair hearing or that our views were not respected.
PN55
I should also mention the many beneficial changes which have been made to the Tribunal's processes and procedures under your Honour's leadership. The Tribunal's extensive use of internet and video-conferencing has greatly increased access and greatly improved efficiencies for the Tribunal and the parties like us that appear very regularly. Your Honour's keen interest in international developments and in maintaining good relations and dialogue with tribunals overseas has also been very important. Through this process, best-practice approaches can be shared and implemented.
PN56
I could go on and on. It is a remarkable series of achievements which will continue to have a major influence on Australia's workplace relations system over the decades ahead. Justice Giudice is a man of great integrity and fairness. He personally displays the qualities with which the Tribunal is associated. He's a man of great character, intellect and humility.
PN57
To conclude, I'd like to read out a resolution passed by Ai Group's national executive at their meeting on 14 February. The 30 or so chief executives and business leaders who comprise our national executive resolved:
PN58
It is very fitting that Ai Group's national executive recognise the enormous contribution which Justice Giudice has made to workplace relations in Australia during his time as President of the Australian Industrial Commission and Fair Work Australia.
PN59
The judge has been an outstanding President of the Tribunal. He's shaped the organisation and Australia's workplace relations system over a long period. He has maintained great integrity and professionalism through a time of major change to workplace relations laws and to the role and powers of the Tribunal.
PN60
On behalf of all members and staff of Ai Group, the national executive expresses its gratitude to Justice Giudice for the great work that he has done and the great contribution which he has made to Australia and extends its best wishes to him and his family for the future.
PN61
To those words of our national executive, I'd like to convey my sincere personal appreciation and best wishes to your Honour, plus the appreciation and best wishes of Ai Group's chief executive, Heather Ridout, who was very sorry to not be able to be here today, plus those of all Ai Group members and staff, many of whom are here or in other courtrooms in other states.
PN62
Over the past 14½ years, his Honour has made an enormous difference in making Australia a better place to work and live. If the Tribunal pleases.
PN63
JUSTICE GIUDICE: Mr Smith. Mr Dixon.
PN64
MR H. DIXON SC: May it please the Tribunal. Your Honour the President, on behalf of the Law Council of Australia and the Australian Bar Association, I wish to pay tribute to your Honour for the services you have rendered as President of the Australian Industrial Relations Commission and Fair Work Australia.
PN65
I mention that there are present today, your Honour, in Sydney and here in Melbourne and elsewhere many members of those associations who join me in acknowledging your significant contribution on the tribunals. I have been asked also to note that the chairman of the Victorian Bar Council, Ms Sloss SC, and the Victorian bar are represented today by Mr Parry SC at the bar table, and that the Law Institute of Victoria president, Mr Holcroft, and the institute and solicitors of Victoria, are represented today by Ms Knowles at the bar table.
PN66
I wish to touch on three issues concerning your Honour's distinguished tenure as President of the Australian Industrial Relations Commission and then Fair Work Australia. In doing so, as the last speaker I may be re-emphasising some of the complimentary remarks that have already been made to your Honour.
PN67
First, as has been stated today, it has been a period of enormous change in the role and functions of the Tribunal. On the occasion of the ceremonial sitting to welcome your Honour in Melbourne in October 1997, there was unanimous agreement amongst those who spoke on that occasion that during your tenure your Honour would face many challenges, new challenges,
but they also recognised at the same time that your Honour had the qualities to manage and guide the Commission through such challenges. The speakers were, of course, right on both counts.
PN68
On that occasion, your Honour however remarked that the primary functions of the Commission were to prevent and settle industrial disputes, so far as possible, by conciliation and, as a last resort, and within the limits specified by the Act, by arbitration. There must therefore have been some surprises for your Honour along the way, as those many functions altered quite significantly, resulting in the Tribunal's not doing what you anticipated but playing a much greater role in enterprise-focused outcomes, overseeing the approval process for industrial action by employees and employers, so as to attract the immunities under the Act or, in certain circumstances, for the removal of those immunities provided under the Act.
PN69
Then there was also the development of what became, what I suggest, was an administrative function as opposed to the traditional arbitral function in respect of setting the national minimum wages and through the award modernisation process, which I will mention again shortly. A further challenge arose, of course, when Fair Work Australia was to be established. I suspect your Honour might have thought, at least on one occasion, that a mere name change might have been easier. Those changes, of course, resulted in even some of your old favourites - sections 41(1)(d) and 111(1)(d) - disappearing off the landscape. Your Honour adapted to these challenges and performed the new roles in the most admirable fashion.
PN70
As has been mentioned, the Australian Industrial Relations Commission was, and Fair Work Australia is, by the nature of the institution, often at the centre of political debate or contest in Australia. The tribunals are also often the focus of industrial matters of major disputes which affect the economy, particular segments of society or groups of employers and employees in a significant way, with a great deal at stake. Notwithstanding this reality, I join with others to acknowledge that your Honour has stood above those issues and applied the law as it stands.
PN71
The second point I wish to touch on is to make mention of the significant contribution that your Honour made, together with your colleagues, in respect of the award modernisation process. We do not think that to date there has been sufficient recognition of the enormity of the task which was achieved in a very short period of time. However, that was achieved even though the additional burden was imposed on the Tribunal with some last-minute changes to the directions. I suspect that there may have been some thought given to some particular penalty rates that should be applied for the additional overtime that was required as a result of those events.
PN72
Lastly, I wish to say on behalf of the members of the Law Council of Australia and the Australian Bar Association that it has always been a pleasure to appear before your Honour. Your Honour has been unfailingly civil and acutely attentive to the arguments put, even though - on the rare occasion, I might say - there may have been no or little merit in what was being put on either end of the bar table, I might add.
PN73
On the occasion of the ceremonial sitting to welcome your Honour as President in Melbourne in October 1997, Dr Hughes, speaking on behalf of the Law Council of Australia, made this observation amongst others about your Honour:
PN74
All of whom I have spoken insist that you will be an excellent President of the Commission. You, they say, will be exceedingly courteous in cases coming before the Commission and will complement this manner by running proper and fair proceedings.
PN75
He was, I submit, your Honour, right and your Honour has proven him so. As has often been observed, the demands of practice at the bar as your Honour experienced it can be relentless, with not a great deal of time for the pursuit of other interests. I suggest, your Honour, that life as President of these tribunals has been much the same. We hope your Honour now enjoys the time to pursue your many other interests. On behalf of all the members of the associations, I thank your Honour for your fine service, and we wish your Honour well. May it please the Tribunal.
PN76
JUSTICE GIUDICE: Thank you, Mr Dixon. Thank you, Minister, Mr Anderson, Mr Lawrence, Mr Smith and Mr Dixon for your generous and kind remarks. I'm grateful to all of you for following the usual practice at functions of this kind and exaggerating my achievements and tactfully omitting to mention any shortcomings. I must say that at the time of my appointment, I thought that my popularity was probably at its height, but it appears my resignation has been quite well received as well.
PN77
Apart from the speakers, a large number of people have honoured me by attending this morning, and in particular the former Chief Justice of the Federal Court, the Honourable Michael Black; a number of current and former justices of that Court; Justice Maxwell, the President of the Court of Appeal; Justice Ross, former Vice-President representing the Supreme Court; and many former members and staff of this Tribunal. In addition to the members of Fair Work Australia seated with me on the bench, there are a number of part-time members also here. I'm very pleased that many of my colleagues who are heads of state industrial tribunals have taken the time and trouble to attend: Chief Commissioner Tony Beech from Western Australia, Justice Boland from New South Wales, President Hall from Queensland and President Leary from Tasmania. Heads of other federal workplace relations authorities are also here, a number of other judicial officers, representatives of unions and employers, members of the profession and friends, both in this courtroom and attending via video-link. I can't mention all of them.
PN78
As you would expect, there are a number of people that I would like to thank. Firstly, I'd like to thank the ministers that I've worked with. There have been a number of them - eight to be precise, which is a fair attrition rate over 14½ years. There have been testing times, but all have respected the need for the Tribunal to be independent of government and to carry out its statutory charter regardless of government policy.
PN79
I'm also grateful for the cooperation and support of the state industrial tribunals. Despite the changing political landscape in the various jurisdictions, relations between the heads of the tribunals have been close and productive and I will miss our regular meetings.
PN80
I've had opportunities to express my thanks and appreciation to the staff privately over the last few weeks, but I want to publicly express my gratitude to all current and former staff, particularly those who have been with us during the periods of major change that have been referred to, in 1997, 2006 and 2009. I'm glad to say the challenges were all more or less successfully met and that's largely due to the efforts of our staff led by Industrial Registrars Mike Kelly, Peter Richards, Nick Wilson and Doug Williams and, more recently, the general managers, Tim Lee and Bernadette O'Neill. There are some staff members who deserve special mention. They include Jane Gibbons for her leadership of the Information Management Team, along with Caroline Dean and more recently Kathryn Green; Dennis Miheyli for his work in Corporate Services; Alan Naylor for his employee relations work over many years; Miranda Pointon, who is the leader of the Minimum Wages and Research Branch; Bernadette O'Neill, Pauline Bourke and Lachlan Armstrong in leading the Unfair Dismissals Branch; Louise Clark and all of the state managers for their work in Tribunal Services and Agreements; and Judy Hughes in Communications. I have to include by those references the staff of those various branches.
PN81
I particularly want to acknowledge the contribution made by Terry Nassios. For the whole of my time here he's provided me with unstinting support and advice in relation to many issues of administration and on many occasions he's carried out the duties of the Industrial Registrar on a temporary basis and has maintained continuity while that office was vacant. I also want to acknowledge Brendan Hower's great contribution to what used to be called the Publications Branch, to award simplification, to award modernisation and his management of the contact centre.
PN82
Finally, among the staff, I want to mention a very important group, the member's associates. The associates provide direct support to the members in exercising powers and carrying out functions and are the contact point for parties and the public. Personally, I've been very fortunate to have a number of talented associates work in my own chambers and I thank them all. Two should be singled out: Georgina Neal, who was my associate for five years and who has come from Auckland to be here today, and my associate of 13 years, Kate Purcell, well-known to many of you for her high professional standards, courtesy, efficiency and good humour. In fact, she's been much more than an associate, taking responsibility for major administrative tasks and planning and organising some very significant events, such as the international dispute resolution conference here in Melbourne a few years ago. I have appreciated her work and friendship very much.
PN83
Next, I want to acknowledge the support, loyalty and encouragement that I've received from the present and past members of the Commission and Fair Work Australia. It's impossible to carry out the functions entrusted to the President without the active cooperation and hard work of the members, and I've been very fortunate in having a large group of very talented people from a range of backgrounds and disciplines who have made my job very easy. I particularly admire the conscientious way in which the members carry out their statutory duties, refusing to be distracted by the glare of publicity or the barracking from the sidelines which comes in various forms. It's a difficult job and that should be recognised. It's appropriate also to remember the contributions of members who passed away while in office or shortly after: Commissioners Ros Dight, Bernie Frawley, David Hoffman and Bill Mansfield, Vice President Tony McIntyre and, finally, Senior Deputy President Colin Polites, and I'm very pleased to see Sue Polites here as well as Mr George Polites.
PN84
I want to mention, briefly, three things which seem to me to be important to a body such as Fair Work Australia. The first is that we are part of a history stretching back to the constitutional debates which preceded Federation. There has been a national industrial court or tribunal for almost as long as there's been a Commonwealth parliament. It's important to know something of what has occurred in the past and to learn from it. Although times and legislation change, many of the problems we encounter do not. Many of the issues which were debated before the Arbitration Court in the early 1900s are still being debated: wages obviously, skills shortages, right of entry of union officials, for example. We are part of a tradition of dispute resolution which is deeply ingrained in our national consciousness.
PN85
The second thing, which almost goes without saying, is that the Tribunal is independent of the executive government and of the parliament. Its members have the same protection and immunity as members of the High Court. Members of the High Court, as we know, have the protection and immunity enjoyed by a judge of a superior court in England prior to Federation. It is important to cherish that independence and to protect it, no matter where the challenges originate, if public confidence in the Tribunal is to be maintained.
PN86
Thirdly, Fair Work Australia is, in a real sense, the provider of a service to the public. Although I'd prefer not to use terms such as "consumer" or "stakeholder" or "client", the fact remains that the operations of Fair Work Australia require a considerable expenditure of public money. The resolution of workplace relations issues and the promotion of harmonious relationships are very important functions which lie at the heart of our work. The way in which those functions are carried out is important for the parties directly concerned and for the community at large.
PN87
In concluding, I want to mention two other groups. The first group is those people who appear in proceedings and those who assist them. These are the advocates, members of the legal profession and others, who have participated in the presentation of the many, many cases I have sat on over the last 14 years or so. I know the demands of preparing and presenting cases and I have appreciated their assistance enormously.
PN88
Finally, there is the support I have received from friends and family and the love and tolerance of which I've been the most fortunate beneficiary. Many of you know the demands of work in this field - involving long days and frequent overnight absences - and the resulting burden for others, particularly family. I thank, in particular, my wife of 41 years, Beth, who is a peerless partner, mother and grandmother, and our four children, our two daughters-in-law and our son-in-law, and not forgetting the five grandchildren. I thank you all once again and farewell. We shall now adjourn.
<ADJOURNED [11.05AM]