C2001/4252, Transcript of Proceedings [2001] AIRCTrans 2078 (24 August 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 8764
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/4252

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by PWM Australia Pty Limited for an
order to stop or prevent industrial
action

MELBOURNE

3.30 PM, TUESDAY, 7 AUGUST 2001

PN1

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN2

MR MURDOCH: I seek leave to appear for the company, PWM Australia Pty Limited, which is the applicant. And with me is MR N. PERRY, the Queensland General Manager of the company, MR P. McCLENNAN, the Queensland Operations Manager, and MR M. OSBORNE from instructing solicitors, McCullough Robertson.

PN3

MR D. PRIOR: I am an industrial officer for the Transport Workers' Union of Australia, Queensland Branch. And with me I have the State secretary, MR H. WILLIAMS.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Prior, what do you say as to Mr Murdoch's application for leave to appear?

PN5

MR PRIOR: We would have no objection to that, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Very well. Leave to appear is granted, Mr Murdoch.

PN7

MR MURDOCH: Thank you.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Murdoch.

PN9

MR MURDOCH: Thank you. Your Honour, I will formally read the application which was filed today. I - - -

PN10

THE SENIOR DEPUTY PRESIDENT: I can indicate that I have read the application, Mr Murdoch.

PN11

MR MURDOCH: Thank you. I formally read the affidavit of Peter McClennan, which was sworn and filed today.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. I have read that. Perhaps I should mark the affidavit of Mr McClennan. I will mark that as exhibit 1.

EXHIBIT #1 AFFIDAVIT OF MR McCLENNAN

PN13

MR MURDOCH: And can I indicate that, as stated, Mr McClennan is in attendance. I don't intend to call him but he is available for cross-examination if required.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Murdoch.

PN15

MR MURDOCH: Your Honour, we have also e-mailed to your associate a draft order. Is that to hand, at your end?

PN16

THE SENIOR DEPUTY PRESIDENT: My associate is bringing it in as I understand. I have another associate bringing it in shortly as I understand it.

PN17

MR MURDOCH: Thank you. Your Honour, the position is that the facts of this matter are outlined in the affidavit.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR MURDOCH: We rely on section 127 of the Workplace Relations Act. So far as the Act is concerned, under section 127(1)(c), one of the limbs which gives an entitlement to bring such an application is that the work is regulated by an award or a certified agreement. In that respect may I formally tender the certified agreement which has been sent down to you?

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark that exhibit 2, Mr Murdoch. That is the certified - the PWM Australia Pty Limited Nudgee Drivers Enterprise Agreement 2001, is that the right one?

PN21

MR MURDOCH: That is the one.

EXHIBIT #2 PWM AUSTRALIA PTY LIMITED NUDGEE DRIVERS ENTERPRISE AGREEMENT 2001

PN22

MR MURDOCH: Now your Honour, so far as the section is concerned I will refer also to subsection (2):

PN23

An application may be brought by a party to the industrial dispute ...

PN24

And I would submit that my client is in that category. Secondly:

PN25

... by a person who is directly affected by the industrial action ...

PN26

And my client as the employer is a person, through incorporation, and is therefore under subsection (2)(b).

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR MURDOCH: Under subsection (3):

PN29

... the Commission must hear and determine an application for an order under this section as quickly as practicable ...

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR MURDOCH: And then, I won't refer to them specifically, but there are other relevant provisions under subsections (4) and the consequences of an order emerge under subsections (5), (6) and (7), and I don't need to trouble the Commission about those. And I also direct your attention to the definition of industrial action, which is contained in subsection (4) of the Workplace Relations Act.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR MURDOCH: And in particular to paragraph (a), which I won't read in full, paragraph (b), and also paragraphs (c) and (d). The story in relation to the industrial action has been succinctly set out in Mc McClennan's affidavit. May I, for the purposes of emphasis, refer you to the history of wildcat stoppages on this issue? In particular, I draw your attention to paragraph 14 which deals with the wildcat stoppage on 10 April 2001. Then to paragraph 19, which deals with the wildcat stoppage on 2 May. Then paragraph 21, the repeat performance on 5 June.

PN34

And then finally of course to today's episode. Could I also ask you to note the observation that is contained in paragraph 32 which is to the effect that today's episode was not only a wildcat strike, but it appears that efforts were made by the union to ensure that its effects were maximised but attempting to clothe it in secrecy. We are unsure as to what the intention of the union and its members is, but we anticipate if we can take a line through their performance in the form guide, that they will probably resume duties tomorrow, because the practice has been for single day stoppages.

PN35

However, we anticipate that when they resume tomorrow that there will be a refusal to follow directions to collect the bins that were left kerbside today. And consequently, our expectation is that the effect of today's wildcat stoppage will be prolonged, perhaps for a week, until those - or even longer, until those bins are due for collection again. So that the issue is sadly not one that is over when the men return to work and resume collecting their pay. The effects of it are well able to be exacerbated and exaggerated through the ongoing fact that bins remain at kerbside uncollected.

PN36

Now, so far as the certified agreement, you will note that the ink is hardly dry on it. It is a 2001 agreement. It is expressly stated to operate until 30 June 2002, and your Honour will note that that takes it through the balance of my client's current contract with the principal, the Brisbane City Council. The agreement was expressly negotiated and agreed upon by the parties as a means of fostering on-going co-operation between the parties for the balance of my client's contract.

PN37

The demands which are made by the union and their members for undertakings as to what happens under future contracts is a demand that is beyond the capacity of my clients. While my clients may succeed in winning a fresh tender, they may not. It is in the hands of the principal as to who receive the further contract or contracts. My clients do not have the power to dictate to the principal, the Brisbane City Council, as to the terms upon which the principal puts these contracts out to tender. Under the certified agreement you will see that the parties have set out in clause 6 on page 4 procedures to govern the resolution of problems. And I won't read them but they are quite succinct. They are self-explanatory and they are complemented by a directive in clause 6.2 that is headed:

PN38

Work is to continue as normal.

PN39

And it reads:

PN40

While this procedure is being followed, work will continue as normal, however no employee will be required to continue work if the issue relates to a genuine and demonstrable risk concerning health or safety.

PN41

Now it is manifest on the material before you that the current issue is not about health or safety. So that what we are confronted with is a clear cut breach of clause 6.2, both in the spirit and in the letter of it. And additionally, because it is a stoppage which was secretly organised and sprung on a wildcat basis, there is a total failure to even attempt to go through the dispute resolution procedure.

PN42

I would refer your Honour to a decision of Commissioner Jones in Print PR905089, a decision on 8 June 2001, in relation to Brambles. Brambles hold one of the other collection contracts let by the same local authority, the Brisbane City Council. You will see in the decision that the scenario confronting Commissioner Jones in that matter was similar to the scenario here. In that instance the union gave an undertaking that is referred to in paragraph 7, and on the strength of that, in paragraph 8 Commissioner Jones gave directions and didn't issue orders.

PN43

Sadly we are able to report that those undertakings in the case of Brambles were not followed up, and I refer to that on the basis that if there is any attempt by the union to give undertakings in this matter we would be extremely sceptical, having regard to their record.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Murdoch, could I indicate that I understand that Commissioner Jones will be hearing an application tomorrow by Brambles in relation to the TWU arising out of this matter, that was before him previously as I understand it. I just raise that on the basis that there does seem to be some sort of relationship between the disputes, and I wonder whether it might be better dealt with by one member, rather than two.

PN45

MR MURDOCH: Your Honour, we are reluctant to go down that path because we believe that it would be improper to permit the union by its actions to manipulate a scenario where all of the contractors were lined up together. Because it is not the problem of the contractors, because - it is not - it is a problem in the sense that we are the victims, but it is an issue that we have no control over. The union position will be enhanced if they are able to line the contractors up together and we suspect that that is probably the tactics that are behind today's episode. The evidence is clear, your Honour, in our view the evidence is there available to you and before you, and having regard with respect to the directive under section 127 we would ask that you take action today. We are confronted with the problem of our uncollected bins. The union will only be given greater leverage if the matter spins over to tomorrow. And I say that with the greatest of respect.

PN46

But a party that has manipulated the situation quite callously should not be given the advantage of delay, where that delay is for a set of circumstances that, the longer they are permitted to continue, will increase the effects of conduct that is quite contrary to the spirit of the certified agreement of this Commission. Does your Honour have a copy of the draft order yet?

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, I do, Mr Murdoch.

PN48

MR MURDOCH: Well might I just go to that. Paragraph 1 is in our view a formal paragraph. Paragraph 2 sets out the parties bound, that speaks for itself. Paragraph 3 contains the substantive orders, and you will see that we ask that they be directed both to strikes, which covers today's episode, but also on the material in the affidavit you will see that there have been other forms of industrial action, including stopwork meetings, bans, restrictions, etcetera.

PN49

We have in (b) I sought that an order that may be available to work and perform work as the company may reasonably require. And then in (c) we are specifically seeking to cover the problem that the union and its members have created today, where there are several thousand - 5000 bins left abandoned at kerbside. There is a need for the company to seek to catch up that backlog, or the company to be able to direct the employees as and when that backlog is to be picked up.

PN50

Your Honour, not being a resident of Brisbane you might be unaware of the fact that in Brisbane we have a system of wheelie bins, and householders on the designated collection days are responsible for wheeling the bin out of their property and positioning it on the edge of the gutter or the kerb. What we are dealing with in this instance are the bins that contain the recyclables in the form of newspapers, glass bottles, tin cans, etcetera. And potentially having those thousands of bins remaining at kerbside is a hazard to the public, and it is a hazard to people who are using the street.

PN51

Because if the bins remain there vandals come and push them over, they litter the streets, they push the bins onto the roadways, and that endangers traffic and members of the public. So we are dealing here with a very serious health and safety issue and our clients, must in the interests - in the public interest, be able to have the assistance of an order to enable them in an orderly way to give directions to their employees to pick up that backlog. And that is the reason for the important order that we seek under paragraph 3(c).

PN52

THE SENIOR DEPUTY PRESIDENT: Could I just ask you, Mr Murdoch, is there any provision in the agreement that requires the employees to act in accordance with the directions of the employer?

PN53

MR MURDOCH: Well, there is the provision that I took you to in relation to the express provision in 6.2.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR MURDOCH: That is the work to continue as normal provision. And that is in the context of all 6.1.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR MURDOCH: And additionally there are the provisions in 2.1 paragraph (a) which deals with commitments, and one of the commitments is to ensure that all bins placed out for collection by residents are emptied to the satisfaction of PWM and the Brisbane City Council in line with the provisions in the recycling contract.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, I suppose that is the provision I was really getting to. I mean, I was minded to mark the order. It just seemed to me that (c) could be accommodated by simply tacking on the end of (b) the words:

PN59

...and in accordance with the agreement.

PN60

MR MURDOCH: Well I would say it certainly is a requirement of the agreement. There is no doubt about that.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry.

PN62

MR MURDOCH: Your Honour, just to round off, my clients are also concerned about the damage to their reputation because our clients have to compete - other entities which are seeking the new contracts. And this year through the breaches of the agreement it put us in a situation where our reputation for reliability has been sorely damaged. It is a sad irony that the future prospects of our employees might be jeopardised through the way in which their actions are tarnishing our reputation.

PN63

THE SENIOR DEPUTY PRESIDENT: With the council you mean? Or with the members of the public?

PN64

MR MURDOCH: Our reputation with the council for being a reliable contractor.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes.

PN66

MR MURDOCH: Just excuse me, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR MURDOCH: Your Honour, two other matters to clean up. You will notice that in the affidavit of Mr McClennan, he has dealt with previous undertakings that the union gave us.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR MURDOCH: And I would refer you also to attachment NP1.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes.

PN72

MR MURDOCH: Where as far back as 4 July Mr Perry, the State general manager, wrote to the State secretary of the union and confirmed the undertaking that had been given, and that was in clear terms, that there would be no further industrial action until the announcement of tenders by the Brisbane City Council. Finally can I come back to that question your Honour asked me before about tomorrow's proceedings? The company involved in those proceedings tomorrow is one of our rivals in the tendering process.

PN73

For reasons of commercial sensitivity it is undesirable for us to be in the same proceedings as them. Further I am instructed that they have section 99 proceedings on foot, which we do not have, and I am also instructed that they have other industrial issues before the Commissioner. Consequently it is highly undesirable that we be involved in those proceedings. If the Commission please, I would ask for the orders in terms of the draft.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Murdoch, there is also attached to the affidavit of Mr McClennan, NP2, which is a communication from the Transport Workers Union dated 3 August concerning applications to vary the Refuse Award. Have there been any negotiations between your client and the union about those matters?

PN75

MR MURDOCH: The answer is no. We have not even received the applications yet, your Honour. We were only given this letter last Friday so we have got the indication that they are coming, but they have not arrived yet.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR MURDOCH: We do not even know whether they are filed yet. We believe they may be filed but we have not had service yet.

PN78

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Anything else, Mr Murdoch?

PN79

MR MURDOCH: No, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Prior.

PN81

MR PRIOR: Thank you, your Honour. In the circumstances, having had no opportunity to peruse the material, apart from receiving a listing notice shortly after 2 o'clock when I was here in another proceedings in the State jurisdiction, we would with your indulgence seek a brief adjournment so that we can consider the comments that the company have made in relation to the affidavit, the interaction between their affidavit material and the current certified agreement, and the order that they have sought in the circumstances.

PN82

However, before we seek that adjournment, we have only two very brief comments to make in regards to their application today. And that is that the notice that went out in relation to the matters today in Roma Street Forum were that it was a public and union rally, to take place today at 12.30 pm. And secondly, referring as my colleague has, to the matters before Commissioner Jones which indeed is a matter of Brambles Australia Limited and the Transport Workers Union, that tomorrow, for your assistance, your Honour, is a further report back in relation to a section 99 notification, section 127 orders which the company had sought, which undertakings were indeed given previously by the union, which for the record were withdrawn at the previous hearing on the 12th of last month.

PN83

With your indulgence, your Honour, it is our preferred position that these matters be dealt with tomorrow in conjunction with the entire scenario of the geographical boundaries as conducted and administered by the Brisbane City Council for Brisbane. With that regard, your Honour, I would refer you to paragraph 4 of the document referred to you previously, being the document issued by Commissioner Jones on 8 June. We certainly draw your attention to the first sentence of 4, which I will read in the circumstances:

PN84

Proceedings before myself followed a course of both a formal hearing and private conference, but before entering into conference it became fairly obvious to me that parties including the council, through the use of its normal tendering process for the future Brisbane area refuse disposal were all being placed in a Catch 22 situation, created by uncertainties for employees, the employer, the union, the council and its ratepayers.

PN85

So for your Honour's benefit we draw attention to that sentence, that indeed today's proceedings certainly are a continuation of that Catch 22 situation where no relief is provided to the employer, the employees, or the ratepayers whilst this uncertainty and frustration over the successful announcement of who the tenderer in this contract situation will be. We advise that it is our understanding that the tenderer, the successful tenderer, will be announced on 16 November.

PN86

Today's rally, conducted at 12.30, for your benefit, your Honour, was a public rally to draw attention and public interest to the fact that it is uncertain what and whom the tenderer will be, and in that regard the public rally was announced and went ahead accordingly today. So with your indulgence, your Honour, we do seek a brief adjournment to consider what my friend has said in relation to such things as the position with the collection of garbage that would have been missed through attendance at the rally by employees employed by PWM Australia Pty Limited in the circumstances.

PN87

THE SENIOR DEPUTY PRESIDENT: Mr Prior, just before you do that, do you have a copy of the affidavit of Peter McClennan?

PN88

MR PRIOR: I do, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Could you just go to exhibit NP1.

PN90

MR PRIOR: Yes, your Honour. I am looking at that document.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any instructions about that yet?

PN92

MR PRIOR: Perhaps, your Honour, in that regard it would be best if we have a brief recess to consider that document in light of today's proceedings. I have no specific instructions in relation to undertakings with PWM Australia.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR MURDOCH: Your Honour, Mr Williams is sitting beside my friend. It is a simple matter to get instructions on that, with respect.

PN95

THE SENIOR DEPUTY PRESIDENT: I understand that, Mr Murdoch. I will stand the matter down to allow him five or ten minutes to get some instructions, but I would like you to get some instructions on that matter, Mr Prior. Also in relation to the rally or the action that is going on today, I want to know some more about that.

PN96

MR MURDOCH: Certainly, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: And also I have just heard from Mr Murdoch that there has been no negotiation in relation to the application that has been made to the Commission to vary or amend the Transport Workers Refuse Award 1988. Perhaps you could get some instructions about that matter as well.

PN98

MR MURDOCH: Certainly, your Honour. We will discuss those matters in the recess and report.

PN99

THE SENIOR DEPUTY PRESIDENT: All right. Well I will stand the matter down until 4.25.

SHORT ADJOURNMENT [4.12pm]

RESUMED [4.29pm]

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Prior?

PN101

MR PRIOR: Thank you. As it please, your Honour, we have had time to consider the points that were raised by my colleague and by yourself before the break. Firstly, we might deal with the exhibit NP2 which deals with correspondence directed at PWM Australia, dated Friday last, in relation to applications to amend the Transport Workers Refuse Award 1988, the Federal award and the State award in the circumstances. Your Honour, it is the union's intention to meet with the company when and where possible, we find ourselves here this afternoon with this matter, in the circumstances, as soon as is practicable.

PN102

We understand that the Commission will be in the appropriate scenario serving a copy, as will the union in the circumstances, and we anticipate that discussions would take place between the company and the union at an appropriate time. Having addressed that issue, with respect, your Honour, it is not our intention to in any way rely or discuss that issue in relation to the orders, and the application that the company have brought today. So we just wanted to reiterate that it is our intention to speak to the company.

PN103

No opportunity has afforded itself before the correspondence going on Friday and us finding ourselves before you in the circumstances at such short notice today. So that is the first point that we would address. For your Honour's benefit the second point - - -

PN104

THE SENIOR DEPUTY PRESIDENT: But it just seems curious to be making an application to vary the award when there have been no discussions about the possibility of having it done by consent or anything else like that.

PN105

MR PRIOR: Well certainly, your Honour, in that circumstance, but the intention to lodge the application has come about through, again, alluding to the comments that Commissioner Jones made in paragraph 4:

PN106

... that the parties find themselves collectively in a Catch 22 situation. It is the nature of the tender arrangements themselves. The difference between the enterprise bargaining rates that have been achieved and what the award contemplates that have resulted in the simple fact that uncertainties exist for employees, the employer, the union, the council and ratepayers ...

PN107

And with respect, your Honour, this correspondence went Friday afternoon. It has just not been possible in that short time frame to contact the company in context and to have discussions before today. And can I add in that regard the way the week was planned in relation to tomorrow, we have a report back with Commission Jones at 3.30 tomorrow, and that report back is in relation to the section 99 matter that was proceeding, and in context of the 127 application, which had been withdrawn while the parties were discussing the matter further. And it is in a report back mode for tomorrow before Commissioner Jones, respectfully, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. What about NP1?

PN109

MR PRIOR: Thank you, your Honour. With respect to NP1, we cast our minds back to the last proceedings before Commissioner Jones. We note that the company have referred to a meeting on Monday, 18 June and have also referred to claiming that the same undertakings provided to Cleanaway in the proceedings between the TWU and Cleanaway on 8 June. It is our recollection that 8 June was a proceeding before Commissioner Jones, on 8 June, in that Commission proceeding an undertaking being a moratorium on further industrial action until 16 November was discussed and was given.

PN110

Clearly in relation to that undertaking it was withdrawn on 12 July in relation to Cleanaway. We are not aware the Pacific Waste Management appeared or attended that Commission hearing on 8 June, and in relation to this correspondence we are unclear in the circumstances that an undertaking was given to Pacific Waste Management, PWM Australia Pty Limited, with respect in the circumstances. And in response to their not being a party and not attending that Commission hearing no correspondence was re-addressed to the company, subsequent to receiving this letter on 4 July.

PN111

THE SENIOR DEPUTY PRESIDENT: So the union did not respond to that letter you say?

PN112

MR PRIOR: We, no, in context, your Honour, no correspondence was sent back to the company in relation to this letter. I have no knowledge of the meeting and what was settled or what went between the parties at a meeting on 18 June. However, clearly in relation to existent proceedings on 8 June Pacific Waste Management were not a party to that Commission hearing. That undertaking was given to Cleanaway in the circumstances. That undertaking was withdrawn on 12 July in the circumstances and, your Honour, perhaps for your benefit and before we move on to the order that is sought in relation to today's application, we might also just point out that it is our understanding that in the context of the four zones which comprise the Brisbane geographical area, PWM Australia Pty Limited comprises 40 per cent of the recycling bins in relation to that area.

PN113

It is my understanding, and I stand corrected on the instructions I have just received, that recycling means the recycled materials, not domestic refuse as such. The balance of all that material being the balance of the domestic refuse that is collected. It is our understanding that rests with the contract which is currently with Cleanaway, and with respect in relation to the recycling it is arguably just less than 50 per cent, some 40 per cent. All that recycling which is relevant to the company that we are here with today, which is PWM Australia. It is not - we stand corrected, but we are unaware that Pacific Waste Management, in context of the comment that my colleague made about public health, etcetera, with bins sitting on the footpath, that respectfully PWMs contracts which exist at this point in time and expire on 30 June of 2002, deal with recycling only. Not domestic waste.

PN114

Lastly, your Honour, in relation to the application that was proceeded with today, that we have received, as we walked in and sat down today, the actual material, having received a copy of the notice listing at 2 o'clock, the last thing which I would draw your attention to is the fact that the company, in their affidavit material, have indicated at paragraph 32, with respect, and this is the affidavit of Peter McClennan, has indicated in that paragraph that he had spoken to delegates in relation to, what he has referred to as a snap strike to commence at 11.30, to be followed by a rally at 12.30 pm.

PN115

With respect, your Honour, just to clear up that situation and the last couple of words, which say:

PN116

... because the TWU has sworn everybody to secrecy ...

PN117

With respect, your Honour, today is a public rally to be conducted at 12.30 pm. I have received instructions that effectively at about 1 pm today, during the course of that public rally, a resolution was taken for employees of PWM Australia Pty Limited to take strike action and not to return to work for the balance of today. With respect, a second resolution was passed at that public rally, the resolution having relevance to employees of PWM Australia who attended that public rally at 12.30 today. With respect, to say that there will be a resumption of work tomorrow at the nominated start time, being respectfully, the time that shifts commence tomorrow, in the circumstances.

PN118

THE SENIOR DEPUTY PRESIDENT: What was the rally about?

PN119

MR PRIOR: Well, with respect, I have a copy of the public notice which I can read from very briefly:

PN120

Public and union rally. Location Roma Street Forum. Tuesday 7 August 12.30 pm. All welcome.

PN121

And the document says - it reiterates matters that have been discussed at great length before Commissioner Jones in relation to the nature of the tendering arrangements with Brisbane ratepayers and alludes to some basic facts. I will read very briefly:

PN122

Brisbane garbos provide an excellent service. In fact 97 per cent of Brisbane ratepayers are happy with the service provided by our garbos.

PN123

The second paragraph:

PN124

The garbos work long hours and they work hard.

PN125

Third paragraph:

PN126

Like most Australians they have an enterprise bargaining agreement in which they have managed to achieve better pay through productivity increases. These increases are between 400 to 500 per cent.

PN127

With respect, we understand that the current tender arrangements contemplate if, and I say if tenderers provide documents based on the award, be it the Federal award or the State award, because the tender arrangements do not specify, persons employed in that capacity could be worse off to the extent of a maximum of $230 per week should a successful tender be accepted on the award as such. The next paragraph states:

PN128

The Brisbane City Council under Jim Sorley have treated our guys with contempt.

PN129

The second last paragraph:

PN130

The garbo's contract is up. The Brisbane City Council have allowed companies to tender at any rate of pay. This means a large reduction in wages for Brisbane's hard working garbos. Nor is there any guarantee that they will retain their jobs with the new company free to hire whatever they want. What will happen to the excellent service currently provided to Brisbane residents with the garbos gone. We should all be concerned.

PN131

Last paragraph:

PN132

This is how the Brisbane City Council repays the garbos and their families after years of good service.

PN133

And in bold:

PN134

We call upon the general public to support Brisbane garbos and their families.

PN135

And with respect, your Honour, one last sentence coming from a notice that was sent out to members.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes.

PN137

MR PRIOR: That sentence reads:

PN138

It is important that we have as many people, members' families and friends to attend the rally on Tuesday, 7 August 2001.

PN139

With respect, that is what took place at 12.30 today, in the circumstances. The general public have been invited to assist in filling out a petition. That petition has now been in existence for some two weeks. It is anticipated that that petition will be submitted to the council, to the Lord Mayor to peruse. That is a general petition protesting the state of events in relation to this process, and again I stress the process which has brought about the Catch 22, which is that every seven years under the current tender arrangements, persons employed by various companies who have successfully won the current tender may, and certainly given the way the tender reads, will be placed in a position where any benefit that has been achieved under enterprise bargaining may be lost in a flash.

PN140

And people who on a Friday wear the same uniform as on a Monday find themselves $230 a week worse off. But the council have provided little comfort, and in recognition of what Commissioner Jones has said, it is this Catch 22 that has provided no relief to the employer, the employee, the council, and the ratepayers, with respect.

PN141

THE SENIOR DEPUTY PRESIDENT: Mr Prior, was the rally organised by the TWU?

PN142

MR PRIOR: The rally was organised by the Transport Workers Union Queensland Branch.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes. Well why doesn't that fall within the description of a ban, limitation or restriction on the performance of work or offering for work in accordance with the terms and conditions of the certified agreement?

PN144

MR PRIOR: With respect, you are suggesting that the public rally as such is outside the terms and conditions of the certified agreement?

PN145

THE SENIOR DEPUTY PRESIDENT: Well, it falls within the definition of industrial action, doesn't it?

PN146

MR PRIOR: Well again, with respect it is our understanding that what took place today, as was notified to the public, to the press, and to delegates and members, with respect, was that there would be a public rally taking place today at 12.30. In the circumstances members employed by PWM Australia Pty Limited attended. A resolution was put at 1 o'clock, that resolution being that there would be no return to work today. And the second resolution being there would be a return to work at the commencement of shift, with respect, tomorrow being 8 August, in the circumstances.

PN147

With respect, your Honour, in relation to the current certified agreement again I - harking back to the other matter before Commissioner Jones in that it is - the parties are all caught up in a Catch 22 which has been that tender arrangements do not provide comfort to any party, those parties being the employer, the employees, the council, and the public, because by its very nature, by the national competition - competition rules, dictate that the tender must go out and the enterprise bargaining rate, the council has determined cannot be included in that tender arrangement. And the concern is that persons employed have no continuity of employment and maintenance of the rates of pay to which they currently enjoy.

PN148

THE SENIOR DEPUTY PRESIDENT: Mr Prior, do those instructing you deny that the undertaking referred to in attachment NP1 to the affidavit of Mr McClennan was given or made to PWM?

PN149

MR PRIOR: Yes. I have instructions effectively, your Honour, that subsequent to that matter proceeding in the Commission between Cleanaway and the Transport Workers Union before Commissioner Jones, that a meeting did take place and an undertaking of similar nature was given to Pacific Waste Management Australia, in the circumstances. However I stress that in relation to the continuity of that matter, being most recently 12 July before Commissioner Jones, that undertaking was given in stringent words to say that it was a moratorium on industrial action until 16 November 2001. At that time, being the historical date that the successful tenderer will be announced, and at the previous hearing, being 12 July, that undertaking was withdrawn.

PN150

THE SENIOR DEPUTY PRESIDENT: But you did not convey to PWM that the undertaking had been withdrawn to them, did you?

PN151

MR PRIOR: It is not my understanding that this correspondence of 4 July 2001 was replied to. And it is not my understanding, and I have received no instructions that effectively there was any prima facie discussion with PWM Australia in relation to that undertaking subsequent to that hearing.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Did you want to say anything else?

PN153

MR PRIOR: Two last comments, your Honour, with respect. In relation to the proposed order that the company have put before you today, we would draw attention to two points. My learned colleague has referred in paragraph 3 to part (c). We say in relation to part (c) simply that it is my understanding on the instructions I have received today that PWM Australia, with respect, collect 40 per cent of the recycling only. No domestic refuse as such. We would simply concur with what you have said earlier today, that we believe in relation to the certified agreement that is in place, that should the Commission proceed with the order, in the circumstances today, that part (b) should reflect additional words to say:

PN154

... in accordance with the agreement ...

PN155

We certainly concur that the agreement contemplates in clause 2 that employees will endeavour to collect bins. We do not agree, and we do not believe that the document contemplates a workplace direction directing employees to collect bins in the circumstances. And, your Honour, with respect, two points we would say also in respect to that. We do not believe that it is fair, reasonable or safe in a workplace health and safety sense, to in any sense expect employees to then collect two days work in one, should the employer seek to have the bins which may, in the circumstance, not be collected this afternoon in the normal course. And secondly on that point, it is our understanding and it is our position that in former matters proceeding before the Commission, in the normal course employees have, without order and without direction, been able to collect bins that were missed in relation to report backs and stoppages, in the circumstances.

PN156

And we are not in a position to contemplate that that not would be the case in relation to this matter, return to work tomorrow at the normal starting time. Lastly, we would say in relation to the draft order - - -

PN157

THE SENIOR DEPUTY PRESIDENT: Just before you - sorry, just before you go on, Mr Prior. Just in relation to that concern about health and safety, that could be accommodated, couldn't it, by inserting a clause accepting action taken by employees based on reasonable concerns about health and safety?

PN158

MR PRIOR: Certainly, your Honour, it would be a most insidious position to put people in to suggest that through some form of hiccup or problem in the workplace, that people would be expected in any sense to perform arguably two days work in the space of one. And it would be reasonable to expect that employees work with their best endeavours, as the agreement contemplates, in accordance with that agreement to collect bins in any event that were not collected, without breaching or without creating any form of workplace health and safety issue.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, I interrupted something else you were going to say then about the order.

PN160

MR PRIOR: The last thing we would say in relation to the order, your Honour, and this would mirror comments made previously in similar proceedings with Cleanaway, should the Commission in the circumstances be compelled to grant the order, we would say that effectively clause 6, term and date of effect, we believe it would be unreasonable for an order to proceed in any sense beyond 17 November 2001, in the circumstances, for the simple reason that that is the date that the successful tender would be announced.

PN161

And we think it would be unreasonable in the circumstances for the Commission, should it feel compelled to issue an order, for that order to proceed at any point after that date on the basis that part of the Catch 22 is the parties are not aware as to who the tenderer is - who the tenderer will be for the successful contract to commence post 30 June 2002, effectively the financial year commencing 1 July 2001. And lastly we would say, your Honour, that we believe, with respect to the comments that the company has made today, as regards commercial sensitivity, we respect their commercial sensitivity.

PN162

However on the basis that we say that the balance of domestic garbage is collected by Cleanaway and 60 per cent of the recycling, with respect, is collected by Cleanaway, that we believe with the report back tomorrow to Cleanaway we - it is our position that we would prefer, and we are not suggesting that in any way we want to hold the matter up or stall or that we have any industrial or strategic aim to provide. We believe it would be most profitable, and it would be our preferred position that this matter, if the Commission is not compelled to issue the order in the circumstances today, to be appropriately dealt with in the context or the fact that it is the tender that has brought the parties to this position, and we are in a report back mode with Commissioner Jones tomorrow, and we would, with respect, understand that obviously Pacific Waste Management is a separate company.

PN163

However it is also caught by the tender arrangement, because at this point in time the current contracts are held by PWM Australia Pty Limited and Cleanaway. It is not our intention to lock the two together in any sense. It is merely our intention to raise public awareness about the uncertainty and frustration that these matters have brought about to employees, and the employer.

PN164

THE SENIOR DEPUTY PRESIDENT: But they are not matters that are caused by PWM or Cleanaway, as I understand it. It is the council, isn't it?

PN165

MR PRIOR: Certainly, Commissioner, it is the council's position on the tender which has brought all of the parties, plural, to this level of uncertainty and frustration.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes. Anything else, Mr Prior?

PN167

MR PRIOR: No, with respect, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: Would you see any benefit in adjourning this matter into conference today?

PN169

MR PRIOR: Certainly with your assistance, your Honour, we certainly will be pleased to adjourn to conference to discuss the matter with PWM Australia, in the context of what has taken place today.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Murdoch?

PN171

MR MURDOCH: Your Honour, a conference with respect won't achieve anything. There was no conference with us before the wildcat stoppage today. No conference with us before the further action taken later in the day where they didn't even come back to work. The basis where people call a wildcat stoppage, cause you inconvenience and then look at you and say "we'd like to have a conference", is an approach that does not put the parties in a situation where anything can be achieved.

PN172

You have seen the pattern of the wildcat stoppages in recent months. This is a misconduct issue in relation to the union. They have the certified agreement with us, only recently negotiated. It is there expressly to bridge the parties over for the balance of the contracts. It would be flying in the face of the certified agreement for us to have to go back around the table to re-negotiate where we have got an agreement. And none of the complaints aired here today are complaints for which my clients are responsible. What is said in an attempt to justify today's wildcat stoppage is that it was part of a campaign to "life public awareness".

PN173

So our sitting around the table in a conference will not achieve anything. The other - - -

PN174

THE SENIOR DEPUTY PRESIDENT: Does that - sorry, Mr Murdoch. Does the nature or the character of the rally change the nature of the action at all in your view?

PN175

MR MURDOCH: No, it does not because one can have a rally at a time where people can attend without having to go on strike. One could have a rally at 4 pm, 4.30. One could have it on a Saturday or a Sunday. These people went on strike, it appears, so they could go to a rally. But not content with that, having been to the rally, they then turned the rally into a stop work meeting and went on strike for the balance of the day. That makes a mockery of this rally notion. The rally is a red herring. The true nature of what happened today so far as the employer/employee relationship goes, is that there was an unauthorised strike.

PN176

We do not know if the people even all went to the rally. They might have gone to Westfield to shop, they might have gone fishing. We do not know.

PN177

THE SENIOR DEPUTY PRESIDENT: They did not pick up your bins, that is all you do know.

PN178

MR MURDOCH: Certainly did not do that, your Honour.

PN179

THE SENIOR DEPUTY PRESIDENT: Yes.

PN180

MR MURDOCH: And if it is condoned it just sets the scene for more so-called rallies.

PN181

THE SENIOR DEPUTY PRESIDENT: Just - - -

PN182

MR MURDOCH: What is the point, your Honour, of having a certified agreement if people can say, well we want to go to a political rally. We are going to stop work. The certified agreement, your Honour, is important. The integrity of it is more important than lifting public awareness. We had no notice of the wildcat stoppage. That is not denied. So far as the straight questions that you asked Mr Prior about the undertaking and NP1, notice how he ducked and weaved and did not give you a straight answer.

PN183

The best he could say was that a similar undertaking against someone else had been withdrawn. There was no denial that we were given an undertaking. They have had that written confirmation for two months. They never disputed it. And if they did withdraw it against someone else, they certainly didn't withdraw it against us. So not only are they in breach of the certified agreement, they have reneged on their undertaking and they have reneged in the sneakiest, clandestine way. And that is today's wildcat stoppage, where the men have told us they were instructed by their union not to let on that there was a stoppage coming up.

PN184

So everything about this demonstrates that my clients are vulnerable, my clients have obligations to the council and the public, and we are being disrupted by wildcat stoppages. We ought to have the benefit of an order, with respect, your Honour, to cover us right through to the balance of the term of the certified agreement and right through to the balance of the term of our contract. And that is what is proposed in the draft order. What is said by the union is that you should make the order applicable only until the successful tenderers are announced.

PN185

But, your Honour, you can see the scene there. If the union dislike the entities that might be the successful tenderers, then my clients will be exposed again in relation to the union seeking to use the disruption of our contract to further a campaign against whoever might be the successful tenderers. What counts is that so far as my clients tender the contract is concerned, our current contract, there is an up to date certified agreement that protects the members of the union through to the very end of our current contract.

PN186

Nothing in relation to our current contract is in jeopardy. That is protected by the terms of the certified agreement. So far as the Catch 22 is concerned, your Honour, I again draw attention to the fact that the certified agreement with my client was only certified on 4 April 2000. If there was a Catch 22, the union have known about it they say for seven years, because they say this comes up with the council every seven years. What should have paramountcy here is the integrity of our certified agreement.

PN187

Any grouch that the union have with the council they can negotiate and take up with the council. They ought not, as part of some scheme to raise public awareness, victimise my clients and the people in the zone that my clients have the contract to cover. My learned friend got himself tangled up in words when he started talking about our contract. Let there be no mistake, my clients have a contract to collect from the households of Brisbane. I went through the detail of it. We collect the bins that contain the recyclables that come from the residents of Brisbane, namely their empty bottles, their empty tin cans, their newspapers, their packaging, etcetera.

PN188

There appeared to be some suggestion that if empty tin cans, empty beer bottles, wine bottles, whatever, are left at kerbside day after day, that that is not a health risk. Well, we are sorry, your Honour, it is. When the vandals tip over a bin full of empty beer bottles, wine bottles, tomato sauce bottles, dog cans, it is a risk. So that there is no way in which one can underscore the seriousness of the problem. Now, your Honour, I at no time said that my clients wanted the right to have today's backlog caught up tomorrow. That was a clever piece of footwork by Mr Prior. What we are asking for is the opportunity to issue directions to our employees to collect the bins as and when required. My clients are a sensible employer and they will pace the catch up.

PN189

We should not be in a position where the employees can dictate to us as and when they pick them up. A scheme under which people can exercise as employees a right of veto will be a scheme that will be used against us to frustrate the orderly collection of the materials. If it be suggested that there is any fear at all that we will abuse the right to have the backlog picked up, that can be adequately covered by including in the order a further paragraph on the basis of liberty to apply. Where if it is demonstrated that my clients abuse the order then at short notice the matter can be re-listed.

PN190

But you have our undertaking that there will be no abuse and that we will in an orderly way have the backlog collected. If the boot is on the other foot there will be real potential for mischief, and on the basis of today's performance we simply cannot trust the integrity of the other party to the agreement to honour the obligations that they took on in specific terms under the agreement. So they should not be given a right of veto.

[5.02pm]

PN191

In all of the circumstances, your Honour, I would submit that the explanations from the union are inadequate. They were vague, where possible they ducked shy of the issue, and there is no denial on the breach of the agreement, no denial of the circumstances under which the union has promoted a series of wildcat stoppages, no denial about the secrecy surrounding today's episode, and no real commitment given that there would be a catch up of the backlog when these people go back to work tomorrow.

PN192

Further to that, while there is a complaint of short notice, your Honour, the materials were served on the union today when we filed them in the Commission. They had more notice of these proceedings than we had of the wildcat stoppage. And, your Honour, that is another reason why it is essential for us to have the term of the orders, if you are willing to make them, go through to the end of the contract. Because what is demonstrated today is, that with these wildcat stoppages, by the time we know of them, file material, get the matter listed, they have run their course and it is too late to bring proceedings.

PN193

So we have had this happen four times now and the likelihood would appear to be that if the political issue between the union and the council remains unresolved, then we are likely to be the ham in the sandwich again, with no notice. So that we desperately need to have the order continue through until the end of the contract to enable us to fulfil our contractual obligations and to enable the public and our clients not to be the innocent victims.

PN194

Your Honour, and finally, we are trenchantly opposed to being lumped in with Cleanaway in tomorrow's proceedings. Cleanaway are a much bigger organisation. They have industrial relations issues. We don't. We have our certified agreement. We don't have any industrial issues with the union, in terms of pay and conditions, for the duration of our contract. Cleanaway have industrial issues, they have a section 99 dispute. Their circumstances are different. If we are lumped in with them as the small player our position will be one of embarrassment and difficulty, particularly as that large organisation is a rival in the tendering process that is currently under way.

PN195

It will serve no purpose, but it will be detrimental to us, and given the sensitivity of the contractual issues that the union itself addressed before, it would be against the public interest for our client to be put into the proceedings tomorrow when we have not been part of them before, and when no good can come of it. That is all, Commissioner. We would ask for the order to be made. To cover the only issue that has been raised in any substance by the union you might see fit to add to the draft order a liberty to apply, available to both parties on short notice.

PN196

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Murdoch. This is an application by PWM Australia Pty Limited, which I shall refer to as the company, for an order under section 127 of the Workplace Relations Act 1996. It is the Act to stop or prevent what it alleges to be industrial action in the form of work stoppages, stopwork meetings, overtime bans and other limitations on the performance of work.

PN197

There has been some history of work stoppages, going back to April 2001, involving the employees of PWM and those stoppages have been taken without any prior consultation or notification by the TWU, the Transport Workers Union of Australia, to PWM of any intention to take such industrial action. The stoppages and action taken by the employees of PWM has generally been related to or concerned with the tender processes that are utilised by the Brisbane City Council for the purpose of engaging its contractors to dispose of refuse and other recycling products or waste.

PN198

The application today arises out of a stoppage of work this morning at which the members, or employees I should say of PWM, members of the TWU, left their workplace at about 12 noon or 12.30 pm to attend a rally. At that rally a resolution was passed by the TWU members who are employees of PWM not to return to work for the remainder of today. I am informed by Mr Prior that it is the intention of the employees of PWM who are members of the TWU to return to work tomorrow morning at the normal reporting time.

PN199

Mr Murdoch submits that the order ought to be made notwithstanding the proposed intention of the employees to return to work tomorrow given the history of the employees taking wildcat action in relation to the tendering process of the Brisbane City Council, and there is no guarantee that similar action will not be taken in the future. The employment is regulated by the PWM Australia Pty Limited Nudgee Drivers Enterprise Agreement 2001. That agreement has been in place since - the agreement was certified by Commissioner Jones on 4 April 2001 and it has a nominal expiry date of 30 June 2002.

PN200

During the course of issues that have arisen between the Transport Workers Union and PWM over the course of the dispute about the Brisbane City Council tendering processes there was an agreement reached between the TWU and PWM which included an undertaking by the TWU in terms of an undertaking that it had given to Cleanaway on 8 June 2001 to the effect that no industrial action will be taken by the TWU against PWM until the announcement of tenders by the Brisbane City Council, scheduled for 16 November 2001, of the result of the tender.

PN201

I am informed by Mr Prior that the TWU does not deny that such an undertaking was given, however Mr Prior makes the point that subsequent to the undertaking being given on or about 18 June 2001 and confirmed in a letter from PWM dated 4 July 2001, TWU withdrew its undertaking to Cleanaway of maintaining a moratorium on industrial action. However Mr Prior did not say that the TWU had notified PWM that the undertaking that it had given to PWM had been withdrawn, or that any other notice had been given to PWM of that fact. Mr Murdoch said that PWM in fact denies that any such notification was given to it, that is to his client, of the withdrawal of the undertaking.

PN202

I must be satisfied that industrial action is happening, threatened, impending or probable. I am so satisfied on the basis of the affidavit sworn by Peter McClennan on 7 August 2001, and the submissions and information given to me from the Bar table by Mr Murdoch and Mr Prior. That action is in the form of work stoppages generally. I must also be satisfied that the industrial action is related to work that is regulated by an award or certified agreement. I am so satisfied that the work is so regulated.

PN203

And I must be satisfied that the application is brought by a person who is likely to be directly affected by the industrial action and I am so satisfied. The only matter remaining is the question of the exercise of the discretion. In the circumstances of this case, given the history of the TWUs action taken without any prior discussion or consultation, and the absence of any undertaking proffered by Mr Prior in the course of the proceedings today not to take any further industrial action, I am minded to make the order.

PN204

However, I am not prepared to make the order in precisely the terms of the draft order that has been provided to me by PWM, and if the parties have a copy of the draft order there, I would propose the following amendments. There are some matters of form in the heading and the title which I won't go to now. Simply the word "number, n-o" after "C" should be deleted and it should just be an order made in Melbourne on 7 August, not Brisbane and Melbourne. The title has a typographical error, "this order shall be known as the PWM Australia Pty Limited Nudgee Drivers Enterprise Agreement 2001 Industrial Action Order."

PN205

As for the parties bound, I propose that the order is binding upon (a) the Transport Workers Union of Australia, the TWU, and its officers, employees, delegates and agents; (b) members of the TWU employed by PWM Australia Pty Limited, located at 28 Weyba Street, Lower Nudgee, and 42 Ashover Road, Rocklea, whose employment is regulated by the PWM Australia Pty Limited Nudgee Drivers Enterprise Agreement 2001, and (c) PWM.

PN206

Paragraph 3 will read as it is in the existing paragraph 3, save and except that paragraph (b) will have added to the end of that sentence, before the full stop "and in accordance with the agreement". And I delete paragraph (c). Paragraph (d) will read "the TWU, and its officers, employees, delegates and agents". The exclusion in paragraph 4 will read, or be in the following form: "This order shall not apply to action by an employee:" new line, brackets "(a) that is authorised by PWM; or" new line "(b) if such action was based upon a reasonable concern by the employee about imminent risk to his or her health or safety, and the employee did not unreasonably fail to comply with the directions of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

PN207

And in relation to service of the order, 5, (a) will read: "A copy of this order must be served by PWM on the TWU and must be served by PWM on each of the employees referred to in paragraph 2(b) by 8 pm on 8 August 2001. Service by PWM of this order by facsimile on the National Secretary of the TWU shall be sufficient service of the order on the TWU and its officers, employees, delegates and agents, and the employees referred to in paragraph 2(b) above. And (b), a copy of this order" and then delete what is there at the present time and add the following: "must be placed on a noticeboard readily accessible by the employees referred to in paragraph 2(b) above at PWMs premises at 28 Weyba Street, Lower Nudgee and 42 Ashover Road, Rocklea."

PN208

As to the term and date of effect of this order I am influenced in the term of the order by the fact that the PWM management was prepared to accept an undertaking up to 17 November in its previous discussions or negotiations with the TWU. And on that basis I am going to make the order effective until 17 August - sorry, 17 November so that it will read: (a) this order will take effect at midnight eastern standard time on 7 August 2001 and remain in force for a period up to 17 November 2001, and (b) the parties have liberty to apply for a variation of this order.

PN209

Now, Mr Murdoch, were you able to get all of the variations to that?

PN210

MR MURDOCH: I am wondering if your Honour might just give us again paras 4 and 5?

PN211

THE SENIOR DEPUTY PRESIDENT: Certainly. Paragraph 4 - sorry - - -

PN212

MR MURDOCH: And in doing that I was just going to suggest that perhaps it might be convenient for both sides, instead of where you refer to service on the National Secretary of the TWU, to make it the Queensland Branch Secretary of the TWU. That appears to be the relevant contact officer for the present purposes. That was in 5(a), your Honour.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes. The difficulty I have, Mr Murdoch, is that I do not have a copy of the union's rules before me to know who in fact is the relevant authority for the purpose of taking industrial action, or - - -

PN214

MR MURDOCH: Yes, I - look, your Honour, in the circumstances I understand and I will just withdraw that. National Secretary is the safer course, thank you.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes. I will read 4 again.

PN216

MR MURDOCH: Thank you.

PN217

THE SENIOR DEPUTY PRESIDENT: "This order shall not apply to action by an employee:" new line "(a) that is authorised by PWM; or" new line "(b) if such action was based upon a reasonable concern by the employee about imminent risk to his or her health or safety and the employee did not unreasonably fail to comply with the directions of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform." Was that - - -

PN218

MR MURDOCH: Yes, thank you, your Honour.

PN219

THE SENIOR DEPUTY PRESIDENT: Now, Mr Murdoch, will you arrange for a re-engrossed version of that to be e-mailed through to my associate?

PN220

MR MURDOCH: Yes, your Honour. My instructing solicitors have an office in this building and they will undertake to do it as soon as possible, which we would intend to be this evening.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes. Well the order is that it be served by 8 pm. Mr Prior, have you a copy of the terms of the order that I have made?

PN222

MR PRIOR: I do, in the circumstances, your Honour. Just with some notations of those word changes that you have made appropriately. And we would then look forward to receiving the final draft of the document in its form that would be going out.

PN223

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Is there anything else, gentlemen?

PN224

MR PRIOR: Your Honour, just to clarify that. Where you said it has to go out by 8 pm, in the draft order 5(a) that 8 pm was 8 pm of 8 August which is tomorrow.

PN225

THE SENIOR DEPUTY PRESIDENT: You want that today's date I presume, do you?

PN226

MR PRIOR: I think, your Honour, we would probably prefer that to be tomorrow - - -

PN227

THE SENIOR DEPUTY PRESIDENT: The difficulty is that the order takes effect at midnight tonight.

PN228

MR PRIOR: Very well, your Honour, yes, tonight then. Thank you.

PN229

THE SENIOR DEPUTY PRESIDENT: Yes. All right then. Anything else.

PN230

MR PRIOR: No, your Honour.

PN231

THE SENIOR DEPUTY PRESIDENT: Very well. The matter is adjourned.

PN232

MR MURDOCH: Excuse me, your Honour.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes.

PN234

MR MURDOCH: Sorry, your Honour. Just in terms of service, so far as the employees are concerned the way 5(a) reads it would have us having to serve each of the employees by 8 pm tonight. We can certainly serve the union by 8 pm tonight by facsimile but if it would be practical to allow - - -

PN235

THE SENIOR DEPUTY PRESIDENT: Well, could I just clarify that. The way it reads to me is that service on the national secretary of the union will be sufficient service of the order on TWU, its officers, employees, delegates and agents and the employees referred to in paragraph 2(b) above.

PN236

MR MURDOCH: Thank you, your Honour. It was that last bit that we had missed.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes.

PN238

MR MURDOCH: Can I just get your Honour - - -

PN239

THE SENIOR DEPUTY PRESIDENT: Sorry. That last bit - that adds - on - after the word "agents" - - -

PN240

MR MURDOCH: Yes.

PN241

THE SENIOR DEPUTY PRESIDENT: - - - there is the words "and the employees referred to in paragraph 2(b) above". But there is still a requirement that the order be placed on the notice board.

PN242

MR MURDOCH: Your Honour, I am indebted to you for your clarification. Thank you. We can comply with that.

PN243

THE SENIOR DEPUTY PRESIDENT: Very well. The matter is adjourned.

ADJOURNED INDEFINITELY [5.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AFFIDAVIT OF MR McCLENNAN PN13
EXHIBIT #2 PWM AUSTRALIA PTY LIMITED NUDGEE DRIVERS ENTERPRISE AGREEMENT 2001 PN22