C2001/5137, Transcript of Proceedings [2001] AIRCTrans 2856 (24 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 0643
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/5137
C2001/5138

ABIGROUP NETWORKS PTY LIMITED

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the Act
of an industrial dispute re construction of the
Somerton Natural Gas Pipeline Project

APPLICATION FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION

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

MELBOURNE

2.04 PM, TUESDAY, 9 OCTOBER 2001

Continued from 27.9.01

PN38

MR B. SHAW: Our appearances, I think, are unchanged from the last occasion. I appear with MR SHELL and MR M. O'CONNELL for the company.

PN39

MR M. ADDISON: Yes, Commissioner, our appearances are the same as last time.

PN40

THE COMMISSIONER: Mr Shaw.

PN41

MR SHAW: Commissioner, thanks for listing this matter so quickly. The position is that bans, in particular on the welding, have been reimposed. Some welding did take place subsequent to our previous hearing. Mr Frith, the Project Manager, was informed by Mr Bradley that the bans were effectively outstanding bans arising from the Trades Hall ban. Other action that has occurred is that there has been a notice of bargaining period placed on the site and notice of an intention to take industrial action.

PN42

It is my submission at this stage, Commissioner, that prior to getting ourselves into any serious argument about protected action, section 127 and so on, that it might be useful if the Commission were to hold a conference, and I suggest also that in the course of the conference, there be conferences with the parties separately. If the Commission pleases.

PN43

THE COMMISSIONER: Yes. Mr Addison.

PN44

MR ADDISON: Yes, thanks, Commissioner. Commissioner, last time we were in front of you I indicated that a bargaining period had been served and I believe I gave a copy of that to the Commission.

PN45

THE COMMISSIONER: Yes. Well, Mr Shaw has already acknowledged that.

PN46

MR ADDISON: Subsequent to that, Commissioner, a notice pursuant to section 170MO was served on the company. There are no bans. There is, in fact, a strike, and the strike is a protected strike. The issue between the parties is that we are seeking an agreement with the Abigroup rather than just this project. We are happy to go into conference and see if we can work through the issues. But in short, Commissioner, the action that is taking place is protected action. If the Commission pleases.

PN47

THE COMMISSIONER: Yes. The Commission will adjourn into conference.

SHORT ADJOURNMENT [2.07pm]

RESUMED [3.12pm]

PN48

THE COMMISSIONER: There has been some discussion in conference both with the parties separately and together and the Commission put a recommendation. In short, the recommendation went to the bans and limitations being lifted so the parties could have discussions hopefully with a view to reaching an agreement at least in the main by tomorrow evening and then report back to the Commission.

PN49

The union's position is they are not prepared to lift the bans that are in place. They say it is part of their protected action. The position of the company is they are not prepared to negotiate while such bans are in place.

PN50

There is before the Commission an application pursuant to section 127(2) in C No 2001/5138. The Commission has decided that matter will be heard at 4.30 this afternoon in this courtroom. The Commission is adjourned.

SHORT ADJOURNMENT [3.13pm]

RESUMED [4.33pm]

PN51

THE COMMISSIONER: The Commission is resumed to hear to hear argument by the applicant, Abigroup Networks Proprietary Limited, as to why the Commission should grant a certificate pursuant to section 127(2) against the Australian Food, Metals, Engineering, Printing and Kindred Industries Union. The appearances have already been noted but, just to refresh people's memories, Mr Shaw appears for the company who are the applicant, and Mr Addison appears for the respondent. Mr Shaw.

PN52

MR SHAW: Thank you, Commissioner. The applicant in this matter maintains and submits that the bans which were the subject of the original application have been re-imposed; that they represent a continuum. The Commission, as presently constituted, is aware, as a result of the proceedings earlier this afternoon, that those bans exist although I will take some - lead some oral evidence from Mr Frith, the Project Manager, shortly.

PN53

The one issue that needs to be addressed is that since the original notification was made, a notice pursuant to section 170MI(2) of the Act was served upon the company - that is a notice of initiation of a bargaining period - and that notice specified the actions that the union - or the matters which the union wished to be the subject of negotiations for a certified agreement between the company, Abigroup Networks Proprietary Limited, and the union for an agreement on a statewide basis.

PN54

The company has been prepared at all times to enter into a site agreement and, subsequent to the proceedings in this Commission on previous occasions and in consequence of the directions of the Commission, the company itself made approaches to the union to have negotiations. In my submission, the negotiations have not been genuine or bona fide, but that may well be the subject for another application before this Commission in the future.

PN55

On 27 September the company received a notification pursuant to section 170MO of the Act that industrial action, which the union stated would be protected pursuant to the terms of the Act, would commence at 7 am on Wednesday, 3 October, and that the action would be a strike; that is a total withdrawal of labour commencing at the above date and time. Subsequent to that, the welders on the site were instructed, on my information, and the evidence that will be led shortly to cease work, instructed by Mr Bradley to do so, and they did so.

PN56

The section 170MT of the Act provides for immunity, and the section is headed:

PN57

Immunity provisions that an order made by the Commission under section 127 does not apply to protected action.

PN58

However, in my submission, it is clear from the wording of the Act that that does not preclude the Commission from making such an order. Indeed, the very heading Immunity Provisions of itself makes it fairly apparent that an order can be made but that protected action would be immune from the effect of the order.

PN59

It, therefore, would behove the applicant in this matter if the Commission is mindful of making an order in the terms sought to demonstrate to the court that the action that it was seeking to have the court make orders in respect of was, indeed, a continuum of the earlier action in respect of the Trades Hall ban and not protected action within the meaning of the Act. There are, of course, other provisions of the Act on which the applicant may rely, in particular section 170MW(2) in further applications before this Commission. As I said early, on my instructions, the requirements of 170MP have simply not been met by the union in this instance. However, having said that, I would call Mr John Frith to give some evidence in respect of the bans.

PN60

THE COMMISSIONER: Yes.

<JOHN FRITH, AFFIRMED [4.40pm]

<EXAMINATION-IN-CHIEF BY MR SHAW

PN61

MR SHAW: Mr Frith, could you state your full name and address for the transcript, please?---John Frith, 775 Brunswick Street, Fitzroy.

PN62

And what is your occupation?---Project Manager with Abigroup Networks.

PN63

And what are your responsibilities at the Somerton pipeline project?---Just the day to day management of the works out there for Abigroup, for the interests of Abigroup there on site.

PN64

Now, can you in form the Commission of the position out there now in respect of work or bans affecting work?---Currently the welders are not working on site, and have not been since last Thursday around 11 o'clock when they were requested to leave the site by Mr Bradley.

PN65

THE COMMISSIONER: What time was that?---Approximately 11 o'clock on Thursday.

PN66

Thank you?---As a result, the project is sort of grinding to a halt and we are in a position now where we may have to - or we are possibly dembolising machines and manpower as a direct result of the ceasing of the welding.

PN67

MR SHAW: And what will be the effect on the project should the bans not be lifted?---Should the bans not be lifted, more or less straightaway we will more than likely fall foul of the October 15 deadline for the vicinity of the Merri Creek crossing and the project may well be stopped in total from proceeding at all.

PN68

And what is the - just for the record, what is the pipeline designed to do?---The pipeline is to supply gas I understand to a peak load power station to be constructed adjacent to the Hume Highway.

**** JOHN FRITH XN MR SHAW

PN69

Right, and do you have any knowledge as to what that peak load power station is being built for?---The best of my knowledge is that the power station will serve peak summer loads for air conditioners and the like for the grid, the state grid during summer.

PN70

Right. Now, you say the welders were told to stop working last Thursday. Did you have any meetings yourself with any union officials on Thursday?---Yes, I spoke to Terry on Wednesday prior to the fact actually, and I believe he was on site on the Wednesday and I had missed him. I was at the other end of the job. And I rang him as a courtesy to say - to ask him whether there was anything he wanted to talk about, at which time he noted that the agreement - there were a number of problems he had with the EBA and I suggested that we meet in the very near future to discuss those. At the time he was unsure of his program Thursday so we agreed that I would call him Thursday morning, which I then did at which time he asked if the welders were working on site. I advised him that they were. He said he would then come out to site to stop works because there were bans in place. I said I would just - I had no control over it and I disagreed with that but that, you know, he was able to do whatever he pleased. Subsequent to that he arrived at site and asked for the welders to be brought to the office because of the bans or stop work, or whatever you would like to call it. I advised him that I wasn't aware of any bans in place and that if he wanted the welders to stop work, then he should - he was free to speak to his members and that he could go and instruct them to do so himself, which I understand he did. And he came back and reported that the welders were then on strike when he returned to the office and that there would be no more work on the site that day. Subsequent to that, I spoke to the welders and asked them what the problem was, were they happy with the EBA? They said they were happy with the EBA as it stood, which had been previously agreed by the AWU on the Friday preceding. And I asked them would they - you know, were they on strike, and they said they had been instructed to go on strike and they would not fly in the face of a union instruction to be not working.

PN71

I have got no further questions, Commissioner.

PN72

THE COMMISSIONER: Yes. Just wait there, Mr Frith. Mr Addison has something to ask you.

**** JOHN FRITH XN MR SHAW

PN73

MR ADDISON: Yes, thanks, Commissioner.

<CROSS-EXAMINATION BY MR ADDISON [4.44pm]

PN74

MR ADDISON: Mr Frith, do you have a copy of the application that has brought these matters before the Commission?---Not in front of me, no, sorry.

PN75

Could the witness be shown a copy of the application?

PN76

THE COMMISSIONER: Yes.

PN77

MR ADDISON: I want to take you to the grounds of the application which is on the third page I believe?---Yes.

PN78

Have you got that?---Yes.

PN79

I take you to ground (c):

PN80

On Tuesday, 25 September 2001, the company's manager, pipelines, met with officials of the AMWU who have made a claim for an industrial agreement to apply.

PN81

Were you one of those management people?---I was present at the meeting between the AWU and the AMWU on the 25th, yes.

PN82

Okay. So at that meeting the AMWU officials made a claim for an agreement, do you agree?---I don't really understand the terminology there. At that meeting we were discussing the project EBA and I understand that Mr Bradley asked that there be also - or made mention of a - the pattern agreement which I - if that is what you are asking.

**** JOHN FRITH XXN MR ADDISON

PN83

THE COMMISSIONER: You just keep saying what you think you understand?---Yes. So there was mention of a pattern agreement but the meeting specifically was to agree an EBA essentially between both unions and Abigroup Networks.

PN84

MR ADDISON: Okay. So the meeting, in essence, was a meeting between management representatives and the two unions, the AWU and the AMWU?---Yes. We specifically called it with the AWU, and the AMWU were invited to attend.

PN85

Okay. So who invited the AMWU to attend?---I believe Matthew O'Connell invited - - -

PN86

Okay. So the company invited the AMWU to attend?---Yes.

PN87

And those discussions were aimed at reaching an agreement, were they?---An enterprise bargaining agreement for the project at Somerton, yes.

PN88

Okay, and the AMWU official, Mr Bradley, participated in that meeting?---Correct.

PN89

And spoke at that meeting?---Correct.

PN90

And made specific mention of various clauses, if you like, that he wanted in the agreement?---Correct, yes.

PN91

And sought to have the company agree to the pattern agreement, I think you said?---There was mention made of pattern agreements by both unions actually at the time. To sort of go beyond that, when we returned to our office in Ardeer that evening we received a - we had received whilst we were in the meeting a fax from AMWU which was the R40 essentially advising of, I assume, what is termed the pattern clauses or whatever they would like.

**** JOHN FRITH XXN MR ADDISON

PN92

Well, if it was an R40, was it a bargaining period notice, do you know?---Yes. Yes, something to do with - to enter into a bargaining period or something, yes. R40 was the reference number on the form.

PN93

Now, if I could take you now to point (d) of the grounds. You say, or, sorry, whoever has prepared this application - Mr Shell I believe, says that Terry Bradley attended the site on 24 September?---Yes.

PN94

Were you on the site on 24 September?---I had actually just arrived that day, yes, so - yes.

PN95

Did you speak to Terry?---I didn't personally. I was in the car with Matthew O'Connell who spoke to Terry.

PN96

Okay. So Matthew spoke to Terry?---Yes.

PN97

Do you know what Matthew and Terry spoke about?---Essentially, as I recall it, I think Terry said that he had removed the - or instructed the radiography, the subcontractor to leave site. And, yes, that there was a ban, I guess, on - - -

PN98

Did you - were you privy to the discussion, were you there when the discussion occurred?---I was sitting in the car with Matthew, yes.

PN99

Did Terry ask about an agreement for the site?---I don't remember that. I don't remember any mention of asking for an agreement, no.

PN100

Okay, no worries. Now, the bargaining period was served, you say, on 25 September when you returned from the meeting with the unions?---Correct.

**** JOHN FRITH XXN MR ADDISON

PN101

And subsequent to that, have there been any discussions that you are aware of between Terry and the company with regard to reaching an agreement?---An EBA or a - - -

PN102

An EBA?---Yes, I have called Terry three times in the past week or so, and Terry has noted on all those occasions he had problems with the EBA we have currently forwarded to them.

PN103

The proposed EBA?---The proposed EBA. This proposed EBA was revised in light of comments made at said meeting on 25 September.

PN104

All right. So do I take it from that, that specific objections were taken to specific causes within the proposed EBA, and the EBA was then adjusted to meet those specific concerns?---Yes, we adjusted where we saw fit. Not every concern was blanketly agreed to. We did make certain changes and we actually noted the points that we had made from the notes we had taken from the meeting, and said whether we agreed to those changes or disagreed. And then that was reflected in the document that sat behind that.

PN105

All right. So I think my question is still pertinent?---Sorry.

PN106

In terms of 25 September, you went to the meeting. You had a draft agreement?---Yes.

PN107

The unions were given a draft agreement, or had it beforehand?---Yes.

PN108

The unions raised specific problems with certain issues within that draft agreement?---Yes.

PN109

The company then took that back to their offices that evening or at some point?---Yes.

**** JOHN FRITH XXN MR ADDISON

PN110

And amended the agreement in line with a range of the concerns that had - not all, but a range of the concerns that the unions had raised?---Correct.

PN111

Okay, and then that agreement was then faxed back to the unions, as I understand it?---That was faxed to the unions the subsequent Monday I believe.

PN112

Okay. Now, can I ask if you got a telephone call from Terry Bradley yesterday?---What is today? Yesterday - - -

PN113

Today is Tuesday?---Tuesday, sorry, sorry.

PN114

THE COMMISSIONER: Tomorrow is - yesterday was Monday, Mr Frith?---Monday. I can't recall, sorry.

PN115

MR ADDISON: Do you recall talking to Terry yesterday - well, let me put it to you a different way. Do you remember Terry asking you a range of questions with regard to the current amended agreement, if you like, and you telling him you couldn't negotiate that; it was for people higher than you in the organisation?---That is correct, yes. On last week, around Wednesday, I rang Terry and spoke to him about - I think he visited the site that afternoon and I missed him. So I rang him and said, can we meet and talk about the EBA, which was my main concern. He was unable to talk, or to meet that - it was late on Wednesday. So we arranged that I would call him Friday - Thursday morning to arrange a time.

PN116

Yes, yes?---I called him Thursday morning at which time he said he would come out to site. When he arrived at site I asked him, you know, what is problems were with the EBA. He said that he would go away and mark up the EBA that we had sent through. He then asked about the pattern agreement, and I said - at that time I said that it is above my station to actually negotiate that, so I was unable to do so.

**** JOHN FRITH XXN MR ADDISON

PN117

Okay. So you weren't able to negotiate the specifics of that with him?---Of the pattern agreement, correct.

PN118

Did you inform him who he should be speaking to?---I did advise him that it may be Matthew O'Connell that he speak to, or it may even be higher than Matthew but I wasn't sure myself of the hierarchy within the company.

PN119

Okay. Now, you have mentioned that you saw the MO notice - sorry, the MI notice which is the R40, the bargaining period notice?---Yes.

PN120

Do you recall then seeing a further notice, an MO notice?---We received a fax I think on the Friday following so - - -

PN121

So that would - - -?---Some days after anyway.

PN122

That would have been the 29th?---It was a few days after the R40 we received as further fax to say there would be industrial action on the following Wednesday.

PN123

Okay. Commissioner, I intend to tender that MI notice which I handed up - sorry, the MO notice which I handed up earlier. I was going to get this witness to identify it. I have only got the one copy that I handed to you.

EXHIBIT #R1 COPY OF MO NOTICE

PN124

MR ADDISON: I think it is common ground between the parties that it exists anyway?---Yes.

PN125

THE COMMISSIONER: Yes, so it is marked. I have marked it as R1.

**** JOHN FRITH XXN MR ADDISON

PN126

MR ADDISON: Thanks, Commissioner.

PN127

THE COMMISSIONER: And Mr Frith was present in the conference earlier when that matter was raised and handed up anyhow.

PN128

MR ADDISON: Okay. So you confirm that the company did get that notice on the Friday?---We got a notice, yes, late in the week to say there would be industrial action taken as of the Wednesday I believe was the date.

PN129

As of the following week, yes?---Yes, yes.

PN130

Okay. Now, just one matter: you said in your evidence that there were, in fact, bans on?---Yes.

PN131

I put it to you that they are not bans as such; in fact, it is strike action, is it not?---Well, the interesting thing is that at different points in time it is referred to as bans, Trades Hall bans, green bans, and most recently on Thursday as strike action. So it has been referred to a lot of different things and I am no expert in industrial relations - - -

PN132

Okay. Well, can I put it to you that - - -

PN133

THE COMMISSIONER: You are asking the witness to speculate about the meaning of the Act.

PN134

MR ADDISON: Well, can I put - - -

PN135

THE COMMISSIONER: That is a bit unfair.

**** JOHN FRITH XXN MR ADDISON

PN136

MR ADDISON: No, no, I accept that, Commissioner. Can I put to you the words in the MO notice are these; , and I know you haven't got it in front of you but you may well remember, if not I can show you this one:

PN137

The nature of the protected action will be as follows: there will be a strike, that is a total withdrawal of labour, commencing at the above date and time.

PN138

You agree?---Yes. This is - yes, this is the document we received.

PN139

MR ADDISON: Yes and, in fact, there has been a total withdrawal of labour from the site?---Yes, there has.

PN140

Yes. So the action is in line with the notice, you would agree?---Yes.

PN141

You have to say yes, the transcript doesn't pick up the nod, made?---Sorry. It doesn't, doesn't acknowledge nods, yes.

PN142

Okay. Now, the matter between the parties, I would put to you, is that the company wants to negotiate a site agreement, the union wants to negotiate an overall company agreement. You agree that is the principle issue between the parties?---It has been communicated to the company as of the meeting on Tuesday, the 25th, that the pivotal problem was - and I use my own words there - the Trades Hall ban on the project and that the union would do everything in its power to frustrate the works because of that ban.

PN143

Okay, but the MI notice - the MO notice does not bear that out, does it, you would agree?---No. No, the notice doesn't.

PN144

And there have been discussions following the last Commission hearing that you are aware of?---Discussions between?

**** JOHN FRITH XXN MR ADDISON

PN145

Between the AMWU and the company?---Yes, there has been conversations. It has gone to no detail though as to specific problems with agreements or otherwise.

PN146

Right, and you agree that the rates, in terms of wage rates, are essentially agreed?---The wage rates agreed - - -

PN147

Wage rates in the agreement are essentially agreed?---Like I say, we have put forward wage rates. I understand the AWU are happy with those, welders are happy with those. I am not a hundred per cent sure whether that is an issue that Terry has or not because, like I say, we have revised the document.

PN148

Yes?---We haven't had communication back as to the specific problems they have or have not got with the document.

PN149

Yes, and you agree that the proposition that has been put is that the union wants the pattern agreement; that was put on 25 September?---One of the - one of the items raised on 25 September was that AMWU were after a pattern agreement.

PN150

Yes, correct?---But that - I don't see that as the sole issue that the AMWU have at hand.

PN151

I am sure there are other issues, I am sure there will be other issues. I have nothing further, Commissioner.

PN152

THE COMMISSIONER: Thank you. Re-direction, Mr Shaw?

PN153

MR SHAW: Just a couple of questions, Commissioner.

<RE-EXAMINATION BY MR SHAW [5.00pm]

**** JOHN FRITH RXN MR SHAW

PN154

MR SHAW: Now, if you go back to the application and the grounds that Mr Addison pointed you to, ground (c), were you advised that there were other reasons for the bans on the project other than the agreement?---Well, like I say, on the 25th - from the Metal Workers specifically?

PN155

Yes?---At the - quite early on in the meeting it was stated that they were upholding a Trades Hall ban on the project and, as I said before, that they would do anything in their power to any - - -

PN156

And last Thursday, what was the reason given for the bans or the strike, whichever we want to call it, on that day?---There was no specific reason given for the strike on Thursday. It was essentially that the - I was advised that the men had gone out on strike by Terry.

PN157

I have no further questions, Commissioner.

PN158

THE COMMISSIONER: Yes, thank you. You are excused, Mr Frith, thank you.

<THE WITNESS WITHDREW [5.01pm]

PN159

THE COMMISSIONER: Anything else, Mr Shaw.

PN160

MR SHAW: That concludes the evidentiary part of the applicant's case, Commissioner.

PN161

THE COMMISSIONER: Yes. Mr Addison.

PN162

MR ADDISON: I do not intend to call any evidence, Commissioner.

PN163

THE COMMISSIONER: Yes. Submissions, Mr Shaw.

PN164

MR SHAW: Well, Commissioner, I think I have effectively given my final address in my opening. The applicant presses its application for an order in the terms as set out in the application. Whilst the cross-examination ran to justifying the current industrial action as protected action, it is my submission that, as I already said, that section 170MT of the Act, whilst it provides immunity for protection action, in no way inhibits the Commission in making the order as sought.

PN165

It is the contention of the applicant that the industrial action is, in fact, in support of the Trades Hall ban and as such is not protection action. Clearly, it is not for the Commission to make that determination in the way the Act is framed. It is a matter for the applicant should the order be granted to make appropriate applications to the Court and justify its contentions there before the Court would give the necessary relief.

PN166

However, the applicant does press for the application in the hope that if it is granted the union may reconsider the position prior to us finding it necessary to proceed to legal proceedings, and would lift the bans in order to enable an orderly return to work. And of course, in those circumstances negotiations around whatever issues may be wished to be raised would continue. If the Commission pleases.

PN167

THE COMMISSIONER: Yes, thank you. When you are ready, Mr Addison.

PN168

MR ADDISON: Yes, thanks, Commissioner. Commissioner, notwithstanding that last submission with regard to the purpose of the industrial action and the witnesses evidence under cross-examination, the evidence in front of the Commission is irrefutable in terms of the section 170MI(2) notice, which was handed up last time. I am not sure if that was marked, Commissioner. But certainly that - - -

PN169

THE COMMISSIONER: When?

PN170

MR ADDISON: The bargaining period notice which was handed up last time we were here. Commissioner - - -

PN171

THE COMMISSIONER: I do not think it was, but just to everything orderly we will make that R2.

EXHIBIT #R2 SECTION 170MI(2) BARGAINING NOTICE

PN172

MR ADDISON: If the Commission has not got one, I can make one available. Maybe not this afternoon. I am not sure whether Mr Bradley has one with him, but if not we will make one available to the Commission. That document was served and it is common ground between the parties that it was served, and the evidence is clear that it was served and arrived on 25 September or thereabouts.

PN173

The further evidence is that an MO notice dated 27 September 2002 was served on the company indicating that industrial action would occur and that action would be protected action. Commissioner, before the Commission issues a section 127 certificate, the Commission needs to be satisfied that the jurisdictional prerequisites have been met. Those jurisdictional prerequisites were set down in some detail by Vice President Ross in the Patrick's decision I think I can give a copy of that decision if that assists. Would you like a copy, Commissioner, or are you familiar?

PN174

THE COMMISSIONER: Just give me the print number.

PN175

MR ADDISON: This is print number P8838. It is also reported, Commissioner, in the industrial reports at 79 IR 239 and working off that report page 244, the Vice President sets out the jurisdictional prerequisites with regard to the ground of a section 127 order. And it says that:

PN176

The industrial action is happening, threatened, impending or probable and that the industrial action is in relation to an industrial dispute or the negotiation of a proposed agreement that the work is regulated by the award or certified agreement and that the application is brought by a person who is likely to be directly affected.

PN177

They are the jurisdictional prerequisites and as the Commission would be well aware, those were discussed is what is still the leading case with regard to section 127(2) applications, that being the Coal and Allied decision. And in Coal and Allied the Full Bench, Munro J, Senior Deputy President Harrison and Commissioner Leary also put a further impediment, if you like, on the issue of the jurisdiction. And that was that the industrial action did not only have to be happening, it ought to be illegitimate.

PN178

Now, by its very nature protection action is legitimate action. The Act at section 170MT excludes from operation the application of a section 127 order. Commissioner, that was dealt with in a decision of Senior Deputy President Polites which I am sure you are aware of, a decision known as re Esso Australia Pty Limited and that was decided on 24 July 2000. That is reported at 101 IR at 423, and I have got a copy of that to hand up, and a copy to Mr Shaw, too. I do apologise for the yellow paper, it is what was in the photocopier this afternoon.

PN179

Now, I just simply want to take the Commission - and I am sure you are very, very familiar with this decision, Commissioner - to the very, very last part of the decision where Senior Deputy President Polites, after agreeing to issue a section 127 in this particular dispute, made it clear in the last paragraph of the decision where he says:

PN180

I would finally add that if, as I think, it is industrial action that is protected, the orders under section 127 of the Act will have no effect by virtue of section 170MT(1) of the Act.

PN181

Now, there can be no doubt, in my submission, from the evidence that has been presented this afternoon and from what the Commission as currently constituted own knowledge, there can be no doubt that the action that is taking place at the site is protected industrial action, and it is protected industrial action that is directed to reaching an agreement.

PN182

We put two points forward, in effect, with regard to this application. We say, first of all, the Commission should not issue the 127 orders as that would abrogate our rights as an organisation to negotiate an enterprise bargaining agreement under the Scheme of the Act, under the terms of the Act and it would be counter to the construction of the Act.

PN183

If I could take the Commission in the decision that I have just given, back to page 427, at point 17 Senior Deputy President Polites discusses a decision of Merkel J in SAI Operations v the Automotive Food, Metals, Energy and Printed Industries Union in relation to the Scheme of the Act. And Merkel J says - - -

PN184

THE COMMISSIONER: If you talking about where he agrees with North J in Australian Paper, I am familiar with that, Mr Addison.

PN185

MR ADDISON: Yes. Yes, we ought to be allowed to negotiate an agreement unfettered by the threat of litigation, etcetera. To grant this order would on Mr Shaw's submission, without any other aspect coming in, on Mr Shaw's submission, a grant of this order would simply allow the company to go to the Federal Court and argue.

PN186

It is my submission that the company can do that, in any event. If they wish, the company could seek injunctive relief in the Federal Court without a 127 order. They do not need a 127 order. They can do it. It is currently being done at EM West where EM West sought a 127 order from Commissioner Hingley. We argued against it. Commissioner Hingley refused the order and then the company went and sought injunctive relief through the Federal Court on the basis of industrial action that was happening.

PN187

Now, in exactly the same way this company is not barred from taking that route. They seek, in my submission, simply to get the 127 order from the Commission as currently constituted to justify a position which, in my submission, is unjustified, in any event. The Federal Court, in my view, and in my submission, could not find that the protection action being taken is subject to any legal sanction whether it be sanction from the Federal Court in terms of injunction or whether it be in terms of sanction by the Commission.

PN188

My second submission with regard to that matter, Commissioner, is that the Commission ought not issue orders simply because people come and ask for them, particularly when those orders will have no effect. In my submission, it simply brings the Commission into disrepute to issue orders where the Commission knows that the orders cannot be effective. In terms of the Federal Court's position with regard to 127s, the Federal Court has said - and this Commission has said through Full Benches - that the order needs to be clear, it needs to be unambiguous and people need to understand the effect of the order.

PN189

Any order that issued and particularly the order that is sought, would not fulfil that criteria, in my submission. In terms of the order that is sought, an order can only issue, in my submission, in regard to the particular action or the particular conduct that is complained about. In this case the action is strike action. If the Commission goes to 4.2 of the proposed order, the Commission will find that it is an all-encompassing, all-encompassing definition of industrial action. And it seeks the Commission to order that:

PN190

...industrial action not occur and that industrial action would include a refusal to perform work in a manner in which it is customarily performed at the site, including a refusal to perform work as lawfully directed without bans, limitations or delays and a refusal to accept materials on site or the taking of action to prevent persons from performing work at or the delivery of materials to site.

PN191

Now, Commissioner, that goes well beyond the conduct that is subject to the evidentiary material in front of the Commission as currently constituted. The evidentiary material says that there is a strike. The evidentiary material also says that that strike is a protected strike and is not subject to a 127, pursuant to 127MT.

[5.15pm]

PN192

The order as sought would not meet, in my submission, any of the tests that the various Full Benches of the Commission have set or the test that the Federal Court has set. Commissioner, turning to the discretionary matters with regard to the issue of a section 127 order, even if the jurisdictional bans are made out or jurisdictional hurdles are jumped, and in my submission they can't be in this particular circumstance, but even if they are, a 127 order is a discretionary order, it is not an automatic order.

PN193

Once again in Patrick's Vice President Ross dealt with those discretionary matters. At page 247 Vice President deals with the main two issues that should be in the Commission's mind when the Commission is directing its attention towards whether to issue a certificate or not. The first of those matters, and in my submission in this particular circumstance the important matter, is the conduct of the parties.

PN194

Now, the evidence is on 25 September Mr Bradley met with the company; Mr Bradley sat down with a draft agreement prepared by the company. Mr Bradley put specific concerns with regard to that draft. Mr Bradley indicated the desire of the union to reach an agreement which is colloquially termed a pattern agreement. Mr Bradley made no secret of the fact that he had a difficulty with the proposition put by the company. Mr Bradley asked for the company to amend the draft. They did that. The draft was then faxed back to Mr Bradley.

PN195

We know there have been a number of conversations between the parties over the telephone and on site between that meeting and today. In my submission, everything that has been done with regard to negotiating an agreement is as per normal. It is the stock standard negotiation of an agreement, the parties sitting face to face trying to negotiate an agreement. Vice President Ross deals with that matter also at page 248 in terms of a discussion dealing generally with the disputes settling procedures. Vice President Ross indicates that that ought to be a matter in the mind of the Commission and it ought to be minded to look to the objects of the Act and particularly object 3(e) of the Act which talks about providing a framework of rights and responsibilities for employers and employees and their organisation which supports fair and effective agreement making and ensures that they abide by the awards and agreements applying to them.

PN196

In this particular instance we are trying to reach an agreement. We say that the mechanisms that we use to reach that agreement are consistent with the terms of the Workplace Relations Act and therefore must be fair.

PN197

The last matter that I raise with regard to this issue, Commissioner, is a decision of Commissioner Lewin with regard to these matters, and that is a decision print number 8922 which was a matter of Southcorp Australia and I believe the AMWU. Commissioner Lewin in that decision deals with - without going through it, I am sure you are familiar with it, Commissioner - without going through it, basically Commissioner Lewin points to where the section 127 is located in the Act, that it is part of the disputes settling powers and procedures of the Commission and that the Commission ought not issue - or ought to exercise its discretion to refuse to issue a 127 agreement if the issue of a 127 agreement - sorry - order is, in effect, not going to resolve the dispute.

PN198

In my submission, Commissioner, what is sought by Mr Shaw and on Mr Shaw's own submission will not resolve the dispute. It will simply remove the dispute from this place to the corner of William and Latrobe Streets, and it will ensure that this argument will occur somewhere else.

PN199

THE COMMISSIONER: It is very tempting to do that, Mr Addison.

PN200

MR ADDISON: And if I was in your position, Commissioner, I may well be tempted, too. But in my submission it would be a wrong thing for the Commission to do to issue this order. We say it would have no effect in any event. It is clear that the AMWU is fully and completely convinced that its action is protected and any order that issued from the Commission would have no effect in any event and therefore it is inevitable that it would end up in the Federal Court. But as I say, Mr Shaw has that option tonight if he wishes to avail himself of it. He doesn't need a section 127 order out of this Commission to take that step. If the Commission pleases.

PN201

THE COMMISSIONER: Thank you. Mr Shaw.

PN202

MR SHAW: Commissioner, just a couple of points in reply. As regards the jurisdictional issue, certainly in my submission all the jurisdictional points are made out. The question of whether the industrial action is legitimate or illegitimate is certainly a vexed one, but the evidence in my submission is clear that the first round of bans were imposed in support of the Trades Hall position prior to the section 170MI notice being served upon the employer, and in my submission it clearly fits into the position described by Senior Deputy President Polites in Re Esso and I refer you in particular to paragraph 18 of that decision. In my submission it is clearly arguable that there is unprotected action taking place, and in that case the Commission should issue the order as sought.

PN203

The other significant point is in respect of the exercise of discretion and the question of the conduct of the parties. The evidence is also clear that despite the fact that the employer in this case, the applicant, was negotiating as far as it could in good faith, that on 4 October when the organiser visited the site, he didn't come out there to negotiate, notwithstanding the fact that there had been documents sent to him from the employer and the employer had made telephone calls through Mr Frith, he came out and stopped the project there and then.

PN204

It is a question of the Commission exercising its discretion in a section 127 and in my submission the Commission ought to exercise its discretion. The Commission has been involved in this matter since it was notified. It is aware of the disputation that is taking place on that site and the employer submits that it is certainly strongly arguable that there is unprotected industrial action taking place on this site and section 127(2) orders can apply to such action.

PN205

In my submission, the terms of the order are quite appropriate as whilst the section 170MO notice does specify that a strike will take place, clearly there have been earlier on other forms of industrial action and bans and it is those sorts of industrial action and bans that are certainly probable and meet the jurisdictional requirements of section 127. The applicant presses for the order to be made.

PN206

THE COMMISSIONER: Mr Shaw, I just take you to my orders and directions of 27 September at paragraph number 30 in the last sentence. Are you saying that the industrial action is a continuum of that action?

PN207

MR SHAW: You are referring to the transcript of the - - -

PN208

THE COMMISSIONER: Yes.

PN209

MR SHAW: Yes, it is certainly the belief of the applicant that it is.

PN210

THE COMMISSIONER: Thank you. Is there anything else, Mr Addison?

PN211

MR ADDISON: Commissioner, just arising out of that point, we say clearly it is not a continuum.

PN212

THE COMMISSIONER: Well, I thought you would say that.

PN213

MR ADDISON: You issued directions, they were complied with, that action was lifted, and quite clearly separate action was notified. It cannot be a continuum. And even if it was, we would say it has gone, it is in the past, it is not action that can attract the jurisdiction for a 127. We would rely on the decision of Senior Deputy President Williams in the TMP decision. I don't have a copy of that with me unfortunately, but I can make a copy available.

PN214

THE COMMISSIONER: With the greatest respect to his Honour, I have made decisions with differ with his Honour, and as you are well aware, we jealously guard our independence in this place.

PN215

MR ADDISON: I accept that, Commissioner, but what I am saying is the action has to be either happening, threatened or probable.

PN216

THE COMMISSIONER: Yes, I take that point. You have already made that point very strongly.

PN217

MR ADDISON: If the Commission pleases.

PN218

THE COMMISSIONER: I am not saying I agree with it or disagree with it; you have made the point. Are you all finished, gentlemen? Well, I reserve my decision. The Commission is adjourned. I will attempt to render my decision by facsimile message to the parties sometime during tomorrow morning if I can stay awake long enough tonight.

ADJOURNED INDEFINITELY [5.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN FRITH, AFFIRMED PN61
EXAMINATION-IN-CHIEF BY MR SHAW PN61
CROSS-EXAMINATION BY MR ADDISON PN74
EXHIBIT #R1 COPY OF MO NOTICE PN124
RE-EXAMINATION BY MR SHAW PN154
WITNESS WITHDREW PN159
EXHIBIT #R2 SECTION 170MI(2) BARGAINING NOTICE PN172