C2001/2198, Transcript of Proceedings [2001] AIRCTrans 1020 (30 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 7331
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/2198

SDC (VICTORIA) PTY LTD

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Application under section 127(2) of the Act
to stop or prevent industrial action re
sub-contractors at the Hawthorn site

MELBOURNE

10.00 AM, THURSDAY, 10 MAY 2001

PN1

MR D. BURNETT: I seek leave to appear for the applicant in this matter, SDC (Victoria) Pty Ltd.

PN2

MR M. BROMBERG: I seek leave to appear for what I might broadly call the subcontractors, they are the fifth, sixth, seventh, ninth and tenth respondents.

PN3

MR D. NOONAN: I appear for the Construction, Forestry, Mining and Energy Union. I would indicate at this stage, Commissioner, that I have got no objection to leave.

PN4

MR BROMBERG: Leave is granted Mr Bromberg and Mr Burnett. Yes, Mr Burnett.

PN5

MR BURNETT: Sir, shortly before the Commission was convened, sir, I had a discussion with my learned friend, Mr Bromberg. I haven't had enough opportunity to speak to Mr Noonan yet. And it was agreed between us that it may be of some assistance in relation to the dispute if, perhaps, a without prejudice mediation or discussion took place between the parties before the bayonets are drawn in relation to section 127 and the jurisdictional arguments and so forth. It is a matter for you, sir, but we thought it might be of some assistance to trying to resolve the impasses that presently - - -

PN6

THE COMMISSIONER: The proposition is you will have that discussion without the Commission's presence?

PN7

MR BURNETT: Well, sir - - -

PN8

THE COMMISSIONER: I will tell you now, gentlemen, I am not going to conciliate the matter and then hear it. Mr Bromberg, do you agree with that course of action?

PN9

MR BROMBERG: I do, but I want to put on the record immediately - - -

PN10

THE COMMISSIONER: Yes.

PN11

MR BROMBERG: - - - the Commission, in our view, has no jurisdiction to hear the matter. It is a commercial dispute not an industrial dispute. We are happy to have a talk.

PN12

THE COMMISSIONER: You have a talk and we will go into those arguments later, if we have got to.

PN13

MR BROMBERG: Yes.

PN14

THE COMMISSIONER: Mr Noonan.

PN15

MR NOONAN: Yes. Well, the union would have a similar position to that of Mr Bromberg. We are bewildered as to why we are here, Commissioner. There is no industrial dispute or industrial action as contemplated by the Act. If the parties can be assisted by a conference without prejudice then we support that course of action. Might I ask for a commitment from counsel for the applicant that anything that occurs in that conference be kept - not be relied on in any other proceedings. That would be the only precondition we would put, Commissioner, and I put that only because of the recent practice of certain parties in conciliation.

PN16

THE COMMISSIONER: Yes. I might say, Mr Noonan, to be fair, the Commission has never had that problem with counsel, only with some lay persons who appear before it from time to time and whose veracity is in doubt before this Commission.

PN17

MR NOONAN: Yes. I suppose it is abundant caution, Commissioner, having been burnt before.

PN18

THE COMMISSIONER: Yes. Well, I recognise your caution but I don't think I need to warn counsel that what is said in conference stays in conference.

PN19

MR NOONAN: If the Commission pleases.

PN20

THE COMMISSIONER: How long do you think you will need?

PN21

MR BURNETT: Perhaps if we could half an hour initially, sir.

PN22

THE COMMISSIONER: All right. Well, how about 11 o'clock.

PN23

MR BURNETT: Yes, thank you, sir.

PN24

THE COMMISSIONER: We will adjourn and resume at 11 o'clock. Thank you.

SHORT ADJOURNMENT [10.05am]

RESUMED [11.05am]

PN25

MR BROMBERG: If the Commission pleases, can I report that despite efforts over the last hour, and I do thank the Commission for the time provided, despite efforts, the matter has not resolved. It may be that some further discussions can take place at a later time, but at this juncture, if it is convenient to the Commission we would like to raise a jurisdictional question. Can I tell the Commission that in our view this application is entirely misconceived. It is about the most misconceived application I think I have seen in my time here.

PN26

There is no industrial dispute here between employers and employees. What we have is an underlying commercial dispute between a number of corporations, namely, sub-contractors and a developer. Can I identify the parties before you first? I should say that a number of the respondents don't appear to be represented, don't appear to be here today, or whether they have been served or not, we don't know. But so far as those for whom I act for, the fifth respondent, Mr O'Regan, is the principal of Parkform Constructions Pty Limited.

PN27

And if the Commissioner has the application, you will see in the heading to the matter, the name of the company is listed there. Similarly with the sixth respondent, he's the principal of ECI Painting Contractors Pty Limited. The seventh respondent is the principal of Complete Electrical Contracting Pty Limited. The eighth named respondent does not appear. I don't know whether he has been served. I am instructed that he is an employee of Ponask Pty Limited. The principal or one of the principals of Ponask Pty Limited is Mr Gunther Wendt, who is the ninth respondent.

PN28

And then Mr Tony Robinson, who is defence respondent, for whom I do appear, is the principal of T & A Ceilings and Partitions. And then a person fondly and colloquially known as Meggsie - - -

PN29

THE COMMISSIONER: Must be a ..... is he?

PN30

MR BROMBERG: As I am instructed, he is an employee of T & A Ceilings and Partitions. He is not here and he is not - no appearance for him, as I understand it. I don't know whether he has been served. Now the facts are not - - -

PN31

MR BURNETT: Excuse me, just - - -

PN32

MR BROMBERG: Yes.

PN33

MR BURNETT: Sir, I am just wondering where my learned friend has taken the floor. I would have thought it more appropriate for the applicant to make the application and point to the areas of jurisdiction rather than my learned friend pointing out areas of non-jurisdiction at this stage, without you hearing other things.

PN34

THE COMMISSIONER: He hasn't gone to that. He's just told me who he is appearing for.

PN35

MR BURNETT: I am sorry, sir.

PN36

THE COMMISSIONER: He hasn't developed an argument of submission yet.

PN37

MR BURNETT: I think - no, that's right.

PN38

THE COMMISSIONER: And I presume he is not going to.

PN39

MR BURNETT: Well, I assume he isn't either, but I just wanted - I thought he had explained who he is appearing - - -

PN40

THE COMMISSIONER: Let us clear up who he is appearing for first.

PN41

MR BURNETT: Yes.

PN42

THE COMMISSIONER: Yes, Mr Bromberg.

PN43

MR BROMBERG: Now, we do seek to raise the question of the Commission's jurisdiction at the outset, as a preliminary matter. I don't mind if my learned friend puts to you first the basis upon which - - -

PN44

THE COMMISSIONER: I think your learned friend should put it to me first. It is his application.

PN45

MR BROMBERG: I don't have any problem with that. And we will respond, if the Commission pleases.

PN46

THE COMMISSIONER: Yes. Now do I take it, when you said,

PN47

Mr Bromberg, that - in respect to the eighth named respondent, and the ninth named respondents, you do appear for that company.

PN48

MR BROMBERG: Well, it is unclear as to whether the company is intended to be a respondent or, for instance, in relation to the ninth respondent,

PN49

Mr Gunther Wendt. I read the application as though Mr Gunther Wendt as an individual was being named. I appear for him. And he is - - -

PN50

THE COMMISSIONER: Yes, okay, you have cleared up my question.

PN51

MR BROMBERG: And he, as I say - - -

PN52

THE COMMISSIONER: I might add, the persons are named in the application.

PN53

MR BROMBERG: I am sorry, Commissioner?

PN54

THE COMMISSIONER: In the application that is before the Commission, Voitin Walker Davis have informed the Commission that it was served upon the following respondents. And then it lists the two named respondents. Do you have a copy of that?

PN55

MR BROMBERG: No, I don't. I don't. And I don't know how it was - my instructions are that those for whom I appear received notification - - -

PN56

THE COMMISSIONER: From the Commission.

PN57

MR BROMBERG: By way of fax to the officers of the companies. Now whether notification - - -

PN58

THE COMMISSIONER: You mean, notification of hearing?

PN59

MR BROMBERG: Perhaps the application as well.

PN60

THE COMMISSIONER: Well, my associate sent the notification of hearing.

PN61

MR BROMBERG: Yes.

PN62

THE COMMISSIONER: To those - - -

PN63

MR BROMBERG: But how Mr Peacock, who is an employee, and Mr - and Meggsie were served, we have no idea.

PN64

THE COMMISSIONER: Perhaps Mr Burnett can develop that and let the Commission know what is going on.

PN65

MR BROMBERG: If the Commission pleases.

PN66

MR BURNETT: Yes, thank you, sir. I just am receiving instructions. The application has been served by facsimile on the places of business where the individuals were known to be associated with. For example, Mr Wayne Peacock was served by the document, the application being facsimiled to Ponask Pty Limited. And it appears that in respect of appearances, there were only two respondents who have not appeared today - correct, and that is

PN67

Mr Peacock of Ponask, and probably not surprising, Meggsie hasn't appeared or represented. But as I understand it, all the other respondents agreed that there had been served, Mr Noonan appearing for the second, third, and fourth named respondents, I take it. We should confirm that, I suppose.

PN68

MR NOONAN: Well, I appear for the Union, Commissioner, to the extent that that Union has been served with this application.

PN69

THE COMMISSIONER: Yes, and the first named respondent was the Union, and the second, third and fourth named respondents are officers and/or employees of the Union.

PN70

MR NOONAN: Yes, and that is really the point I wish to make, Commissioner.

PN71

THE COMMISSIONER: Yes.

PN72

MR BURNETT: Commissioner, the reason that the respondents have been named as they have been, is as a result, as I will take the Commission through briefly the history of this matter. The first, second and third and fourth named respondents are, of course, CFMEU, the Union itself or the officials, and then - who have been involved in the picket and the sanctioning of the picket. And thereafter the individuals who have been also on the picket line. So what you see is as best as the applicant can - - -

PN73

THE COMMISSIONER: Yes.

PN74

MR BURNETT: - - - ascertain the persons involved in the blockading of the property and the picket line.

PN75

THE COMMISSIONER: Yes, Mr Burnett, you say that - - -

PN76

MR NOONAN: Sorry, Commissioner - - -

PN77

THE COMMISSIONER: Just hang on for a moment. You say that persons involved in a picket supported by the Union - you had better go to that,I think. Because if you can prove to me that they have supported them, and that is happening, that may be part of your grounds.

PN78

MR BURNETT: Yes, yes, indeed.

PN79

THE COMMISSIONER: I think you should go to that.

PN80

MR BURNETT: Go to that immediately.

PN81

THE COMMISSIONER: Yes.

PN82

MR BURNETT: Sir, can I take you to - I don't know what you have before you, sir, but you should have three documents. The first one is the section 127 application, R9.

PN83

THE COMMISSIONER: Form R9, yes.

PN84

MR BURNETT: The second one is the outline of the applicant's submission.

PN85

THE COMMISSIONER: Just stop there for a moment. I have got the grounds, yes, the grounds, yes.

PN86

MR BURNETT: The third one, sir, is the witness statement of

PN87

Mr Trevor Neate, director of the - - -

PN88

THE COMMISSIONER: I don't have any of that.

PN89

MR BURNETT: You will find that Mr Trevor Neate's statement is basically a mirror of the - by and large of the grounds of the application, which are set out in the form R9.

PN90

THE COMMISSIONER: I do have the witness statement of Mr Neate.

PN91

MR BURNETT: Yes, thank you, sir. I think that's been served on everybody.

PN92

THE COMMISSIONER: Yes.

PN93

MR BURNETT: Sir, can I take you to the application specifically and specifically in relation to the CFMEU involvement in the picket.

PN94

THE COMMISSIONER: Yes.

PN95

MR BURNETT: It is first mentioned at point 5 of the application, where it says that:

PN96

On or about 28 February 2001, Mr Mark Papan, the CFMEU had telephoned Mr Trevor Neate of SDC ...

PN97

who is the applicant:

PN98

... to arrange a meeting between Mr Neate and Mr Guiffre, the builder and the CFMEU. Mr Papan indicated that calls to the builder were fruitless.

PN99

And after that contact with the CFMEU, you will see point 6:

PN100

In late February or March, the sub-contractors began picketing the premises, having a caravan premises sanctioned by the CFMEU.

PN101

Point 7 is that there was a meeting that was schedule to occur on or about 1 March 2001. The builder cancelled the appointment. And then point 8:

PN102

On or about 5 March 2001, a meeting was held between Michael Guiffre of the builder, Mark Papan of the CFMEU, Trevor Neate at the offices of the CFMEU. Mr Papan ...(reads)... and that the onus for paying the sub-contractors lay upon the builders.

PN103

There is reference there to another meeting between Mr Neate and the builder, and then we come to early April of 2001:

PN104

Mr Neate of the applicant was approached by Mr Matt Hudson of the CFMEU to attend another meeting at the premises of the CFMEU.

PN105

And, sir, this is the - what we say is the pivotal meeting in relation to CFMEU confirmation of their involvement in the picket which started in late February, beginning of March. It states at point 11:

PN106

On or about 6 April 2001 at 10.30 am, Mr Trevor Neate and Mr John Yencken, project manager of SDC, attending the offices of CFMEU, whereupon Mr Matt Hudson ...(reads)... the applicant believes are CFMEU members.

PN107

Now, you will see, sir, as we go down to paragraph 15 - and, sir, perhaps at this stage - I have shown these pictures to my learned friends. These are pictures which were taken on Sunday of the site, and it will help just explain the situation. If I could hand those - - -

PN108

MR BROMBERG: Well, I don't know how they might help on the jurisdictional issue, Commissioner, but - - -

PN109

THE COMMISSIONER: All those serve to prove to the Commission at the moment is there is a sign up there that says, "Picket Line of Unpaid Workers" with what appears to be a late model car parked outside.

PN110

MR BROMBERG: Can we just reserve our objection? We don't think that it is relevant to the jurisdictional issue.

PN111

MR BURNETT: Sir, we say on or about 6 April, that is the day of the unsuccessful meeting at CFMEU headquarters, that banner was displayed as you can see on the first floor balcony, Unpaid Workers' Picket Line, and it is the applicant's believe that that if not placed there by the CFMEU, was in fact organised by the CFMEU, given the discussions that have been taken over the past month, where it was indicated the CFMEU were negotiating on behalf of the workers in respect of their claim for payments.

PN112

So, sir, what we say is that it is quite clear the CFMEU is a participant in this - well, we say, blockade, picket, whatever you like to call it - and indeed they have taken the leading role in negotiating and organising, we say the action as it now stands.

PN113

THE COMMISSIONER: Who do you say erected the cyclone wire fence?

PN114

MR BURNETT: I will just get some instructions.

PN115

THE COMMISSIONER: At point 16 it says - no, point 18:

PN116

The cyclone wire fence was erected.

PN117

Who do you say erected that?

PN118

MR BURNETT: I will just get some instructions.

PN119

THE COMMISSIONER: And while you are getting instructions - - -

PN120

MR BURNETT: Yes, sir.

PN121

THE COMMISSIONER: - - - you might also get some instructions about who you say arranged the portable toilet's delivery.

PN122

MR BURNETT: Yes, perhaps if I just have a moment, sir, I will get full instructions on that.

PN123

THE COMMISSIONER: Yes. And the site at point 16, 17 and 18. Yes,

PN124

Mr Noonan.

PN125

MR NOONAN: May I be excused for one minute, Commissioner?

PN126

THE COMMISSIONER: Yes.

PN127

MR NOONAN: My colleague has a pressing matter he needs to discuss with me - other proceedings.

PN128

MR NOONAN: Thank you for that time, sir. I was receiving full instructions. In relation to the mid-April delivery of the site, Mr Neate, who I have just received instructions from, was on site. And a truck turned up at about midday and the site hut was placed, as you can see, in the driveway. And the driver was asked who had arranged for this site hut to be delivered, and the driver told him that it was Platform Constructions - Tha Constructions and the Union had organised it.

PN129

Some three-quarters of an hour after the delivery of the site hut, Mr Matt Hudson from the CFMEU arrived on site. That was about three-quarters of an hour after the site hut was delivered. The applicant called the police upon the delivery of this site hut, Victoria Police, and they attended whilst

PN130

Mr Hudson was on site. It was explained to Mr Hudson that this was an industrial matter, an industrial - sorry - it was explained to the police by

PN131

Mr Hudson that it was an industrial matter, and that the police on that basis declined to remove the site hut from the driveway. Can I indicate, sir,

PN132

Mr Neate is here, and he can give sworn evidence about these things, if necessary.

PN133

THE COMMISSIONER: Yes.

PN134

MR BURNETT: Point 17:

PN135

On or about 30 April 2001, the portable toilet was delivered. It was delivered. It was delivered by Cannon Hire.

PN136

And after it was dropped on the driveway, Mr Neate had asked a couple of the picketers, who organised this, and he was told, the Union organised it. As I said, he can give sworn evidence about this. Point 18:

PN137

On or about 2 May 2001 a cyclone fence was erected.

PN138

In fact what happened was that the cyclone fencing was delivered in the afternoon, on site, and it was erected by some the picketers, the sub-contractors, after it was in fact delivered. So in relation to the Union involvement, we say the site hut - the Union were involved in that delivery, and that was confirmed by Mr Matt Hudson, three-quarters of an hour after delivery of it, explaining to the police that this involved an industrial matter, and that encouraged the police not to intervene.

PN139

And in relation to the toilet, it was also - my client was also told that the Union had organised that. In respect of the fencing, as I said, it had been delivered, and it was put up by the picketers. Can I indicate, sir, I have also had just information this morning that a large amount of further fencing has been delivered at the site. And not, of course, ordered by my client, a large amount of cyclone fencing.

PN140

Twelve panels have been delivered this morning. My client knows not by whom or who ordered that but of course he didn't and he is the owner of the property and he suspects that panelling is going to be used for the back section of the property. You can see that the front section is all completely locked off now and if he fears that the back section is going to be also fenced today unless this action is stopped. Now, he doesn't know at this stage who has ordered that or what is going to happen with it but the inference is that the back of the property is going to suffer the same fate as the front of it. My learned friend wants to make one point.

[11.27am]

PN141

THE COMMISSIONER: Yes, Mr Bromberg?

PN142

MR BROMBERG: Can I just very quickly tell the Commissioner that we contest the matters that my friend puts on instructions. We are content, though, in relation to the jurisdictional point for the Commission to receive that evidence in dealing with the jurisdictional point because it doesn't, in our respectful submission, help our learned friend one iota at all, but we do indicate that those matters are contested and in particular I am instructed that nothing on the site was organised by the union.

PN143

MR BURNETT: Sir, my instructions are these: that all the workers on the site are covered by the National Building and Construction Industry Award and the provisions thereto, that they are all in fact union members of federal unions and that, as I said, all members on site were governed by the National Building and Construction Industry Award and that is further, in my respectful submission, confirmed by the fact that the CFMEU has taken such a leading role in the blockade of the premises.

PN144

It is curious, sir, that both my learned friends would say that this does not have the elements of an industrial dispute. In my respectful submission, in my experience it indeed exactly has all the hallmarks of an industrial dispute and an unlawful picket in relation to that dispute. I say it is curious that they would make that application because as I understand it, and it is going to be put to you, that in fact what they say is that my client has taken up the role as the payer of wages to the respondents and whereas some retention funds have been paid, the respondent's view is that that is what has happened over the period of time.

PN145

So what we say is that you have a situation where you have federal award employees who are taking industrial action by way of a picket and a blockade on a property that the applicant owns, that the CFMEU, which is a federally registered union, has told the applicant that it must pay up the wages of these men, of these workers, or else the work does not get completed. That is, the union has taken up the cudgels on behalf of its members - albeit that they are subcontractors, has taken up the cudgels - and for my learned friends to then put to you that this is not an industrial dispute is, to my way of thinking, a perverse view of it.

PN146

On the one hand, for Mr Hudson - and I can call evidence on this; my learned friends may want Mr Neate to be called. On one hand Mr Hudson tells the Victoria Police that this is an industrial dispute and that they should not get involved because it is an industrial dispute and then on the other hand to come here before you and say it is a commercial dispute wreaks of duplicity and doesn't address the problem of this unlawful activity. Now, sir, I haven't gone through the whole application. I am just dealing with the jurisdictional aspects of section - - -

PN147

THE COMMISSIONER: Yes, I understand that.

PN148

MR BURNETT: And just the industrial dispute. What we say is that it is an industrial dispute and what we say is that it deals with workers who are covered by a federal award and if one looks at the Act, that is certainly one of the prerequisites, not of an industrial dispute, but one of the prerequisites of coming before the Commission is that you have workers that are covered by an award and award conditions, and certainly as I understand it - and perhaps my learned friends can clarify this - all these workers are subject to the National Building and Construction Industry Award and are all federal union members. But if that is not the case, then that would surprise us, given what we have been subject to in recent times.

PN149

I have just been handed a note that my client, Mr Neate, has been told by the police that this picket and blockade is an industrial matter, an industrial dispute and he has been told that unless there is some court order in relation to clearing the site for his lawful use then the Victoria Police are in no position to remove the blockade. So I would say my learned friends - - -

PN150

THE COMMISSIONER: Why do you seek the Commission's pursuant to section 127 and not other forms of the Act? I mean, an order to the Victoria Police would not necessarily emanate from the Federal Court of Australia. It would emanate from a County or a Supreme Court or a magistrate, at that, drawing the widest bow, a magistrate.

PN151

MR BURNETT: What we would plan to do, sir, is we thought this was the most effective port of call initially because of the parties involved, because of the CFMEUs high profile in the matter, and what we seek today is a simple order that the industrial action cease and that the fencing be taken away, the site hut be taken away and the toilet be taken away and the banner be removed and that there be no interference in the lawful activities of the rightful owner. It is quite a simple order, we would say, and it falls precisely within the parameters of 127 to stop industrial action and we say that because of the high profile that the CFMEU have taken in this matter and running the dispute, if I can use that in inverted commas, that this is the appropriate forum at this stage to bring this action.

PN152

THE COMMISSIONER: You have answered my question.

PN153

MR BURNETT: Yes, sir. As I said, I haven't gone through the entire application because my learned friend wants to deal with the - - -

PN154

THE COMMISSIONER: Well, I want to deal with the jurisdictional matter first.

PN155

MR BURNETT: Yes. Of course I will deal with any matters my learned friend - after. Thank you, sir.

PN156

THE COMMISSIONER: Mr Bromberg, when you are ready.

PN157

MR BROMBERG: With respect to my learned friend, his client seems to take the view that because a matter involves the union it must be an industrial dispute and must involve industrial action. Whether the police think so or not seems to me, with respect, irrelevant. The issue is one for you and you are constrained to deal with it in accordance with your jurisdiction and what the Act says about industrial action and what is in fact an industrial dispute. The facts, Commissioner, are not particularly controversial. I can give them to you in very short form.

PN158

The subcontractors for whom I act, together with other subcontractors, entered into various contracts with a builder, Domain Property Development Group Pty Limited, to build a block of apartments. The contractual relationship was between the subcontractors, who are, in the main, companies and another company, being the builder. The applicant is a developer who engaged the builder. The subcontractors have performed the vast majority of the work for which they were contracted but have not been paid substantial outstanding amounts.

PN159

Now, so far as the subcontractors for whom I act are concerned, the amount outstanding is $350,358. The employees of the subcontractors are owed no money. They have been paid. There are no outstanding wages or other entitlements. There is a controversy between the developer and the subcontractors. There is no controversy between the subcontractors and their employees. The controversy goes like this. The applicant says the subcontractors should look to the builder for payment. The subcontractors say the developer must pay. Why? Well, let me tell you why.

PN160

They say that because in the course of the project the builder defaulted. This occurred back in December. He has, in essence, disappeared. At that juncture the developer guaranteed to the subcontractors that if they continued to perform the contracts the developer would pay them for the services rendered. The developer, as I am instructed, has made some payments during the course of December and January but then stopped. At that juncture subcontractors refused to perform any further contract work. Now, that is the commercial dispute.

PN161

It is a commercial dispute between corporations, essentially. I think there might be one partnership there but it is dispute between corporations about who should pay, not for the wages or other remuneration of workers - they have all been paid - it is dispute about who should pay for the commercial work performed by contractors in building a building for the developer. As a consequence of that commercial dispute, as I have said to you, the subcontractors stopped the works and pulled their employees of the job. That occurred in about late February, according to the applicant's application.

PN162

There is no industrial action and there is no industrial dispute. It is alleged by the applicant that the subcontractors and their employees have formed a picket or did form a picket in late February or March and have since maintained a picket. That is paragraphs 6 and 14 of the application. Let us presume for the purpose of this preliminary question, and we do that without admission. Let us presume that that is so. Those circumstances do not provide this Commission with the jurisdictional foundation upon which the making of a section 127 order can be considered.

PN163

The applicant points to a picket, a protest relating to a commercial dispute, nothing else. There is no underlying industrial dispute and can I say this: even if there was an underlying industrial dispute, the authorities are pretty clear, and I will take you to them. A picket does not constitute industrial action within the meaning of section 127.

PN164

THE COMMISSIONER: You don't have to develop that, Mr Bromberg. The Commissioner is well aware of what you are going to tell him.

PN165

MR BROMBERG: Yes. Commissioner, I will go to the section in a minute but can I say my learned friend's case seems to be this: the Commission has jurisdiction because the union became involved. Well, unions are involved in all sorts of disputes, Commissioner. Coming here earlier this morning, listening to the radio, I understand unions are entering into the controversy as to whether BHP and Billiton ought to amalgamate and are going to take out full page ads and might indeed be involved in some protests. It doesn't make that amalgamation or that commercial - - -

PN166

THE COMMISSIONER: Until such time as they interfere with the work or either BHP or Billiton.

PN167

MR BROMBERG: Exactly; until such time as they encourage the employees of an employer to stop work.

PN168

THE COMMISSIONER: But isn't that what is being put to me?

PN169

MR BROMBERG: No.

PN170

THE COMMISSIONER: Do you say that is not what is being put to me?

PN171

MR BROMBERG: No.

PN172

THE COMMISSIONER: Not by you, by Mr Burnett.

PN173

MR BROMBERG: It is not what is put to you on his own - he doesn't, with respect, have any evidence specifically about this but it is apparent from those facts that aren't in controversy that that is not the case. Here you have the employees and the employer together in solidarity on a picket line. That is not industrial action. Who is taking industrial action? Are the employees taking industrial action in circumstances where the employer has said to them come off the job because we are no longer being paid? Of course not. If the Commissioner goes to the definition of industrial action - - -

PN174

THE COMMISSIONER: Yes, I have it before me.

PN175

MR BROMBERG: In section 4. I can make the point fairly quickly. You will see that industrial action is defined and paragraphs (a), (b), (c) and (d) deal with a number of ways that industrial action can be constituted. But you will see, sir, that there is then a qualification:

PN176

...but does not include (e) action by employees that is authorised or agreed to by the employer of the employees.

PN177

Now, who is the employer here? The subcontractors. What have they asked their employees to do? Walk off the job. The employees are not taking industrial action against their employer and the employer is not taking industrial action against the employees. They are standing there in solidarity, not in dispute, saying that the applicant should pay up. Apart from that, can I take you back to section 127 because that is our starting point. 127(1) provides:

PN178

If it appears to the Commission that industrial action is happening or is threatening, pending or probable in relation to -

PN179

Then there are three bases. The first point we make is that it must appear to the Commission that there is industrial action happening or threatened or impending. Industrial action is defined, as I have indicated, and it does not extend to conduct of employees taken at the instance of the employer, as in this case. So my learned friend does not get to first base there at all. If you are against us on that and, with respect, we don't think that the matter is even arguable. If you are against us on that, picketing is not industrial action. So even if there was an underlying industrial dispute, even if the employees with the CFMEU were out on the picket line - - -

PN180

THE COMMISSIONER: Yes. There is a plethora of decisions on that, Mr Bromberg, in that - - -

PN181

MR BROMBERG: There is a plethora of decisions on that and can I just refer you - the Commission doesn't need to go to it. I can just hand it up if it is convenient.

EXHIBIT #A1 COPY OF DECISION IN DAVIDS DISTRIBUTION PTY LTD V NATIONAL UNION OF WORKERS

PN182

MR BROMBERG: There is a decision of the Full Court of the Federal Court in Davids Distribution Pty Limited v National Union of Workers. It is reported in (1999) ALR Volume 165 at page 550. Can I refer you in particular to paragraphs 43, 47, 52 and 74. Perhaps I can take you very quickly through it. You will see at paragraph 43 the Full Court begins to discuss whether picketing is industrial action as defined by the Act. They say that at that time there had been a number of cases which hadn't conclusively resolved the question.

PN183

They, at paragraph 47, in their run through the cases, refer to a case of the Full Bench of this Commission in Construction, Forestry, Mining and Energy Union v Coal and Allied, where the Bench had a mixed view, Munro J taking one view with the President taking an opposite view and Commissioner Larkin not taking a clear position about it. They then go on to discuss a number of other Federal Court decisions. At paragraph 52 they say this, that:

PN184

Activity that merely involves communication of information to persons entering or leaving a site is not industrial action within the meaning ...(reads)... limit or restrict the performance of work or the acceptance of or offering - - -

PN185

THE COMMISSIONER: Mr Bromberg, I don't wish to interrupt, but doesn't the whole of their Honours' decision revolve around the fact that there has got to be industrial action, strike action or reckless damage to property or things associated with such action?

PN186

MR BROMBERG: What they say is that whether a picket is peaceful or not, it is not industrial action unless it applies as a limitation on the work of those imposing the ban. You will see their conclusion - well, they say at paragraph 74 fairly clearly, they say:

PN187

The Commission may not make orders under section 127 of the Act prohibiting picketing.

PN188

They go on to say you can take it into account where you have an underlying industrial dispute and underlying industrial action, you can take it into account if you have that because you have got jurisdiction to deal with industrial action, but picketing is not industrial action.

PN189

THE COMMISSIONER: But you are saying there is no industrial action anyhow, aren't you?

PN190

MR BROMBERG: There is no industrial action anyhow.

PN191

THE COMMISSIONER: Well, unless you wish to, there is no need to develop that further.

PN192

MR BROMBERG: If the Commission pleases.

PN193

THE COMMISSIONER: Mr Burnett may want to have a go at it later.

PN194

MR BROMBERG: The application complains about the picket, I should emphasise, it doesn't complain about the employees refusing to work, and that is fairly self-apparent and obvious because the employees weren't refusing to work, they left the job at the instance of their employer. Then even if we are wrong on those two arguments, and even if you should be satisfied that there is industrial action by reason of this picketing, the industrial action must relate to either the matters set out in paragraphs (a), (b) or (c) of 127(1). So even if there was industrial action, it has to relate to an industrial dispute.

PN195

Now, my learned friend hasn't even attempted to point to an industrial dispute, and the evidence doesn't suggest an industrial dispute. An industrial dispute, of course, must attain to the relations to an employer and employees. Yes, there is a commercial dispute, but there isn't an industrial dispute.

PN196

Then paragraph (b):

PN197

...or it must relate to the negotiations or proposed negotiation of an agreement.

PN198

Well, there is no reliance on that. My learned friend seems to rely on (c) which says that:

PN199

It must be in relation to work that is regulated by an award or a certified agreement.

PN200

Now, there is no industrial action which relates to the work even if it is regulated by a federal award. The employees have been paid; the employees are not in dispute in any way. The carrying out of the work and the performance of the work has nothing to do with this. This dispute relates to the payment for services rendered by corporations to another corporation. It does not relate to work regulated by an award or certified agreement.

PN201

So that for all those reasons, we say that there is no jurisdiction, that the matter really is beyond argument, with respect to my friend, and we ask the Commissioner to dismiss the application.

[11.52am]

PN202

THE COMMISSIONER: Do you wish to add anything, Mr Noonan?

PN203

MR NOONAN: No. We adopt the submissions of Mr Bromberg in relation to the question of jurisdiction, Commissioner. What I perhaps should add is that the matters which have been put by Mr Burnett at the bar table are not acceded to by the union. We dispute much of what he has put orally and, if necessary, to test that as a matter of evidence, we certainly would not concede that, but we say that that doesn't arise because, as Mr Bromberg has clearly demonstrated, the Commission has no jurisdiction in this matter. If the Commission pleases.

PN204

THE COMMISSIONER: Mr Burnett.

PN205

MR BURNETT: Yes, thank you, sir. Sir, the applicant says this: the respondents can't have it both ways; that is, they can't invoke - - -

PN206

THE COMMISSIONER: It wouldn't be the first time someone tried that in here, Mr Burnett.

PN207

MR BURNETT: Yes. What we say is this: they can't invoke the moniker of this dispute being an industrial dispute when it suits them - sir, we say this, that the situation is that the respondents can't on the one hand invoke the moniker of industrial dispute to curry favour and gain, and then come here before you and say, this is not an industrial dispute. In relation to what my learned friend says, I say this. This dispute is a pay dispute, and it evolves out of the payment to workers who are members of predominantly the CFMEU.

PN208

THE COMMISSIONER: Can I stop you there, Mr Burnett, and let's get this clear once and for all. Mr Bromberg and Mr Noonan both put the argument that it is not a pay dispute because the workers - I use the term loosely - have been paid. There is a claim between the corporate identity of the subcontractor and the developer as a corporate identity or the now missing builder.

PN209

MR BURNETT: As I understand it, sir, the workers in fact haven't been paid and they are on site seeking payment. I don't know who they have been paid by. Is it put that they have been paid by - - -

PN210

THE COMMISSIONER: Well, can I just refresh your memory.

PN211

MR BURNETT: Yes, yes.

PN212

THE COMMISSIONER: Mr Bromberg said there is $350,358 outstanding to the subcontractors. The employees of the subcontractors have no outstanding claims. One would take that to mean that they have been paid.

PN213

MR BURNETT: Well, that comes as a surprise to me. I understood that the actual workers who - certainly my instructions are the actual workers who are picketing at the moment are saying they have not been paid.

PN214

MR NOONAN: Well, perhaps I can assist the Commission just in relation to one matter. My instructions are that the CFMEU has not received any claims from any employees at the site that the employer has not paid them. If the Commission pleases.

PN215

THE COMMISSIONER: Right. That either puts it to bed or muddies it, one or the other.

PN216

MR BURNETT: Yes, yes, certainly. Sir, of course, we are one step removed from what the actual workers are receiving, but it has been my instructions that the workers on site are the actual workers themselves, and what we say is this, that when Mr Oliver on April 6th - - -

PN217

THE COMMISSIONER: I am sorry, I don't like to keep interrupting, but - - -

PN218

MR BURNETT: Yes, sir.

PN219

THE COMMISSIONER: - - - you said the workers on site are the actual workers. Are you saying to me the workers on site are the actual subcontractors?

PN220

MR BURNETT: The tradespeople that did the work on the units.

PN221

THE COMMISSIONER: Are subcontractors or employees of subcontractors?

PN222

MR BURNETT: Are employees of subcontractors. It is being put that these - - -

PN223

THE COMMISSIONER: That puts you about two removed, but anyhow. You have got this disappearing builder somewhere who is supposed to be the wedge in between, and I sympathise with everyone about that.

PN224

MR BURNETT: Well, apparently he - I have just got instructions that he is building another project in St Kilda, so he hasn't disappeared too far. But in any case, sir, Mr Oliver on April the 6th - and this is where we say the moniker of industrial dispute and action is proved - because Mr Oliver on April the 6th tells the applicant that no more work will be performed until the payment is made to those tradesmen. Now, I know Mr Noonan has said that much of what I have said from the bar table is, in fact, challenged, and Mr Neate is here and he can give evidence about what he was told by the CFMEU.

PN225

Now, what we say is that when - and that is not the first time demands were made by the CFMEU for payment for work done. Once that demand for payment has been made and included in that payment is a threat of industrial action by way of limitation of work, that is no more work will be done on the project unless payment is made to the tradesmen, once that demand is made then that brings it within the jurisdiction of industrial action or industrial dispute pursuant to the Act. That is, we have a demand made for payment on behalf of the tradesmen, and then we have as a follow up a threat that no more work will be carried out unless that payment is made.

PN226

Now, my learned friend says that a picket per se is not industrial action, but if there is a demand for payment - I mean, this is what this case is all about, there has been a demand for payment of moneys for work done - if that demand is made and then flows from that in relation to the threat is restrictions on access as you have seen in those photographs, then we say there is industrial action, there is an industrial dispute because the union has made a demand for payment for workers.

PN227

Now, what has resulted from that is that certain action has been taken by those workers. Now, it has not been denied. I mean, I think it is again quite curious. It has not been denied by my learned friends that that blockade has taken place and has taken place at the hands of the workers and under the imprimatur of the CFMEU. What they say is - - -

PN228

MR NOONAN: Well, I object to that, Commissioner, because I did deny that.

PN229

THE COMMISSIONER: Yes, I know you denied it.

PN230

MR BROMBERG: And I put my case without admission on the presumption for the jurisdictional point only that he could make out his case, so there is no admissions at all.

PN231

MR BURNETT: But isn't it interesting that we are here. You can see quite clearly what is going on and yet my learned friends are taking that position. The situation is this, that once the union makes a demand for payment and then action of that nature follows thereto, we say there is an industrial dispute and there is industrial action. My learned friend, Mr Bromberg, says, don't be too worried about whether the workers are regulated by an award. I have put that these workers are regulated by the federal award. Mr Bromberg hasn't said to the Commission that is not the case. Now, what he says to you is, oh yes, but you know, payment of the workers is, you know, something separate, that is not regulated by the award. Well, as I understand it, it is very heavily regulated by the award. If payment of tradesmen isn't regulated by the award, I don't know is.

PN232

So we say, yes, this does come within the purview of section 127 and the definitional sections of the Act, and we say that what you are seeing, with respect, sir, is duplicitous - if I could say, double-dealing in the way that the CFMEU and the respondents can come before you today and object to the jurisdiction on the basis it is not an industrial dispute, but as I said, when it suits them to apply pressure, that is exactly how this dispute is characterised to the outside world.

PN233

Now, if the applicant has got it wrong in the sense that technically it is not an industrial dispute, well, that will be interesting because then, of course, the applicant then must take further action in other places, but it would be the first time in 2_ months that this action by the union and the respondents has not been characterised as industrial action in an industrial dispute for pay. If the Commission pleases.

PN234

MR BROMBERG: Can I make two points. I have no objected to my learned friend perhaps straying beyond a reply, but can I make two quick points.

PN235

THE COMMISSIONER: Yes, Mr Bromberg.

PN236

MR BROMBERG: First of all, this is a matter of your jurisdiction. It doesn't matter a hoot how anybody else has characterised what has been going on. It doesn't matter a hoot that a thousand people are out there saying it is an industrial dispute. What you are concerned with here is whether you have constitutional authority and authority under the Act to deal with this dispute, and we say you don't.

PN237

Can I say one other thing about what my learned friend said. He said that the union made a demand for payment for the workers. Well, you have heard the union; the workers have never indicated to the union that they are owned anything. You have heard my instructions about it; the workers are not owed anything. What, in fact, the evidence indicates at paragraph 12 of the statement of Mr Neate, that is the evidence that my learned friend seeks to rely on and this is the highest it gets, Mr Neate says that Mr Bill Oliver said that SDC would have to pay the subcontractors' claims. And that is not the workers, that is the companies.

PN238

THE COMMISSIONER: But even so, without going to Mr Neate as a sworn witness and then the Commission summoning Mr Oliver, those matters are contested statements from the bar table.

PN239

MR BROMBERG: Yes, they are.

PN240

THE COMMISSIONER: And they have got the same - I mean, the High Court dealt with that years ago.

PN241

MR BROMBERG: But the point, sir, is what my learned friend is trying to do is, with respect, confuse the Commission. No workers are owed money. Companies are owed money.

PN242

THE COMMISSIONER: Pretty hard to confuse me, Mr Bromberg, you should know that.

PN243

MR BROMBERG: I am confident about that. No workers are owed money. Corporations are owed money. The subcontractors are owed money, not for work performed under a contract of employment, but for a commercial building contract and work performed under that. They have not been paid. The CFMEU, on the evidence that my learned friend wants to put up, has been assisting the subcontractors in getting payment, and one can understand why the CFMEU will want to do that because it has an interest in these subcontractors remaining viable so that their members can continue to have employment, but there is no evidence of the workers being owed any money.

PN244

There is no evidence of the CFMEU making any demands for money for the employees. There is no industrial dispute. Even if there was an industrial dispute, there is no industrial action, and my learned friend can't, without even a single reference to the Act and what it says, overcome these submissions that were put to you earlier.

PN245

THE COMMISSIONER: Mr Noonan.

PN246

MR NOONAN: Nothing further, Commissioner.

PN247

THE COMMISSIONER: We will resume at 1 o'clock and I will render my decision in transcript as to whether I have jurisdiction or not, or in fact whether this Commission has jurisdiction and whether we shall proceed or not. See you at 1 o'clock.

SHORT ADJOURNMENT [12.05pm]

RESUMED [1.02pm]

PN248

THE COMMISSIONER: There is no doubt that the application before the Commission shows that in respect of at least part of section 127 of the Workplace Relations Act someone is being harmed because of action in place. However, the Commission has serious misgivings as to whether there is an underlying industrial action especially as the action in place appears to be in respect to E(4) industrial action, action at the behest of the employer, the employer or employers in this case being the subcontractors.

PN249

For that reason the Commission is of the view it has no jurisdiction in this matter. The Commission further comments, however, that if other evidence was before the Commission it may well have formed a different view. But that is for the applicant to decide. Although I form the view at the moment the Commission has no jurisdiction that does not stop the applicant from agitating an application pursuant to section 127 by way of a fresh application. The Commission is adjourned.

ADJOURNED INDEFINITELY [1.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COPY OF DECISION IN DAVIDS DISTRIBUTION PTY LTD V NATIONAL UNION OF WORKERS PN182