C2001/4653, Transcript of Proceedings [2001] AIRCTrans 2511 (2 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

No C2001/4653

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Barloworld Coatings (Australia) Pty Ltd
in relation to industrial action at the
Villawood site by ALHMWU and AMWU.

SYDNEY

10.21 AM, FRIDAY, 7 SEPTEMBER 2001

Continued from 29.8.01

PN29

HIS HONOUR: Yes, this matter was first before the Commission on 29 August. It was on that day adjourned in to conference. Since then there have be three conferences, from recollection, 31 August, 3 September - or two conferences that is. There was a conference on the first day. The matter has been relisted again at the request of the applicant. The relisting is in the context that there was, as I understand it, by agreement an acceptance that the pursuit of the 166A application should be deferred pending the parties having an opportunity to resolve differences through the conciliation and conference process that was established. Is there any change to appearances?

PN30

MR C. BARTON: Yes, your Honour. I am appearing for the applicant company today.

PN31

HIS HONOUR: Yes.

PN32

MR T. NOLAN: I'm not sure when your Honour was last actually on the record, but just to confirm the matter, I now appear again for both the LHMU and AMWU.

PN33

HIS HONOUR: Yes. Yes, Mr Barton?

PN34

MR BARTON: Thank you, your Honour. Your Honour is it Barloworld's submission that the conduct that it has complained of has not stopped and that more than 72 hours has elapsed since notice was given to the Commission. That is notice of intention to bring an action in tort. In our submission the necessary prerequisites for the issuing of a certificate under section 166A(6) have been satisfied and we will be respectfully asking the Commission to issue the certificate.

PN35

Your Honour it would be our intention to ask Mr Horan to give some evidence in this matter. Before doing that I just want to briefly open. Your Honour, Mr Horan is in the court room at the moment, if no one has got an objection or you would like Mr Horan to wait outside while I open, he can do that.

PN36

HIS HONOUR: Yes.

PN37

MR NOLAN: I don't object, but on this basis that, of course, we have not heard any evidence about the complaint. There is some broad-brush allegations made in the original application and it is the nature of that application that I made some comments upon on the last occasion, but, of course, we are still no better informed about what it is that it said constitutes conduct that would attract the Commission's attention in this matter. We are, understandably then, at a complete loss about what the particulars are of this complaint. We will need to play this by ear and I will need to have people in Court listening to what Mr Horan says, because we may need to call some evidence if he says something with which we would take issue.

PN38

So I don't make any objection to Mr Horan being here to hear the opening so long as we are not placed in any procedural disadvantage by being kept in the dark, as we have been up to this point. Then further, the matter being aggravated by us being ambushed by evidence that we hear for the first time from the witness and my not being able to get proper instructions to cross-examine Mr Horan. So I anticipate that when we hear from Mr Horan I will ask your Honour to adjourn for a brief time so that I can get some specific instructions about his evidence and be in a position to cross-examine him, and indeed make any other application that I might be minded to make once we have heard what he has to say.

PN39

HIS HONOUR: What do you say Mr Barton? Is that course acceptable?

PN40

MR BARTON: Having regard to the nature of the application, your Honour, I don't have any objections on what Mr Nolan has put to you. Your Honour, the relevant background facts, as set out in paragraphs 1 to 19 of the notice, that has been given to the Commission and I won't take your Honour to those paragraphs at the moment. The nature of the conduct complained of is set out in paragraphs 20 to 25 of the notice. The relevant conduct, your Honour, relates to picketing activity and it is a conduct which the unions have described as: protest of sound and visual form.

PN41

Your Honour, protected action or any protected action that has taken place is not the subject of this application. That will be a matter for another day and another application that the company will make. The notice relates, as I indicated, to picketing activity and protest. Barloworld's position in relation to that conduct is, firstly, that it is not protected industrial action within the meaning of the Act, therefore not amenable to any legal immunity provided by the Act. Secondly, that the unions have expressed a clear intention to continue that conduct indefinitely and, thirdly, that the conduct is taking place for the purpose of advancing claims for an enterprise agreement.

PN42

As indicated, we will be leading some evidence from Mr Horan, the Human Resources Manager at Barloworld about that conduct. The hearing today is for the Commission to determine whether a certificate should issue pursuant to section 166. The necessary prerequisites for the issuing of a certificate have been cleared established by a number of Commission decisions. They are that the Commission must be satisfied firstly, that conduct complained of is conduct been taken in contemplation or furtherance of claims, the subject of an industrial dispute. Secondly, that there is an intention to bring an action in tort in relation to that conduct.

PN43

Thirdly, that the conduct is capable of being the subject of a notice under section 166A. That the conduct is capable of being the subject of conciliation proceedings. That the conduct is capable of being the subject of attempts by the Commission to stop the conduct and that the conduct plausibly or reasonably might be the subject of a tort action. It is not necessary for the Commission to inquire in to the merits of the unions' demands. The specifics of a conduct complained of. The prospects of a company succeeding in an action in tort.

PN44

Or even for that matter, your Honour, whether the conduct is even capable of constituting a tort, or the reasons for the conduct occurring, other than in the sense that it has been taken in contemplation of furtherance of claims that are the subject of an industrial dispute. Your Honour, when the evidence is complete, I will take you to the authorities for that but, in my submission, those are the principles clearly established by Full Benches of this Commission. It is a matter for a Court to determine whether the relevant conduct constitutes a tort and if so who should be liable for it.

PN45

It is a matter for Barloworld to determine which legal remedies it pursues. In that context, your Honour, we will lead evidence from Mr Horan to, which we say, will establish the conduct that is occurring and the legal prerequisites for the issuing of a certificate. If I can now call Mr Horan to give evidence.

<JONATHON JOSEPH HORAN, SWORN [10.30am]

<EXAMINATION-IN-CHIEF BY MR BARTON

PN46

THE COMMISSION: Please state your full name and address?---Jonathon Joseph Horan, 9 Birmingham Avenue, Villawood.

PN47

MR BARTON: Mr Horan, could you please state your full name?---Jonathon Horan.

PN48

You are currently employed by the applicant, Barloworld Coatings Australia P-t-y Limited?---Yes.

PN49

What is your position there, Mr Horan?---Human Resources Manager.

PN50

Mr Horan, have you prepared a statement for the purposes of these proceedings today?---Yes.

PN51

Do you have a copy of that statement with you?---I have it here.

PN52

Your Honour, the course I propose is to ask Mr Horan to read the statement on the record. At various points I will ask him some questions. That seems to be the most efficient way for Mr Horan to give his evidence. I have got a copy of the statement for the Commission and for Mr Nolan, if that is acceptable to the Commission.

PN53

HIS HONOUR: Yes, go ahead.

PN54

MR BARTON: Mr Horan, you have a copy of your statement in front of you?---Yes.

PN55

Could you please read that statement?

**** JONATHON JOSEPH HORAN XN MR BARTON

PN56

MR NOLAN: I just reserve my rights in relation to any objectionable part of the statement because this is the first time I have seen it and obviously notwithstanding our complaints last week that we had no particulars of the matter, the statement has been in a state of preparation for some time and we have only been given the benefit of it this morning and that may be a matter that will well go to matters on which we will make submissions in due course.

PN57

HIS HONOUR: As I understand what is happening, it is now going to be read.

PN58

MR NOLAN: I am sorry?

PN59

HIS HONOUR: It is now going to be read so I note your leave - reserve, Mr Nolan.

PN60

MR NOLAN: Yes.

PN61

MR BARTON: Your Honour, I simply note for the record this isn't an unusual course in these sort of matters.

PN62

Mr Horan, if you could please read your statement?---

PN63

I Jonathon Horan, 9 Birmingham Avenue, Villawood in the state of New South Wales, Human Resources Manager, state as follows. I am employed by Barloworld Coatings Australia Proprietary Limited as Human Resources Manager. I have been employed in this role since 26 March 2001. In my role as Human Resources Manager I am responsible for all aspects of industrial relations at Barloworld's various sites, including Villawood site and the Seven Hills site.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN64

Barloworld is a company that manufactures and distributes paint products and has operations in New South Wales, Victoria and in Queensland. In New South Wales Barloworld manufactures and distributes paint products at its production facility, 9 Birmingham Avenue, Villawood and also at 1113 Power Road, Seven Hills. The Villawood site produces and distributes the Taubmans brand of paint products and also supplies paint cans and labels to the Seven Hills site. The Villawood site employees have their employment conditions regulated by the Australian Paint Industry Award 2000 and the Taubmans Certified Agreement 1999, an agreement certified by the Australian Industrial Relations Commission 19 July 1999.

PN65

The Australian Liquor, Hospitality, Miscellaneous Workers Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union are parties to the Taubmans Villawood Agreement. Barloworld employs approximately 191 paint award employees in Australia. Barloworld currently employs 116 paint award employees at the Villawood site. The nominal term of the Taubmans agreement expired on 31 July 2001.

PN66

Mr Horan, if I could just stop you there for a moment. The Seven Hills site is covered by a separate agreement?---That's correct.

PN67

The nominal term of that agreement, when did that expire?---31 August.

PN68

Thank you, Mr Horan, if you could continue, please?---

PN69

Negotiations for replacement enterprise agreement 12 April 2001. Barloworld commenced negotiations with the LHMU and the AMWU for the purpose of completing new enterprise agreements and division 2 or 3 of part 6B of the Workplace Relations Act 1996. Since that date Barloworld has participated in numerous meetings and discussions with the LHMU and the AMWU in relation to negotiating a new enterprise

**** JONATHON JOSEPH HORAN XN MR BARTON

agreement. On or about 23 July the LHMU purported to initiate a bargaining period in accordance with section 170MJ of the Act. Attached here and marked at page 9 is a true copy of the notice to initiate a bargaining period dated 23 July.

PN70

On or about 25 July the AMWU purported to initiate the bargaining period in accordance with section 170MJ of the Act in similar terms. Attached hereto and marked at page 11 is a true copy of the notice to initiate a bargaining period dated 25 July. On or about 24 July the LHMU purported to give notice of intended industrial action in accordance with section 170MO of the Act. Attached hereto and marked at page 13 is a true copy of the purported notice of intended industrial action dated 24 July. On or about 30 July the AMWU purported to give notice of intent of the industrial action in accordance with section 170MO of the Act in similar terms. Attached hereto and marked at page 15 is a true copy of the purported notice of intended industrial action dated 30 July.

PN71

On 31 July a mass meeting of members of the LHMU and the AMWU employed by Barloworld was held to consider a basis of settlement offer made by the company. On or about 1 August Barloworld was informed by representatives of the LHMU and the AMWU that the basis of settlement offer had been rejected by the mass meeting. Barloworld reinstated the basis of settlement offer to representatives of the LHMU and the AMWU. On 2 August 2001 a further mass meeting of members of the LHMU and the AMWU employed by Barloworld was held to inform employees that Barloworld had reinstated the basis of settlement offer. Barloworld was informed by representatives of the LHMU and the AMWU that the basis of settlement offer had again been rejected by the mass meeting.

PN72

On or about 10 August the LHMU purported to give notice of intended industrial action according to section 170MO of the Act in the form of a complete stoppage of work which was to commence on 16 August for a period of 7 days. Attached and marked at page 16 is a true copy of the notice of intended industrial action dated 10 August.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN73

Mr Horan, if I could just stop you there. If I could take you to page 16 of your statement.

PN74

HIS HONOUR: Paragraph 16 you mean?

PN75

MR BARTON: No, sorry, page 16, I'm going to the attachment, your Honour.

PN76

Do you have that in front of you, Mr Horan?---Yes.

PN77

Mr Horan, that is the notice of intended industrial action that you referred to in paragraph 15?---Yes.

PN78

In paragraph 15 you referred to that action taking the form of a complete stoppage of work. The notice also referred to other forms of intended action as well?---Yes.

PN79

Is that correct?---Yes.

PN80

What were they?---Picketing, protests of sound or visual form.

PN81

Thank you, Mr Horan, if you could please continue reading the statement, paragraph 16?---

PN82

10 August the AMWU purported to give notice of intended industrial action in accordance with section 170MO of the Act in the form of a complete stoppage of work which was to commence on 16 August for a period of 7 days. Attached and marked at page 17 is a true copy of the notice of intended industrial action dated 10 August.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN83

Mr Horan, if I can just stop you there. The notice of intended industrial action given by the AMWU, that was in substantially the same terms as the notice from the LHMU?---It's in a paragraph form rather than separated form but it is the same information.

PN84

The substance of the notice was the same?---Yes. Picketing and protests of sound or visual form are included.

PN85

Thank you, Mr Horan, if you could continue, please?---

PN86

On or about 13 August, following an application by Barloworld to the Australian Industrial Relations Commission pursuant to section 127 of the Act, the parties attended a private conciliation conference chaired by Munro J in an attempt to resolve the matters between them. On or about 15 August the parties attended a further private conciliation conference chaired by Munro J in a further attempt to resolve the matters between them.

PN87

On the 16 August 2001 the LHMU purported to give notice of intended industrial action in accordance with section 170MO of the Act in the form of an indefinite stoppage of work which was to commence 23 August. Attached and marked at page 18 is a true copy of the notice of intended industrial action, 16 August.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN88

Mr Horan, that form of action was identical to the form expressed in the earlier notices?---Yes, it was to the extent that was going, it was indefinite stoppage.

PN89

But included picketing?---Included pickets and visual and the other form.

PN90

A protest. Thank you, Mr Horan, if you could continue?---

PN91

PN92

17 August, the AMWU purported to give notice of intended industrial action in accordance with section 170MO of the Act in the form of in indefinite stoppage of work which was to commence on 23 August. Attached hereto and marked at page 19 as a true copy of the notice of intended industrial action. Barloworld, the LHMU and the AMWU have been unable to reach agreement on the terms of a new enterprise agreement. There is currently a complete stoppage of work at the Villawood site. On or about 3 September the members of the LHMU employed at the Seven Hills site also commenced industrial action in the form of a complete stoppage of work.

PN93

Conduct, 2 August, the LHMU, the AMWU, and their respective members employed at the Villawood site commenced industrial action. The industrial action initially took the form of an overtime ban. 3 August, 11 of 21 employees schedule to work the day shift at the Villawood site called in sick and did not attend for work. This degree of absenteeism had the effect of shutting down the area of the factory that supplies paint cans and labels to the Seven Hills site.

PN94

8 August, I was informed by a Phil Langdale, supply and distribution manager, and Stewart Huxtable, national warehouse manager, that the LHMU and the AMWU and their respective members at the Villawood site had instituted a ban on picking orders for company stores from the warehouse covering Barleworld's trade centres and decorators centres. 8 August, Barleworld implemented a policy of no work as directed, no

**** JONATHON JOSEPH HORAN XN MR BARTON

pay. I was informed by John Bremner, managing - manufacturing director that Mr Stewart Roser, LHMU delegate had advise him that members of the LHMU and the AMWU had ceased work and would not recommence until the policy of no work as directed and no pay had been lifted.

PN95

8 August, Barleworld made an application to the Australian Industrial Relations Commission pursuant to section 127 of the Act seeking orders to stop the industrial action occurring and prevent any further industrial action until the relevant notices complied with the Act. On 10 August, the section 127 application was heard by Senior Deputy President Cartwright. A recommendation was issued by Senior Deputy President Cartwright on 10 August recommending amongst other things that all industrial action cease, that the employees return to work as soon as possible. Attached and marked page 20, is a true copy of the section 127 application filed by Barleworld and the recommendation issued by Senior Deputy President Cartwright.

PN96

The LHMU and the AMWU and their respective members at the Villawood site did not return to work until 13 August. The company sought employees to perform overtime on 13 and 14 August. However I was informed by Larissa Long, the manufacturing manager at the Villawood site, that no employees volunteered to perform overtime. Employees would regularly perform overtime at the request of the company. I am not aware of any previous occasion where there have been no volunteers at all. Attached hereto and marked page 24, are true copies of Larissa Long's record of overtime requests, 13 and 14 August.

PN97

On 16 August, the LHMU and the AMWU and the respective members at the Villawood site commenced industrial action in the form of a complete stoppage of work and established a picket at the entrance to Villawood site.

PN98

Mr Horan, if I can just stop you there. You have observed the picket at the Villawood site?---Yes.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN99

On a daily basis?---Yes.

PN100

Can you say how many people had formed that picket at various times?---A minimum of 20 and higher numbers.

PN101

Could you describe generally the conduct of that picket as you have observed it?---On the early part on arriving there were inevitably a meeting in progress and I would stop the car and wait for the meeting to clear the path. At other times there was calling out, I suppose, vocal protests. At other times being inside the building. I've noticed that people approached vehicles. I have heard complaint from people within the building about approaches to them, that sort of thing.

PN102

Have you been able to identify the people that are on the picket line?---I recognise most of them as Barleworld employees and I recognise the delegates.

PN103

Have you observed any union officials on that picket line?---I've had a conversation with Matt Warburton at the picket line and I'm aware that Kathy Keys has attended and Mr Campese.

PN104

Thank you, Mr Horan, if you could continue please, paragraph 30?---

PN105

I instructed Freehills to write to the LHMU and to the AMWU in respect of the picketing action. Attached hereto and marked at page 27 are true copies of the letters which I understand were sent by a facsimile to the LHMU and the AMWU.

PN106

Mr Horan, have you received any reply to those letters?---I will just turn over to page 27 if I may. So to my recall that this letter was sent on the date and that I didn't receive any phone call or fax or E-mail or letter from the union in response to that.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN107

So you received no communication from either union in response to the letter sent to the union?---From either union.

PN108

Thank you, Mr Horan, if you could continue please. Paragraph 31?---Yes.

PN109

16 August - - -

PN110

MR NOLAN: Yes, I object to this paragraph, your Honour, it is plainly not just hearsay but third hand hearsay and on any view one would have thought that in fairness to my clients this matter should be excluded. It will be noted that the date of the alleged incident was 16 August 2001. With this application in contemplation there is no reason whatsoever in my submission that proper primary evidence of this allegation couldn't have been sought from the person concerned and a proper statement proffered to the Commission. In the absence of any adequate explanation for the resort to third hand hearsay in this form, and it is third hand hearsay because it is a letter from Mr Pearce to Mr Hancock as I understand it, and then from Mr Hancock on to the company.

PN111

It is simply something that really should not be admitted against my clients. Not that we concede for a moment that even if it was to be accepted by the Commission that it would be probative or relevant of anything that could be taken into account against either of the unions or anyone else involved in the activities outside the plant. Really, the prejudice created by this sort of material is just way out of proportion of its probative value, particularly having regard to the fact that it could have been collected in admissible form having regard to the time that has elapsed since the incident was alleged to have occurred.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN112

MR BARTON: Your Honour, is well aware the Commission has not been able to act in a formal manner, not bound by any rules of evidence, can inform itself in any matter in such matter as it considers just. Your Honour, we say you have to have regard to the nature of the matter before you. This is a notification of intention to bring an action in tort. The hearing today is for the Commission to satisfy itself as to whether a certificate should issue. Barloworld does not have to prove that the conduct took place. It does not have to prove that the conduct is actionable. The purpose of the evidence of Mr Horan is to satisfy the Commission that conduct has occurred and there is an apprehension that it will continue to occur that would justify the issuing of a certificate.

PN113

The documents or the statements that are attached form part of the company's records. Mr Horan is producing those records for the benefit of the Commission. What weight the Commission attaches to content of those documents obviously is a matter for the Commission, but we would say this, together with other materials is sufficient to satisfy the Commission that conduct is occurring. It is not necessary for us to prove to the Commission that this particular incident occurred necessarily in the way that it is put.

PN114

HIS HONOUR: Yes, I will strike out the paragraph and not allow it for this purpose. The submission that Mr Barton makes is that it is not necessary to prove it. That adds, in my view, to the desirability of the sort of material not being produced, at this stage, in this form for this purpose. The opportunity that exist earlier it would appear from 16 August, if it was seen as critical to this matter to have provided better notice and raise the detail in a form that would permit its presentation as direct evidence. I will not allow that, I think, paragraph in its entirely.

PN115

MR NOLAN: Can I then, in anticipation of Mr Horan going on to paragraph 32, raise the same objection in relation to the material attached to and forming the basis for the claims made in paragraph 32? Once again, the date is 17 August 2001 and if one goes over to page 36 in the - - -

**** JONATHON JOSEPH HORAN XN MR BARTON

PN116

HIS HONOUR: And 32, Mr Horan is giving evidence of a direction he gave himself, isn't he, so far?

PN117

MR NOLAN: Well, he is, but - - -

PN118

HIS HONOUR: Well, perhaps that is - - -

PN119

MR NOLAN: - - - the whole purpose of paragraph 32, I mean, this is the - - -

PN120

HIS HONOUR: Well, you have read ahead of it, Mr Nolan.

PN121

MR NOLAN: Yes.

PN122

HIS HONOUR: Well, now, what is it that you are objecting to it?

PN123

MR NOLAN: I might invite your Honour to read paragraph 32 and take a similar objection and the whole vice with this sort of exercise is, of course, the fact these are very much a boot straps operation to provide something that can resemble evidence for the purposes of an application like this. One will see, once again, that the invitation was issued to these employees back on 17 August 2001. One might imagine that these aren't - if there could have been an excuse and an excuse offered in relation to the contractors, there certainly can be none, in our submission, in relation to the direct employees.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN124

When one sees the nature of the E-mails, none of which, which of course, suggest that there was anything even resembling a tort committed. One appreciates the extent to which the prejudice is sought to be created because it is all very well for an employee to say they feel intimidated after driving through the drive-way, after driving the drive-way. Just to take that first E-mail as an example, even on the most liberal test to be adopted under section 166A that is a country mile away from anything that would even plausibly relate to a tort being established.

PN125

When one looks at the other E-mails, none of them, in my submission, amount to anything that even remotely suggests a basis for an application under 166A, and to the extent that they are there, all they do is create prejudice and because they have not been invited to be supplied in admissible form and these people cannot be cross-examined about their position it just exaggerates and aggravates the prejudice to the unions. So the same objection, in principle, really applies to this material that is sought to be brought in by paragraph 32 of the affidavit.

PN126

HIS HONOUR: Yes.

PN127

MR BARTON: Your Honour, Mr Horan can give evidence of discussions that he had with Mr Hancock and Davenport and he can give evidence of documents that were provided to him as company records. That is the evidence we seek to lead.

PN128

HIS HONOUR: But what additional value comes from it being a company record. It can be a load of tarradiddles and baseless apprehension, confidential material.

PN129

MR BARTON: Sorry, your Honour, I don't understand the basis.

PN130

HIS HONOUR: Well, the fact that you have got something on your company records, where does that take you. I mean, it is not an evidence act. All sorts of concoctions can be put in to company records, it does not convert garbage in from being garbage out.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN131

MR BARTON: Your Honour, that then will be a question.

PN132

HIS HONOUR: The mere fact that it is a company means nothing, does it?

PN133

MR BARTON: Well, I wouldn't necessarily concede that.

PN134

HIS HONOUR: See, this material is relatively prejudicial, Mr Barton, you have had your application on for, what - since 8 August, now the - - -

PN135

MR BARTON: Sorry, not 8 August, your Honour.

PN136

HIS HONOUR: Well, I'm looking at the wrong one, 28 August. The material been around for a fair bit of time. You are seeking to lead relatively formally and put on the Commission's record material where you have deliberately chosen this form of proof. I will have to say I'm a little bit too long here not to know that the next thing it is likely to in the papers. I would have to say even your firm is not unacquainted with how to get stories in to the press. The Commission is sitting here just copping it all saying it is all fair in love and war and this is just a matter of weight. You are not producing adequate proof, you are producing stuff that you say is in company records. I don't know that you need to do it, but at the end of the day the argument is, take a picture of the picket. You are saying that is tortious action. It doesn't really much matter what the picket is doing, whether you make up a story or do anything else on your case, does it?

PN137

MR BARTON: I don't think - - -

PN138

HIS HONOUR: What Mr Nolan is saying is that this is prejudicial material, you have got confidential names of people who feel fear when they walk through a picket line. Well, somebody else in another Court can sort that out.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN139

MR BARTON: I think that is right, your Honour.

PN140

HIS HONOUR: I don't have to have that material on. I'm not saying it is garbage, but what I am saying is, using that computer addiction, garbage in, garbage out. It does not stop it from being garbage because it is a company record. If it is a true and honest account and you want to bring it in, then you nearly need to bring witnesses at this level.

PN141

MR BARTON: Yes, your Honour, I understand the point. It is correct that whether a particular conduct that the company complains of is an actionable tort and whether a Court would find that simply made out is a matter for the Court, not for these proceedings. Your Honour, I would also - not that it is directly relevant to these proceedings - - -

PN142

HIS HONOUR: Well, that is precisely the point I'm making.

PN143

MR BARTON: Yes, I understand.

PN144

HIS HONOUR: All you have got to have is a plausible - so far as I'm concerned, and I think those are my words in one matter, a plausible proposition that there is an action in tort. Now, I don't know if you have got the existence of the picket how much more plausible it needs to be.

PN145

MR BARTON: I think there is in David's, in Federal Court decision, your Honour, it was discussed whether a picket in itself was unlawful and I think the view was that picketing may be lawful or unlawful. If it is unlawful it is actionable in tort. That is a matter for the Court to determine.

PN146

HIS HONOUR: Well, some of us even think it is probably protected industrial action, but the Court seems to have said that it is not.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN147

MR BARTON: Quite emphatically I think, yes.

PN148

HIS HONOUR: So you have, I would hope, quite a long passage of litigation ahead of you, if this matter gets off the ground, but I don't know that it is going to be much assisted by hearsay accounts from anonymous people who felt something arranging from intimidating to a quiver of apprehension as they went through a picket line.

PN149

MR BARTON: Yes, I understand the point, your Honour. I don't think it is disputed that there is a picket in place and that picket is continuing and that it is initiated by - - -

PN150

HIS HONOUR: Well, I think it would be fairly hard, I've seen it myself, came through it. Felt a quiver of apprehension in case they didn't recognise me.

PN151

MR NOLAN: What we do dispute, of course, is that any of the picketing activity has embraced or involved any tortious conduct, and there is a distinction between a tortious picket.

PN152

HIS HONOUR: Well, I think you will get your turn, Mr Nolan, because it may be that I will be suggesting that that is not a matter for me to resolve, particularly given the state of the law.

PN153

MR BARTON: I think that is correct, your Honour. Right, well, I won't press those paragraphs.

PN154

HIS HONOUR: I'm not saying that they may not be relevant. It probably proves, Mr Barton, that what I am not persuaded of is that I should admit them into evidence and have them on the record here in that form.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN155

MR BARTON: Yes. Your Honour, with the documents that form company records, might it not be a matter of the weight that is given to those documents rather than their admissibility?

PN156

HIS HONOUR: Well, the very problem though - the proof of company records in some circumstances, they might be self-proving but in this jurisdiction, while acknowledging the point that you make that it is often a question of weight, that qualification makes almost no difference whatever if, to put it bluntly, someone wants to beat up the story and then they are in the position of quoting not from the company records but from documents that are on the record before the Commission. I have seen it happen a fair bit. Sometimes the beaters-up don't even need that but I am reluctant to have facts put on in that form in the circumstances of this case.

PN157

MR BARTON: I understand. I just have one other point, for what it is worth. It is not a policy of mine to use the press for those sort of purposes and it won't be in this case.

PN158

HIS HONOUR: I don't think it is ever anybody's policy, Mr Barton - - -

PN159

MR BARTON: It does not happen at Freehill's, your Honour.

PN160

HIS HONOUR: - - - but I have sat at, I think, on the Rio Tinto matter where we had almost daily editorials and comments in the Financial Review. I'm conscious of matters which are before other members of the Commission that are more or less editorialised in the Daily Telegraph. It obviously does not get there through anybody's policy but it happens.

PN161

MR BARTON: Well, it won't be happening in this case, your Honour.

PN162

HIS HONOUR: No. Well, it won't be happening because I have left on the record material that is prejudicial that can be readily converted to that purpose.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN163

MR BARTON: I'm not quite sure now where that leads us actually.

PN164

HIS HONOUR: Well, we have got through paragraph 32, I think.

PN165

MR NOLAN: It has been struck out, has it not, in accordance with your Honour's ruling?

PN166

HIS HONOUR: Well, I can't see any reason why the direction to drive carefully that came from Mr Horan could not be put in.

PN167

MR NOLAN: Alone? Well, I've got no objection to that.

PN168

HIS HONOUR: Well, it is evidence that at least - indirect, yes. So I would take out from the words "on receiving the E-mail".

PN169

MR BARTON: I'm assuming the same objection exists to paragraphs 33 and 34.

PN170

MR NOLAN: That is right. There's an additional objection, of course, in relation to 33 and 34 because the added vice there is that, of course there's no evidence at all from the Fastways Couriers truck driver. He may have gone back to Fastways Couriers because he got a call to go back, we just don't know, but that is an additional complication. It is objectionable enough to have hearsay evidence from Ms Long to say that she observed, presumably from some distance because she observed it from the window, a conversation and then the Fastways Couriers truck driving away. That can hardly - even on the plausible basis for a tort test, I would have thought that was, as I said before, a country mile away from coming up to the mark on that and on that basis it just is there for prejudicial effect only.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN171

HIS HONOUR: Well, I think the difference of those matters, I would be prepared to admit both those because they are an account of observation that is hearsay but it does refer simply to in effect Ms Long's report of what she observed, it does not in terms of admissibility go beyond that but I accept that for somewhat similar reasons that it is part of the information and belief of Mr Horan.

PN172

MR NOLAN: I note and I will draw your attention to the fact, of course, in due course that Ms Long in both memoranda indicated that the courier men voluntarily turned away.

PN173

HIS HONOUR: Well, you want a bit of it in then, do you, Mr Nolan? But it is all in.

PN174

MR NOLAN: Yes.

PN175

MR BARTON: Your Honour, can I ask Mr Horan to just proceed to paragraph 35, is that the convenient way?

PN176

HIS HONOUR: Yes.

PN177

MR NOLAN: Can I record the same objection to paragraph 35, your Honour?

PN178

HIS HONOUR: Yes, I won't allow paragraph 35. It goes into matters of detail that are subject to interpretation and would need something more than the third-hand report. Paragraph 36.

PN179

MR NOLAN: There's no objection to paragraph 36, your Honour.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN180

HIS HONOUR: I'm sorry, I think you have got to read it, Mr Horan?---

PN181

On or about 20 August 2001 I instructed Freehill's to write to the LHMU and to the AMWU in respect of this unlawful conduct. Attached hereto are marked, page 43, are true copies of the letters which I understand were sent by facsimile to the LHMU and the AMWU.

PN182

MR BARTON: Mr Horan, did you ever receive any response at all from either union?---I did not.

PN183

Continue, please, Mr Horan?---

PN184

On 25 August and 26 August employees of Barloworld were scheduled to participate in the third birthday sale for Bunnings hardware store at Minchinbury, New South Wales. It was intended that sales staff employees at Barloworld would conduct demonstrations of Taubmans products and promote the Taubmans brand using the Can Man costume and the Taubmans balloons.

PN185

Mr Horan, just interrupting you there for a moment, these plant informations, are they regularly held by Barloworld?---Yes.

PN186

MR NOLAN: Objection to that. It has no relevance to the application whether they have them every day of the week or once in a lifetime.

PN187

HIS HONOUR: I will allow the question and the answer that is already in.

PN188

MR BARTON: Are those kind of promotions - - -

PN189

HIS HONOUR: It is part of the operations of Barloworld, I assume.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN190

MR BARTON: Are those kind of informations regularly held by Barloworld and its retail partners?---Yes, they are.

PN191

Are they an important part of its sales and marketing?---They are very important promotions.

PN192

MR NOLAN: There's one thing about letting the material in but letting it come in by course of successive leading questions is an entirely different proposition and I object to this. If Mr Barton seeks to pursue this he ought to ask an admissible question.

PN193

HIS HONOUR: We will get there more quickly, won't we, for this sort of material, Mr Nolan, if he does lead? I mean, it is scarcely controversial, is it?

PN194

MR BARTON: Mr Horan, are there other similar promotions planned in the near future?---There would be a schedule map right through each calendar, yes.

PN195

Are you aware of any planned interruptions for future promotions?---I'm not aware of any information from union officials or delegates that there are such.

PN196

Was there a threat to disrupt metropolitan stores last weekend?---There was not a direct information from the officials or delegates but we were told that by sales people that such was the case.

PN197

MR NOLAN: Well, I object to this. This is in the same category as the other material. You know: we are told by unspecified people who heard it presumably from persons who remain unnamed that something may have occurred. I mean, the prejudicial value of that is just, in our submission, extraordinary compared to its probative value which must be minimal.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN198

MR BARTON: Mr Horan, have you received any assurances or undertakings from either union that this type of conduct will not occur again?---Yes.

PN199

You have an assurance it won't occur again?---Yes. Well, are we - now and in the future, no, but last Friday, yes. I wasn't sure of the question.

PN200

Have you received an assurance or an undertaking from either union that protests of sound and visual form will not occur in the future?---No, I haven't.

PN201

Continue reading, please, on paragraph 38?---Yes.

PN202

MR NOLAN: I object to this paragraph, your Honour. This is perhaps an even more egregious example of the objectionable nature of the material that has been the subject of previous rulings and I draw your Honour's attention particularly to this claim that Mr Horan has been informed - the second sentence I'm referring to - by Bunnings management, who remain nameless, that the same LHMU and AWU delegates and members intimidated and harassed employees and customers of the Bunnings store and sought to persuade customers to refrain from buying Taubmans products.

PN203

Now, it is just extraordinary that once again, having regard to the amount of time that has elapsed since this incident allegedly occurred, that this company can't do any better than to introduce the most prejudicial hearsay evidence relating to a very serious allegation, that is to say that employees, LHMU delegates and members intimidated and harassed employees and customers of the Bunnings store. One would have thought at the very least we could expect something that came up to the mark from somebody in Bunnings in that regard and then we might have been in a position to come to grips with it and absolutely refute it.

PN204

HIS HONOUR: Can we have Mr Huxtable identified, Mr Barton?

**** JONATHON JOSEPH HORAN XN MR BARTON

PN205

MR BARTON: Sorry, your Honour?

PN206

HIS HONOUR: Is earlier identified, is he? Who is he?

PN207

MR BARTON: Mr Huxtable - Mr Horan?---Is the logistics and transportation - Distribution Manager for Villawood, New South Wales.

PN208

At Villawood site?---Yes.

PN209

HIS HONOUR: Perhaps it might be quicker if I indicate I'm prepared to strike out:

PN210

I have been informed by Bunnings management that the same delegates intimidated and harassed employees and sought to persuade customers to refrain from buying Taubmans product.

PN211

I would leave in the next sentence. Strike out the next sentence and leave in the last sentence with the attachment which is at page 49.

PN212

MR BARTON: Mr Horan, if you can continue with paragraph 39 of your statement?

PN213

HIS HONOUR: I think we can take that paragraph as read, the bits that I've left in.

PN214

MR BARTON: That is 38, your Honour.

PN215

HIS HONOUR: Of 38. Basically that means that I'm informed - - -

**** JONATHON JOSEPH HORAN XN MR BARTON

PN216

MR BARTON: Yes.

PN217

HIS HONOUR: Were present at the Bunnings store, that is by Mr Huxtable. The flyer was distributed. Attached hereto is a true copy of the flyer distributed.

PN218

MR BARTON: Thank you, your Honour. Mr Horan, perhaps if you could continue with paragraph 39?---39:

PN219

The demonstration - - -

PN220

MR NOLAN: I object to this paragraph too, your Honour, on the same basis that it purports to retail written records by a number of people and the same objection must apply, that is to say that this matter has been well in hand since these incidents on the weekend and if these people couldn't be called, or some of them, to give evidence there's no justification whatsoever in the absence of some explanation why not, why Mr Horan should be the medium by which this material is received by the Commission.

PN221

MR BARTON: Your Honour, this misconceives the nature of these proceedings. This is not a proceeding to prove that tortious conduct occurred. That is a matter for the Court. Mr Horan's evidence goes to the company's position that conduct is occurring and they apprehend it will continue to occur. Mr Horan is giving evidence of what he has been told by other Barloworld employees. He is giving evidence of documents that have been provided to him in the form of reports.

PN222

What weight attaches to those documents ultimately may be a matter for the Commission but having regard to the nature of these proceedings and I think we have to keep coming back to this is a proceeding for the issuing of a certificate not to prove tortious conduct. Then in my submission they should be admitted. It may be a matter for what weight you give to them but Mr Horan's evidence is that he has these discussions and he received these documents.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN223

HIS HONOUR: Yes, well, this is the lead in to the material that is at pages 50 to 55 I take it is it?

PN224

MR BARTON: That is correct, your Honour.

PN225

HIS HONOUR: I will reject the evidence in paragraph 39.

PN226

MR BARTON: Your Honour, just in relation to the first sentence at paragraph 39. I would like to ask Mr Horan a question about whether the demonstration was cancelled.

PN227

HIS HONOUR: Yes.

PN228

MR BARTON: Mr Horan, the product demonstration that was planned for 25 August, was that cancelled?---Yes, it was. And also for Sunday.

PN229

Thank you. Can you read paragraph 40 please?---

PN230

PN231

On 26 August myself, Rod Tweed, retail business manager, Stewart Huxtable, Larissa Long, the manufacturing manger, and John Glover the warehouse manager attended the Bunnings Store. Stewart Huxtable and Larissa Long approached Stewart Roser, Warwick Stackpole and Sam Agro, who are delegates of the LHMU in terms of the first two and for the AMWU in terms of Sam Agro, at the Villawood site. I have been informed by Stewart - - -

PN232

MR NOLAN: I object to this part of the affidavit or the statement your Honour, on the same basis, that once again it is an endeavour to retail evidence that could have been called and should have been called properly from the person's name both being employees of the company.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN233

MR BARTON: Well, your Honour, this is evidence that Mr Horan of a conversation that he had with Stewart Huxtable and Larissa Long. That is what the evidence is and again should be taken as that.

PN234

HIS HONOUR: Yes, I will strike out the last two sentences of that. The content of that note goes into detail of a conversation that can't effectively be cross-examined upon through this witness. If the company relies upon it then Ms Long should have been available for you to direct evidence of that conversation for this purpose, but I do allow the first sentence which is direct evidence from Mr Horan of the presence of delegates of the AMWU at the Bunnings Store.

PN235

MR BARTON: Thank you. Mr Horan, continue please, on paragraph 41.

PN236

MR NOLAN: Yes, I object to paragraph on basically the same basis, may it please, your Honour. If you look at perhaps the variant, the objectionable variant in this particular document is the fact that Mr Weekly, who is the apparent author of the document says that he has spoken to somebody else who relates what apparently it appears the driver may have said him but it is not at all clear that the driver said anything at all to Mr Kent, I think it is who was the person who had the conversation with Mr Weekly. Said that the driver had been prevented from entering into returning to the depot, well, we just don't know if there really is a serious allegation about preventing somebody entering the premises. Well that is something that ought to be the subject of something that is a bit more satisfactory and a bit more something we are more able to come to grips with than this which on any view is third hand hearsay.

PN237

MR BARTON: Your Honour, I'm not pressing. 41 and 42 I think the objections are made on the same basis as before.

PN238

MR NOLAN: Yes.

PN239

MR BARTON: We have already made our submissions and if it misconceives the nature of these proceedings but in any event I won't press those paragraphs.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN240

HIS HONOUR: Yes, thank you, Mr Barton.

PN241

MR BARTON: Mr Horan can read from paragraph 43 please?---43.

PN242

Industrial action in the form of a complete stoppage of work is continuing at the Villawood site and at the Seven Hills site since 16 August and LHMU and AMWU picket has been in place at the entrance to the Villawood site. I have not received any undertaking or assurance from the LHMU or the AMWU but the picketing of the Villawood site will cease and not occur again. I apprehend that the picketing of the Villawood site will continue and will continue to disrupt Barloworld of the ordinary conduct of its business. I have not received any undertaking or assurance from the LHMU or the AMWU that conduct of the type that occurred at the Bunnings Store or any other form of protest of sound or visual form will cease and not occur again. I apprehend that conduct of that type will continue and will continue to disrupt Barloworld in the ordinary conduct of its business and that of other parties such as Bunnings. Barloworld has, is and will continue to suffer disruption to its business and sustain loss and damage as a result of the conduct - - -

PN243

MR NOLAN: I object to that that is a conclusion that the witness can't reach. That is a matter for - at best it can only be an opinion offered by him. Even if it is accepted in the light of the evidence as it now stands, even if it is accepted on that basis it can't be probative of anything except his opinion.

PN244

HIS HONOUR: I will allow that opinion.

PN245

MR BARTON: Thank you, your Honour. I'm not sure you have finished reading that.

PN246

HIS HONOUR: I don't think he had finished addressing it, Mr Horan.

**** JONATHON JOSEPH HORAN XN MR BARTON

PN247

MR BARTON: Perhaps you could read paragraph 45, Mr Horan?---45.

PN248

Barloworld has, is and will continue to suffer disruption to its business and sustain loss and damage as a result of the conduct described above unless that conduct ceases or is otherwise restrained.

PN249

Thank you, Mr Horan.

PN250

HIS HONOUR: Yes, Mr Nolan?

PN251

MR NOLAN: Yes, in the light of your Honour's rulings there is no - I don't require Mr Horan for cross-examination. We might invite the company to make its submission.

PN252

HIS HONOUR: Yes. Mr Horan, you are excused from the witness-box.

<THE WITNESS WITHDREW [11.25am]

PN253

MR BARTON: I take it from that that the unions don't intend to lead any evidence in this matters.

PN254

MR NOLAN: I don't propose to lead evidence.

PN255

MR BARTON: In that case, we will make our submissions, your Honour.

PN256

HIS HONOUR: Yes, thank you, Mr Barton.

PN257

MR BARTON: We have prepared an outline which I can hand up to you.

PN258

HIS HONOUR: I just wondered should I make - I think I should mark that statement. I will mark that BW1 and where I have struck out particular paragraphs or particular sentences where those sentences introduce an attachment, then the attachment itself is also to be taken to be struck out with it. Yes.

EXHIBIT #BW1 STATEMENT OF MR HORAN

EXHIBIT #BW2 OUTLINE OF SUBMISSIONS

PN259

MR BARTON: Your Honour, Barloworld have notified the Commission that it wants to bring an action tort against the LHMU and the AMWU in respect of conduct that is being taken in contemplation of further claims that are subject to an industrial dispute. They are described in the written notice to the Commission and the evidence before the Commission. In our submission, the conduct that we complain of has not stopped and more than 72 hours has elapsed and in those circumstances we respectfully ask the Commission to certify in writing to that effect in accordance with section 166A(6) of the Act.

PN260

Your Honour, in terms of the legal requirements or the necessary pre-requisites for the issuing of a certificate under section 166A(6), we say they can be summarised as follows, that the Commission must be satisfied firstly that the conduct complained of is being taken in contemplation of further incident claims that are subject to an industrial dispute. Secondly that there's an intention to bring the action in tort in relation to that conduct. Thirdly that the conduct is capable of being the subject of a notice under 166A. Fourthly that the conduct is capable of being the subject of conciliation proceedings, fifthly that the conduct is capable of being the subject of attempts by the Commission to stop the conduct and sixthly that the conduct plausibly or reasonably might be the subject of the tort action.

PN261

It is not necessary for the Commission to establish either the specifics of the conduct or to make an assessment the probability of the conduct being actionable in tort. Your Honour, the authority for those principles, there are two and I don't intend to take your Honour in detail to them. One of them is a decision which you yourself were involved in the Full Bench in Automotive Food, Metals, Engineering and Printed Industry Union and Construction Forestry Mining and Energy Union v Coleman Allied, a Full Bench decision in September '97.

PN262

Your Honour, I will hand up a copy to you in case it becomes necessary at some stage to refer to them. Your Honour, unless it is necessary to go to those decisions, our submission is that those principles that I've outlined, and they are outlined in paragraph 3 of our outline of submissions, are taken from those two Full Bench decisions and we say are non-controversial. In terms of the evidence that you have - or the Commission has before it, we say firstly it is clear that the unions have given notice to Barloworld. They intend to try and reach and have certified an agreement under part 6B of the Act and that the proposed agreement relates to an industrial dispute.

PN263

In that regard, paragraph 7 to 10 of Mr Horan's statement and pages 9 and 11, your Honour will find the notices initiating bargaining periods where express reference is made to the industrial dispute and that is number C2001/00 as being the underlying basis of the claims that are being made or at least the foundation for those claims being made. Secondly we say that the unions have given notice to Barloworld of an intention of their members to take certain action in support of or advancing the claims made by them in respect of the proposed agreement. That evidence is found in Mr Horan's statement at paragraphs 11 to 20 and in the annexures at pages 13, 15, 16, 17, 18 and 19.

PN264

Thirdly, the union have given - or initially gave notice to Barloworld that the action would commence on Thursday, 16 August, and continue for 7 days. That is to be found at paragraphs 15 and 16 of Mr Horan's statement and at pages 16 and 17 which form the annexures. Subsequently the unions have given notice to Barloworld that the action will continue indefinitely until the parties reach agreement and that, your Honour, is found at paragraphs 19 and 20 of Mr Horan's statements and at pages 18 and 19 of the annexures. Nextly, your Honour, the unions have given notice to the company that the intended action will take certain form.

PN265

That is a complete stoppage of work and there's been no dispute that that is occurring. Secondly, picketing and thirdly, protest of sound or visual form and those notices are to be found at pages 16, 17, 18 and 19 of the - Mr Horan's statement and then notice is given by the respective unions. The significance of those notices, your Honour, is that it vents a very clear intention of indefinite action and definite continuing conduct of the form complained of that notice - those notices are given by the unions on behalf of their members and they are given in relation to furtherance of the enterprise agreement demands.

PN266

Now, your Honour, on 16 August, the company through Freehills wrote to the unions expressing concerns about threatened action. Neither union responded to those letters. Those letters are found or referred to in paragraph 30 in Mr Horan's statement and at page 27 and following of the statement with the annexures. In that letter, your Honour, Freehills referred to the notices purporting to take industrial action, refer to the threat to take picketing and protest of sound or visual form stating that in our view such action was not protected industrial action because it simply didn't fall within the definition of industrial action under the Act and to the extent stating that members of the unions participated in that form of conduct, it was unlawful, the company reserved all its rights in relation to that.

PN267

Your Honour, the evidence then goes to show that since 16 August, the unions and their members have picketed the entrance to the premises of Barloworld at 9 Birmingham Avenue, Villawood and that is found at paragraph 29 of Mr Horan's statement and your Honour has heard evidence of the broad nature or general nature of the picket that is being maintained there. It is our submission that the persons maintaining the picket have been involved in incidents that may constitute intimidation, harassment which may have involved them unlawfully impeding access to the Villawood site.

PN268

Your Honour, I'm mindful that parts of these paragraphs have been struck out. The reference - perhaps the easiest way is for me to refer to the paragraphs on the pages and state that that is subject to parts that have been excluded but that evidence, we say, is at paragraphs 31 to 35, paragraphs 41 to 42 on pages 33 to 48 of the statement. On 20 August, the company wrote to the unions again through Freehills expressing concerns about the conduct of the picket and again neither union responded to those letters.

PN269

HIS HONOUR: Your instructions are, I take it Mr Barton, that no response to those letters was directed to you either?

PN270

MR BARTON: That is correct, neither Freehills - - -

PN271

HIS HONOUR: I think they were above Freehills signature, I know there's no cross-examination on the point but - - -

PN272

MR NOLAN: There's no issue about that, we didn't reply.

PN273

MR BARTON: There's been no reply either to Freehills or to the company.

PN274

HIS HONOUR: I took that to be the case. I simply wanted to - - -

PN275

MR BARTON: Yes.

PN276

MR NOLAN: Not to those letters.

PN277

We say there is evidence that on 25 and 26 August certain members of the unions, including delegates, attended the premises of Bunning's Hardware Store. Now, again I am mindful, your Honour, that part of this evidence has been struck out, but our position is that that conduct constitutes or may constitute unlawful interference with contractual relations, nuisance, intimidation and harassment. That is the nature of the tort action that the company intends to take and again, with the qualification that parts of this evidence may have been struck out, is found at paragraphs 37 to 40 and pages 49 to 55.

PN278

Relevantly, your Honour, neither union has given any undertaking or assurance to the company that the conduct it complains of will cease and not occur again. The evidence is that Barloworld reasonably apprehends that the conduct complained of will continue and it reasonably apprehends that the conduct complained of will disrupt its business and cause it loss and damage. On the basis of the evidence, we say the Commission can be satisfied that the conduct complained of is conduct that is being taken in contemplation of furtherance of claims, that it is subject of an industrial dispute. That Barloworld intends to bring an action in tort in relation to that conduct. That the conduct is therefore capable of being the subject of a notice under 166A. The conduct has been the subject of conciliation proceedings, the Commission has attempted to stop that conduct.

PN279

We say the conduct plausibly or reasonably might be the subject of tort action. In relation to picketing, and again without taking your Honour through any detail to the decision, but in David's Distribution, the National Union of Workers, Federal Court decision reported at 91 IR 198. The Full Federal Court found that:

PN280

Picketing cannot be protected action within the meaning of the Act and that it may, in certain circumstances, constitute an actionable tort.

PN281

We also say that in relation to conduct involving the attendance at retail premises, disrupting marketing promotions, inciting customers at Bunning's not to purchase Taubmans products may well constitute tortious conduct. Your Honour, if I could just perhaps take you to page 47 of Mr Horan's statement. You will see this is the flyer that was distributed at Bunning's store. You will see at the top of that page, your Honour, it is represented that this dispute is all about protection of entitlements but, of course, it is about much more than that. Before the paint part, or the graphic part of it, your Honour, you will see it says:

PN282

If you have answered "yes" to any of these questions we ask that you think seriously before you buy Taubmans product today.

PN283

And at the foot of the flyer, it says:

PN284

Authorised by the Taubman's organising committee.

PN285

Certainly giving some impression that it is authorised by the unions. We say that the conduct we complain of easily meets the requirement for the Commission to be satisfied that it plausibly or reasonably might be the subject to the tort action. In conclusion, we say that the necessary prerequisites of the issuing of a certificate have been made and we respectfully ask that the Commission issue the certificate in accordance with the provisions of the Act.

PN286

HIS HONOUR: Yes, thank you, Mr Barton. Mr Nolan?

PN287

MR NOLAN: Yes, may it please, your Honour. Our submission, your Honour, is that if a certificate would be granted on the basis of the evidence that has been before you this morning, it is hard to imagine what conduct might not qualify for the granting of a certificate. The critical feature in all of this is obviously that the Commission is not obliged to or invited or regarded as having to, in a sense, conduct a full dress rehearsal of proceedings that might go on before a common law Court or the Federal Court in relation to an allegation of tortious conduct. What it does have to do, it seems to me, and this is really something that is recited in Mr Barton's submissions, is satisfy itself that the conduct plausibly or reasonably might be the subject of a tort action.

PN288

Now, you can only do that on the basis of evidence. You can't do it on the basis of hunches or instinct. The evidence before you, in our submission, falls well and truly short, indeed well short of anything that could amount to conduct which plausibly or reasonably might be the subject of a tort action. Now, let us have a look at the picketing first. There is very little evidence, if any, left in the evidence about picketing, but the legal proposition is one that Mr Barton referred to and with which we can agree. That is, not all picketing, of course, will be regarded as providing a basis for an action in tort and so much has been reiterated, if it needed to be reiterated, by the Full Court and the Federal Court in the David's case.

PN289

Now, the facts are everything in this situation. In the David's case, you will recall, there was what might be described as quite aggressive, indeed amount almost to violent behaviour by the picketers who were standing in the way of vehicles seeking to enter or leave the premises of David's. That is a world apart from a situation where there is a peaceful picket and where there was absolutely no evidence, at all, which could satisfy anyone, let alone a Court or a Tribunal such as this Commission, that there was any conduct that has been identified or could be pointed to as plausibly or reasonably the subject of a tort action.

PN290

That must, in our submission, be unquestionably the case, on the basis the material before you. Even accepting, as we must of course, these decisions of the Full Benches to which you have been referred, would say that, as I said earlier, that this isn't really a dress rehearsal for proceedings in the common law Courts, but it is a gateway. If that gateway is to have any meaning at all, it needs to - the conduct, which is the conduct which triggers the issuing of the certificate needs to be assessed, at least, in some preliminary way.

PN291

True it is that, I think as it was said in the CFMEU case, that one didn't have to cover every particular of every episode of conduct that might be the subject of a complaint the way one would be expected to do in tort proceedings in the Court. One still is not relieved of the duty and obligation to provide evidence of conduct which might fit the description of conduct, plausibly or reasonably, the subject of tort action.

PN292

HIS HONOUR: Isn't what you put indicative of the difficulty with 166A? If it is a gate or a fiat for commence or instituting an action based on a cause of action in tort. It stands, more or less, in the middle of the paddock with not much of a fence around it.

PN293

MR NOLAN: Well, it does, but it is still a gate.

PN294

HIS HONOUR: And the Commission's task is effectively to allow everybody to pass through the gate, who wants to go through it, within 72 hours unless it can find some aspect going to the jurisdictional points that, I think, you both agreed about.

PN295

MR NOLAN: The keystone, if you like, of that jurisdiction is the identification of conduct and unless that conduct is identified in some satisfactory way the section simply does not engage. It is not good enough, in our submission, for the Commission to simply say: well, any conduct fits the bill. What happens if the employer comes along and says: well, you know, somebody was dressed up as Ronald McDonald and stood outside all day, you know, and this created mirth and amusement on the part of many and puzzled it on the part of others and, indeed, fear and apprehension on the part of those who couldn't understand the reason for that sort of conduct. Now, that can hardly - - -

PN296

HIS HONOUR: Take the instance if you have got the McDonald character standing there and someone thinks that it is a basis for a course of action in tort, they don't need a 166A certificate, do they, they just go ahead?

PN297

MR NOLAN: Well, they need at 166A certificate if its conduct that meets this description, mainly conduct that is in furtherance of the industrial dispute and of course you would be involved in that case if the Ronald McDonald character didn't actually have a sign saying" Taubman's workers want more money", there would still be an inference that could be open and would be invited to be drawn that this had some significance with respect to the dispute because of its proximity to the dispute and indeed, you know, perhaps the plant, if somebody was standing outside the plant.

PN298

In other words, it wasn't a random event that simply had no relationship whatsoever, it has real or tangible and practical connection with the industrial disputation that is going forward so that that is the - claiming that that is the intention of the section to grab a hold of industrial disputation that meets a certain description if it arises. Now, it is not good enough in our submission for the Commission simply to, in a sense, drop its bundle and say: well, if there's anything that comes within a bulls roar of this, what we do is get out of the way.

PN299

The whole idea is to allow for some form of gateway and it may said that the gateway is deficient in very many respects but it does deprive it of its existence as a gateway and it being in existence, it therefore obliges the Commission and the parties to come to grips with its terms and try to give some meaning to what is necessary for the jurisdiction to be invoked. That necessary prerequisite as I've suggested to you is the existence of conduct. Now - - -

PN300

HIS HONOUR: If it is conduct in furtherance of an industrial dispute in shorthand, then even if it is such conduct the effect of duty on the Commission subject to it being plausibly conduct that might be the cause of action is to try to stop that conduct, isn't it, otherwise to grant a certificate?

PN301

MR NOLAN: That is right but as long as it meets the description of the conduct.

PN302

HIS HONOUR: The whole of 166A is more or less valid upon the concept that conduct and furtherance of an industrial dispute will if it gets - sorry, gives rise to the cause of action which is instituted after the 166A certificate has been granted will be protected by 170MT as protected action.

PN303

MR NOLAN: Indeed but there will be other action that will be conduct but not be conduct that meets the description of conduct plausibly or reasonably that might become the subject of a tort action. Now, if that is not the critical glitch into the exercise of the jurisdiction, well, then as I've said, all action that is not protected action is automatically by definition conduct of the kind that is necessary to invoke the 166A. That reads out of 166A the requirement sensibly suggested that that conduct must plausibly or reasonably be the subject of that tort action.

PN304

Now, there's a yawning gulf between that mark being hit, if you like, in other words it is a preliminary assessment of what might amount to be a credible tort case and coming up to the mark if one was to go off to the Supreme Court and endeavour to get orders or injunctions from the Supreme Court but that does not deprive the section not does it denude the Commission of the obligation or responsibility to make that preliminary assessment of the conduct as being conduct that meets the description of conduct that could plausibly or reasonably be the subject of a tort action.

PN305

HIS HONOUR: Well, why can't a bare picket on the existing state of at least State law as I understand it plausibly be the subject of a tort action?

PN306

MR NOLAN: Well, the bare picket on the - well, perhaps I've missed something along the way but my understanding of a bare picket is that a bare picket without more cannot amount to the basis for an action in tort. The picket must have some additional dimension to it, in other words it has to prevent the ingress or egress of vehicles, it must by some overt act represent some act of threat or intimidation or otherwise embrace one of the other torts which are traditionally associated with unprotected industrial action.

PN307

HIS HONOUR: Those questions are of fact and degree, aren't they?

PN308

MR NOLAN: Well, they are questions of fact and degree but the critical test here albeit a test that does not require too high a threshold is that the conduct, that identified conduct, has to be plausibly or reasonably the subject of a tort action and it is not sufficient in our submission to address that academically or in the abstract and say: well, a picket, you know, can in certain circumstances plausibly or reasonably be the subject of a tort action. No one could have any argument with that as an abstract proposition but the section here directs the Commission's attention to the actual conduct that is the subject of the complaint of which enlivens the Commission's jurisdiction to the term and whether or not it will issue that certificate.

PN309

That requires findings of fact even on a preliminary basis that make a preliminary assessment of the conduct. In other words, if it is the Ronald McDonald figure standing outside the plant, is that conduct plausibly or reasonably that might become the subject of a tort action, obviously more is needed and the question needs to be asked in any particular case, what is the conduct that is enlivening the Commission's jurisdiction and does that conduct fit the description fit the description of conduct which might plausibly or reasonably be the subject of tort action.

PN310

It is not a matter that is addressed in the abstract. It is a matter that is addressed having regard to the concrete facts of the particular case and the particular application and there is a wealth of authority, in my submission, and I have in mind the most recent example that I can call to mind being Manfield J decision in the Auspipe case where these issues of peaceful pickets have been thralled over, up hill and down dale and there's no decision of which I'm aware that says a peaceful picket per se amounts to tortious conduct.

PN311

So we say that it is not good enough for an employer and an application like this to come down and roll his arm over and say: well, you know, we've got a picket. We've got an industrial dispute. We can sit down, something more is required. If something more wasn't required, the whole motion of conduct as required to be identified in the section would simply be emptied of any particular content. It has got to be an action in tort in relation to conduct by the organisation or by the officer, not conduct in the abstract.

PN312

Conduct by the organisation or the officer can only mean conduct which has been identified in a way, accepting as we do the Commission is not bound by the rules of evidence and so on, a liberal view of the identification of the conduct and it also is obliged to in a sense make a preliminary assessment of what that conduct is but that does not deprive the Commission of the obligation to come to that prima facie view or preliminary view about (a) the identification of the conduct and (b) whether or not it could be said that that conduct on the most favourable view to the employer or the complainer amounts to conduct that might reasonably be the subject of a tort action.

PN313

Now, those tests do not require a lot, one would have thought, in the appropriate case the issuing of a certificate under 166A would be a fairly straight forward matter, in the David's case for example of where there was conspicuous aggression and interference with ingress and egress and so on. In a case like this, it is not a matter of coming down and rolling your arm over, it is matter of coming down and demonstrating that there is conduct that exists that meets that description. If the Commission is not satisfied - does not take that approach, in my respectful submission it in a sense, allows conduct which is conduct that on any view, having regard to the history of what has been regarded as people's common law rights for many many years notwithstanding the severe sanctions open at common law against industrial action but it has the affect or likely affect of providing an additional chilling dimension directed against lawful conduct.

PN314

In other words, look at this example of people putting out leaflets in the car-park, it is said that that is somehow or other tortious action and broad-brush statements of allegations are made about the nature of that, none of which have come within a bulls roar of being proved but allegations about the interference with contracts and intimidation and so on. We've got no evidence at all of any of that.

PN315

All we have got is a bare assertion. Now, how can something that has been long regarded by the Courts as a democratic right of people to go about their business and express their point of view subject to the legal restrictions, why should that activity be subjected to an additional layer of judicial condemnation, judicial sanction or quasi judicial sanction by reason of this sort of reading of 166A.

PN316

HIS HONOUR: That is the problem, it is not because of the reading of 166A. My view, and I will try to put it coherently although I might have some difficulty doing it ex tempore is that 166A really leaves all those matters to the Court. 166A is simply a rather ineffective 72 hour limitation on the commencement of an action in tort. In a sort of a back door way it says you can't bring an action in tort under State jurisdiction or wherever unless you have got a fiat from the Commission based upon not having stopped the conduct in effect within 72 hours.

PN317

MR NOLAN: Well, perhaps there are two views then that flow from - - -

PN318

HIS HONOUR: So if you have got a good action in tort then you can bring it after 72 hours. If you have got a rotten action in tort, which was never going to get up before the State Court, then you can still bring it after 72 hours and if it is no good then it is up to the State Courts to toss it out. If you are trying to found an action in tort on in effect the exercise of a right of free speech consistent with whatever is the implied limitation if there is one, then it is the Court that is going to determine whether it is an exercise of free speech or not. It is going to be the Court that determines whether picketing action which arguable and some of us have found is not much different from the imposition or publicisation of event is or isn't industrial action, is or isn't capable of being protected industrial action.

PN319

At present the state of authorities in the Federal Court is that after some vacillation the Full Court has pointed in two different directions and David's is the latest one, that picketing action can't be industrial action. Well, back to the Courts I would have thought but we are bound to follow it or have at least found in major I think that we are bound to follow David's. It is a product of the conflict between using conduct, the word "conduct" in 166A and industrial action in the definition of protected action. It is the Act, Mr Nolan, you are saying that the conduct that you are engaging in, taking it on its face value, is within the area of fully lawful conduct.

PN320

MR NOLAN: That is right.

PN321

HIS HONOUR: Now, that is effectively going to, on the way the Act stands, have to be protected, unless I go to the extreme and I think it is a relatively extreme position of finding well, it is not plausible that the company in this instance could not found an action in tort based upon the conduct or aspects of the conduct that might reasonable be inferred from the fact that it was there.

PN322

MR NOLAN: Well, in our submission that would require a degree of speculation about the conduct that simply is not permitted on the basis of the evidence you have got. It has got to be plausible, the evidence - - -

PN323

HIS HONOUR: I think it is all speculation on the - for the purpose of 166A certificate. You have got to be able to identify some conduct.

PN324

MR NOLAN: Yes.

PN325

HIS HONOUR: That you are going to try to stop. Well, here the conduct that the company says exists as I understand it is, (a) the existence of a picket.

PN326

MR NOLAN: Yes.

PN327

HIS HONOUR: (b) your disposition to use sound and signs or whatever the words are, protests of sound or visual form.

PN328

MR NOLAN: So that if you stand on the picket line and simply say, we are on strike, support the Taubmans workers, that is sufficient to go through the gateway at 166A. I take issue with that.

PN329

HIS HONOUR: Well, the company would put its case higher than that but effectively, yes.

PN330

MR NOLAN: Well, we ask rhetorically, well, where is the evidence that permits the company to put its case higher than that because there is none on the basis of what you - on the rulings that you have made.

PN331

HIS HONOUR: Well, it has got to start with, you don't need much more, item page 49, that does not go straight to it but you have got Mr Roser and other people at the Taubmans site who have got the line of not quite proof but material from which the inference might be drawn that this came from the delegates and from the responsible unions - - -

PN332

MR NOLAN: But even if we accepted - - -

PN333

HIS HONOUR: - - - we think you should seriously before you buy Taubmans product today.

PN334

MR NOLAN: Yes, it is a long way short of anything that could plausibly form a tort.

PN335

HIS HONOUR: I think it is too but that is not for me to determine, is it?

PN336

MR NOLAN: Well, with respect isn't it for you to determine? You have got to be satisfied that the conduct plausibly or reasonably might be the subject of a tort action. If they come down here and simply say: you know, it is not fair, you say well, you don't think it is fair that is enough for me I will give you the certificate and away you go. What I'm saying is that if you don't make that assessment as liberal as it might be in favour of the complainer, you are making no decision at all. How can you say you are satisfied.

PN337

HIS HONOUR: I think we are making no decision at all and I think that is the reason why the word plausibly was in that decision. If it is such a far out extreme unlikely cause of action in tort that I suppose to put it bluntly, only somebody who was totally implausible in representing it to the Commission would have thought of the idea then the Commission can say, well, we are not going to trouble anybody by issuing a 166A certificate. If there is a plausible argument that the conduct pointed to could be properly proved the basis of the cause of action in tort then the Commission on those rulings has spared itself from the task of sorting out whether or not there is any substance in the action in tort.

PN338

It has used the word, "plausibly" in my view at least. I don't know that I used "reasonably" or would use "reasonably." It is simply a matter of going to the jurisdiction. Somebody intends to take an action in tort it is relation to conduct that meets this broad description and it is not utterly far fetched that that conduct could be the subject of a cause of action in tort. Otherwise the Commission I think is in almost impossible position of having to be within 72 hours the task of establishing how 166A operates to create a protection or a shield from actions in tort. Parliament might be odd but I don't know that it is that odd.

PN339

MR NOLAN: But the constraints upon the Commission would be weighed upon the fact that the Commission has to apply a rather more relaxed standard to the conduct. I don't argue that the Commission needs to make findings of the kind that the Court would need to make in the circumstances all I say is that we can at least invoke what is a fairly minimal hurdle to overcome that is the plausibly - - -

PN340

HIS HONOUR: But you have demonstrated the difficulty to a limited degree I suppose because I accept that part of your point was that some of the information put on could have been put on earlier but by the objections you take to aspects of conduct on the picket line that the company sought to prove by information and belief and its own records. You have established how difficult the task would be if the Commission were to undertake that exercise to require a relatively significantly higher degree of satisfaction about the nature of the conduct. One would have to cross-examine Ms Long.

PN341

MR NOLAN: Yes.

PN342

HIS HONOUR: You would have to have Bunnings.

PN343

MR NOLAN: Yes, that is right, not a big ask we would have - - -

PN344

HIS HONOUR: As to whether people were acting in a way that beset and harassed - what you probably have got at this stage is that is the vehicles have turned away and as we all know some individuals will turn away simply because there is a picket line.

PN345

MR NOLAN: Exactly, and the evidence that is before you does not take the matter any further than that. In those circumstances we say that there can't be on any view conduct, as diluted as the requirement may be for the identification of that conduct, conduct of the kind that is sufficient to enlighten the Commission's jurisdiction under 166A and we say the same about the distribution of the leaflets. There's nothing at all in the evidence that says that anything done in relation to the distribution of leaflets could come within a bull's roar of a plausible basis for suggesting that the tort had been committed.

PN346

HIS HONOUR: I think I go with you as far as saying that I think it is enough to satisfy section 166A, that the conduct may or may not be unlawful. If you are right and it is simply a picket, and I think it arguably is a visible form of a ban, if workers leave the site that are on strike, in some instances they don't go home or they come back regularly to remind those inside that they are on strike and remind those outside that this company is industrially subject to a ban, even if the Court persists or the Courts persist in the view that that isn't industrial action and I would have thought that there is something yet to be said that it might be seen as industrial action, or if the Court does not think that it is an instance of exercise of whatever is the right of free speech, if there is one, then the basis on which 166A issues is simply that the Commission can't determine the lawfulness or the unlawfulness of the conduct on the material before it but it accepts that there's a plausible argument but the conduct, not precisely as described by the condition but the conduct generally alluded to, the mounting of the picket, could give rise to a cause of action.

PN347

MR NOLAN: Well, my point is - - -

PN348

HIS HONOUR: I am trying to articulate that because I think the Commission's role in these areas is rather ready. It can act on the relative insufficiency of information. I think it is obliged to act within a short time frame and it must do so. It I'm wrong on that then I suppose eventually you can have the 166A certificates withdrawn. The probability, I think, in most of these instances is if there are substantive issues to be determined then they are going to be determined elsewhere.

PN349

MR NOLAN: Of course, that is true, but then what it means is that the - to the extent that there's arguably some protection offered by 166A against the union simply being dragged into Court as a part of the overall bargaining strategy in the various plays and counter plays that it might be engaged in is just rendered nugatory. We say there must be something that identifies that conduct with being conduct that could plausibly give rise to it and the mere existence of a picket line, the mere distribution of material, does not come up to that admittedly low mark to establish that such conduct has been proved. Now, I don't know that I can really take it much further than that, your Honour, I think we have gone around the mulberry bush a few times.

PN350

HIS HONOUR: I think so, Mr Nolan.

PN351

MR NOLAN: I might let my submissions rest there. Thank you.

PN352

HIS HONOUR: Well, around 166A at least a few times.

PN353

MR NOLAN: Yes.

PN354

HIS HONOUR: Yes, Mr Barton, did you have anything?

PN355

MR BARTON: Just a couple of comments, your Honour. I think it is important to focus on the purpose of section 166A. In itself issuing of a certificate does not determine any issues about whether this conduct is unlawful. It simply, as you describe, provides a gateway or perhaps removes the barrier to the company exercising its legal rights to pursue a remedy in the Courts. The purpose of section 166A, of course, is to give the Commission the opportunity to resolve a matter that essentially has an industrial flavour or an industrial background but that is all it is. It is at 72 - a respite to give the Commission that time and the company ought not to be denied its legal right to pursue a remedy.

PN356

In relation to the comments, Mr Nolan, about what protections employees have, the Act, of course, establishes a regime for protected industrial action. That provides not a limited legal immunity that section 166A provides but an ongoing immunity subject to an application to terminate a bargaining period. So that the Act does provide protection to assist employees who are pursuing enterprise agreements. In relation to the identification of the conduct, we say that it is not necessary for us to show that we have a plausible action in tort that will be successful. It is not a matter for the Commission to assess the prospects of it succeeding. It is a much lower bar than that.

PN357

In any event, your Honour, there is clearly evidence of an intention to continue picketing action, to continue protesting using sound and visual form and it is plausible that that conduct might give rise to actionable torts and there's evidence enough for you to take that view. Your Honour, in the AFMEU case in which you sat on the Full Bench, I just briefly refer to a comment about this issue. The Full Bench said:

PN358

We do not consider it is necessary for us to decide or even to form a view ...(reads)... within its purview to attempt to stop.

PN359

We say that requirement would satisfy. It is also relevant, your Honour, that it has not been put to you that pickets won't continue. It has not been put to you that those protests in sound and visual form won't carry on. Mr Nolan's approach would require not merely a dress rehearsal but almost a full-blown hearing in relation to the conduct. We would be required to prove to you that the conduct occurred and I think on one view to prove to you that the conduct was tortious. That is not what the authorities say, that is not what 166A requires.

PN360

At the end of the day the decision you will make today will not determine the - assuming you issue a certificate - will not determine the issues about the tortious nature of the conduct. That is for another day and for a Court to determine and evidence will be led and, of course, the unions will have the full opportunity to defend that action and meet it. In our view the prerequisites are satisfied. We have satisfied the test and we would press further certificate to issue, your Honour. If the Commission pleases.

PN361

HIS HONOUR: Yes. The matter before me is an application brought by Barloworld Coatings Australia Proprietary Limited for a certificate under section 166A of the Act. The application for that certificate was lodged on 28 August 2001. For reasons that I do not need to develop in detail the application has been stood over effectively until today. In the main that standing over was for the purpose of permitting conferences to be conducted with a view to resolving not only a cessation of the conduct that gave rise to the application for a certificate but to resolving the underlying matters in dispute in relation to bargaining periods that exist with Barloworld.

PN362

Conferences were held on 31 August and 3 September as well as on 29 August in relation to that substantive aspect of the matter. Effectively by agreement the application for a certificate comes back before the Commission subject to that delay following a request by the Freehills who are representing Barloworld for the matter to be re-listed at my earliest convenience. That request was made on 5 September. I listed the matter for this morning, indicating to the parties that I expected that the cases would be presented within a 4-hour period. On the hearing Mr Barton has appeared by leave for Freehills with Mr Turner and Mr Horan assisting him. Mr Nolan, of counsel, has appeared by leave for the ALHMWU and the AMWU with Mr Warburton. Section 166A provides in subsection (1) that subject to the section:

PN363

...an action in tort under the law of the State or Territory may not be brought by a person against an organisation of employees or an officer, member or employee of such organisation, in relation to conduct by the organisation or by the officer, member or employee acting in that capacity; in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission has certified in writing, as mentioned in paragraph 6A or 6C in respect of the conduct, or has certified in writing as mentioned in 6B in relation to the person in respect of the conduct.

PN364

The gist of that section is it restricts actions in tort based upon conduct by an organisation in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission has issued a certificate under 166A. The apparently sweeping effect of that protection against actions in tort for what broadly used to be called industrial action and furtherance of claims in an industrial dispute, is made less sweeping because of the nature of the duty on the Commission to issue a certificate.

PN365

Effectively that duty is spelt out in section 166A(6) which obliges the Commission having attempted to stop the conduct to certify or issue a certificate if it has not stopped the conduct by the end of 72 hours after the notice was given in respect of the conduct. So 166A in its proper context is that it amounts to a barrier to the bringing of an action in tort of the kind until a certificate has been issued, which must be issued within 72 hours if the conduct is not stopped. In this instance it has been put and I don't think it is effectively in dispute that for a certificate to issue the Commission must be satisfied (a) that the conduct complained of is conduct that has been taken in contemplation or furtherance of claims and is the subject of an industrial dispute; (b) that there is a manifest intention to bring an action in tort in relation to that conduct and (c) that the conduct is capable of being the subject of a notice under section 166A because it is conduct that plausibly or reasonably might be the subject of a tort action.

PN366

In setting out those three conditions I have abbreviated and by-passed some other specifications in the more or less common list that was put to me. I think the ones I have mentioned are the necessary components. I leave aside the question of whether the conduct must be capable of being the subject of conciliation proceedings or be capable of being subject of attempts to stop it. On the evidence before the Commission I am satisfied that firstly the LHMWU and the AMWU gave notice to Barloworld that they intend to try and to reach and have certified agreement under section 6B of the Act and that the proposed agreement relates to an industrial dispute in matter C2110 of 1991.

PN367

Secondly, that the two unions gave notice to Barloworld of the intention of their members to take certain action in support of or advancing the claims made by them in respect of the proposed agreement. Thirdly, that the two unions initially gave notice to Barloworld that the proposed action would commence on Thursday, 16 August 2001 and continue for a period of 7 days and that the two unions have subsequently given notice to Barloworld. The action will continue indefinitely until the parties reach agreement.

PN368

The two unions have given notice to Barloworld that the intended action will take the form of the stoppage of all work performed by their members. Picketing and protests of sound or visual form. On 16 August Barloworld wrote to the LHMWU and the AMWU through its solicitors expressing concerns about the threatened action. Neither the LHMWU or AMWU have responded to those letters. I am satisfied that since August 2001 the two unions or their offices, officials. Members, including employees of Barloworld have picketed the entrance to the premises of Barloworld, 9 Birmingham Avenue, Villawood.

PN369

I am satisfied that some rule of those persons have maintained that picket in a way that may or may not constitute intimidation an harassment and which may or may not have involved in unlawfully impeding access to the Barloworld Villawood site. On 20 August 2001 Barloworld wrote to the two unions through its lawyers expressing concern about the conduct of the picket. Neither the LHMWU or the AMWU have responded to those letters. On 25 and 26 August 2001 some members of the two unions, including delegates, attended the premises of Bunnings Hardware Store at Minchinbury. That attendance may have involved conduct that may or may not constitute unlawful interference with contractual relations, nuisance, intimidation or harassment.

PN370

Neither of the two unions have given any present undertaking or assurance to Barloworld that the conduct complained of will cease or not occur again. I find that Barloworld reasonably apprehends that conduct complained of will continue an that Barlo will - reasonably apprehends that the conduct complained of will disrupt the ordinary course of its business and cause it loss and damage.

PN371

In the circumstances I am satisfied that the conduct complained of is conduct that is being taken in contemplation of furtherance of claims that are the subject of an industrial dispute. Specifically that conduct is conduct in the nature of picketing and protests of sound or visual form of which one instance is the brochure, which I infer is related to the conduct of protests of sound or visual form and is set out at page 49 of exhibit BW1. That is apparently a leaflet which draws to the attention of whoever receives it that Taubmans or the production company responsible for it should care about employees and that Taubmans workers are fighting for full legal protection for annual leave, long service leave and severance entitlements and seeking to negotiate a livable wage with their employer.

PN372

I leave open the question of whether or not picketing of the kind that is occurring or protests of the kind that are occurring are defendable actions within the definition of industrial action and associated protected industrial action or are defendable as expressions of whatever right exists to free expression of views or opinion about Barloworld's conduct. I do not consider that as a matter for me to determine. I am satisfied that there is a plausible base, having regard to existing authorities on which an action in tort might be instituted. Whether or not there is sufficient cause of action involves questions of fact, degree that are not able to be adequately satisfied on the information before me.

PN373

It is sufficient that there is an intention to bring an action in tort in relation to the conduct that has been broadly described. I'm satisfied for that reason that the conduct is capable of being the subject of a notice under section 166A. I stress that that is a relatively low threshold for the jurisdiction to issue a certificate or refuse to issue a certificate - sorry, to issue a certificate to be satisfied. I'm satisfied that there has been conciliation directed to the broad object of achieving a cessation of the conduct. In that respect, the Commission has attempted to stop the conduct and I have found that the conduct might plausibly be the subject of a tort action.

PN374

In the circumstances, it now being well past 72 hours since the notice of an application for a certificate was given under 166A(3) in respect of the conduct and it has not stopped. I am obliged to immediately certify in writing to that effect and to issue a certificate pursuant to section 166(6)(C). A copy of the reasons for decision as published will be made available as soon as practicable. A copy of the certificate will be forwarded to the parties later today. The Commission will adjourn.

ADJOURNED INDEFINITELY [12.29pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JONATHON JOSEPH HORAN, SWORN PN46
EXAMINATION-IN-CHIEF BY MR BARTON PN46
WITNESS WITHDREW PN253
EXHIBIT #BW1 STATEMENT OF MR HORAN PN259
EXHIBIT #BW2 OUTLINE OF SUBMISSIONS PN259