C2001/1238, Transcript of Proceedings [2001] AIRCTrans 298 (20 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2001/1238

RESTRICTIONS IN TORT

APPLICATION UNDER SECTION WR166A OF THE ACT
BY BHP COAL PROPRIETARY LIMITED AND OTHERS RE
ACTION AGAINST CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION, COMMUNICATIONS, ELECTRICAL AND
PLUMBING ALLIED SERVICES UNION OF AUSTRALIA, AND AUSTRALIAN MANUFACTURING WORKERS UNION IN RELATION TO INTENTION TO BRING ACTION IN TORT AT SARAJI, PEAK
DOWNS, NORWICH PARK, GOONYELLA, GREGORY, BLACKWATER AND CRINIM MINES

BRISBANE

12.10 PM, WEDNESDAY, 28 FEBRUARY 2001

CONTINUED FROM 27.2.01

PN55

THE COMMISSIONER: Are there any changes to the appearances?

PN56

MR HERBERT: No change at this end.

PN57

MR S. CRAWSHAW: If the Commission pleases, I now seek leave to appear for the CFMEU and the CEPU.

PN58

THE COMMISSIONER: Very well, Mr Crawshaw. No objection, I take it, Mr Herbert?

PN59

MR HERBERT: No. No, I welcome the assistance of my friend.

PN60

THE COMMISSIONER: Very well, thank you. Leave is granted, Mr Crawshaw. Mr Herbert.

PN61

MR HERBERT: Commissioner, the matter was adjourned last evening on the basis, as I understand it, that there was a desire on the part of the CFMEU to be represented and other unions to be represented. That has now occurred, and there was a foreshadowing on the part of the then representatives of those unions that they would raise arguments which were variously described as jurisdictional arguments in relation to the question as to whether the certificate that we seek can or should be issued. I'm not sure that I have anything further to say about the matter because I'm not sure that I understand what the jurisdictional arguments were.

PN62

They weren't articulated in a way that I understood last night and it might be more useful, a more productive use of the Commission's time if my learned friend were to indicate what objections, if any, remain on the part of the respondent unions to the certificate we seek. I understand my friend is at a considerable disadvantage because he wasn't here last night, and he's only been trying to catch up with the matter this morning but if there is some indication as to what those arguments might be, rather than us having to go through everything we went through last night, then that might be a much more useful exercise, in my submission.

PN63

THE COMMISSIONER: Mr Crawshaw.

PN64

MR CRAWSHAW: Well, there are two matters arising out of that. Firstly, if discussions between the parties under your auspices come to the stage where you, Mr Commissioner, think they're no longer fruitful then we will put arguments as to why the criteria set out in section 166A have not been made out and why the certificate should not issue, and I think that's putting the cart before the horse firstly because it's up to the applicant to make out a case why those criteria had been satisfied and for us to put any argument in opposition. That's the first point and the second point is we are of the opinion that there should be further discussions in relation to this matter.

PN65

The matter was only notified yesterday morning, I think, at 10 am. The 72 hour period is still running. As you can see from those present in the room, there are national officials from the CFMEU present. In addition, there has been talk about what might happen in other places. There's been talk about the action being not protected. We'd like to explore those matters further in discussions under your auspices before we get to any argument about whether the pre-requisites have been made out and indeed, we would see that, pursuant to section 166A, if I could just dig up the section, it's part of your function under subsection 5 to take immediate steps to try or to continue to try by the exercise of your powers under the Act to stop the conduct.

PN66

THE COMMISSIONER: Well, what's the CFMEU got to offer in relation to stopping the conduct; what's it going to do?

PN67

MR CRAWSHAW: Well, that might arise out of discussions, for example.

PN68

THE COMMISSIONER: Well, we discussed it last night at length and I'm just wondering what's transpired now that the CFMEU suddenly tells me that further discussions might yield something new that might stop the conduct.

PN69

MR CRAWSHAW: Well, one thing comes to mind, and I've discussed this already with my friend before you came in is this, that there has been this underlying argument, as I understand it, before you last night from those on the other side of the bar table that this isn't protected action. Now, it hasn't been spelled out in any detail as to why that is the case. I could say from my part that if there is a cogent case for this not being protected action, I'd certainly be giving certain advice to my clients on whether it should proceed, so if it's not protected action and if my friends through discussions under your auspices can demonstrate that, if would be an important factor in any decision to stop the industrial action.

PN70

Similarly, there has been talk about going to other Courts or to Courts, rather, than to this Tribunal. We'd seek some clarification on that matter, because that might be a matter that would influence any decision as to whether the conduct which, as I understand, has been defined as the taking of the industrial action and the associated picket, whether that might continue or not. So they're certainly two matters that can be raised. As I said, there's - on behalf of the CFMEU, there's national officials here, and to the extent that they might contribute to any discussion, they're available here for discussions. They weren't here last night obviously because of time constraints.

PN71

THE COMMISSIONER: Very well, thank you. Have anything to add to that, Mr Reidy?

PN72

MR REIDY: Nothing except this, that I would see that there would be some benefit in the course proposed by Mr Crawshaw, particularly as you might recall from the discussions last night, there was some attempt to impeach the notice we had given, and we would like a definitive answer to that. Having - - -

PN73

THE COMMISSIONER: Well, Mr Reidy, I thought you got one. I thought it was accepted that - - -

PN74

MR REIDY: Well, I disagree that I got one. It was qualified; I asked for a yes or no answer, but there was a reservation - - -

PN75

THE COMMISSIONER: There was no reservation. It was clearly stated by Mr Herbert that the notice that the AMWU gave was accepted as being notice that complied with section 170MO of the Act.

PN76

MR REIDY: In relation to the time aspect, I don't think he ever resiled from the fact that somehow there wasn't any other ground that he sought to impeach the notice. I took what he said compendiously in respect of the CFMEU and CEPU notices to include ours.

PN77

THE COMMISSIONER: Well, what do you say - - -

PN78

MR REIDY: And he had a special issue in relation to the time of ours.

PN79

THE COMMISSIONER: But that was recounted as far as I'm concerned. It clearly - - -

PN80

MR HERBERT: Unequivocally.

PN81

MR REIDY: Well, that answers that part of it, but we're in the same boat, if there's other bases on which he wants to impeach our notice because I can say that if they have problems with our notice, we'd be in a similar position in terms of advice given to the AMWU. That's all I can add.

PN82

THE COMMISSIONER: Very well, thank you. Mr Neil?

PN83

MR NEIL: No, nothing further to add, Mr Commissioner.

PN84

THE COMMISSIONER: Mr Herbert?

PN85

MR HERBERT: Commissioner, all we've heard this morning is the suggestion that BHP should fix up the manifest problems which are in the - involved in the action that's currently being taken, should point out where they're wrong, fix them up so they - the CFMEU can come at the company again with a BHP repaired version of further industrial action and cost the company further millions. That's what's being suggested.

PN86

THE COMMISSIONER: Yes, but I mean, let's - Mr Herbert, there is a statute of the Commonwealth Parliament and if it is that these people got their paper-work wrong, surely it is within the objects of the Act to make sure that they get their paper-work right so that they can take protected action that is - is more than contemplated, is supported by the very scheme of the Act.

PN87

MR HERBERT: Yes, but that - - -

PN88

THE COMMISSIONER: I mean, we shouldn't be on about surprising each other in some other Court somewhere, should we?

PN89

MR HERBERT: Well, Commissioner, nor should it be suggested for an instant that BHP ought to give assistance to the parties who are attacking it. This is a wholesale attack on the financial viability of the BHP coal operations in central Queensland, and it's being suggested an object of the Act is we should help them do that. With respect, that is nowhere within the objects of the Act. It might be that if they do get their paper-work right, BHP has to cop it, but it doesn't have to help it in that sense.

PN90

That's the position BHP is in, and that's all we've heard is, "Help us to get our paper-work right so that this attack can be more effective on you", and I've not, as you've seen, got specific instructions in relation to what my friend raised, and if the Commission requests that I do so I will, but I think I know what my instructions will be when I'm asked, "Should we assist the unions to repair their case so that they come at us again with a water-tight case instead of the one they've come at us at this time".

PN91

THE COMMISSIONER: Well, it would be helpful because if BHP is of the view that it shouldn't do that, then there doesn't appear to be much point in the suggestion Mr Crawshaw makes, that we can have a discussion about that so that we can deal with it, and that he might make recommendation to his client that - - -

PN92

MR HERBERT: To stop the action today - - -

PN93

THE COMMISSIONER: - - - to stop the action because it may be unprotected.

PN94

MR HERBERT: Yes, and start it again in 72 hours time.

PN95

THE COMMISSIONER: Well, I can only deal with what's before me.

PN96

MR HERBERT: Certainly. Certainly, I understand that, Commissioner. I make no criticism of the Commission in what I say, but I do criticise the attitude of the CFMEU to expect BHP to, in effect, do that. If there was some suggestion that they had recanted the position of attacking the company in relation to the protected industrial action and wanted to pull the action off so the discussions could be undertaken without the threat of further action immediately being re-introduced, that would be a different thing, but you haven't heard that. All you've heard is the possibility of the action stopping so that it can be regathered and started again, in effect, and again, that's a big ask to ask any employer to do that. And that, as I understand it, is what is being asked of BHP.

PN97

But I can certainly, if the Commission thinks it's appropriate, I can certainly get more specific instructions, but I think what I've said is probably an accurate reflection of what I will be told.

PN98

THE COMMISSIONER: Well, it would help me decide whether or not there is any point in the conference suggested by Mr Crawshaw.

PN99

MR HERBERT: Yes.

PN100

THE COMMISSIONER: Because if we are going to adjourn to have a conference so that BHP can point out these things and BHP says, "Well, we're not going to point them out," there doesn't seem to be a lot of efficacy in the course suggested.

PN101

MR HERBERT: Yes. In that light, Commissioner, could you give me about three to five minutes to do that? I'd rather do it outside the room than inside here. It might be best if we discuss that matter in an adjoining room.

PN102

THE COMMISSIONER: Fair enough.

PN103

MR CRAWSHAW: Perhaps before you adjourn, Mr Commissioner, you as is your role in this sort of proceeding asked me to put forward ideas on how the conduct could be stopped. It has got nothing to do with what might happen in the future, it's whether the conduct might stop, and I've said nothing about what might happen in the future and it's really - as distinct from your conciliation role under normal disputes, it's a different point. All that is being concerned with here is whether you can stop the conduct that is identified by the applicant and that's all I've made suggestions in relation to. I've made no submission either way on what might happen in the future, neither would it be proper.

PN104

The other point I'd like to make and seeing as my friend is going off to get instructions is that we wouldn't see it is the end of the Commission's role if the applicant refuses to hand over what it says are the defects in the protected action. The Commission has a pro-active role in such matters and should not be stymied if the Commission thinks it proper from having that information put before the Commission in its role of attempting to stop the industrial action taking place.

PN105

And in particular the Commission has power to give directions and powers of that kind, so we wouldn't see it as the end of the matter if my friend goes away and as he predicts comes back with an instruction that we're not going to discuss that question. It's a very pertinent question and it's also very pertinent as to whether either now or in the near future they are taking proceedings in other jurisdictions. It's pertinent for the Commission to know that. I recall on one occasion when I was before the Commission in a 166A matter the applicant was at the very same time as we were before the Commission away in the New South Wales Supreme Court with other lawyers getting an ex parte injunction.

PN106

And that would be relevant to your role in attempting to stop this conduct if something like that was happening or was proposed to happen. So matters of those kind are not just matters where the applicant should have a veto on the supply of information. When the Commission normally asks for information about what's really happening in relation to matters before it the Commission would normally get a response as to what is happening rather than - - -

PN107

THE COMMISSIONER: The Commission normally expects strong recommendations to be complied with as well and I made one in relation to this matter.

PN108

MR CRAWSHAW: Well, not last night.

PN109

THE COMMISSIONER: No, not last night, last week.

PN110

MR CRAWSHAW: Yes, well, I understand that but - - -

PN111

THE COMMISSIONER: And it was in relation to this conduct.

PN112

MR CRAWSHAW: Well, as I understand, it wasn't in relation to the conduct as such, it was in relation to the underlying dispute. And once again I don't want to be splitting hairs about the matter unnecessarily but the matter before you - it must be clearly borne in mind - must distinguish between the issues in the underlying dispute and your role in stopping the conduct. Now, it may be if you could resolve all the issues in the underlying dispute that the conduct might disappear, but the role in these proceedings is to stop the conduct.

PN113

THE COMMISSIONER: Perhaps you might like to get some instructions, Mr Herbert.

PN114

MR HERBERT: I will, thank you, Commissioner.

PN115

THE COMMISSIONER: We will adjourn until 20 to.

SHORT ADJOURNMENT [12.27pm]

RESUMED [12.57pm]

PN116

THE COMMISSIONER: Mr Herbert.

PN117

MR HERBERT: Thank you for the time, Commissioner. I'm sorry it took a little longer than I anticipated. There were various people that had to be telephoned to make sure that my instructions came from the relevant quarters. Commissioner, the position is this. The conduct of which - in relation to which the employees seek the certificate, as I indicted last night, is of two varieties. One relates to the organisation incitement, etcetera by the unions of the strike which is occurring today and the other is the organisation incitement, etcetera of the picketing activity.

PN118

It's the view of my client - and picketing activity is not industrial action as defined. It's quite separate and distinct from the industrial - the organisation of industrial action and the organisation of picketing as conduct so far as the Act is concerned is of two different varieties. It's the view of my client that based on advice they have that there are a range of arguments dependent upon the facts as they emerge from the events today as to whether there is evidence to sustain those arguments, but there are a range of arguments that the industrial - the organisation, etcetera, etcetera, of the strike is not protected action or a significant proportion of it is not.

PN119

I'm not in a position to inform the Commission or my learned friend or any one else for that matter at the moment what those arguments are because for various reasons it may - the evidence in relation to those arguments is still being obtained. And it may be the arguments come to nothing and they may not, in fact, be ultimately sustained because many of those arguments depend on various factual issues. My client has a view about that matter but we're not in a position and I'm not instructed to put those arguments now depending as they do on evidentiary material which at the moment we have some but not enough.

PN120

But so far as my friend's overall suggestion is concerned nothing in those points and arguments, if they eventually hold true, if we are able to sustain them, affects the species of conduct which is involved in the organisation of picketing. It can't be protected industrial action anyway. It is all - whatever it is it's unprotected and can be the subject of tortious proceedings and cannot be the subject - the picketing itself cannot be the subject of the protection offered by the Act in relation to industrial action.

PN121

And to that extent the arguments that I foreshadow that BHP may have, depending on the further investigations that are being undertaken, cannot affect that aspect of the matter and for that reason, in my submission, apart from others it does not appear that any particular purpose would be served because there's nothing, as I understand it, that can or would be done in relation to those arguments which would affect the question of picketing and its impact. On that basis, Commissioner, at this stage the arguments which were are formulating in relation to whether or not the action is protected or unprotected on my instructions we will maintain those arguments to ourselves until we're in a position to put them with force and evidence and establish what we think may be the case in relation to that.

PN122

And if to the extent then that it's suggested that there ought to be a conference so that all the possible arguments can be put on the table so as to persuade the CFMEU to pull off the action, there does not appear to be much - with respect does not appear to be a great deal of purpose in having a discussion of that kind. If the CFMEU is prepared to discuss that matter in the absence of my client putting those possible legal and factual cards on the table then certainly my client would be interested in that, but you've not heard anything this morning, as I understand it, to suggest the position adopted by the CFMEU last night has altered other than the fact that they may now be concerned that we do have an argument in relation to protected action.

PN123

But other than that there's not been any suggestion that they've recanted from their overall position other than perhaps fear of being found of being acted in an unprotected way. So on that basis the matters which were established last night appear to still stand. There does not seem to be a further basis for the Commission reinvigorating the conciliation process today.

PN124

THE COMMISSIONER: Thank you, Mr Herbert. Mr Crawshaw.

PN125

MR CRAWSHAW: I will need to get instructions as to where we go from here on this particular matter. I note the time and I also note that in any event if the matter proceeds I've been given one copy of an affidavit of Gregory William Gerard so I would need to take instructions on that matter and presumably other people - I think on this side of the Bar Table we've only got the one copy but other people would need time to look at that. Presumably my friend is going to call evidence along these lines.

PN126

THE COMMISSIONER: Mr Herbert, do you intend to call Mr Gerard?

PN127

MR HERBERT: Well, I gave my friend an advanced copy of the affidavit in what I considered to be the unlikely event that there was going to be any controversy about the fact that the employees of BHP at the five mines are on strike today or that there are pickets at four of the five mines today. Now, if there's any controversy about me stating that from the Bar Table then I was going to call Mr Gerard.

PN128

MR CRAWSHAW: Well, I didn't so - well, I'll get instructions on that. As I understand my friend is only going to call Mr Gerard if we dispute those two propositions.

PN129

MR HERBERT: I was - the matters that were canvassed last night - and again my friend wasn't there so I'm trying to be of assistance. But the matters that were canvassed last night to the effect that the union was - it was asserted and accepted that the unions were involved in the organisation of the pickets and that they were involved in the - they gave the notices of intention to take the action which is occurring today and have been involved in the organisation of that action. Now, that was asserted and accepted by all parties last night.

PN130

And if that assertion is not to be contradicted today and it's not to be contradicted that, in fact, the industrial action that was foreshadowed last night has occurred today and the pickets that were foreshadowed last night have occurred today in that way - if that's not contradicted the only other purpose of the affidavit was to put on the record the various notifications - sorry, the initiation of the bargaining period and the notification of intention to take industrial action, all of which provide the constitutional basis of the material that I put to you from the Bar Table last night.

PN131

I had only the one copy last night. We've now appended it to an affidavit so that those documents are on the record in relation to that issue. But they were the only issues. Now, I don't understand any of that to be controversial but if there's going to be any controversy about it we've come prepared to have those matters proved on the record. But it wasn't controversial last night but because the case apparently is under new management I've come prepared to put those matters on the record through an affidavit of Mr Gerard.

PN132

But other than that I didn't propose to call him. But if my friend wants to cross-examine him about any of those issues then he's at liberty to do so so long as the Commission maintains the matter within bounds of what is relevant to the issue or the issues that you have to determine in order to issue a certificate. But I didn't want to be left open to the point where I had told the Commission from the Bar Table last night that there were all these dispute findings, etcetera, etcetera, and then someone came along afterwards on an appeal and said, "you never cited them, you didn't see them and the material wasn't there". We've now put that material in the form of a record.

PN133

The affidavit itself, leaving aside Mr Gerard's work history, is only about three pages. The rest of the bundle that you've had waved at you is simply the notifications or initiation of the bargaining period, all of which are the union's own documents and which they received last night as annexures to another affidavit in the 170MW proceedings. So they've had all the material since last night. There's nothing new about it.

PN134

MR CRAWSHAW: I'd still like to be graced with a copy of it.

PN135

MR HERBERT: I'm sorry, I will do that.

PN136

MR CRAWSHAW: I've only just found out these things are in existence. Thanks. I don't know what to make of all that. Some people say I speak too slow but it was hard to keep up with my learned friend then. Originally he was saying if two propositions weren't disputed he wouldn't need to call Mr Gerard and then I said I would get instructions on those two propositions and then he got up and put forward so many propositions that I couldn't keep up with him. The fact of the matter is it's up to my friend whether he wants to call Mr Gerard or not.

PN137

If he does we have our rights to cross-examine. We also have a duty to get instructions on the material contained therein and all I was saying is it's lunch-time. I would like the opportunity to get instructions on what's been put on the question of discussions about conduct ceasing. My friend had some 20 minutes to do that. Also at that time I would take the opportunity to get instructions about the affidavit that I didn't get an advanced copy of. I got it at 12 pm just as you were about to walk in and I got one copy and I haven't had a chance to get instructions.

PN138

And that's all I was saying. Now, my friend, as an alternative to calling Mr Gerard, wants to ask us to admit certain matters. That can be discussed but I think they have to be spelt out what they are rather than we try and deal with a somewhat rambling discourse that my friend just gave you as to all the matters that should not be in dispute. So we can discuss that or - that if Mr Gerard's - if there's no agreement as to what are the agreed facts, as it were, then my friend may want to put Mr Gerard in the witness box and then we have the duty to get instructions and cross-examine if necessary. That's all I was saying.

PN139

THE COMMISSIONER: Very well, thank you. How long is it going to take you, do you think, Mr Crawshaw to get instructions in relation to the proposition of whether or not there's a strike at these five mines and whether or not there is pickets organised at some or all of these five mines?

PN140

MR CRAWSHAW: I wouldn't have thought those two propositions would take long at all. They were my friend's original propositions.

PN141

THE COMMISSIONER: Yes.

PN142

MR CRAWSHAW: I'm sure I could get very quick instructions on those matters but I just understood my friend to be trying to prove - have us agree to more than that in his latest discourse.

PN143

THE COMMISSIONER: Do we need to go beyond that about notice of intention - whether or not the - I mean, we discussed this last night and whether or not the action is protected or not protected is not a matter that - - -

PN144

MR HERBERT: No, we don't need to go onto that. We only appended the other material - the two issues you have isolated are the two issues in relation to which - if we have concessions we can move forward - - -

PN145

THE COMMISSIONER: Okay.

PN146

MR HERBERT: - - - without Mr Gerard. The only reason we put the rest of the material on foot was simply to show, by evidence, the constitutional basis of you acting in relation to the issue you raised with me last night. And in the event that this matter goes somewhere else we wanted to have the record in tact so we didn't have to prove those issues somewhere else - have somebody institute some appeal based on the fact that you didn't have the relevant material before you. And it's - all the union's documentation is attached.

PN147

THE COMMISSIONER: Well, all I need to be sure of - that there is certain conduct being undertaken.

PN148

MR HERBERT: Yes. That's all we ask, that there be concessions about - I don't ask for concessions about the rest of the material, it's only the union's documentation. I put it on the table and they can't cross-examine the witness about their own documents, I wouldn't have thought.

PN149

MR CRAWSHAW: Well, I still don't know whether I'm meant to get instructions on what you put to me, Mr Commissioner - - -

PN150

MR HERBERT: Yes, please.

PN151

MR CRAWSHAW: - - - or whether my friend is still going to tender Mr Gerard's affidavit.

PN152

THE COMMISSIONER: All we need to do is - if you gain instructions on what I put to you.

PN153

MR CRAWSHAW: Yes.

PN154

THE COMMISSIONER: Is there conduct that is strike action being taken at any or all of the five mines, and I can name them if you want but I'm sure the unions know better than I which they are, and whether or not there's picket action at any or all of those five locations. Not specifically on the mine site but at or near the coal mines.

PN155

MR CRAWSHAW: I'm sure I can get those instructions very quickly.

PN156

THE COMMISSIONER: In addition, Mr Crawshaw, I've taken on board what you've said about the attendance of national officials of the CFMEU. During the adjournment I also would like you to get instructions for me if there is anything that their introduction to these proceedings has changed the position of the union as at last night. That is if you have some card to play that would lead to the cessation of this conduct then I want it played after we resume. Do you understand? Is that clear? If there is something new the CFMEU wishes to put which it thinks will lead to the stopping of this conduct then I'm asking you to put that to me when we resume.

PN157

MR CRAWSHAW: Yes.

PN158

THE COMMISSIONER: In the event that there's not - as I apprehended where we got to last night it was argued that even if the Commission was of the view that it was not able to - was of the opinion that it could not stop the conduct the Commission wasn't in a position to issue a certificate pursuant to section 166A because there was no jurisdictional basis to do so. And in the event that there's nothing new to all of that, the union sought an adjournment to allow them to brief you or brief somebody to put those arguments, then I think we'll be in the position of hearing those submissions.

PN159

MR CRAWSHAW: Well, as I said earlier, Mr Commissioner, on that last point, the jurisdictional requirements of the making out of one or more of the sections is really up to the application to put their case in relation to that rather than for us to say why they're not satisfied. We will reply to them in due course. But we have to hear the argument as to how they're satisfied. The onus isn't on us to say why they're not satisfied. The normal position is the applicant proves their case. Even if it's not a very high standard as has been discussed by some of the cases, we have to hear what the case is.

PN160

THE COMMISSIONER: Then you can do that for me, Mr Herbert. If we resume and there is no new material that would lead me to conduct some further conciliation by the parties, I'd like to hear formally on the record as was put in by the conference last night what you say is the jurisdictional basis for the Commission to issue such a certificate, and then Mr Crawshaw can reply as can the other unions.

PN161

MR HERBERT: I think essentially they're repeating what I said last night, but so be it.

PN162

THE COMMISSIONER: It's on the record and so be it. Yes. Correct.

PN163

MR HERBERT: I'm content with that, thank you, Commissioner.

PN164

THE COMMISSIONER: Does anyone have any questions about what we're going to do when we resume?

PN165

MR CRAWSHAW: Well, the only question I have, Mr Commissioner, is should we make the concessions that you've asked us about, namely, whether there's strike action and whether there's picketing, whether my friend is going to call Mr Gerard or tender his affidavit, which is the same thing, prior to any submissions?

PN166

THE COMMISSIONER: I understood that you were not.

PN167

MR HERBERT: The only purpose on which I would, and I don't want to be ambushed about this, is that I wanted to place on the record the various dispute notices and bargaining period notices which are appended. Now, I can take them off the back of Mr Gerard's affidavit and I can tender them as separate documents, but I want them on the record in case we get a submission somewhere saying, "Aha, you don't have the relevant documentary information before you as a jurisdictional basis for your proceeding." Now, I don't need Mr Gerard to do that. If my friend can intimate that he wouldn't object to them being tendered absent his affidavit.

PN168

We just put them on the back of an affidavit because that's the way lawyers tend to do things, but there's no reason to do that if my friend doesn't object because they're all - all three representatives. They're all union documents, so I don't need Mr Gerard if we can proceed that way, but I don't want to find myself at the end of the case with the documents on the Bar Table and not on the Bench and some issue being made about that.

PN169

MR CRAWSHAW: Speaking for my clients, the CFMEU and CEPU, I would have no objection to our own documents being tendered absent Mr Gerard being called.

PN170

THE COMMISSIONER: Are you in the same boat, Mr Reidy?

PN171

MR REIDY: Same.

PN172

THE COMMISSIONER: Very well. Thank you.

PN173

MR HERBERT: We'll arrange for that to be done, to cut things down.

PN174

MR CRAWSHAW: The only other matter I wanted to raise, Mr Commissioner, is that in a sense we did play a couple of cards this morning, namely, the seeking of information about the protected action or why it was a protected action and the seeking of information about what was happening in other jurisdictions. We still maintain that position subject to my getting instructions on whether and how that matter should be pursued. We haven't heard any answer in relation to the latter. It seems that my friend wants to play that one close to his chest too.

PN175

THE COMMISSIONER: Well, Mr Herbert, are you in a position to respond? Are you -

PN176

MR HERBERT: In relation to proceedings in other jurisdictions, that issue, I'm not aware of any but I'll get some instructions about that. It doesn't seem to have anything to do with this case. It seems to be using this platform to get some other information but I'll get some instructions during the adjournment.

PN177

THE COMMISSIONER: If it can keep us moving forward, I would appreciate it.

PN178

MR HERBERT: Yes. I'm travelling as fast as I can, but if the matter is to be adjourned now, I'll get some instructions about that, because I wouldn't want to give an answer unless I knew it to be true and I'll need to ask people because there are a number of people involved in this from the legal side of things. And I personally am not aware of any other proceedings in other jurisdictions.

PN179

THE COMMISSIONER: Should we resume at 2 o'clock?

LUNCHEON ADJOURNMENT [1.18pm]

RESUMED [2.05pm]

PN180

THE COMMISSIONER: Mr Crawshaw.

PN181

MR CRAWSHAW: Thanks, your Honour. We - when I say we, the CFMEU and CEPU, concede that there's industrial action occurring in the form of strike action and concede that picketing is taking place.

PN182

THE COMMISSIONER: Mr Reidy, are you in the same boat?

PN183

MR REIDY: Well, my instructions are from my client that there is strike action on foot, that there is a picket. They're less certain about the picket due to the distance, but they understand second-hand there was a picket. Not from their members.

PN184

THE COMMISSIONER: Very well. Thank you.

PN185

MR CRAWSHAW: Now, the other question you wanted me to answer, Mr Commissioner, is whether we had any cards to play other than those that I'd already stated this morning, and the answer is no. We repeat what we said about the utility of that information forthcoming and indeed in the Commission having powers to direct that information to be forthcoming, and as I said earlier the national officials are here to deal with anything that would be arising from the information that had been supplied, but I can't take the matter any further than I've already put this morning.

PN186

THE COMMISSIONER: Mr Herbert?

PN187

MR HERBERT: Commissioner, at the risk of repeating the submissions I made last night about this matter, I'll be brief. The test for the requirements of - whether the requirements of Section 166A have been met in a given case appear from the section itself and from an explanation of the meaning of that section in a number of decisions, but in particular can I hand up a copy of a decision I referred to last night without giving you a copy. It's print - the number is PR900132. I handed to all the parties last night a copy of the decision of an earlier Full Bench in relation to these matters. That was in print N8195 the Mobil Oil and the AFMEPKIU decision.

PN188

The decision I've just handed up is a more recent formulation of the test and it formulates the test as to what conduct satisfies the requirements of Section 166A utilising effectively the same words. The relevant passages appear on page 12 and following of that decision. But before I take you specifically to that, because I want to answer a couple of other matters that were put last night in anticipation of them being raised again. The formula under 166A that must be followed is that 166A is to be understood as being a fetter upon the taking of an action in tort under a law of a state or territory unless and until the Commission has certified under that section no action in tort might be brought by a person against an organisation employees or an officer, member or employee of the organisation in relation to conduct by the organisation, etcetera, etcetera in contemplation of furtherance of claims that are the subject of an industrial dispute.

PN189

There is not and can be no doubt in light of the matters that the Commission was told last night and today that the conduct that there is in fact conduct by each of the three organisations which is in contemplation or in furtherance of claims that are subject of an industrial dispute. Can I hand up a copy of each of the initiation bargaining period notices which are on the back of the affidavit? They're in a bundle, but they relate to each of - - -

PN190

MR CRAWSHAW: Can I just see what has been handed up, please? Unless my friend has got copies. I just want to check through. I might just need a bit of time because there's another bundle that wasn't annexed to Mr Gerard's affidavit. I just want to -

PN191

THE COMMISSIONER: There's another bundle that I have that's part of this bundle.

PN192

MR CRAWSHAW: Well, you're about to get it.

PN193

MR HERBERT: No, you don't have it. I was about to hand it up. It's the union's documents again. It's the notice of the giving - it contains the form R41s from the CEPU. That's notice to the Registrar of the giving of authorisation to engage in industrial action. It contains the five notifications by the CFMEU of notification of intention to take industrial action, one at each of the respective mines. It contains the notification pursuant to Section 170MO by the CEPU. There are four of those with covering letters. And it contains one notice of intended industrial action given by the AMWU in relation to the Peak Downs mine. They're all of the notices of intention to take industrial action together with the CEPU notices of authorisation which we also have. But they would have been filed in the Commission.

PN194

THE COMMISSIONER: I'll mark the bundle of documents that is the notice of initiation of bargaining periods by all the relevant unions at all the relevant mines as exhibit BHP1, and the bundle of documents that are the notification given pursuant to Section 170MO as exhibit BHP2.

EXHIBIT #BHP1 BUNDLE OF DOCUMENTS BEING THE NOTICE OF INITIATION OF BARGAINING PERIODS

EXHIBIT #BHP2 BUNDLE OF DOCUMENTS BEING NOTIFICATION GIVEN PURSUANT TO SECTION 170MO

PN195

MR HERBERT: Yes, Commissioner. In the course of proceedings you have been told by each of the parties that there was last night foreshadowed and there is in fact today industrial action constituted by the withdrawal of labour for a period of 7 days by the employees of BHP Coal and other action constituted by the picketing of the respective sites, and that that conduct, or that action, is occurring today. The conduct which is alleged to be the subject of these proceedings is that set out in paragraphs 9, 10, 11, 12 and 13 of the notice of intention to take proceedings, and in each case it relates to - in paragraph 9, 10 and 11, it refers to the conduct of each of the respective unions, being the CFMEU, AMWU and the CEPU, in giving notices of intended industrial action which are contained now in exhibit BHP2.

PN196

Those notices are in the same form and they detail conduct by the members of those unions in the form of - the case of the CFMEU by members of that union in the form of industrial action the taking of a 7 day strike. It is that conduct complained of is the organising, encouraging and inciting members to take that action, the conduct of the CFMEU organising, inciting and encouraging its members to take action. The clear and prima facie evidence of that is firstly the notice which you have where notice was given of the intention of the members to take that action and secondly the concession made last night and again today that that action would be and now has been taken.

PN197

Now, the same relates - the same submissions are made as to the AMWU and the CEPU, and that action amounts to a unilateral and non-consensual withdrawal of labour in circumstances where there has been an incitement by the union and encouragement and facilitation by the union for those employees to withdraw their labour in breach of their contracts of employment, and that is conduct by the union which is the subject - is the potential subject of an action in tort against the union in respect of that matter.

PN198

Secondly, in paragraph 12 of the notice, and can I say before I leave that subject that all of the statements made in the course of the proceedings have made it clear that the union is the supporting and encouraging - organising, encouraging and inciting that conduct, each of the three unions. Secondly, and quite separately and independently of that so far as a certificate is concerned, there is conduct on the part of the CFMEU, the AMWU and the CEPU of which you are now aware which involves the organising and sanctioning of the establishment of pickets as a part of the industrial campaign directed against the company.

PN199

Now, the concession that - the assertion made last night was that they were being organised last night. The concession has been made today that they are in fact in place so that that conduct of organising etcetera has now borne fruit. It's no longer a theoretical possibility; it's an actual fact that the action is a consequence of the conduct of the union is now occurring. And in relation to that matter, the assertion is made in paragraph 13 that there had at that time been contact with various contractors in relation to the matter with a view to suggesting those contractors do not perform their services.

PN200

It's only necessary for the present purposes for the Commission to be satisfied that the pickets are in place. I don't think the Commission needs to be told what pickets are and what they involve in relation to those matters and that there are contractors employed at the mines who are required to if they see fit to cross those pickets. We are - the allegation of the contact with the contractors in relation to that matter was put and accepted that there was contact with those contractors in the proceedings last evening.

PN201

Again that doesn't seem to be a controversial matter. On that basis then, there is as we speak and there has been for some time conduct by each of the unions which might plausibly form the subject matter of proceedings in tort. And it's necessary for the Commission to separate the notion of conduct by the union from action by the employees. The action by the employees in this case follows from the conduct of the union and in large part has been caused, instigated, encouraged and incited by the conduct of the union, but the conduct of the union that's alleged is the encouragement etcetera, organising of the activities which resulted in action by the employees.

PN202

This is not a matter that necessarily - the proof of the reality of the allegation of conduct is when the employees respond to the organisation we say that has occurred and the incitement we say has occurred, but the action itself that's taken by the employees is not the conduct as such. It's a manifestation of the incitement of the organisation brought to bear by the union which the company says is a matter which can give rise to an action in tort. Just simply to illustrate what I say about that, can I hand up a copy of a decision of the Federal Court of Australia by Finkelstein J. It's Cadbury Schweppes v ALHMWU, for reference it's (2000) FCA 1793, it's a decision of 7 December 2000.

PN203

Just by way of illustration of the point of the potential tortious liability in relation to these matters, could I refer the - that was a case where there was an actual picket in place and which people were actually being obstructed from entering a Cadbury Schweppes factory. Paragraph 13 of the decision:

PN204

The picket organised by the union is not action which falls within the definition of industrial action ...(reads)... is interference with trade or business by unlawful means which now appears to be recognised as an independent tort.

PN205

And his Honour cites authority for that. Over to the next page and paragraph 16:

PN206

Although the picket was tortious and the company suffered a significant loss and the consequence of it, it could not bring any proceedings to restrain the tort or to recover damages.

PN207

Now, that's a bit of a controversial statement; there is another line of authority of the Federal Court elsewhere that suggests that perhaps restraining the tort is not an action in tort in itself. For the present purpose, it's not necessary for the Commission here to decide any of this, but I just simply take you to the illustration because under the tests which I'll come to in the Full Bench decision I handed up earlier, one of the tests is it's a matter that might plausibly be the subject of an action in tort, and the plausible subject of an action in tort is a picket organised by a union, section 166A etcetera etcetera, and his Honour goes on to recite that. Although the company has applied for a certificate, the Commission has not yet granted it.

PN208

So that the - but in particular paragraph 13, his Honour has given simple examples of two types of torts which may arise in circumstances of the conduct of a picket. If, for example, BHP can prove that as a consequence of the picket today that persons have actually been prevented and, of course, they're up there and we're down here and what's been going on? The limitations of technology is such that we are not in a position to prove what has been going on in fine detail, but if it transpires that what happened there is what happened here: that persons who have a lawful right to pass into the site have been prevented for example, then the torts that his Honour describes there, one or both of them, may have been committed the conduct would be unlawful.

PN209

It's necessary to have a section 166A certificate before one can even bring an injunction to prevent it, and there is no suggestion that any of that is lawful or is not protected or unprotected action. It's a picket which is quite a separate animal; that brings one then back to section 166A. The scheme of the Act is, as the Commissioner is aware, that written notice is to be given under subsection 3 by a person who wants to bring an action in tort and BHP has indicated its desire to do so.

PN210

There can be, might I say, there can be no doubt that the strike action and the consequent picketing which are linked in practical terms though not necessarily in legal terms, is as a consequence of the notice of intention to engage in industrial action which in the case of each notice recites that:

PN211

The industrial action that is to take place starting this morning is in support of claims made in negotiations under the bargaining period initiated in C number etcetera and notified to you on a particular date.

PN212

Each notice is the same. So there can be no doubt then that the conduct of organising, encouraging the industrial action; organising, encouraging picket action by at the very least giving us notice, if nothing else, that is making what would otherwise be unlawful action lawful. And the union has done that in each case by encouraging and supporting the industrial action in that way and giving it the umbrella of legal protection in the way they have done. They have done so to advance the claims made in an industrial dispute because they say so in the notice that they gave of the action that they're bringing, so the organisation of the action is for the relevant purpose.

PN213

"Once the notice has been given by" - in this case - "BHP, the Registrar is to inform the Commission. The Commission must" - as subsection 5 says - "take immediate steps to try to exercise powers to stop the conduct." The Commission has done that and done it again. Under subsection 6 then there are - subsection 6 is expressed in mandatory terms:

PN214

If either A or B or C or any more than one of them come to pass, then the Commission is required and required immediately to certify in writing to the effect of whichever of A, B and C comes to pass.

PN215

In this case, in my submission, there are two possibilities. The first is subsection A, the Commission has formed a view that is set out: that is that the Commission is not able to stop the conduct of the organising of pickets and the organising of the strike action and the incitement and encouragement, and that is an inescapable conclusion from the proceedings of the last couple of days and from last week, and that is a conclusion which the Commission must come after - after the Commission commenced to exercise conciliation powers yesterday.

PN216

Secondly, and in the alternative, 72 hours after notice was given - I'll leave that submission until later, Commissioner. And I won't press that for the time being, but there is certainly a case to be made at this point under subsection 6A. What was put against us last night, as I understand it, was that because the industrial action undertaken by the employees was protected action or because the industrial action in the form of strike action was protected action, then the Commission had no power or jurisdiction to issue a notice - sorry, to issue a certificate which would have the effect of enabling tort action to be brought in the case of action against which a tort action can't be brought in any event because of the amenity provisions. That, in my submission, is an argument that has been run and run and run and it has lost every time it has been run and in very recent times both before the Commission and the Federal Court.

PN217

Can I hand up a decision of Merkel J in the Federal Court in the Australian Workers Union v Yallourn Energy, Federal Court decision, 2000 number 65 of 2000. That argument was put in that case - and I can turn up to the reference - at page 12 of 19. In that decision, Merkel J discussed the question of whether the immunity provisions in the Act in relation to protected action had the effect of completely removing any cause of action, or whether it was just a defence that could be pleaded, and he came to some conclusions about that. He then went on - and his conclusions in that regard are in paragraph 47. I don't need to take you to them. He said it was a legal immunity, and no action lies in respect of protected action falling within the terms of the section as to the cause of action said to be found - said to found the action has been extinguished, so, in fact, there is no cause of action in relation to the question of - or protected action, but in the next paragraph he said:

PN218

However, the bringing of such an action is not prohibited as such. Plainly where there is a genuine issue as to whether action is protected ...(reads)... whether the cause of action is extinguished.

PN219

But he goes on to say:

PN220

Counsel for Yallourn Energy relied ...(reads)... accordingly, the granting of a certificate cannot authorise the bringing of an action which does not lie under 170MT(2).

PN221

So what his Honour said is, it is an empty debate. A certificate that you might - the so-called jurisdictional point. A certificate that you might grant cannot authorise the bringing of an action which doesn't otherwise lie. It simply allows parties to take their chances in the court to bring such action as they might otherwise be advised, or that might otherwise be available to them. And it may be it is an action in relation to what is said to be protected action, because it may be that that is a controversial issue as to whether it is or it isn't, and it doesn't become protected action because a party says so.

PN222

So that an action in tort might be brought in respect of what lots of people say is protected action to determine the question whether it is or it isn't, but, in any event, the certificate - it has nothing to do with this Commission, because the certificate you issue doesn't speak to that. That is the first authority on the subject. The second and more recent authority that puts the matter to bed completely is the Full Bench decision that I handed up in the CFMEU v Yallourn Energy, decision of the Full Bench of this Commission fairly recently on 12 January 2001, and that decision dealt with the same argument that was put in paragraph 22, and this is an appeal against a range of decisions by Commissioner Holmes who issued a certificate in various circumstances.

PN223

And at paragraph 22, in the appeal, it was put:

PN224

The CFMEU submitted the conduct specified was not conduct within section 166A(1), because it was not capable ...(reads)... if the industrial action occurs.

PN225

Well, in this case, industrial action has occurred, so that issue doesn't arise here.

PN226

In fact, the industrial action foreshadowed in the CFMEU's notice given ...(reads)... Yallourn Energy contested these submissions.

PN227

So they put the case that the conduct - that there was no action in tort because the conduct was protected action, the argument that I understand was going to be put last night. The Full Bench went on to say - and refers to Coal and Allied and then refers to the passage I took you in the Full Bench decision - Full Bench chaired by Munro J, and quotes the relevant criteria and sets out the tests and says that - at the bottom of that page for convenience, in that quotation, that such conduct might be - I am sorry, about six lines from the bottom, the sentence commencing:

PN228

But if there is a manifest intention to bring an action in tort in relation ...(reads)... of the conduct being actionable.

PN229

And that is what you were being asked to do, as I understood it, in the argument part that was foreshadowed last night, that you are being asked to assess here and now in a summary way whether the action being undertaken today is protected action or not, and, therefore, making an assessment about whether the conduct is actionable or not, and, if it is not, then refusing to issue a certificate. What the Full Bench - two Full Benchs now have said - is that it is not necessary for the Commission to establish either the specifics of the conduct, or to make an assessment of the probability of the conduct being actionable, and the concluding sentence in that passage:

PN230

We would add to the list of requirements only that the conduct needs to be of a character that ...(reads)... to bring an action in tort.

PN231

Well, action closing the operational aspects of my client's business in breach of contracts of employment and causing my client - or encouraging my client's employees to breach their contracts of employment with my client, and encouraging persons to engage in picketing action so as to conceivably prevent people from crossing a picket line and further damaging my client's business, presuming all those things were to occur, were and are, as Finkelstein J pointed out, quite likely to be the subject of one of two possible torts, and if persons have transgressed on to a mining lease who are not entitled to be there, then there is the possibility of a tort and trespass. There is a whole range of possibilities when picketing action starts of that kind.

PN232

So picketing action and wholesale industrial action of this kind is quite plausibly of a character that might reasonably be the subject of a declared intention to bring an action in tort, and then, as the Full Bench went on to say in paragraph 25:

PN233

In the circumstances before Commissioner Holmes and which we've outlined earlier, we are of the ...(reads)... reject the CFMEU's submissions to the contrary.

PN234

And also thereby rejected the submission that the Commission could and should form a view about whether the conduct was or is protected action and therefore not amenable to the action. That is something which, in the fullness of time, a court somewhere may get the opportunity to decide if and when my client chooses to proceed in relation to the tort actions, but, as has been pointed out in the number of authorities, it is necessary - if my client is to seek to take action in tort, it is necessary for my client to seek a certificate whilst the action is still continuing.

PN235

If the action ceases before a certificate issues, then the tests under subsection 6 of the Act cannot be satisfied, and the Commission cannot issue a certificate in those circumstances, and therefore, my client will be left - if my client waited and waited and waited for 6½ days and came in here on an application for certificate half a day before the action ceased, and had the matter adjourned out from under them on the 8th day or the 7th day after the action is finished. It doesn't matter if my client had incurred 7 days of incredible losses, my client could never bring action in relation to those losses, even if they were completely actionable and the action was unprotected, because it needs - it is necessary on the authorities, on the language of 166A to bring an application for certificate while the action is still current and on foot, and in fact, it would be very remiss of my client in the circumstances of they wish to reserve their rights about all of this, to wait until the action was concluded at some later period, until the action was about to be concluded.

PN236

So it is the net effect of all of these authorities - and I'm foreshadowing that the argument that was mentioned last night might be put today. These authorities have discussed that issue and put it to bed. That is not, I think in the words that you, Commissioner, used last night, it is not the Commission's call to be, as it were, a merits filter of any prospective action in tort which my client has or may have. It intends to bring such action in tort as it may be advised, having regard to the strength of the evidence that it is able to gather on the subject, and has manifested that intention by delivering a notice to the Commission, and so long as a conduct that it is pointing to, saying that is the conduct in respect of which we intend to bring an action in tort, and the Commission looks at that conduct and says, well, that could, in fact, be a reasonable foundation for an action in tort without judgment whether it is going to win, lose, or draw; that is enough on the tests.

PN237

And the tests which are set out in paragraph 24 in that quotation, paragraph 24, are the relevant tests which have now been applied by two Full Benches in respect of this matter. And the matter is also summarised and the importance of the Commission acting immediately is emphasised in paragraph 10 of that decision and it's dealing with the interrelationship between 166A and 111(1)G but there is a summary in paragraph 10 about the importance of the Commission immediately taking steps and then immediately certifying in writing to a particular effect and that's of course for various good reasons, to say that, if my client has lost and is likely to lose significant amounts in circumstances in which the law would allow them a right of recovery, that right ought not be lost by reason of the matter being dealt with in other than an immediate fashion, but the immediacy of the matter is again expressed in mandatory terms under the Act, as the point was made in paragraph 10 of that decision.

PN238

In my submission, then, as the Commission must now be satisfied that the conduct which is identified by the notifiers is not likely to be stopped and nothing was put to you today that would change the view that you must have been able to, with respect, reach last night, following the conciliation processes, then the opinion under 6A, with respect, must be formed and, once the opinion under 6A is formed, there is nothing more for the Commission to do but it is required by the Commission as presently constituted - is required by the concluding words of the section to immediately certify in writing to that effect.

PN239

Again, one emphasises that the observations by Merkel J in the AWU v Yallourn case that one need not get too carried away with the sort of submissions we heard last night about what a big stick this is to wave around. A 166A certificate is not a big stick at all. It simply authorises my client to go ahead and do something which otherwise it couldn't do. In the absence of such a certificate, it's only, as it were, a checkpoint in the exercise by my client of its rights which it undoubtedly otherwise has at law to ensure the Commission ascertains that there is perhaps another way to do this thing.

PN240

As soon as the Commission has ascertained that there isn't another way to deal with the issue and estopped the matter which is causing potential transgression of my client's rights, then the Commission has no further role to play and my client then has its rights - there is a fetter lifted off my client's entitlements. That isn't of course to say that my client can or necessarily will institute proceedings. My client wishes to do so and intends to do so but of course, as in all of these things, it's all subject to the lifting of this prohibition and it's subject to the strength of the evidence it's able to obtain in order to sustain the claim that it makes that the three respondent unions have each been involved in conduct of a tortious kind and I most particularly emphasise the conduct of organise the pickets, quite in addition to the conduct of organising the industrial action.

PN241

To a certain extent, I'm shooting at shadows because I don't know what arguments are going to be put against me but that, in my submission, deals with the primary requirements of the Act to discharge the onus of the notifiers in relation to the requirements of 166A to be granted a certificate and also the foreshadowed argument relating to jurisdiction that was put last night. Unless there is anything further, they're my submissions.

PN242

THE COMMISSIONER: Thank you, Mr Herbert. Mr Crawshaw?

PN243

MR CRAWSHAW: Thanks, your Honour.

PN244

If I can first deal with the evidence relating to the conduct, my friend drew attention to the notice of intention to bring an action in tort which notice, in paragraphs 9, 10, 11 and 12, dealt with the conduct that was alleged and he took you through paragraphs 9, 10 and 11 firstly and you'll notice, in paragraphs 9, 10 and 11, the alleged conduct relates to the notice of intention to take industrial action which notices are found in BHP 2, the exhibit which was tendered. We certainly concede there was evidence of notice with intention to bring industrial action.

PN245

That was said in paragraph 11 to constitute conduct of organising, encouraging and inciting the members of the union to take industrial action in the form of a seven-day stoppage. So, the conduct that's alleged in relation to the strike action is: organising, encouraging and inciting the members of the union to take industrial action. And then, in paragraph 12, it's further alleged that the CFMEU and CEPU have endorsed or otherwise sanctioned the establishment of pickets as part of the industrial campaign directed against the company. That was the conduct that was alleged.

PN246

The first thing we should say about paragraph 12 is that it was not made out by a skerrick of evidence. We admit, in relation to the notices of intended industrial action, they were made out. They're in exhibit BHP1 but, in relation to the so-called sanctioning of the establishment of pickets, that wasn't made out at all. There was a concession by those on this side of the bar table that there were pickets but that's as far as it went and, at the same time, there was a concession that strike action was occurring. That was as far as it went.

PN247

So, there are two points about that: that the alleged conduct was the organising, encouraging and inciting of industrial action, on the one hand, or picket activity on the other. We rely on the distinction between that, the actual strike action and the actual picketing that's occurring. The actual picketing and actual strike action is different conduct than organising, encouraging, inciting either the industrial action or the picketing. That distinction is important. It becomes important because the notice that was given is, in a sense, premature.

PN248

When the notice was put in, the only conduct that could be specified was the organising, encouraging or inciting of industrial action or picket activity, as the case may be, because it wasn't actually taking place. And that's different in nature to the conduct of picketing and strike action. It's different conduct. I don't want to get boring about it but we must bear in mind that, at all times, when dealing with this section, we're dealing with the conduct specified in the notice. We're not dealing with industrial action generally or picketing generally; we're dealing with the conduct that's specified and the conduct that was specified was the organising, encouraging or inciting or, in the case of picketing, the establishing of pickets, different conduct.

PN249

The fact of the matter is that the organisation, incitement or encouraging, on the evidence before you, has stopped. That phase is over. The picketing is actually taking place. The strike action is actually taking place; different conduct.

PN250

Now, if the notice had been put in this morning, for example, when strike action or picketing had commenced, and the conduct was said to be strike action or picketing, or tortious conduct relating thereto, there wouldn't be this problem. But what's happened here, there's been an attempt by the applicant to jump the gun, and it's got into this problem of specifying different conduct in the notice than that which it now seeks to have stopped, or be the subject of a notice.

PN251

So that's the first problem. And can I just say before finishing with the evidence, my friend then went on later to say there was - there has been encouragement of the breaking of contracts of employment. There's no evidence whatsoever of that. There's been - there's a range of possibility when picketing action starts. There could be trespass; there could be all sorts of things happening; not a skerrick of evidence in relation to that.

PN252

And we agree, on the question of evidence, that the standard is not high. We agree, as we must, that the Mobil Oil test - and I think it's been repeated in more than one Full Bench decision and more than one - many, many decision at first instance - is the test. But the Mobil Oil test doesn't say there's no merits filter whatsoever. What it says is that you don't need much. You don't need much. And let's just return to that decision. I think my friend handed a copy up to you last night. I think it was the Internet copy as distinct from - do you have the Internet copy, Mr Commissioner.

PN253

THE COMMISSIONER: Yes, I do.

PN254

MR CRAWSHAW: The relevant section that my friend has been quoting is on pages 6 and 7. And the passage that he's been quoting commences in the last paragraph on page 6, beginning, "For much the same reason". You must read - to read that paragraph you've really got to go to the paragraph before to see what the terms of the balance were. And the Full Bench said this, to the terms of the debate:

PN255

The submissions put to us debated whether or not the action of the kind described in those two passages might found an action in tort. Mr Bromberg's contention was that for an action ...(reads)... for their respective propositions.

PN256

So the terms of the debate here was that the counsel for the appellant, for the union, subject to the certificate in that case, was saying that you can't give a certificate unless the conduct is unlawful in itself. Counsel for the applicant, now present in the Commission, was saying, "Well, we accept the conduct is not unlawful in itself, but that doesn't mean that it doesn't - it can't give rise to an action in tort where it is associated with a particular intent and effect".

PN257

Now, with respect, we agree with, as we must, given the terms of the Mobil Act decision and the other decisions, with the contention that, as was put forward by Mr Giudice as he then was, that, number 1, the conduct is not unlawful in itself, and we're talking here in particular about industrial action and picketing. And I'll come back to that proposition. But what the counsel was conceding in that case was that industrial action and picketing are not unlawful in itself, but they may give rise to an action in tort where it is associated with a particular intent and effect. And there has got to be something before the Commission in section 166A demonstrating that particular intent and effect. It doesn't have to be high.

PN258

In fact the test is set out in the next paragraph. I won't read the whole paragraph, but concentrate particularly on the last two lines on page 6:

PN259

...that if there is a manifest intention to bring an action in tort ...(reads)... the probability of the conduct being actionable.

PN260

So it's got to be plausible. It's not plausible, plausibly tort action merely because there have been situations in the past where picketing has led to unlawful behaviour, or where industrial action has led to unlawful behaviour. Those particular activities are not unlawful in itself, and there has to be something put forward to the Commission to suggest that there's some tort action afoot as well. It doesn't have to be much. There's got to be something. In this case you have nothing; not a skerrick put forward.

PN261

I mean, it's the same as - my friend's submission in relation to the picketing could equally apply to driving a car. He says, "Well, you get picketing and you don't know what might happen; all sorts of things might happen, that are illegal". Well, the same can be said of driving a car. You put someone behind a wheel and something illegal might happen. I mean, it just does not follow that action, not unlawful in itself, can be plausibly classed as tort action, or tort conduct, when there's nothing put forward other than the fact that that action, not unlawful in itself, is occurring.

PN262

And that's what you've got before you. You've got before you evidence that strike action is occurring. You've got evidence that picketing is occurring. And they are not unlawful in themselves. They are - can I - there are many authorities for the proposition that picketing in itself is not unlawful. If I could just hand you one. It's a decision in the Supreme Court of New South Wales before Bruce J. It involved Coal and Allied v AMWU and Ors. It was the well-known Hunter Valley Number 1 dispute. And it was concerned with the gaining of an injunction to restrain unlawful picketing. But at page - if I could take you to page 13, at the bottom of the page. His Honour was at pains to say this:

PN263

It is clear that picketing may be conducted in such a way that it is lawful.

PN264

But as Mason J, as he then was, said in Sid Ross Agency, and it's over the page on page 14, the quote:

PN265

At common law picketing is not necessarily a nuisance and unlawful as such, but it becomes so if it involves obstruction and besetting ...(reads)... persons from entering the clubs.

PN266

And so they're the - it's a well-known point that picketing in itself is not unlawful, only when it leads to unlawful activities. And at the end of that case his Honour, at page 21, said, in the second-last paragraph:

PN267

In my view the defendants should be restrained in relation to any activity which physically impedes ...(reads)... which do not physically impeded such ingress and egress.

PN268

So it's only unlawful picketing activity that can be the subject of tort action, not picketing in itself. And, as I said, all you've got before you is the fact that picketing is occurring in this case; no - not a skerrick of evidence of unlawful picketing.

PN269

The other - before I go on, while I remember it, coming to the next point about industrial action and that not being inherently unlawful, the suggestion was made from the Bar Table this afternoon that my clients had conceded that there had been encouragement to contractors to the various applicants to not carry out their contracts. Now, we don't concede that. We don't accept that submission from the Bar Table. And, moreover, as I'm instructed by both my clients, it was expressly said last night that there was no concession, and rather it was denied that my clients or any of their officers and members were interfering with subcontractors. I wasn't here. You were here, but that's my instructions from last night.

PN270

THE COMMISSIONER: Well, it's certainly my recollection of last night that what was said was that contact was made with certain contractors, and those contractors were advised that employees would be undertaking seven days of protected industrial action, and that pickets would be set up at or near the entrance of the mine, and that they were being advised of that, and that was the extent of what was said, I think, from the unions.

PN271

MR CRAWSHAW: Well, that takes the matter no further in terms of - - -

PN272

THE COMMISSIONER: Well, all I'm saying is that is my recollection.

PN273

MR HERBERT: I think I said - friend to a friend - I think I said that it was conceded there had been contact with the contractors; not that there had been a concession that there had been the statements that are in the notice, and my recollection, of course, is what you've just said, Commissioner.

PN274

MR CRAWSHAW: Excuse me, Commissioner, I just want to clarify this. I mean, this was a subject of some discussion in the conference. Just to make it quite clear, I mean, in early submissions, we supported the submissions of the CFMEU against paragraph 13 of the application that talks about the approaching of contractors to preform their services. I supported the CFMEU on that basis, but I think it's not true to actually construe from that that we actually - identical situation the CFMEU have in - or made with contact with the contractors. And subsequently, with the Dick Williams ..... that's denied, so I'm going to make it quite clear to the record that we're not aware of any contact with our officer or members with contractors.

PN275

THE COMMISSIONER: Very well. Thank you, Mr Neil.

PN276

MR CRAWSHAW: Well, in any event, in relation to that, we don't concede that there is was any tortious conduct whatsoever; I'm not even sure in light of what my friend is saying, and I may have misheard him, that he's saying there was any tortious conduct involved in their advice.

PN277

If there's a picket line, and there's mere advice given, that doesn't constitute tortious conduct; that's the whole purpose of a picket line - a peaceful picket line. Now, if I can then come back to the - I dealt with the fact that picketing is not inherently unlawful; neither is strike action. Strike action may be unlawful in some circumstances, but it's not inherently unlawful. I haven't been able to copy this rather large case so I can hand it to my friend, and you, Mr Commissioner, if you want it.

PN278

But as far back as 1942 in the English appeals cases, there's a well-known conspiracy case of Crofter Handwoven Harris Tweed and Viche (1942) Appeals Case 435, where an action was brought against trade union officials for conspiracy in relation to strike that had been taking place - or was taking place. And the House of Lords dealt at some length with that case. The report is some 70 pages long, and can I just read these passages from the judgment of Lord Wright. At page 463, he said this - he said:

PN279

Before I refer to the authorities ...(reads)... but not indictable.

PN280

And then on page 465, Lord Wright continued:

PN281

It is thus clear that ...(reads)... legal wrong against the person.

PN282

And I take you to that rather well-written judgment merely to illustrate the point that strike action of itself is not illegal; it's not inherently unlawful, and there has to be something in the nature of tortious action - tortious conduct associated with the strike action, before it attracts the Commission's attention for the purposes of section 166A. Once again here, as with the picketing, there's not a skerrick of evidence, not any suggestion whatsoever, in terms of evidence that there's any tortious conduct. All you have before you is the fact that strike action has taken place and the then President said, in submissions in the Mobil Oil case: "That's not of itself unlawful conduct." I don't quote the then President because he's the President now, but because his submission was obviously adopted in the Mobil Oil case.

PN283

The other aspect of Mobil Oil was the fact that the terms of proof - and once again, albeit not high - is that there's got to be evidence before you of a manifest intention to bring tort action. And you don't have that in this case; rather, you have the opposite. In the proceedings, the applicant was asked, through you, Mr Commissioner, whether they had any plans to bring tort action in any other jurisdiction, and the answer from Mr Herbert was personally, he knew of none.

PN284

MR HERBERT: No - whether there were any.

PN285

MR CRAWSHAW: Well, the fact of the matter is there's no evidence before you of any intentions to bring any action in any Supreme Court of any State. There is no manifest intention to bring any tort action being proved. So that's another aspect of the Mobil Oil case that has not been made out. If I could then move on - and this is an alternate argument, obviously - to the question of whether sub-section (6)(a) has been made out. Sub-section (6)(a), of course, must be read in combination with sub-section (5) of section 166A, which requires the Commission to make immediate steps to try or to continue to try, by the exercise of its power under this Act, to stop the conduct.

PN286

We raise the question today that if we were given detail of the allegation made by the applicant that the industrial action, or the strike action that's occurring is not protected, that it could well lead to a reconsideration on behalf of my clients, at least, of any participation in such strike action. Now, that detail has not been forthcoming, and the relevance of that detail is not to any argument that protected action is excluded from the purview of section 166A. We don't put that.

PN287

The relevance is that in the absence of that detail being given as to why the applicant maintains that the action is unprotected, and in the absence of the Commission requiring such detail, the Commission cannot be convinced, or cannot form the opinion under sub-section (6)(a) that it is not likely to be able to stop the conduct promptly. Because if such detail was supplied, and was made out, it would be logical that it would be a considerable incentive for the role of my clients in this particular conduct to stop, and to bring about - insofar as it was possible on behalf of my clients - a cessation of the conduct.

PN288

So in our submission you can't be convinced, Mr Commissioner, that it is not - that you are not likely to be able to stop the conduct promptly in the absence of requiring - - -

PN289

THE COMMISSIONER: But Mr Crawshaw, as I understand what's before me the action - as you pointed out the action of the strike or the conduct that is the strike and the conduct that is the pickets is not the conduct about which the notifiers complain.

PN290

MR CRAWSHAW: Yes, that's our first point, yes.

PN291

THE COMMISSIONER: The notifiers complain and the conduct which is statutorily required of the Commission to attempt to stop is the incitement and encouragement to take industrial action; is the sanctioning of pickets and endorsement of pickets as part of the industrial campaign and is conduct that is said to be approaching or making contact with contractors. Now, I gleaned all of that from paras 9 through 13 of the application. It's not the strike action which is the conduct, as I understand what's being put, that is being sought to be stopped. It's to stop the CFMEU and other union officials - officials of the other unions from encouraging, inciting and taking those actions that are described.

PN292

MR CRAWSHAW: Yes, there's no suggestion that the first lot of conduct was conduct that was the subject to the notice as is occurring at all now.

PN293

THE COMMISSIONER: I accept that but that's a different point and I haven't - - -

PN294

MR CRAWSHAW: I see, yes.

PN295

THE COMMISSIONER: All I'm saying is that you said, "well, if you can tell us how the industrial action might be unprotected then we might be able to have some conciliation" - this is paraphrasing obviously.

PN296

MR CRAWSHAW: I see, yes.

PN297

THE COMMISSIONER: "With a view - it's important that BHP provide that to us because then we might be able to stop the conduct". But the conduct is not the industrial action. The conduct is inciting it and encouraging it.

PN298

MR CRAWSHAW: Well, I take your point, Mr Commissioner but - - -

PN299

THE COMMISSIONER: And that's all I'm to stop.

PN300

MR CRAWSHAW: I'm only arguing this. This is the third alternate argument. The first argument is the one that we just discussed. The second one is that in any event if it's not the organising - if the fact that strike action and picketing is taking place now comes within that conduct there's no evidence at all or there's nothing before you to suggest that it's tortious conduct. That's the second point. And the third alternate argument is if that is the relevant conduct, namely the strike action and the picketing taking place at the moment - if that is the relevant conduct that sub-section 6(a) is not satisfied.

PN301

So we aren't - I accept your point - what you're putting to me but in accepting that I'm saying the first - our first point is made out and I'm really only putting these as alternate arguments.

PN302

THE COMMISSIONER: Very well, thank you.

PN303

MR CRAWSHAW: If the Commission pleases.

PN304

THE COMMISSIONER: Mr Reidy.

PN305

MR REIDY: I will preface my remarks by saying that I would obviously adopt what has been put on behalf of the CFMEU and I really don't want to travel over the same arguments that Mr Crawshaw has but rather deal with issues that are either supplementary to that or particularly unique to my client. Dealing with issues that are unique to my client the written notice of intention to bring action in tort is effectively and for convenience a joinder of three separate applications against three different unions for convenience and no protest has obviously been made about it.

PN306

The three separate applications appear - or the three separate notices appear in the one notice. But what is patently clear from 166A(1) is that it's a reference to conduct by an organisation and it would be my submission that you need to consider in the context of this application and in the context of this notice each individual organisation separately. And I just simply draw attention to even the framing of the notice where each of the unions is listed as A, B and C and we get the C rating. I want to then draw attention to the conduct that's specified against us and the conduct that's specified against us appears in paragraph 10, which is in respect of the strike action or the conduct preparatory to the strike action, but to steal a phrase from someone else if we call it the strand one conduct.

PN307

The strand one conduct is globally described as strike conduct. Alleged against us or charged against us is that in respect to the conduct of complaint is the organisation encouraging and initiating an industrial action rather than in respect of the other people inciting industrial action. In terms of that particular conduct we - or I would submit that - well, I would simply adopt the submissions that have been put by Mr Crawshaw but ask you to consider those in the light of the particular conduct that's asserted against the AMWU. I want to deal with strand two, which is the picketing and again adopting the distinction between the conduct that is happening today and the conduct complained of in the notice.

PN308

One doesn't need to look at paragraphs 12 and 13 too closely to realise that there's no conduct in regard to endorsing or otherwise sanctioning pickets or conduct in relation to approaching contractors that is asserted against the AMWU. And of course absent such an assertion the plausibility test, if I can call it that, the plausibility test fails in respect of that strand. And I don't think at the end of the day that there's really any contest about what plausibility test involves.

PN309

It doesn't involve an exercise, for example, saying there's picketing or industrial action out of which torts might flow or there is inciting same or orchestrating same or organising same out of which tort action may be a possibility. What the focus is on, and I think Mr Crawshaw has identified this and I don't think that Mr Herbert disagrees with this, the focus is on the conduct. And Mr Herbert put it in this way, that the separate action - you have to separate the action of the employees from the conduct of the union.

PN310

And certainly in relation to the strand two, globally described picketing conduct, there is - whilst there may be conduct of some people engaged in picketing there is certainly no conduct of the union asserted against it in that regard. So patently, in my submission, no certificate could ever issue because even though the test is undeniably low even that low test can't be met. The other additional observation or submission that I make is in respect of - and the expression used by Mr Crawshaw was to manifest intention, which is an expression that appears in the cases. And that is undoubtedly a test. But also if one looks at the terms of 166A(3) there's two separate concepts in that section.

PN311

The concept of a person wanting to bring an action in tort and that wanting to bring an action, if you want to do that, the way you go about doing it is giving a notice of intention. Now, it's my submission supplementary or alternatively to the submission of Mr Crawshaw, is that the applicants in these proceedings need to demonstrate to the Commission not merely an intention but they want to take this action, and Mr Crawshaw has dealt with those matters which indicate - well, more than a prevarication towards that course, the failure to be able to inform the Commission that such action has been initiated in another place, and it's instructive, I think, to refer to one of Mr Herbert's submissions where he dealt with a really quite off hand statement of Finkelstein J - I'll dig it up. It's in the Cadbury Schweppes matter, and all Finkelstein J said at paragraph 16, which is on page 6 of 9, was this:

PN312

Although the picket was tortious and the company suffered significant loss in consequence of it, it could not bring any proceeding to restrain the tort or to recover damages.

PN313

And on the basis of that statement, Mr Herbert, I think, to be fair to him, said this really developed another school of thought about the need for a 166A certificate in relation to bringing actions in the nature of an injunction. Well, clearly that's an off-hand comment and clearly the authority is firmly placed to the contrary, and it appears in three Supreme Court cases, one of which I'll hand up, and when I say three Supreme Court cases, it's Supreme Courts of three different States.

PN314

And the one I'll hand up - although I refer to the others without the necessity of - I'll give you citations of the others without taking them to you in detail. The one I've handed up is Patrick Stevedores Operations v Maritime Union of Australia. It appears in 1997 82 IR 237 and it's a decision of Wood CJ in the Supreme Court of New South Wales. And the relevant passages appear at pages 244 to 245 starting at the bottom of page 244 under the heading "Preliminary Point." What Wood CJ does in this decision is develop carefully the proposition in the context of 166A that an injunctive proceeding is not an action in tort, and so he says at the bottom of 244:

PN315

The expression "an action in tort" as employed in 166A is not defined in the Act. Somewhat similar expressions have, however, been considered in the context of procedural statutes dealing with matters of costs.

PN316

And cites some examples. About halfway down page 245 he says:

PN317

These cases which are of long-standing authority support the proposition that the expression in question should be construed as not including cases in which the substantial claim is one for an injunction.

PN318

He then goes on to deal with other authorities, and in a paragraph slightly less than halfway down says:

PN319

In the absence of any different definition within the Workplace Relations Act, I am of the view that the expression "action in tort" when used in 166A should be given a similar meaning to that given in the line of authority mentioned.

PN320

And relevantly he quotes from another of the Supreme Court decisions, a decision of Beech J in Patrick Stevedores v MUA, which is in 1998 79 IR 268, where Beech J had this to say about an action in tort seeking - about an injunctive relief not being an action in tort:

PN321

It is an application seeking that the Court exercise it's equitable jurisdiction to prevent the union and certain of its officials committing the tort of intentionally interfering with the performance by the members of the union in their contracts with Patricks.

PN322

And the third case in that series which also clearly and unequivocally adopts the same proposition is a decision of the Supreme Court of Western Australia of Parker J, and I'll simply give you the citation of it. It's 1998 82 IR 87. Now, two points in referring to that line of authorities: one, it responds to a suggestion made by Mr Herbert that the line of authorities is ambiguous, but secondly it indicates in the light of the evidence that is before you about not only intention but what the applicant wants to do that there is no evidence that it wants to take action in respect of tort of any kind and logically one would expect that if it wanted to take action in respect of threatened pickets, for example, or any other conduct it complained of, it would logically and sensibly take that course which gets it to the Courts without recourse to such a certificate as they're seeking here.

PN323

The only other thing that I would add and really goes back to the first point, is that even in Mr Herbert's own submissions, when I took note of the conduct complained of as he made submissions to you, it was firstly in respect of the strand one conduct, what he described as the CFMEU's organising and encouraging and inciting its members, and he necessarily, in my submission, had to leave it general and necessarily had to pinpoint the CFMEU because of the absence of a stratum of conduct that he could rely on in respect of the AMWU and secondly in relation to the strand two picket conduct, again, he could make no assertion in respect of the AMWU. Those are the submissions.

PN324

THE COMMISSIONER: Thank you, Mr Reidy. Mr Herbert?

PN325

MR HERBERT: Thank you. Can I take the last point first in relation to the manifest intention to bring proceedings addressed by all of the other parties. The manifest intention appears in the notice that was lodged with the Commission. The assertions made in these proceedings that that is the purpose that we are here, that is why we want the certificate, and the statements made in the course of the proceedings. Despite the authorities that my friend has referred to where there are some judges of some Supreme Courts who disagree with judges of the Federal Court as to what's the expression an action in tort. I did say it's a controversial line of authority. There are views both ways.

PN326

The very highest that my friend Mr Reidy's submissions go is that if you claim solely for an injunction as was the case in the Supreme Court of New South Wales, wholly and solely for an injunction, it was the opinion of that justice of that Court that you could bring that claim in the Supreme Court and you didn't need a 166A certificate. My client, whilst interested in an injunction, so soon as it joins a claim for damages to the claim for injunction, it falls outside even that decision. So we simply can't proceed until we have a certificate for the sorts of relief that my client would want.

PN327

If all my client wanted was for the industrial action to stop and there was no other possible remedy that it might want, what Mr Reidy says could be true, depending on which judge we get. So there is simply no doubt about my client's manifest intention. The suggestion is that we've all - this end of the Bar Table been here for the last 2 days for nothing, just as a bit of a trick or a bit of a game. There's no doubt about the manifest intention. Could I very briefly deal with a number of submissions that were made. Firstly, it was suggested that there was in fact no evidence of the union's involvement in the conduct which is alleged in the sense of the conduct of encouraging, inciting, etcetera, the industrial action.

PN328

That issue was dealt with in terms in the Ulorn Energy matter before the Full Bench of the Commission. The appeal before Vice President McIntyre, SDP Watson and Commissioner Hoffman. Could I take you to that decision? What has occurred at page 13 of that decision - what that case was about when one has time to read it, there was in fact a notice of intention to take industrial action served. The action commenced. An application was made for a certificate and the action stopped before a certificate was issued. A further notice of intention to take action was given. A further notice seeking a 166A certificate was given by the employer before the industrial action commenced.

PN329

So you had one short period of industrial action, a second period in which a notice was given, a notice of intention to institute proceedings in tort was given but what happened was that the industrial action which was the subject of the second notice never started. There was a 72 hour notice on the appointed hour of the appointed day the action didn't occur, people just went on. Now what was suggested is that there was an entitlement to an issue of a certificate, because the industrial action exceeded 72 hours and therefore Commissioner Holmes was required to issue a certificate, in any event, because of the 72 hour rule.

PN330

The first period of industrial action was 71 hours and 40 minutes. It was 20 minutes or thereabouts - I think are the figures - 20 minutes short of the required period for the 72 hours. You needed to bolt on some extra industrial action to get your 72 hours. And while the Full Bench dealt with that matter at page 13, and what they said in paragraph 28:

PN331

In our view that in circumstances outlined earlier the conduct started at 10.10 am on 9 October and continued until 7.30 am on 13 October when the action foreshadowed in the notice did not occur.

PN332

Its duration, therefore exceeded substantially the 20 minutes which if added to the 71 hours 40 minutes referred to, totals 72 hours. Now the significance of those dates appears in paragraph 6 on page 6, because the times referred to the Full Bench as constituting the extra period that could be added on to the first period to get your 72 hours, was the time between the giving of the notice by the union of intention to take industrial action and the date nominated for that action which when it arrived the action didn't occur.

PN333

And what the Full Bench held is that conduct by the union - and I will take you to what the conduct was - conduct by the union occurred during the period from when it gave the notice of intention to take action and when the action actually didn't occur. So if you give 72 hours notice that is 72 hours conduct by the union, and that was added on.

PN334

And that was the opinion of the Full Bench, that is where you get your extra period from. And that arises, if one looks at paragraph 26 of the decision, which is the precursor, obviously, to paragraph 28, the second issue goes to the duration of the conduct. As previously noted the conduct specified in ..... Manager's notices, under 166A3:

PN335

Was the organising, encouraging and inciting of industrial action.

PN336

Which was the conduct that we have alleged in these proceedings. And then they go on in paragraph 28 to say:

PN337

The conduct constituting organising, encouraging and inciting of industrial action is the giving of the notice, which appears on page 6.

PN338

Which was given, in paragraph 6 on page 6, at 10.10 pm on 9 October, "You are hereby notified that," etcetera. And there is a notice of intention to take industrial action. And the period between when the notice was given at 10.10 pm on 9 October through to the period nominated for the taking of that action, even though it didn't actually occur, was conduct by the union.

PN339

So it follows that the mere giving, the notices in BHP2 of themselves, amount to conduct by the union encouraging, inciting, etcetera, organising, encouraging and inciting industrial action. So far from my friend saying that there is no evidence there is, in accordance with the Full Bench decision, incontrovertible evidence of the union's conduct in that regard - all three union's conduct in that regard in exhibit BHP2.

PN340

In addition to that in the Mobil Oil Decision, at page 7, the Full Bench, as my learned friend Mr Crawshaw fairly conceded, there are a number of statements in that decision, which I assume Commissioner you are familiar with, as to the level of information or the nature and the standard of the information which the Commission is entitled to have regard to in matters of this kind.

PN341

And at page 7 in the passage in the middle of the page:

PN342

Ordinarily the member of the Commission dealing with an application on 166A should be able to rely upon material placed before the Commission ...(reads)... Gehomes etcetera.

PN343

And the relevant part of that is in the fourth line:

PN344

In our view Bryant DP was entitled in respect to the matters under 166A ...(reads)... to stop the conduct.

PN345

Now that attempt by the Commission, which you are bound to undertake, involves the Commission undertaking conciliation. You are then entitled, on this decision, and in fact required to have regard to what you are told in the conciliation process, because 166A(6) says:

PN346

After you have started the conciliation if you form the view.

PN347

And that must mean if you form the view within the conciliation, that this isn't happening, that means you must have regard to what you are told in the conciliation, and you must have regard to what you were told last night. And my friend says that there is no formal evidence. Well, one ordinarily doesn't give formal evidence in conciliation proceedings. But what you were told last night very clearly is: on a number of occasions that the union has, in fact, been engaging in the conduct complained of.

PN348

And leaving aside the notices they gave of the facts that such conduct was to occur, that there was confirmation of that, and that you are entitled to have regard to that. My learned friend, Mr Crawshaw, then went on to say that there was no evidence that the conduct of the union is continuing to this point in relation to the organisation, and incitement of the picket.

PN349

And he said from the bar table - but had an opportunity to call evidence but didn't - said from the bar table that the organising and the inciting of the picket has stopped but the picket goes on. In effect, suggesting to the Commission that there was some evidence to the effect that even if the union had organised the picket, that once the picket starts then somehow or rather it develops a life, as though the union no longer has any role in it.

PN350

Now he suggested that from the bar table without, to use his term, a shred of evidence to support the fact that the union is no longer involved in organising an on-going picket. Well, with respect, to ask the Commission to accept in the context of this matter that a union that organised a picket of that kind, the instant the picket starts the union is out of it, if it is admittedly involved in organising and encouraging and arranging a picket, that it ceases any involvement the instant that its emanation starts its work that the union is no longer involved, that is simply, with respect, completely unreal.

PN351

And it is quite wrong to ask in the context of the urgent conciliation process you are required to do, to accept a statement like that from the bar table. That simply can't be so.

PN352

THE COMMISSIONER: But how would you stop them doing the conduct about which you complain. You don't want them to encourage, incite.

PN353

MR HERBERT: Yes, that's right.

PN354

THE COMMISSIONER: What was the other one. I will find it?

PN355

MR HERBERT: Yes.

PN356

THE COMMISSIONER: To organise, encourage or incite.

PN357

MR HERBERT: Organise, encourage or incite.

PN358

THE COMMISSIONER: Okay, So how do we stop that?

PN359

MR HERBERT: We don't.

PN360

THE COMMISSIONER: No, I have a statutory obligation to attempt to.

PN361

MR HERBERT: Yes.

PN362

THE COMMISSIONER: And I want to know what it is BHP wants me to do that would stop that conduct.

PN363

MR HERBERT: To stop the union from organising encouraging, inciting that picket. In effect, that would, of course, require in terms, would require the union to withdraw its support, organisational resources, sanction, endorsement, and other facilities, financial resources. These picket lines are traditionally fairly well resourced, all of those things, but withdraw anything that might amount to a union's support or sanction of that.

PN364

But that is a matter obviously that will be the subject of subsequent proceedings. But to the conduct that we asked the Commission to stop was to get the Commission, as was put last night with Mr Vickers, you know, are these pickets going to stop. And Mr Vickers said, well, you know, I can use by persuasive powers.

PN365

THE COMMISSIONER: No, but these are matters that I must address.

PN366

MR HERBERT: Yes, yes.

PN367

THE COMMISSIONER: This conduct must be capable of being the subject for terms by the Commission to stop the conduct, and I want to know what it is that the Commission, you say the Commission should do, and what would achieve the stopping of the conduct.

PN368

MR HERBERT: If the union withdrew actually - as opposed to some nominal sense - actually withdrew its financial and logistical support, and its political and other support from a picket, the picket, one would have thought, in a practical sense, would probably collapse under its own weight. It certainly would not give - if it was known amongst the employees, for example, that they didn't have the endorsement of the union, or the union movement, in that sense, one would have thought it wouldn't have - it would have much less support than what would otherwise be the case, but to, in effect, require the union to withdraw its support, to stop supporting it, and to withdraw such support as it was giving, and in a sense, undo what they have done.

PN369

The logistics of that, of course, will vary in accordance with what exactly it is that they have done. Whether the union itself has provided the financial support for the Frigmobiles and the marquees and the barbecues and all the other things that are there, or whether they've been brought along voluntarily by people or that sort of thing as one finds on picket lines or whether - and the support, for example, of perhaps officials visiting there on a regular basis and providing encouragement, support of - providing if it's occurring - you ask me what sort of conduct.

PN370

And I'm mentioning instances of the type of conduct rather than particular examples, but providing clothing and signage and other visible means of support by the union to show that the picket has union endorsement because a union picket is quite a different thing from a locally run exercise which doesn't have union support.

PN371

THE COMMISSIONER: Just - - -

PN372

MR HERBERT: And that's the conduct that we ask that the Commission - the conduct of the union supporting and physically and financially and politically supporting the picket.

PN373

THE COMMISSIONER: And can I ask how it is the Commission would be able to stop the organising and inciting and encouragement of the seven day stoppage which you say is evidenced by the section 170MA notices?

PN374

MR HERBERT: Yes.

PN375

THE COMMISSIONER: What is it you say I could get the union to do which would indicate that they have stopped that action?

PN376

MR HERBERT: Well, there would be, for example, withdraw the notice yesterday - - -

PN377

THE COMMISSIONER: But how do you withdraw a notice? You have been given written notice - - -

PN378

MR HERBERT: Yes, you can withdraw written notice before the appointed time for the industrial action - - -

PN379

THE COMMISSIONER: That's passed.

PN380

MR HERBERT: It happened in the Yallourn case, the action - - -

PN381

THE COMMISSIONER: But that's passed.

PN382

MR HERBERT: Well, it is now, and that's in effect evidence that the Commission was unable to stop it because the action has now started. Yesterday it hadn't started.

PN383

THE COMMISSIONER: Yes.

PN384

MR HERBERT: It may be - in the forms and things might I say, Commissioner, that you're not able to stop it which makes it a very easy exercise for you. If the Commission simply doesn't have the wherewithal not only unable to persuade the parties, but that the parties are on a course the Commission can't intervene - can't effectively do something about that. It may be that, but in this case what - - -

PN385

THE COMMISSIONER: But it's a real issue for me, Mr Herbert, is how do I get them to stop something that is evidenced by giving by the section 170MA notice?

PN386

MR HERBERT: Persuade the union to call off the action.

PN387

THE COMMISSIONER: But that's something different isn't it to - - -

PN388

MR HERBERT: No. No.

PN389

THE COMMISSIONER: That goes way beyond - that's another step then just stopping them encouraging, inciting or organising action.

PN390

MR HERBERT: Well, that's right. If they - - -

PN391

THE COMMISSIONER: If they become neutral and throw their hands up and say, "Well - - -

PN392

MR HERBERT: Well, that would amount to withdrawing their support.

PN393

THE COMMISSIONER: Yes.

PN394

MR HERBERT: It may be as neutral as you put it as withdrawing support, or it may be a positive step of rather than sitting in the middle undoing what they have done and saying, "We do not support this action", as opposed to, "We no longer support this action but we are positively against this action", and let it be known to those who thought that they were acting with the union wind in their sails to let them know that that's in fact not the case.

PN395

THE COMMISSIONER: Very well, thank you.

PN396

MR HERBERT: And there is great utility in that one would have thought that people may be more inclined to act in this way if they think that it's a union organised activity which has the combined strength of the union movement on their side as opposed to something which is not a union organised activity and they know that before they go: that they know that in effect they're on their own so far as that is concerned. So there is great utility in that, but the Act only requires that we identify the conduct which is related to in industrial activity and the Commission endeavour to stop it. Nobody suggests the Commission necessarily has the power to stop it at all. All - - -

PN397

THE COMMISSIONER: No, that wasn't the point of the question. The point of the question was the four criteria on which I'm required to find any existence before you then move to decide whether or not you could stop the action.

PN398

MR HERBERT: It only requires the Commission to endeavour to do so not that the Commission be successful or that there be an obvious course to do that thing. And as I say if it's plainly hopeless because of the particular circumstances, then it's a very short deliberation by the Commission. But there are plenty of examples that I've just given as to what the Commission in the best of all worlds could have asked the unions to achieve, but it was also plainly evident last night and today that those matters were not achievable.

PN399

My learned friend then indicated that there was no evidence, and this is the second point, that he went to that: there was no evidence of any actual tort having been committed in my paraphrasing of the point that he makes, that you require evidence of their being tortuous conduct. Well, that's directly contrary to what the Full Bench said in both Mobil and Yallourn when the Full Bench made the comments that I've quoted before:

PN400

We do not consider it is necessary for us to decide or even to form a view about the question of whether the conduct described above might be sufficient to found an action in tort by one of the persons giving notice under 166A.

PN401

You're not required to even have a view on whether there's enough to form an action in tort, whether there's been tortious - actionable tortious conduct or not. My friend asked you to form a view and when he said that you're not required to look at these things at all - I'm sorry - that the case doesn't say that you're not required to look at these things at all, the case does require that you not look at that matter; that's what the Full Bench said. You are not required to form a view on whether it is actionable so long as there is a plausible connection between the conduct complained of and the bringing of a tortious action. If somebody had travelled from Brisbane to Sydney on a train and somebody in Cairns wanted to bring a tortious action against them for interference with their property in Cairns, you'd have to say that was just malarky.

PN402

There is no relevant connection between the conduct of the punitive defendant and the position of the person in Cairns, but unless it's something as remote as that. If, on the other hand, a party is engaged in conduct which is on any view likely to have the effect of damaging the business and the property and the affairs and the fortunes of a party, and they're doing it at their gate, and in some cases inside their gate, you'd have to say there is a plausible connection between that conduct and the possibility of bringing a torts action against them; that's all the Full Bench said you needed to be able to do is to connect the two as having a logical and sensible connection not that you - that the Commission embarks upon an assessment of the likelihood of success or whether there has actually been any tortious action.

PN403

And can I say about that which goes on to the other - the last ..... was raised in terms of the manifest intention to bring them as proceedings. Mr Reidy went at great length into the fact that we haven't yet brought our proceedings and said if we only brought proceedings for an injunction, we could do that. We can't bring proceedings for damages, I've already said that. If my client has rights in this matter - under the Limitation of Actions Act in the State of Queensland, my client has three years to bring those proceedings. They don't have to bring them today or tomorrow and there are as I have said earlier no proceedings on foot as we speak.

PN404

Proceedings of this kind sometimes take a substantial effort to get together the evidence necessary to prove the elements of the tort, and to prove witnesses and to do things of that kind before you institute proceedings to ensure that you actually have proofs of evidence of witnesses, relevant witnesses, establishing the relevant facts before you institute proceedings so that you don't get caught with a bill of costs. And there are - it would be quite remiss one would have thought of a plaintiff to institute proceedings immediately without having that material.

PN405

Now, given the fact that the consequences of the conduct complained of namely the actual picket and the actual industrial action only started this morning, it's not unusual to think that my client who is said to be the victim of that, has not yet instituted proceedings for damages. You'd hardly have the time to get witness statements together, even know who your witnesses were or know or understand exactly what is the nature of the tortious action, what is the extent of the damage. The action hasn't finished if it comes to that, so you'd hardly institute proceedings one would have thought in the ordinary sensible way unless and until you knew the ambit, the scope of the damage.

PN406

It might be at the end of the day that the damage is so insufficient, if for example the strike were called off tonight, it may be my client considered notwithstanding that suffered damage the game wasn't worth the candle and they may not pursue their rights. But none of that is the concern of the Commission and none of that is - the fact they haven't commenced proceedings as at 4 o'clock this afternoon doesn't mean that they have no manifest intention to do so; that's why we're here, they do. I have nothing further unless there is anything further that you have, Commissioner, in relation to that.

PN407

THE COMMISSIONER: No, thank you, Mr Herbert. I reserve my decision in this matter. It is my intention to use my best attempts to decide the matter within the next hour and one half. Perhaps if arrangements are made with my associate as to where we may be able to fax to the parties the outcome of my deliberations which may be comprehensive - sorry, may not be comprehensive - but nevertheless I intend to give the parties a decision one way or the other, even if comprehensive reasons are written later, by about 5.30 this evening. I adjourn the Commission.

ADJOURNED INDEFINITELY [3.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BHP1 BUNDLE OF DOCUMENTS BEING THE NOTICE OF INITIATION OF BARGAINING PERIODS PN195
EXHIBIT #BHP2 BUNDLE OF DOCUMENTS BEING NOTIFICATION GIVEN PURSUANT TO SECTION 170MO PN195