C2001/3940, Transcript of Proceedings [2001] AIRCTrans 1870 (8 August 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8535
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2001/3940
C2001/3939

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act by
Mirvac Construction for an order to stop or
prevent industrial action

MIRVAC CONSTRUCTIONS

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA
and OTHERS

Notification pursuant to Section 99 of the Act of
a dispute re allowances between the CEPU and
Fini Pty Ltd in Western Australia

MELBOURNE

4.09 PM, MONDAY, 23 JULY 2001

PN1

MR B. SHAW: I seek leave to appear for the notifier in the section 99, and the applicant in the section 127, and appearing with me is MR FANNING.

PN2

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union. As a preliminary, your Honour, there seems to be agreement from the applicant that the CFMEU has been wrongly included in this application and we would seek to be excused.

PN3

THE SENIOR DEPUTY PRESIDENT: I will deal with that in a moment, Mr Wainwright.

PN4

MR D. MIER: I appear on behalf of the CEPU Electrical Division, and could I say from the outset, your Honour, that we would like to seek an adjournment and I am happy to go into the reasons why.

PN5

THE SENIOR DEPUTY PRESIDENT: Well, we will deal with that after I have taken appearances and after I have dealt with the CFMEU matter, Mr Mier.

PN6

MR MIER: Thank you.

PN7

MR K. FITZGERALD: I appear on behalf of the CEPU Plumbing Division.

PN8

THE SENIOR DEPUTY PRESIDENT: First of all, is there any objection to Mr Shaw having leave?

PN9

MR MIER: We have no objection, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Shaw.

PN11

MR SHAW: Thank you, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: What is the position with the CFMEU; what has been indicated by Mr Wainwright?

PN13

MR SHAW: Mr Wainwright is right actually, he is very right.

PN14

MR WAINWRIGHT: Unusually.

PN15

MR SHAW: But the notification - I was informed that there were bans in support of the CEPU imposed by the CFMEU, and I might say an email came through and I was somewhat busy, and the email appeared to confirm that. Having looked at it more closely, I see that, in fact, referred to a different job altogether which is the subject of a separate application to the Commission. So, indeed, the CFMEU are not involved in any industrial action and my client has no objection to them - obviously they have no objection to them withdrawing from these proceedings.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. In those circumstances, Mr Wainwright, you have the Commission's permission to leave, and I indicate to you that in relation to these proceedings nothing will be done directed towards your organisation.

PN17

MR WAINWRIGHT: Thank you, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Mr Mier, you have an application, do you?

PN19

MR MIER: Thank you, your Honour. The basis on which we would like to seek an adjournment, your Honour, is the issue of procedural fairness. We have not received any witness statements. We don't know their case as nothing has been submitted to us. It has been an ambush. The principles of procedural fairness or natural justice requires that: one, the union must know the case it meets and, as I said, there has been no witness statements; and, two, the union must have an opportunity to present its case and test the case of the applicants; and, three, have a proper and adequate opportunity to prepare its case, including cross-examination. If I could - - -

PN20

THE SENIOR DEPUTY PRESIDENT: Where is your authority for that last one?

PN21

MR MIER: I have got a Commission hearing that I would like to hand up. It is the Australian Meat Industry Employees Union v Meat and Allied Trades Federation (1990) 33 IR 431 at 433. Shall I read through it, your Honour?

PN22

THE SENIOR DEPUTY PRESIDENT: Are you referring to what Mr Rothman put on behalf of the union at the top of that page?

PN23

MR MIER: Mr Rothman, counsel for the meaties:

PN24

...in the course of a detailed and strongly argued case relied on a number of contentions relating to the principle of natural justice, including requirements that...

PN25

the meaties know the case they must meet. They had an opportunity to present its case and test the case with the applicants:

PN26

...and have a proper and adequate opportunity to prepare a case, including cross-examination.

PN27

He goes on to say that:

PN28

We readily accept the first three of these propositions. They reflect fundamental aspects of the common law principles of natural justice or procedural fairness to which the Commission under the duty imposed on it to act judicially is required to adhere.

PN29

He goes on:

PN30

The critical question in most cases is not whether the principles of natural justice apply ...(reads)... the relevant provisions of the Act 110(2) which is in the following form -

PN31

do you want to go through that?

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. No, no need to do that.

PN33

MR MIER: And he goes on:

PN34

This provision cannot be given the meaning that the Commission can fail to accord the parties the protection of the rules of procedural fairness.

PN35

And it goes on to list a case hearing there as well. So in the above-mentioned decision the Full Bench held that these three propositions reflect the fundamental aspects of the common law principles of natural justice or procedural fairness to which the Commission under the duty imposed on it to act judicially is required to adhere. The critical question is not whether the principles of natural justice apply but what does the duty to act fairly require in the circumstances of this particular case.

PN36

At 433 quoting Mason J, as he was then in KIOA v Minister for Immigration and Ethnic Affairs:

PN37

Section 110 procedure of the Commission: (1) although the Commission is required to act carefully and quickly ...(reads)... that the decision of the Commission will not be the just one in the circumstances.

PN38

Your Honour, Mirvac, or the applicant lodged this hearing with us - or lodged a hearing with you, obviously, but gave us the details on Thursday. There has been no witness statements, no further correspondence so - there has been nothing in writing, nothing further to advance their case. We would also say, your Honour, that there is no jurisdiction for our learned friend, Mr Shaw, because there is no employer/employee relationship here. We have Mirvac who are listed and we - well, certainly myself and if I can speak on behalf of the CEPU Plumbing Division do not know of any union members or people that are eligible to be union members of our organisations that work for that company.

PN39

THE SENIOR DEPUTY PRESIDENT: That work for Mirvac?

PN40

MR MIER: Work for Mirvac. We have certainly the ETU and I am assuming ..... at the ..... have any agreements with Mirvac that looks after our blokes. And as I said, I am unaware of any agreement we have with Mirvac. If I could hand something else up, your Honour, and it is a print of another one which involved the Transport Workers Union of Australia, C number 38579 of 1997 before Senior Deputy President Polites in Melbourne, 8 December '97. It is a decision, your Honour, and this decision - and I will just read out a number of parts relating to the section 127. On the third page of the sixth:

PN41

I then turn to the question of whether I have the power to grant the orders sought ...(reads)... the Commission may by order give directions that the industrial action stop or not occur.

PN42

Down the bottom of that page, your Honour:

PN43

If those prerequisites are not met, there is no power to grant an order ...(reads)... the argument was put entirely by Mr White -

PN44

who was also with Mr Bromberg, I believe -

PN45

that on the basis of 127(1), namely that industrial action was happening, threatening, pending or probable ...(reads)... I propose to determine the question of power on that ground.

PN46

He goes on further on page 4:

PN47

I am not satisfied that any dispute between the company and the owner drivers is an industrial dispute within the meaning of the Act ...(reads)... extending beyond the limits of anyone state.

PN48

And if I could hand up something else. This is section 493 of part XV division II, extension of existing Commonwealth provisions, definitions of an industrial dispute:

PN49

Industrial dispute means an industrial dispute including -

PN50

blah, blah -

PN51

within the limits of Victoria and (2) that is about matters pertaining to the relationship between employers and employees.

PN52

So, your Honour, we would submit that there is no relationship between employers and employees here. We have no relationship with Mirvac to that respect.

PN53

THE SENIOR DEPUTY PRESIDENT: Why do you need that for the purposes of section 127?

PN54

MR MIER: Because - - -

PN55

THE SENIOR DEPUTY PRESIDENT: As long as there is a probable, impending or threatened dispute, or an actual dispute in existence, anyone who is affected or is directly affected can seek an order under section 127(2). It doesn't have to be a party to an industrial dispute.

PN56

MR MIER: Well, I thought that is the way it read, your Honour. My understanding of it was that there had to be an employer/employee relationship.

PN57

THE SENIOR DEPUTY PRESIDENT: Not necessarily between the applicant and the persons against whom the order is sought. Because otherwise what would be the need for 127(2)(b)?

PN58

MR MIER: I don't have a copy of the book with me. What does that say?

PN59

THE SENIOR DEPUTY PRESIDENT: Well, you see, an applicant for an order under 127 can either be a party to the dispute or a person who is directly affected or is likely to be directly affected by the industrial action. In other words, if McDonald's was seeking to develop a site - - -

PN60

MR MIER: Yes, I understand what you are saying.

PN61

THE SENIOR DEPUTY PRESIDENT: - - - for the purposes of a restaurant, and there is industrial action taken by one or other of the building or construction unions which prevents that from occurring, and that industrial action is directed against a builder, it may well be possible for McDonald's to seek an order under section 127.

PN62

MR MIER: I am not disputing that because obviously you know, but I thought that wasn't the case.

PN63

THE SENIOR DEPUTY PRESIDENT: I am only putting it to you, Mr Mier.

PN64

MR MIER: Then I will - it is my understanding that that isn't the case.

PN65

THE SENIOR DEPUTY PRESIDENT: You can either accept it or reject it.

PN66

MR MIER: I will reject it but - yes, so on the basis of our submission, we would say that on these two things - procedural fairness, there has been no evidence of - nothing put forward by the company to suggest that there was anything untoward going on, certainly not put forward to us to give us the opportunity to examine it and process it and see if, in fact, there is anything going on. And I would also rely on no employer/employee relationship, even though you disagree with it. So that is the basis on us wishing to seek an adjournment, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: So you are seeking an adjournment of both the section 127 application and of any hearing in relation to the notification of an alleged dispute because there are two separate matters?

PN68

MR MIER: Yes, I realise that.

PN69

THE SENIOR DEPUTY PRESIDENT: When I say two separate matters, there are two matters before me.

PN70

MR MIER: Well, certainly on the 127, we would be seeking an adjournment on that. If the Commission sees fit to go into conference on the section 99, we would certainly be happy to do that.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Fitzgerald, do you have a position on any of this?

PN72

MR FITZGERALD: Your Honour, I would just like to concur with Mr Mier for the ETU.

PN73

THE SENIOR DEPUTY PRESIDENT: Mr Shaw.

PN74

MR SHAW: Your Honour, in respect of the two matters that Mr Mier has raised, I will deal with them as he has separately, although obviously he sees them as being needed to be dealt with together. The first one, the AMIEU case, whilst it summarises the question of natural justice fairly effectively, it also applies to the particular facts of that case. And, indeed, that particular appeal was, in fact, dismissed because of the way the facts of the case were seen by the Full Bench. And I suppose the ratio decidendi of that is found on the first full paragraph on page 435 of the report as tendered here today.

PN75

The position raised by Mr Mier may be valid if we were to press you for an order this afternoon without any evidence having been heard or without any chance for the union to, as Mr Mier says, know the case against it and be in a position to prepare its response. But let me say in regard to that that the grounds in support of the section 127(2) application set out the facts essentially as we know them - or as my client here knows them and the particular point being that my client and the company in Western Australia apparently against whom the action is really directed are both wholly owned subsidiaries of the Mirvac Group. But we have - the evidence we would be adducing before the Commission would simply be as to the existence of bans and what we believe they are in support of. But in the event, I think the meat industry case doesn't in any way preclude the Commission from proceeding to hear, in the loose sense of the word that I have already used, the section 127(2) application.

PN76

As far as the other point raised by Mr Mier, the point that the Commission put to Mr Mier in its question is the point on which we would rely; that is that provided there is one of the matters that are set out in section 127(1) in existence, that is there is industrial action as opposed to industrial dispute:

PN77

...industrial action happening, threatened, impending or probable in relation to either an industrial dispute or the negotiation or proposed negotiation of an agreement under division II ...(reads)... that the industrial action stop or not occur.

PN78

And the parties who may make such an application, apart from the Commission doing so on its own motion, the very fact that that is permitted by the Act perhaps calls into question the strength or otherwise of the natural justice points that have been raised by Mr Mier because the Commission merely has to - it merely has to appear to the Commission that these things may or may not occur. But certainly the application can be made by a person who is directly affected or is likely to be directly affected by the industrial action. And my client believes that it is certainly being affected and, if we had to, then the construction manager is here and could give evidence to that effect.

PN79

Mr Mier, however, puts himself on the horns of dilemma I think in the sense that if his argument is successful and that there is no industrial dispute and, therefore, no jurisdiction under the Workplace Relations Act for these applications to be before the Commission, then it follows, of course, that the protections afforded by section 166A don't apply to the union and my client is certainly in respect of the Yarra's Edge project hurting and, without those protections, clearly my client could take action in the common law courts in respect of the tortious interference with a contract that must be occurring if there is no industrial dispute.

PN80

It is my submission that both matters should proceed this afternoon; that the Commission should at least hear from the bar table - which it also is entitled to do - it should hear from the bar table what is occurring. My client would not object to a conference if the Commission believes that that would be fruitful but we certainly believe both applications - or, sorry, the notification and the application, to give them their correct titles, should proceed. And clearly should we be in a position later to ask for an order to be given under section 127(2), then perhaps some of the things that Mr Mier has raised would result in the Commission declining to do so and listing the matter for more detailed evidence at another time. If the Commission pleases.

PN81

THE SENIOR DEPUTY PRESIDENT: Mr Mier, do you have anything in reply?

PN82

MR MIER: I am a bit confused here, your Honour. I am not sure whether Mr Shaw is saying he wants to go ahead with the 127 or he doesn't. I am getting confused signals: you know, we put the application in but we don't want to go ahead with it. I am at a bit of a loss.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, it appears that Mr Shaw would at least wish to place before the Commission what they perceive to be the problem which they say gives rise to the notification and also the section 127 application. Having done that, the question is where the matter goes from there. There seems to be an implication in what he is saying that if the matter can't be resolved today, then they may seek to press the section 127 application. And you would be given the opportunity then to be heard in respect to any order that might be made.

PN84

There is no doubt that Mr Shaw recognises that before it can get a section 127 order, he has to establish jurisdiction and has to satisfy the Commission as to its discretion, or as to exercising its discretion in favour of his application. And that seems again to be implicit in what Mr Shaw said may well involve the calling of evidence and the testing of that evidence, and you would be given the opportunity to deal with that at the appropriate time. But in the meantime he is really saying: well, let's be realistic, let's get everything out that we can today and see if we can sort out what - or sort out what appears from the employer's point of view - well, from his client's point of view, to be an underlying problem that is causing them a considerable amount of angst.

PN85

MR MIER: Once again, I rely on my earlier submission.

PN86

THE SENIOR DEPUTY PRESIDENT: Well, the Commission does not intend to adjourn any of these matters at this stage. The Commission is quite conscious of its obligations to afford fairness to all parties that appear before it and, as is made quite clear by the High Court decision referred to in the AMIEU case on page 433, being KIOA v Minister for Immigration and Ethnic Affairs. The question of what is involved in providing fairness depends on the circumstances of each particular case as and when they arise, and that is a matter to be determined in the course of any hearing in relation to either of these matters.

PN87

What I propose should happen is that Mr Shaw should at least outline to the Commission what the position is and what his client perceives to be the underlying problem. We can adjourn into conference and see whether we can deal with the matter at that stage and, if not, then I will hear the parties on where the matter should go from there. Mr Shaw.

PN88

MR SHAW: Thank you, your Honour. The basis of the application is set out in the grounds in support in the section 127(2) document. A dispute, which is a dispute between Fini Proprietary Limited which as stated in the application is a construction company operating in Western Australia and a subsidiary of the Mirvac Group, has arisen between - with the CEPU, both Plumbing and Electrical Divisions, and that concerns the payment and setting of allowances on particular construction sites in Western Australia.

PN89

Apparently as a consequence of that, bans have been placed on three projects being built by Mirvac Constructions Proprietary Limited, also a wholly owned subsidiary of the Mirvac Group, here in Victoria. The bans were placed on the Melburnian site in St Kilda Road, Melbourne, on the SY21 site in Chapel Street, South Yarra, and the Yarra's Edge project on the southern side of the river in what is known as the Docklands precinct.

PN90

The bans on the Melburnian site involve bans on the disconnection, connection and major repairs to temporary services. They have had an impact on that project and will obviously as time goes on have a greater impact. The bans on the SY21 project, they are in place bans on works to temporary amenities and bans on works to temporary shedding on building B1. Again, those bans are affecting the site and will progressively have a greater effect.

PN91

At the Yarra's Edge project the bans are similar in nature, that is they are bans on connection of new temporary electrical or plumbing installations on Tower One, and bans on any temporary electrical works within the jump form system on Tower One. Those bans, on my instructions, are already having a very very serious effect to the extent that concrete can now not be poured and the situation may well be reached where members of the CFMEU may need to be stood down. And I understand - it is a stop press, if I can give you that - the bans at SY21 have reached a point where the eligible subcontractor itself may reach a point where it is unable to keep some of its employees employed.

[4.37pm]

PN92

Now, I made the point that both of the companies concerned, that is, Fini Proprietary Limited and Mirvac Construction Proprietary Limited, are subsidiaries of the Mirvac Group. Mirvac Constructions in Victoria has no particular control relationship or in fact any sort of relationship at all with Fini, they are separate independent companies apart from the ultimate owner. I am instructed, as of this afternoon, that there is still no industrial action occurring in Western Australia notwithstanding that the claim is over there, but that discussions have been occurring in Western Australia which have reached an understanding of - sorry, sir - I had better correct something I just said there. There were no bans at the time the notification was made but there was a picket line imposed on one site in Western Australia this morning and that has had the effect of stopping work during the course of the day.

PN93

To get back to where I was, I am instructed that there have been discussions which have reached, certainly, some degree of understanding as to how the particular problem, which is apparently the existence of an anomalous situation between allowances paid to members of the CFMEU and allowances paid to members of the CEPU, that that problem can be dealt with in the future. The difficulty which is now reached is what happens on the existing building project, the one that has in fact started the problems.

PN94

Clearly, I have no instructions from Western Australia apart from my ability to report on those discussions. Equally clearly the bans that are occurring in Victoria are bans that are on a company which itself has both enterprise agreements, is a party to and abides by the Victorian Building Industry Agreement and the awards and on my instructions the persons with whom Mr Mier's members do have an employer/employee relationship with are also parties to enterprise agreements and awards. There is no reason for these bans to remain in place particularly as there are discussions occurring in Western Australia and we are here to seek the Commission's assistance in having them lifted. If the Commission pleases.

PN95

THE SENIOR DEPUTY PRESIDENT: Mr Mier, do you want to say anything?

PN96

MR MIER: Yes, your Honour. If the Commission pleases, we are happy to go into conference.

PN97

THE SENIOR DEPUTY PRESIDENT: Do you want to say anything further before we do that?

PN98

MR SHAW: Well, there is nothing much to respond to and I have indicated that we have no objection to a conference, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: Well, we will adjourn into conference and see where the matter goes from there. It may be necessary to go back onto the transcript at a later stage today but for the moment the Commission is adjourned.

NO FURTHER PROCEEDINGS RECORDED [4.42pm]