C2001/4348, Transcript of Proceedings [2001] AIRCTrans 2566 (2 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2001/4348

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION - AUSTRALIAN CAPITAL TERRITORY BRANCH

and

STOCKPORT CIVIL ENGINEERING CONTRACTORS AND ANOTHER

Notification pursuant to Section 99 of the Act
of a dispute re breaches of order of
Commissioner Deegan dated 26 July 2001 [PR907009]
and a decision of Senior Deputy President Watson
dated 9 August 2001 [PR907559]

CANBERRA

2.05 PM, TUESDAY, 11 SEPTEMBER 2001

Continued from 23.8.01

PN48

THE COMMISSIONER: Yes, I will take any changes to appearances?

PN49

MR G. BRACKENREG: For Stockport.

PN50

THE COMMISSIONER: Mr Brackenreg. The matter is clearly listed the section 111(1)(e) application made by the CFMEU. Mr Brackenreg, I understand you have a number of administrative matters you want to deal with.

PN51

MR BRACKENREG: Thank you, Commissioner, yes. As foreshadowed in my letter to the Commission, I think on 6 September, my instructions are to seek an adjournment of today's proceedings. First of all on the basis that Mr Walker, who has been retained by Stockport to conduct these proceedings is not available unfortunately, being detained in a part-heard matter which will conclude this week. That is the first basis of my application, is just simply that the company does not have its duly appointed representative. That representative which was given leave by this Commission to appear on the Company's behalf.

PN52

THE COMMISSIONER: Do you want me to deal with these matters one by one?

PN53

MR BRACKENREG: I think it might be appropriate that perhaps these matters be dealt with - - -

PN54

THE COMMISSIONER: All right, then, thank you.

PN55

MR BRACKENREG: - - - on that basis.

PN56

THE COMMISSIONER: Ms Schoonwater?

PN57

MS SCHOONWATER: Yes, Commissioner, we would strongly object to the matter being adjourned today. It was agreed last time we were before you in these proceedings, that 11 September would be set aside, and Mr Walker was available then. What amazes me is that it has taken Mr Walker some two weeks and one day to check his diary and inform this Commission that he is not available on that date. The 11th was agreed, and we only agreed to adjourn the matter until then to give Stockport a chance to get its act together. Had I known this trick was going to be pulled, we would have continued with the proceedings on 23 August.

PN58

THE COMMISSIONER: Mr Brackenreg, is there anything you want to say, in relation to what Ms Schoonwater said?

PN59

MR BRACKENREG: The reason for the lateness in relation to the application for adjournment was - I can say at this stage from advice from Mr Walker that there were attempts made, or there was a possibility that the part-heard matter would be resolved - that did not eventuate, consequently the reason for this adjournment. I also note that following the hearing on the 23rd, which resulted in this - in today's date being allocated as an available date, to conduct the hearing, there was a further notification brought by the CFMEU which appears to have slightly amended its earlier application.

PN60

So, Ms Schoonwater's view that they were ready to proceed on that day I do not think is entirely accurate, nonetheless, the application in relation to an adjournment of these proceedings in my view, neither prejudices the CFMEU, but there is simply an adjournment in order to permit the company to have its duly appointed representative appear an advocate on its behalf. I have indicated in my letter to the Commission, which has been copied to the CFMEU, those dates which Mr Walker is not available on, and he is free, he assures me, on any dates other than those.

PN61

The prejudice, however, is significant to the respondent if this matter is brought on for hearing today, simply on the basis that, as I say, Mr Walker, who has had conduct of these proceedings for some little time, is the most appropriate representative for the company at this particular hearing. Therefore, in my view, there is little prejudice to the CFMEU in having the matter adjourned. There is significant prejudice to the respondent in not granting the adjournment, thank you, Commissioner.

PN62

THE COMMISSIONER: Mr Brackenreg. Ms Schoonwater, have you got anything to say about prejudice, at all?

PN63

MS SCHOONWATER: Yes, Commissioner. In no way will they be prejudiced. In fact it is not an automatic right that counsel appears in proceedings before the Commission. There is no prejudice that can be given to the employer. The amended application on the draft order was spoken about in proceedings on 23 August, and it was a simple amendment that could not be inserted at the time that the application was first made, mainly in that the Full Bench had not issued its decision in relation to the time wage records order - the order of 1 August.

PN64

There was a stay application in place that had stayed that order at the time I made the section 111(1)(e) application. It is only a slight amendment. Mr Brackenreg is fully across these matters as is Mr Morphett, as is Mr Rod Kennett from South Australia, as is their South Australian barrister, Mr Phil White. They have had numerous numbers of counselling, numerous representatives before this Commission, all of whom are across these proceedings.

PN65

Now, I say there is no prejudice and if they thought there was going to be a prejudice, Mr Walker having appeared in a matter before this Commission, has an obligation to his client to ensure that he was free on the date of 11 September, as was agreed between the parties before this Commission. If the prejudice existed, it would have existed on that day. It is not our fault that Mr Walker has chosen to represent another client in another part-heard matter, as this one is part-heard. If it please the Commission.

PN66

THE COMMISSIONER: Mr Brackenreg, much of what Ms Schoonwater says is correct. The only reason the matter was adjourned on the last occasion was because Stockport wanted an adjournment. CFMEU very reluctantly agreed with it. It was put over to 11 September with the agreement of all the parties at the time, and I see absolutely no reason why it should be put over any longer. I think it would be most unfair to the CFMEU. The only reason it was delayed was because there was some suggestion that things were occurring which meant it was not necessary to go ahead with the application.

PN67

Well, apparently, the fact that we are here, must mean that the CFMEU want to pursue the application, and I see no reason why it should not be pursued. So, I think we can commence - it is not a major matter that is before us in one way. I mean it is a simple application, it may have major ramifications, but certainly a simple application, and I do not see that the amendment made to the draft order by the CFMEU changes the matters that Stockport would have had to have been prepared for on the last occasion in any great way, so I would prefer to go ahead with it today.

PN68

MR BRACKENREG: If it please the Commission.

PN69

THE COMMISSIONER: Would you like to - you had another application, I believe?

PN70

MR BRACKENREG: Commissioner, I may need some guidance from you to this respect. I do not understand that on the first occasion that this matter was before you that there was in fact a conference in relation to the matters that were agitated in the notification of a dispute, nor for that matter do I understand that you had called an end to that conciliation conference on the basis that there was - that the matter could not be resolved.

PN71

THE COMMISSIONER: I have only got one matter before us today, Mr Brackenreg, and that is C2001/4348?

PN72

MR BRACKENREG: That is correct.

PN73

THE COMMISSIONER: That matter was not called on until we went on to transcript on the last occasion. The matter we were dealing with originally was an application by Stockport for something or some relief in relation to some cars parked outside the airport gates some time before.

PN74

MR BRACKENREG: And that matter was dismissed - - -

PN75

THE COMMISSIONER: That matter was dismissed after we went back on to the record at the same time as I called this matter on - - -

PN76

MR BRACKENREG: Yes.

PN77

THE COMMISSIONER: - - - and it was agreed to adjourn this matter.

PN78

MR BRACKENREG: Yes, I understand that.

PN79

THE COMMISSIONER: I understand that from the notification you sent to the Commission that you were under the impression, or you believed that the Commission has commenced conciliation on this particular matter?

PN80

MR BRACKENREG: Commissioner, that is true from the conduct of the correspondence. I have to say that my recollection is not precise on that issue. I do know that there were certain comments raised from both the bench and from the bar table, concerning allegations which go to issues raised here.

PN81

THE COMMISSIONER: Well, certainly the history of the matter - a number of applications all dealing with the same factual circumstances. I have arbitrated the matter and made an order.

PN82

MR BRACKENREG: Yes.

PN83

THE COMMISSIONER: So if you are asking me to stand down because I have not conciliated - sorry that I have conciliated that one - it is too late because I had already commenced arbitration and completed that particular arbitration. On this particular matter, I had neither commenced to conciliate nor arbitrate, however, there has been no conciliation. It is a new application, a fresh application, in relation to the earlier arbitration, and there has been no conciliation.

PN84

MR BRACKENREG: I accept that, Commissioner, yes. I understand that.

PN85

THE COMMISSIONER: And I was not intending to attempt to sort it out by conciliation. I think we are past the stage of conciliation. That was what we were doing before the matters were arbitrated. It is just a question of this particular application. As I said, it is a fairly straightforward application. Is it one breach or are the CFMEU entitled to have a provision to be put in the order or an order which makes each time something is not compiled with in the earlier orders, a separate breach?

PN86

MR BRACKENREG: Well, in relation to then today's application, it would be appropriate, I think, as I may need to call some evidence depending on what my friend intends to bring that may assist you.

PN87

THE COMMISSIONER: All right. Well, Mr Brackenreg, I realise you are in a slightly difficult position. What I would like to do is to hear from Ms Schoonwater in relation to her application. If I think you have been put at a disadvantage in any way at all, or that evidence is necessary - because I would not have thought that evidence at this stage is particularly appropriate. It is a fairly straightforward legal matter. I mean, if there is no breach my order, if I made it, would have absolutely no effect.

PN88

MR BRACKENREG: Yes.

PN89

THE COMMISSIONER: If there is a breach then it would be indication to any enforcement proceedings that each one should be a separate one.

PN90

MR BRACKENREG: Nonetheless though, I think it would be of assistance to the Commission if, after we hear what Ms Schoonwater says, that I be given an opportunity to confer - - -

PN91

THE COMMISSIONER: Yes, all right. I think that is probably fair, Mr Brackenreg. I will hear from Ms Schoonwater and you will be able to make any application that you wish to make at that time and put anything. If there is an application that says you need to respond with evidence then fair enough and we will see how we go. All right, Ms Schoonwater.

PN92

MS SCHOONWATER: Thank you, Commissioner. Yes, Commissioner, I agree. I do not think that evidence is necessary for the purposes of today's proceedings. There has been plenty of proceedings surrounding this matter before the Commission. In any case, unfortunately, the person who we would have called as our chief witness - we do have another one present if required, Mr Les Lancer. Unfortunately his father-in-law's funeral was on today but we are not going to allow that to stand in the way of delaying proceedings.

PN93

Firstly I will hand up a bundle of letters if I may from Stockport's South Australian solicitor. I will be relying on the letters contained within it at separate stages through proceedings but it is probably best that I give them as a bundle.

PN94

THE COMMISSIONER: All right. I will mark the bundle, shall I, as a bundle and it will be CFMEU 1.

PN95

MS SCHOONWATER: Yes.

EXHIBIT #CFMEU 1 BUNDLE OF LETTERS FROM STOCKPORT'S SOUTH AUSTRALIAN SOLICITOR

PN96

THE COMMISSIONER: Yes, go on.

PN97

MS SCHOONWATER: This application under section 111(1)(e) of the Workplace Relations Act seeking an order from the Commission to the effect that Stockport Civil Pty Limited is engaged in conduct in breach of the specified term of the order, shall be taken to constitute a breach of the term of that order and each day on the conduct continues. The CFMEU submits that from 26 July 2001 until 23 August the employer has been in breach of PR907304 and PR907009 which, for ease of reference I shall refer because of right of entry orders - they will be orders issued on 26 July - and 1 August until 9 August and then 15 August until 11 September is in breach of PR907284 which, again for ease of reference, I will refer to as a time wage record order.

PN98

Overall we say too that they are in breach of the decision of the Full Bench which was issued on 21 August and was ready to transcript on 14 August. We also submit that they are in breach of an award of the Commission by their own admissions and that award being the Engine Drivers and Firemen's Award 2001. It is fair to say that we have received some wage records from Stockport on 23 August, some nine days after the Full Bench handed down its decision. However, those records are inadequate. They do not indicate the hours worked by the employee so it cannot be worked out what shift rates are applicable nor do they indicate the hours worked on each day so again it is impossible to tell whether there was any overtime worked within which shift.

PN99

It is, after all, a seven day a week, 24 hour job. In addressing the right of entry provisions we are very concerned regarding a letter received from Rob Kelly of Kelly & Co and it is the first letter dated 28 August. It is a letter in reply to us pointing out to Mr Kennett after some two and a half feet of letters that the CFMEU have received from him that prescribed written notice is not required and it was an issue that was raised in previous proceedings. In response to that letter that we outlined to him that you had indicated to Mr Phillip Walker that written notice was not required his response is at point 1:

PN100

Neither decisions of either Commissioner Deegan nor the Full Bench of the Industrial Relations Commission in Canberra are binding as a matter of law in respect to the question of whether or not Stockport Civil EBA applies to workers in Stockport's employ in Canberra. You appreciate the Industrial Relations Commission is not a court able to make a binding determination.

PN101

Then in paragraph 2 he goes on to say:

PN102

We understand that it is your assertion that it is not just, as you should understand our assertion to the contrary. Our client has asserted on many, if not all, occasions those precursors have not been observed and we were therefore not present in your purported notices.

PN103

This is not an assertion made by the CFMEU but we were referring to a statement made by you to try and resolve the matter that we were having with Stockport. Their claims that written notices are required and the only person who can give the notice is a person personally. The next two letters again raise the same types of issues. One is on 24 August and another is on 6 September. Both letters again refer to written notice being required. They claim to be - that is their excuse as to why the CFMEU cannot have right of entry on to the site.

PN104

The CFMEU receive some five to six letters a day from Mr Rob Kennett referring to various issues but the major correspondence had been relating around this issue of some form of written notice being required under section 285D of the act and we deny that that is the case. In relation to Mr Kennett's position that we are required to give written notice and that that is in fact required also by your order we again deny that. Your orders simply confirmed our existing rights under division 11A of the act. They did not confer an additional power or an additional obligation upon the CFMEU. And the right of entry order at item 1 it is stated:

PN105

Stockport Civil Pty Limited shall afford to officers of the CFMEU who hold a permit under section 285A of the Act and who give the requisite notice as required pursuant to section 285D of the Act access to site sheds to hold discussions with employees who fall within the scope of section 285(1)(a) and (b) of the act. There was nothing within your order to state that the person must personally give the notice. If it had done so then it would have given an additional power which section 285G of the act does not permit.

PN106

What Stockport now seeks to argue is that the order places some additional obligation upon the CFMEU. Further to whatever argument they are now seeking they continue or Mr Rob Kennett on behalf of Stockport continues to submit correspondence, denying access to the site on the basis that the person must personally give notice and then there is some long winded process that you have to go through within that notice before you can lawfully gain access to the site. We say that for several reasons that is not correct. The act does not specify how the notice is to be given. There is nothing therefore that says the notice must be in writing and must be signed by the person only.

PN107

The provisions of division 11(a) of the act go to those in section 3 of the act and relate to the encouragement and democratic control of organisations as well as other things. They do not, in any way, inhibit a person who holds a permit under section 285A of the act from entering, if they had given the requisite 24 hours notice. Given that section 285D is simply a code for entry we submit that it could not be found that the meaning of the words within that section means that the person has to give the occupier of the premises notice personally. Commissioner, we say that under section 285E of the act provisions of occupiers of the premises must not refuse or unduly delay entry to the premises by persons entitled to enter the premises under section 285 B or C.

PN108

There are separate provisions in the Act for civil penalties for those breaches and in relation to that, we have commenced proceedings before the Federal Court. However, in proceedings before this Commission, both orders were made so as to confirm the rights of the CFMEU. On that basis, we submit, the employer has been engaging in this conduct of the type described in section 285E. Both orders refer to a person who holds a permit under section 285A. The time wage order refers to section 285B(3) and a right of entry order refers to section 185C. It is clear that if the employer was engaging in conduct defined in section 285E, they would be in breach of both orders.

PN109

The letters demonstrate that they have been denying the CFMEU access to the site. The letters indicate that they have no intention of abiding by a decision of this Commission. In fact, they think they are not lawfully enforceable - which they are, nor are they legally binding - which they are. This Commission might not have a power to determine their enforcement, but it does have the power to determine those orders. It is clear that Stockport and their solicitor have engaged in conduct to deliberately frustrate the right of entry of the CFMEU officials in relation to the order and in relation to the Act, itself. The order does not, and did not, limit our rights. It simply confirmed them.

PN110

In relation to the time wage records, Stockport have been in breach of the order since 1 August to today. The period of exclusion is 9 August until 14 August, being the period where the stay application was in place in relation to those orders. The order issued on 1 August stated at A(3), "Access to copies of this information are to be supplied at 9 am, Thursday, 2 August at a Stockport site office". Now, they simply ignored that order and refused to supply us with the time wage records.

PN111

We understand that that date has now passed and therefore for the purposes of a Full Bench appeal, it could not have application. But for the purposes of a section 111(1)(e), they did breach an order of the Commission and it was made perfectly clear on 31 July at our video conference hearing, that those records were to be made available on that date. And it was agreed that they would supply those records. They deliberately chose to ignore an order. In fact Mr John Watts invited you to issue the order with that date in it.

PN112

Stockport have provided us with some time wage records, as I have indicated. However, those records are deficient and in the absence of specifying the hours worked and the times worked, time records mean nothing. Also, they did not state the classifications. Again, how can you determine a rate of pay if it fails to identify the classification of a plant operator? Not all plant operator are paid the same rates of pay.

PN113

Now, it took us, again, another five days to get from them a letter outlining what classification of each of the employees was. But before that, we received a letter from Mr Rob Kennett outlining that it was not his client's job to tell us the classifications of the employees. Well, it is his client's job because his client was ordered to confirm our rights that we were allowed to have that information. They simply, again, chose to ignore the order, engaging in more time wasting and more deliberate frustration of the rights of the CFMEU under Division 11A.

PN114

We submit further that at all material times between 14 June 2001, Stockport have been bound by the Engine Drivers and Firemen's Award and Stockport is in breach of that award every day it has worked in Canberra. In relation to the award breach, I refer to a letter of Mr Kennett dated 22 June. I think there might be - 22 August, sorry. There are two dated on that date, but I refer to the first letter and I read from the second paragraph, the sixth line up, commencing with - the first word is "Commission".

PN115

Then with respect to Mr Parry's comment that the CFMEU suspects that there has been a breach of the living away from home allowance clause in the award, "Our client pays its employees in accordance with the enterprise agreement and will continue to do so. The award, being a Canberra award, has no application in the circumstances". This is an admission by their own solicitor under instructions of Stockport that they are in breach of an order and an award of the Commission.

PN116

There have been further breaches of the award, including that when an accident occurred on Tuesday, 14 August, a ute rolled over on the runway and the company stood the employees down for the rest of the day without pay. Now, the Engine Drivers Award does not permit that. They were in breach of that. Inclement weather days, employees are forced to take their RDOs on inclement weather days - again, a clear breach of the award.

PN117

We believe that there is a multitude of breaches, including meal allowances, living away from home allowance, which they have admitted to. However, without having the proper information which we are lawfully entitled to obtain, we cannot say how many. We do not know - we do know from previous submissions and admissions by Mr Morphett also at the hearing of 23 July, that they have had to top up hourly rates of pay and allowances to match the Engine Drivers Award.

PN118

We also know from proceedings before Senior Deputy President O'Callorhan that they are continuing to pay in accordance with the EBA. This is consistent with the letter of Mr Kennett. Both orders related to the application of the award. Now, it was - your decision clearly stated that it was the Engine Drivers and Firemen's Award that had application and that decision was upheld by a Full Bench of this Commission.

PN119

Stockport has blatantly refused to adhere to any order of this Commission. We submit that they have been in breach of both the orders since they were issued and we seek and order that whilst Stockport is engaging in conduct in breach of the specified term of the order, that should be taken as the commission of a separate breach on each day that it continues. Ordinarily we would not seek such an order. However, given the history of this matter and the way that Stockport and its South Australian solicitor have conducted themselves, particularly their refusal to adhere to any direction, recommendation, statement, decision or order of this Commission, we believe that such an order is necessary.

PN120

We have some 2 feet of letters from Stockport's solicitors and we receive, as I have said, five, six, seven letters on most days. Most of the letters are simply an attempt to create some bizarre novel argument as to why our notices are deficient, why the Commission does not have certain powers, or why we cannot have access to time wage records, or why the award does not apply in Canberra. Each of those issues has already been dealt with by this Commission and this Commission has issued orders in relation to them.

PN121

Orders and awards of this Commission are legally binding and so are the two orders that you issued, and so is the decision of this Full Bench of this Commission in relation to those orders. Mr Kennett is entitled to his view, but that is all it is. It is a view. We must look at what the actual position is. The issue of award application has already been dealt with and Stockport have no right to blatantly disregard it and we say, because of the history of this dispute, the making of a section 111(1)e) order is necessary and warranted in the circumstances.

PN122

Commissioner, as I indicated earlier, I do not think that it is necessary that evidence be called, given the history of the matter or the proceedings that have occurred in this Commission, and the letters of Mr Rob Kennett. However, I reserve my right, depending on what Mr Brackenreg states, to call Mr Les Lancer as a witness. I do not wish to take up any more time than this matter has already wasted in the Commission, if it please the Commission.

PN123

THE COMMISSIONER: Ms Schoonwater. Mr Brackenreg?

PN124

MR BRACKENREG: Commissioner, Ms Schoonwater has handed up to you three letters. I would call upon Ms Schoonwater to provide copies of the letters that these are in response to. These are letters from the company's solicitors. The letters that they are responding to should be provided to you as well?

PN125

THE COMMISSIONER: Do you undertake to provide me and Mr Brackenreg with those letters? You would have them with you, would you Ms - - -

PN126

MS SCHOONWATER: No, I do not have that file, it is too heavy to carry.

PN127

THE COMMISSIONER: Right.

PN128

MR BRACKENREG: These are letters from the CFMEU?

PN129

THE COMMISSIONER: Yes.

PN130

MS SCHOONWATER: Yes, well, Stockport has those letters. Stockport has been served. Mr Kennett has written to the CFMEU and stated that he is the only person that is to receive letters. It is not my responsibility if Mr Kennett does not pass on to another counsel briefed in this matter. They have already been served with our letters.

PN131

THE COMMISSIONER: Right, well, perhaps I could - - -

PN132

MS SCHOONWATER: Yes, I will serve him.

PN133

THE COMMISSIONER: Right. Go ahead, Mr Brackenreg?

PN134

MR BRACKENREG: My point is this that I think it is appropriate that Ms Schoonwater is going to be referring to these particular letters here, that she also make it similarly available to you, not necessarily to me, but to you, the copies of the letters that they are responding to. It is Ms Schoonwater's application, and it is her obligation to provide such information to this Commission in order for you to facilitate your decision. Now, much has been said in relation to the attitude of the company concerning that - that Ms Schoonwater is attempting to read from her letters that she has provided to you in evidence. My initial point is this. First of all I would object to you considering this evidence in the light of what I have said in relation to the failure of the CFMEU to provide you with the full body of correspondence which these I just related to.

PN135

MS SCHOONWATER: They will be here in about 15 minutes.

PN136

THE COMMISSIONER: That is all right, go ahead Mr Brackenreg?

PN137

MR BRACKENREG: Secondly, it is apparent that the CFMEU are indicating that there have been, even contained within these letters itself, it is apparent that there has in fact been access to both time and wages records and to the site. The evidence that I could bring if I was permitted to have this matter stood down shortly to call upon a Mr Gary Neave from the company, would support the fact that there has been access by the CFMEU on more than one occasion.

PN138

I can indicate to you that my instructions are that the CFMEU have had access to the site in accordance with this Commission's orders, and prior to when those orders have been made, on 6 July, on 11 July, on 1 August, and then again for some period not after that, but then commencing again on 20 August, on 21 August, on 23 August. The meeting was held - sorry - was scheduled to be held on 24 August, however, the union declined to attend on that particular occasion.

PN139

There have been various notices now provided to the company purporting to seek access to - and to inspect machinery and to hold discussions with employees during working hours, not at the site which was the subject of your orders, Commissioner Deegan, but elsewhere upon the airport. There has been significant correspondence which appears to be absent from the correspondence handed up to you concerning the problem in granting access as requested by the union. I do not understand that the access sought - sorry - that the orders sought today in fact addressed that issue. Now, having said that, what we have left is an assertion from the bench that the company is being obstructive, and is attempting to hinder the CFMEU officials - - -

PN140

THE COMMISSIONER: I think the assertion was from the bar table, actually, I have not asserted it yet.

PN141

MR BRACKENREG: Sorry, from the bar table. My apologies. That there has been assertions from the bar table that the company has been hindering. There has equally been an assertion from the bar table that that in fact is not the case, that access has been permitted, but since the 24 August, as I understand it, while access has been consented to in accordance with your orders, Commissioner Deegan, to hold discussions with employees at the crib rooms during meal breaks, such access has not been taken up by the CFMEU.

PN142

Furthermore, it is my instructions that in time and wage records have been provided, yes, there has been some difficulty in establishing exactly the nature of the time and wage records that can be provided, or that should be provided. Again, that is not specifically referred to in the bundle of correspondence that you have before you, nonetheless my instructions are that voluminous time and wages records have been provided, and again the company has sought clarification from the union in relation to their concerns over what exactly it is that the union require.

PN143

And there has been at no time, even contained within this bundle of correspondence handed up to you, there has been at no time any assertion from the company that it does not intend to provide that information. It is therefore my submission that there are no breaches, and to be perfectly frank I am not entirely sure why we are here. The union indicates that there has been voluminous correspondence from Stockport's solicitors in Adelaide to it. The union does not seem to have any correspondence in return, and I suspect that that is partly the problem.

PN144

If I may make so bold to make this assertion from the bar table, it would appear that the union is in fact seeking some excuse to bring this matter back before you in order to ground its application before the Federal Court. In other words, Commissioner Deegan, it will be seeking an order from you that there is a breach so that it can ground its application before the Federal Court seeking penalties in accordance with a finding that there have been breaches.

PN145

THE COMMISSIONER: I do not think that the Federal Court would taken much notice, Mr Brackenreg. They would probably say, "It is nothing to do with her". "We decide whether there has been a breach or not".

PN146

MR BRACKENREG: I am sure they would have some - - -

PN147

THE COMMISSIONER: Commissioner Deegan is exceeding her jurisdiction?

PN148

MR BRACKENREG: Nonetheless, Commissioner Deegan, I am sure that there will be some attention payed.

PN149

THE COMMISSIONER: I do not think so, Mr Brackenreg, it is a totally different view of what the Federal Court thinks of the Commissioner. The Commission knows what its jurisdiction is. As I understand it the application before me is not for me to say there has been a breach - I cannot do it.

PN150

MR BRACKENREG: Yes.

PN151

THE COMMISSIONER: It is outside my jurisdiction. It is a matter for the Federal Court. What Ms Schoonwater is purporting to apply for is an award or order - - -

PN152

MR BRACKENREG: It is an order.

PN153

THE COMMISSIONER: - - - or a variation - she seems to be applying for an order which is a stand alone order but purports to affect at least two other orders I have made - I am just looking at the original application.

PN154

MR BRACKENREG: Yes.

PN155

THE COMMISSIONER: One about time and wages records, and one about entry.

PN156

MR BRACKENREG: Yes.

PN157

THE COMMISSIONER: Stating that if there is a breach of the order, each breach will be considered a separate breach rather than if there are a number of breaches of the order they had to be considered as a course of conducted and treated as one breach. So all she is asking me to do is to, for the purposes of anything that might happen in the Federal Court, put something in place which tells the Court that it is not to be considered one breach - sorry - one breach as a course of conduct, but each time should be a separate breach, if the Court find a breach or if they get to that point. It is not me making any findings at all, I cannot do it, I do not enforce my own orders.

PN158

MR BRACKENREG: Yes, I understand.

PN159

THE COMMISSIONER: I must admit you could be excused for me slightly confused about what Ms Schoonwater's applying for, because I do not believe I have got the power to say anything about decisions. I only have the power to vary or make orders to say that a particular breach will be a separate breach. Decisions, generally, you do not breach. You breach orders or you breach awards. As far as I know, there are two orders in relation to the company, one about right of entry, one about wages records. They are the only ones that are in existence at the moment. Both have been confirmed, as I understand it, by a Full Bench.

PN160

MR BRACKENREG: Yes.

PN161

THE COMMISSIONER: And so I do not think there is anything that I can do in relation to the Full Bench decisions except to recognise the fact that they have confirmed my orders. The question is, does what Ms Schoonwater want have any effect? Well, it may on the two orders I made. But it will not have any effect unless the Federal Court finds there is a breach. But if the Federal Court finds there is a breach or a number of breaches, it may look at them with a different view if I make this order.

PN162

MR BRACKENREG: Yes, I understand that. My submission is that while there has been, as I say, various assertions made from the bar table concerning the conduct or the alleged conduct of the company, in reality - and this is why I predicated my earlier statement by saying I am not entirely sure why we are here - there has in fact been access provided to the CFMEU in accordance with the orders.

PN163

THE COMMISSIONER: In which case my order would have no effect, would it, if I were to make it?

PN164

MR BRACKENREG: I think it is important nonetheless that it is stated for the purpose of the record and as I said alternatively if Ms Schoonwater is prepared to - was seeking to adduce further evidence then similarly the company should be in a position to do that as well.

PN165

THE COMMISSIONER: Well, as it happens, Mr Brackenreg, as I have been trying to say, I am not interested in whether or not there has been a breach of the order because that is not a matter for me. I make the orders and then I let the Federal Court decide whether there is - one, whether they were valid in the first place, and two, whether they have been breached.

PN166

MR BRACKENREG: Yes.

PN167

THE COMMISSIONER: But if the Federal Court is - I mean it is a legitimate application, a section 111(1)(e) application, so that the Court consider if there are breaches, each breach as a separate breach rather than as a course of conduct, generally used by the Commission where there has been some blatant disregard of orders of this Commission.

PN168

MR BRACKENREG: Yes, thank you for clarifying that. I understand that.

PN169

THE COMMISSIONER: And sometimes in the face of blatant disregard the Commission will make orders of the type - generally they used to be included in what we call bans clauses, Mr Brackenreg. You probably would not be familiar with those.

PN170

MR BRACKENREG: No.

PN171

THE COMMISSIONER: But it is certainly - it is not something the Commission does regularly; it is not something that they do lightly. But on the few decisions where they have decided to do it, it has generally been because they have made an order and had it ignored. Now, I am not suggesting that my orders have necessarily been ignored. There was some evidence before the Full Bench, as I understand it, that certain things had not been done, but then there was a stay in place.

PN172

I do not have to be convinced my orders have been ignored and I am prepared to take no notice of the letters that Ms Schoonwater handed up today. The fact that she is here making the application would appear to be some indication that she believes that if I make the order they may be able to get some effect from it, otherwise she is wasting her time. Making the application if she is not intending to go to the Federal Court and enforce the orders is a waste of time. It has no effect otherwise; it is meaningless.

PN173

And as I said it will only have effect if the Federal Court find the orders have been breached and then find they have been breached more than once and then have to decide whether it is a course of conduct making one breach or whether, in light of an order made by the Commission, should be treated as separate breaches. And that only goes to penalty as I understand it. Now, that is what you are here for.

PN174

MR BRACKENREG: Yes, thank you, Commissioner, I understand, thank you for your clarification. Finally there is really only one further point that I may have made and I believe that you have made in any case for me, that you may not necessarily have the power to determine - - -

PN175

THE COMMISSIONER: Make the orders.

PN176

MR BRACKENREG: - - - the issue in relation to the decisions of the Full Bench.

PN177

THE COMMISSIONER: Yes.

PN178

MR BRACKENREG: With that, my submissions are closed.

PN179

THE COMMISSIONER: Thank you, Mr Brackenreg. Ms Schoonwater.

PN180

MS SCHOONWATER: Thank you, Commissioner, I will be brief. Yes, your statements do sum up what I am seeking to do for the purposes of today's proceedings. I only referred to the letters and to the history of events merely to show the gravity and to set the scenario. I should have said that from the outset, which is why I also said that I did not find the calling of witnesses necessary for the purpose of today's proceedings.

PN181

As you have indicated, the order will only have effect if a Federal Court determines that there has been a breach and it is there that we will be seeking to have the issue ultimately resolved in terms of the jurisdictional questions that may currently be before the Commission. But in terms of making the section 111(1)(e) order, we say that you do have the power to make that and yes, I agree that you do not have the power in relation to the decision, so we would seek to have the order amended appropriately.

PN182

THE COMMISSIONER: Well, in that case I am not - I am not inclined to make the order as submitted as a draft order in any case, Ms Schoonwater. Now that we have actually managed to clarify what we are here for and what it is you are after, because you did have a draft order, an amended order that talked about decisions, etcetera, what I would like to do - because I do believe Mr Brackenreg is at a slight disadvantage given his earlier application for an adjournment - is to adjourn this until 3.30 tomorrow afternoon.

PN183

In the meantime I would like you to put together an amended draft order which is clear about exactly what you are after in relation to which orders and serve that on Mr Brackenreg by 10 o'clock tomorrow morning. I will hear further submissions about whether or not those orders or that order should be made and I will determine it tomorrow afternoon. I do not think it is fair in light of the amended that you have put in that Mr Brackenreg - as I said, I do not think he was in a position to argue about what the specific thing it is that you were after because that order that you have put up does not make it clear. I mean I cannot make a 111(1)(e) order in relation to decisions; only in relation to orders.

PN184

So what I would like is for copies of the two orders that you want, if that is what you are after, copies of those two orders plus the order you want made under 111(1)(e) or orders you want made under those, as I said, served on Mr Brackenreg by 10 o'clock tomorrow morning.

PN185

The matter will be adjourned until 3.30 tomorrow afternoon and I will take further argument as to why they should not be made in that form or should or should not be made at all and, as I said, it is not about whether or not there has been a breach; it is whether or not there is any need for them as such, what purpose they are going to serve. All right?

PN186

It is not something that I do lightly, make a 111(1)(e) order. It has a major effect, there is no doubt about it. And it has only been done on a few occasions in relation to other than bans clauses. I would like Mr Brackenreg to take some further instructions on the form of the order you are looking for. All right? So can you do that by tomorrow morning 10 o'clock?

PN187

MS SCHOONWATER: Yes.

PN188

THE COMMISSIONER: Is that all right with you, Mr Brackenreg, if I adjourn it until 3.30 tomorrow afternoon?

PN189

MR BRACKENREG: Thank you, Commissioner.

PN190

THE COMMISSIONER: Can you make it?

PN191

MR BRACKENREG: I can make it, thank you, Commissioner.

PN192

THE COMMISSIONER: All right, I will adjourn the matter until 3.30 tomorrow afternoon, then we may have a better idea what we are talking about.

ADJOURNED TO WEDNESDAY, 12 SEPTEMBER 2001 [2.54pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU 1 BUNDLE OF LETTERS FROM STOCKPORT'S SOUTH AUSTRALIAN SOLICITOR PN96