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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 1139
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
C2001/5662
RESTRICTIONS IN TORT
Notice under section 166A of the Act by
Feltex Australia Pty Limited re action
against Textile, Clothing and Footwear
Union of Australia and Others in relation
to pickets at the Tottenham, Braybrook Sites
and the Brooklyn Distribution Centre
MELBOURNE
1.14 PM, THURSDAY, 8 NOVEMBER 2001
PN1
THE DEPUTY PRESIDENT: I will take appearances in this matter, please.
PN2
MR S. WOOD: Deputy President, I think there are three applications before the Commission today. One is C number 2001/5614; that is the section 166A notice, dated Thursday, 1 November 2001.
PN3
THE DEPUTY PRESIDENT: Excuse me for a moment, Mr Wood.
PN4
MR WOOD: Yes.
PN5
THE DEPUTY PRESIDENT: I am sorry, proceed. I am sorry, I am taking appearances in this matter, matter C2001/5662 has been listed. Can I take appearances in this matter, please?
PN6
MR WOOD: Yes. In relation to 5662, is that the section 1111(1)(f) application or the section 166A notice of 7 November 2001, or both, Deputy President?
PN7
THE DEPUTY PRESIDENT: I am sorry. You are? Your name, please?
PN8
MR WOOD: Wood.
PN9
THE DEPUTY PRESIDENT: Wood, you are Mr Wood?
PN10
MR WOOD: Yes.
PN11
THE DEPUTY PRESIDENT: Thank you, Mr Wood. May I take the other appearance, please?
PN12
MR A. BANDT: Your Honour, my name is Mr Bandt, and I seek leave to appear for the TCFUA; and MS O'NEIL and MS PETERSON who are named as individual respondents.
PN13
THE DEPUTY PRESIDENT: Thank you. Mr Wood, I am sorry, you were saying?
PN14
MR WOOD: The only reason I was asking those questions, Deputy President, is I don't think that in relation to 5614 I need to seek leave, but in relation to the two other matters - that is the section 111(1)(f) application and the section 166A notice, dated Wednesday, 7 November - I think I do have to seek leave because those are two matters to - - -
PN15
THE DEPUTY PRESIDENT: Mr Wood, the matter before this Commission is a notification, dated 7 November 2001, lodged with the Registry by Feltex Australia Proprietary Limited which seeks a certificate under section 166A. Are you seeking leave to appear in the matter, are you?
PN16
MR WOOD: Yes.
PN17
THE DEPUTY PRESIDENT: Any objections to leave to appear?
PN18
MR BANDT: No.
PN19
THE DEPUTY PRESIDENT: Leave is granted, Mr Wood.
PN20
MR WOOD: Thank you, Deputy President.
PN21
THE DEPUTY PRESIDENT: Perhaps I could start by saying that the notice, dated 7 November, lodged by Feltex Australia Proprietary Limited was stamped as received by the Registry at 5 pm on 7 November. According to a statement of service sent by facsimile transmission to me at 11.31 am today, 8 November, the notice was served in accordance with rule 72(2)(c)(ii) on the National Secretary of the Textile, Clothing and Footwear Union of Australia at approximately 11 am on 8 November 2001.
PN22
According to the same statement of service, the notice was served on the Victorian branch secretary of the same union and Ms Dorothy Peterson of the same union and Ms Michelle O'Neil of the same union at approximately 9.45 am on 8 November in accordance with rule 72(2)(c)(i) and (ii). According to the same statement of service, Slater and Gordon were served at approximately 9.40 am on 8 November 2001 with a notice of intention to take action in tort. Slater and Gordon filed with the Registry a letter, stamped as received by the Registry, in relation to this matter at approximately 10 am on 8 November, and I am sure we will return to that letter. I am sorry, Mr Wood, as the notifier you were saying?
PN23
MR WOOD: Yes, Deputy President. We also filed an application under section 111(1)(f) of the Act which we - raises the same grounds - sorry, relies on the same material upon which we rely in relation to the - - -
PN24
THE DEPUTY PRESIDENT: Is it in relation to this matter, C number 2001/5662?
PN25
MR WOOD: It is in relation to that matter in the sense that it relies upon the same material in that matter. It could be given a new C number. It could have been listed under the old C number of 5614. That is mere administrative arrangement. We just want to make it clear that that is an application that we are pressing.
PN26
THE DEPUTY PRESIDENT: Mr Wood, I think that may be another matter which has not been listed today. The matter listed today is C2001/5662. If you wish to make any initial submissions in relation to this matter, I would certainly be willing to listen to them. I propose shortly to adjourn into conference to discuss procedural issues, as well as what could be termed the substantive matter before the Commission. If you have anything to briefly place on the record before we do that, Mr Wood, I would certainly be grateful to hear it.
PN27
MR WOOD: If we are going to adjourn into conference, there is no need for me to do that. I can do that after we come back from conference.
PN28
THE DEPUTY PRESIDENT: Thank you, Mr Wood. Mr Bandt, do you wish to say anything before we adjourn into conference, very briefly?
PN29
MR BANDT: No, your Honour, other than to say that the letter that your Honour referred to as being sent from our office to the Commission, a copy of that was also sent to the representatives for Feltex, and the union would be treating that as an application for an adjournment. Other than that, there is - any other matters could be said after reconvening after a conference, your Honour.
PN30
THE DEPUTY PRESIDENT: Thank you very much. We will now adjourn into conference.
SHORT ADJOURNMENT [1.20pm]
RESUMED [1.35pm]
PN31
THE DEPUTY PRESIDENT: These proceedings are now resumed. Before I hear from the parties, I would just like to make a few points if I could. This is a serious matter. The notifier, Feltex Australia Proprietary Limited, has given notice of intention to bring action in tort against a number of persons. It alleges that pickets are occurring at a number of sites, that the conduct is causing Feltex loss and damage. It seeks certificates under section 166A of the Act and alleges that it is, and will continue to sustain loss and damage in connection with and as a consequence of the conduct it says is occurring, and outlines in its notification.
PN32
Under section 166A(5) of the Act if a notice is given, the Commission must take immediate steps to try, or to continue to try by the exercise of its powers under the Act to stop the conduct. Expedition is important in these matters. Slater and Gordon have made an application by correspondence, dated 8 November, received by me by facsimile at 10.41 today asking for an adjournment. I refused to cancel the hearing which I had listed at short notice for today at 1 pm, having received the notification last night at approximately 5 pm.
PN33
The parties have discussed issues of procedure and are unable to reach agreement. I will, therefore, briefly hear from the parties as to how this matter should be proceeded with and determined. Mr Wood, as a notifier, perhaps I should hear from you first unless you have a different suggestion.
PN34
MR WOOD: Well, unless my learned friend has got any applications to make, we would press ahead with our application. I rather suspect that he wants to press his application for an adjournment. Once that is determined and depending on how that is determined, I will say something about the application or other applications that might be made.
PN35
THE DEPUTY PRESIDENT: Thank you, Mr Wood. Mr Bandt.
PN36
MR BANDT: Yes, your Honour, I appear for the TCFUA and Ms O'Neil and Ms Peterson, and the three of those people make the application that was - a copy of which was sent to your Honour this morning on 8 November, and that is an application for an adjournment of this matter until tomorrow morning. The reasons for the application for an adjournment are these. The background to this is that Feltex notified the Commission last week in relation to intention to bring action in tort under 166A.
PN37
Feltex didn't bring to the Commission or provide to the union any material in support of their application. When we came to the Commission, the union was the only one who brought affidavit material and provided copies of it to the other side in an attempt to be able to inform the Commission about what was happening in relation to the matters complained of in the notice. Feltex did little to assist the Commission in the running of the - - -
PN38
THE DEPUTY PRESIDENT: Mr Bandt, we have - - -
PN39
MR BANDT: - - - 166A application.
PN40
THE DEPUTY PRESIDENT: Mr Bandt, I am sorry, you are speaking to an application for an adjournment, are you?
PN41
MR BANDT: Yes. Yes, your Honour.
PN42
THE DEPUTY PRESIDENT: And this is relevant to the issue of whether this matter should be adjourned?
PN43
MR BANDT: Yes, it is, your Honour, because the background to it is relevant because it shows that the solicitors for the notifier in this case have had knowledge for a substantial period of time of their intention to come to the Commission seeking a certificate under 166A. And on Monday, your Honour, we wrote to - in anticipation that this might be the case, as is often the case in industrial disputes - - -
PN44
THE DEPUTY PRESIDENT: I am sorry, so your solicitor - Slater and Gordon, is it?
PN45
MR BANDT: Yes.
PN46
THE DEPUTY PRESIDENT: Knew that - all you are saying is that Slater and Gordon knew that Feltex wished to obtain a certificate; is that correct?
PN47
MR BANDT: On - certainly as on Friday, we did that because they brought the application - - -
PN48
THE DEPUTY PRESIDENT: Yes, of course.
PN49
MR BANDT: - - - and they came here. And then - - -
PN50
THE DEPUTY PRESIDENT: Okay. So that is the - okay, I understand that point, yes.
PN51
MR BANDT: Yes, your Honour, and then on Monday, as your Honour has previously said, the Commission did not grant the certificate for terms that were sought. In anticipation that, given that these things move quickly and that there may be a dispute about what the various parties say is happening, on 5 November we wrote to the representative - so that is Monday. We wrote to the representative of Feltex, and if I could tender a copy of that letter, your Honour.
PN52
THE DEPUTY PRESIDENT: Do you want me to mark this as an exhibit?
PN53
PN54
MR BANDT: Now, your Honour, that letter requested in part, or advised that we had instructions to act on behalf of the TCFUA and to accept service in relation to any proceedings in relation to the matters at issue, and requesting that - or expecting, stating our expectation that we would get reasonable notice of any proceedings instituted. And the reason for that is precisely to avoid the situation that we find ourselves in now. Now, Monday came and went, and Monday evening came and went, and we didn't get any notification that there was going to be any further applications. Tuesday came and went, and we got no notification.
PN55
Now, during the course of Wednesday, that is yesterday, I had a telephone conversation with the representative of Feltex who, in relation to another matter, rang to say that he had instructions to accept service and gave no indication that there was going to be any further applications made or that there would be any further material about which we may need to be getting instructions because there would be further proceedings.
PN56
THE DEPUTY PRESIDENT: This conversation took place when?
PN57
MR BANDT: On the Wednesday, on 7 November during the course of - at about - probably about 1 o'clock. Now, and we would say it was probably fairly clear in the respondent's representative's mind at that stage - I think it was probably fairly incontrovertible that they were considering making an application and probably well on their way towards preparing their witness statements.
PN58
Monday - Wednesday, business day came and went, and we heard nothing about these proceedings. On Wednesday evening after hours at about 5.49, I am instructed, there was notification sent to the Textile, Clothing and Footwear Union after business hours and, as I am instructed, no one made an attempt to call the - or there was no call received by the TCFUA saying this is coming through, nor did the TCFUA secretary whose - I would be surprised if representatives of Feltex didn't have her contact details, she wasn't contacted.
PN59
And it is my understanding, your Honour, of rule 29 that before giving written notice to a member of the Commission or Registrar, the notifier must serve a copy of the notice on each organisation of employees and that must happen before giving written notice to the Registrar, and that that didn't happen and - - -
PN60
THE DEPUTY PRESIDENT: Sorry?
PN61
MR BANDT: Rule 29.
PN62
THE DEPUTY PRESIDENT: It is rule 29.
PN63
MR BANDT: Subrule (2).
PN64
THE DEPUTY PRESIDENT: And you are alleging that that rule was not followed; is that correct?
PN65
MR BANDT: That is correct, your Honour. And it is my understanding of the chronology that your Honour outlined before about the timing of the service, that it was actually - the union was only notified after the Commission was notified. Now, we were sent - now, at that time, as I understand it, the - well, I don't know at what time the - that Freehills was in possession of a listing but they sent to us at 6.06 pm a copy of their application under 111(1)(f) and a copy of this written notification. At 6.06, after close of business hours, and we didn't even get a telephone call to say it had been sent through.
PN66
THE DEPUTY PRESIDENT: This was yesterday?
PN67
MR BANDT: Yesterday. So that we could go and check the fax machine, nor did we get any call at any stage that evening to say: Look, there is a matter listed tomorrow, I know you are on the record, I have spoken to you today in relation to other matters, there is a matter listed tomorrow, you better be ready for it. We didn't even get that. And it appears that during all of this time the solicitors of Feltex had been busy beavering away on a further application and on further witness statements when they know that we have asked them for notice so that we can obtain instructions so that we avoid having to seek adjournments.
PN68
Notwithstanding that, we made - the parties that I represent made urgent inquiries late last night and this morning to try and get counsel. A number of counsel were unavailable and Mr Howells, who is familiar with the matter, is involved in a Federal Court matter and is able to come tomorrow but is just not able to be here today. And in relation to the issue of the union, lest it be thought that this is some kind of tactic to avoid being here or dealing with a 166A application, your Honour, the union was on - the Secretary of the union was here last time, last Friday, and expressed on transcript her willingness to sit over the weekend if it was necessary to engage in conciliation to resolve this dispute.
PN69
And at all other times the union has been the one who has been bringing material to the Commission in relation to this and has said that we will do what we can to assist: paragraph number 183 of the transcript refers to that commitment given from the union. Now, this is a union that is a small union with a few - with very few paid officials and they are negotiating a large number of certified agreements at the moment, and those certified agreements are being negotiated to resolve other real or threatened industrial disputes and, in that context, they are stretched to the limit. And it is precisely because we know that if this matter is going to be contested and there is contests on the facts, we are going to need to seek instructions the - that we sought that Freehills just notify us in advance of what material they intend to bring.
PN70
Now, the availability of the union and of counsel are key factors but they are not the primary factor. The primary factor is simply that in a situation where there is going to be a large number of allegations about what a large number of employees are doing we need to be able to go and get their instructions. And as about what they say about it - now, at about ten - it would have been about ten past one or quarter past one I was handed three statements, the first time I have seen them, one of which goes to 13 pages. And in a quick look through those, most of the events complained of in the statements are not events that happened yesterday. We could have had a draft of this statement a day or so ago. And if we would have had those, we wouldn't be in a position to be able to be here to complain.
PN71
But the reality is, we are simply not in a position to proceed and comment on the material because we need to get instructions and we have bent over backwards to give Feltex the opportunity to provide us with material so that we can deal with these things expeditiously. And as I said before, had we got it yesterday, I don't know that we would be in the same position to be able to complain here today. We are able to proceed with this matter tomorrow if this matter proceeds. It is not in any way an attempt to delay it or to frustrate the Commission in the exercise of its powers. T
PN72
he Commission can be satisfied that it will be able to deal with this matter expeditiously and in accordance with the Act if we proceed tomorrow. And this isn't a situation that is - this is a situation of the notifier's own making. They could have avoided this very easily and we gave them every opportunity to. And if they choose to come and log at the eleventh or the twelfth hour statements and make further submissions when, on their submissions, this has been all going on for weeks, and how could we possibly be surprised, well, if it has all been going on for weeks then the simple answer is, they should have let us know before so that we could get this hearing over and done with quickly.
PN73
So on those situations, your Honour, it is difficult also to see that there is any prejudice to the notifier if we proceed at 9 o'clock tomorrow. Conversely my clients will be very much prejudiced because they will have been unable to be prepared and obtain instructions about the material. I have received nothing that suggests that there would be any prejudice to the respondent, no material whatsoever. And in those circumstances, yes, there is an obligation to proceed expeditiously and, yes, there are obligations under the Act.
PN74
But overriding all of that is the right of my clients to be able to get instructions and present their case in accordance with basic principles of procedural fairness which must bind the Commission, even in its exercise of powers under section 166. So we will give the commitment that we will be ready to go tomorrow. We will take away these statements. We will get instructions on them, and we will come back ready, your Honour.
PN75
THE DEPUTY PRESIDENT: Just - sorry, Mr Bandt, before you sit down. So what you are saying is that this matter - tomorrow you would be prepared, fully prepared to deal with all the submissions raised in this matter to finality if time permitted?
PN76
MR BANDT: If time permitted, yes.
PN77
THE DEPUTY PRESIDENT: Okay, and you say that today - for example, if Feltex wished to lead evidence today, you would be unable to deal with that evidence; is that your submission?
PN78
MR BANDT: Those are my submissions.
PN79
THE DEPUTY PRESIDENT: Is it simply because of the absence of Mr Howells, or is there some other reason?
PN80
MR BANDT: No, your Honour. The quick look that I have had through the statements, if one presumes those are the kind of submissions that would either be made from the bar table or would be made by people getting in the witness box, those will be allegations about what the union and/or members of the union and/or employees are doing, or have done. And in order to be able to cross-examine about that, in fairness to my client - and effectively I will need to obtain instructions about that, and that will involve speaking to those people, speaking to the union organisers who are familiar with it and, if necessary, speaking to those individuals. If we have got these statements now, we can usefully spend this evening after work hours starting on that.
[1.55pm]
PN81
THE DEPUTY PRESIDENT: The requirements for procedural fairness are, of course, important. In this sort of matter there are a number of Commission observations and decisions. Obviously there are other considerations as well, namely expedition, given the damage that is alleged to be occurring to Feltex's business. What do you say about that?
PN82
MR BANDT: Your Honour, with respect to the issue of expedition, the Act envisages a time-frame of dealing with it expeditiously and within 72 hours. Given that the application was effectively, in terms of business hours, served at 9 o'clock this morning, coming tomorrow isn't really going to - we are not asking for it to be adjourned to next week, we are not asking for it to be adjourned for 2 weeks. It is come back tomorrow, well within the 72 hour period, and we say we will be ready to deal with it.
PN83
And in terms of the issue of damage, well this is the second time that we have been here on a section 166A application, and one would have thought that the easiest way to do that would have been for an affidavit from someone from Feltex to have been served on the union or provided to the Commission to say this is the damage that we are suffering, we need this heard urgently.
PN84
THE DEPUTY PRESIDENT: Mr Bandt, the notification - a certificate under section 166A(6)(b), arguing substantial injustice. A 72 hour issue is, of course, relating to section 166A(6)(c). It is possible for the Commission and envisaged by that section for the certificates to be issued prior to this elapse of the 72 hour period.
PN85
MR BANDT: Yes.
PN86
THE DEPUTY PRESIDENT: And I think that from the notification that is what is being sought.
PN87
MR BANDT: That does seem to be the case, and if part of the submissions about the substantial injustice are based on anything other than what - if they are based on anything that happened prior to about 5 o'clock last night, then the issue arises: why couldn't they tell us about it so that we didn't have to come along here and be without instructions? If it is really that bad and they have had well paid lawyers working on this case, why couldn't they provide us at least with a draft of what they were going to say so that we could instructions about whether there is in fact any substantial injustice?
PN88
They can't have their cake and eat it too, and say it is all so important and has been going on for so long, look at our evidence, but we are not going to tell the other side about that, we will just expect them to front up, not be able to deal with what we are saying because we won't tell them about it the night before, we will tell them about it in the morning, and sorry you can't get proper instructions to cross-examine, but there is the substantial injustice, but we have been working on this for the last week.
PN89
THE DEPUTY PRESIDENT: Thank you, Mr Bandt.
PN90
MR BANDT: Yes, your Honour.
PN91
THE DEPUTY PRESIDENT: Mr Wood. Could I ask you two questions, Mr Wood, before you start?
PN92
MR WOOD: Yes, Deputy President.
PN93
THE DEPUTY PRESIDENT: If you could briefly deal with this issue of rule 29. I think the allegation is that it has been breached. If it has been, perhaps we can deal with that just briefly, if it has been or not. Secondly, in relation to the issue of an adjournment, if hearings were to take place tomorrow to deal with any procedural fairness arguments that the TCFUA may wish to raise in other forums, and secondly would that be sufficient tomorrow; would you be able to complete your case? I only raise this because of the issue of expedition. You have raised it very strongly in your notification. Now, I would ask you to think about it that second issue in particular. There may be an advantage in - - -
PN94
MR WOOD: Perhaps I can deal with that issue first then, Deputy President. The proposition appears to be from my learned friend that they need an adjournment, and they need the adjournment to deal with the evidence, that is the evidence in the form of three witness statements that it is true, I handed to my learned friend about 10 past 1. I haven't handed copies to you, Deputy President, for reasons that I will explain in a moment.
PN95
My learned friend doesn't say that he needs an adjournment because of an unavailability of counsel and, I think properly, says he doesn't need an adjournment because of the unavailability of the union. I think, if he relied upon those grounds, he would have some difficulty. What he says is: we have been given this evidence and we need to speak to individuals, we need to speak to them to do two things, one is to put on evidence in reply, and the second, he says, is to properly cross-examine those of our witnesses who make witness statements and we will get into the witness box.
PN96
Now, in a normal case, say an unfair dismissal or an award-making process, or a section 170MX arbitration, those propositions would be quite correct. He would need time to deal with the evidence, he would need the opportunity to cross-examine, he would need to get instructions. In those different applications, this proposition is correct. But this is not an application where the Commission needs to be satisfied that there is in fact evidence that tortious conduct is occurring, and the reason for that is that this procedure is simply placed in this Act as a stopgap between a dispute arising and people rushing to the Court.
PN97
It is for the Court to determine whether in fact tortious conduct has taken place, the scope of it, who is responsible, how much damage is caused, and I will take the Commission to the cases. The important aspect of this is that it would be sufficient for me in this application to come to the Commission today and simply say to the Commission: there is picketing conduct occurring. That is it; I make that submission. The Commission is then satisfied that there is conduct capable of giving rise to an action in tort. There is conduct capable of being the subject of a notice.
PN98
Whatever my learned friend said about that, the Commission would still be satisfied because it can't make a final determination of those matters. If we put witnesses in the witness box, say we put them in, say we go for two days, we cross-examine them up hill and down dale, at the end of the day there will be conduct which is capable of giving rise to a notice and conduct which is capable of being the subject of an action in tort. It is not the function of this Commission to determine anything more than whether there is arguably, or there might be, such conduct.
PN99
Now, the first case that dealt with this issue, the only evidence before the Commission was a letter, a letter from the notifier saying there is conduct. The union wrote back and said there isn't, and then the employer wrote back and said the picket is still continuing. And the Commission granted the certificate on that evidence.
PN100
THE DEPUTY PRESIDENT: Mr Wood, we are here dealing with this issue of an adjournment. As I understand it, you oppose an application for an adjournment; is that correct?
PN101
MR WOOD: Yes.
PN102
THE DEPUTY PRESIDENT: And I have also asked a number of questions.
PN103
MR WOOD: Yes.
PN104
THE DEPUTY PRESIDENT: I understand all of what you are saying, Mr Wood, I am just not clear as to how it relates directly to this issue before us which is how we proceed an application for an adjournment.
PN105
MR WOOD: Well, it relates to the grounds for the adjournment application. The grounds are that we need to be able to challenge this evidence. Now, if the Commission is against us on that proposition - that the union should be given the opportunity to challenge these witness statements, it should be given the opportunity to cross-examine on them, it should be given the opportunity to get instructions - then we will simply withdraw those witness statements - I haven't handed them to you, Deputy President - and we will proceed today on the basis that I inform the Commission that picketing conduct is in fact occurring, and it is costing the Company about $180,000 per day.
PN106
Now, if that is the proposition that is put, we will simply withdraw the evidence, and then we proceed today on that basis, and the Commission is then obliged to deal with the matter by way of conciliation, and if it feels that it can't deal with the matter by way of conciliation because of conduct of the union which I will come to, then we will make some applications under subsection (6) of section 166A. But the importance of this case to that submission is that this exact point my learned friend is making now was made in one of the first cases to deal with this section 5 years ago.
PN107
It was knocked on the head then, and these applications have been determined in the manner that I have indicated they ought be since that time. Now I will just hand this up to you, Deputy President, and I will hand a copy to my learned friend.
PN108
THE DEPUTY PRESIDENT: Thank you. It is not necessary to make it, is it?
PN109
MR WOOD: No, I don't think so. This was in the pre-Workplace Relations and Other Legislation Amendment Act form of the then Industrial Relations Act, and there is a reference to two sections, section 163D and 166A. They can be treated as the same for present purposes, and I will take the Commission to the relevant parts of the case. But you can see that Deputy President Bryant issued the certificates on 21 February after receiving notices on 15 February, and the union tendered a letter - can you see on page 86 - that it does not admit that it is involved in a picket at the Weddinger Home site at the corner of Preston and Mary Streets, Como, and gives an undertaking.
PN110
THE DEPUTY PRESIDENT: I am sorry, where are you reading from on page 86?
PN111
MR WOOD: I am sorry, the bottom of page 86.
PN112
THE DEPUTY PRESIDENT: The second paragraph of the letter; is that correct?
PN113
MR WOOD: Yes.
PN114
THE DEPUTY PRESIDENT: Yes, thank you.
PN115
MR WOOD: And then there is a reference to an undertaking, and there is a comment by Deputy President Bryant at the top of page 87, and then on 21 February the union's solicitors write and they say:
PN116
We confirm our client's instructions. It has not been and is not now involved in a picket at Weddinger Homes ...(reads)... the above meets with your requirements. We confirm it is not an organisation of employees.
PN117
The same day Weddinger Homes solicitors sent a letter:
PN118
I am instructed to advise you that the picket at the Como Street site has not been lifted. We would be grateful if you issued the certificates as requested.
PN119
No cross-examination on the letters, no evidence called in response to the letters, just two different versions of the events. One says the union is involved, one says the union is not involved. Deputy President Bryant issued the certificates. An appeal was brought from the fact that he issued the certificates, and we can skip through to page 91, and there is a reference at page 91 to the alleged errors by the Deputy President as to jurisdiction. And if we go from there to the grounds which are set out at page 93 - and the same grounds are used in relation to the 166A certificate which is referred to at paragraph 97 - and ground 1 in both cases was:
PN120
The Deputy President erred in issuing a certificate under section 163D and 166A in that there was no or any sufficient evidence upon which to make a decision.
PN121
Same grounds, the first ground. And the Full Bench said, in relation to that ground, and indeed the Full Bench say at page 94 in the first paragraph:
PN122
Most of these grounds assert that there was before Deputy President Bryant no evidence, or not sufficient ...(reads)... to show there was a boycott dispute, which evidence should have been tested in cross-examination and been subject to evidence in rebuttal.
PN123
Exactly the same comments my learned friend makes. Now, that is in relation to 163D; the same comments are made in relation to 166A, which - - -
PN124
THE DEPUTY PRESIDENT: Is there any material difference in the statutory context, Mr Wood?
PN125
MR WOOD: No.
PN126
THE DEPUTY PRESIDENT: The sections are identical, are they?
PN127
MR WOOD: They are not identical. One relates to a boycott dispute, but the provisions are the same in relation to the requirement to issue a certificate.
PN128
THE DEPUTY PRESIDENT: A boycott dispute?
PN129
MR WOOD: A boycott dispute, yes, under 163D.
PN130
THE DEPUTY PRESIDENT: That related to section 45D, did it?
PN131
MR WOOD: The old 45D which was then - - -
PN132
THE DEPUTY PRESIDENT: Yes, of the Trade Practices - no, it was then in the Industrial Relations Act 1988.
PN133
MR WOOD: That is correct, yes. That is right.
PN134
THE DEPUTY PRESIDENT: The equivalent to section 45D.
PN135
MR WOOD: Yes.
PN136
THE DEPUTY PRESIDENT: So this decision relates to that statutory context.
PN137
MR WOOD: That is right. But you will see at page 97 - and I need to take you to the comments under 163D because at page 97 they pick up the same grounds - sorry, the same comments they make in relation to the 163D application in relation to the 166A, and I will take the Commission to that at page 97, but we need to just go through 94 and 95 first.
PN138
THE DEPUTY PRESIDENT: Yes.
PN139
MR WOOD: And then the Full Bench refers to another Full Bench decision in the Maritime Union of Australia, and it goes through, and it explains what the functions of the Commission are:
PN140
The functions of the Commission were exercised pursuant to the provisions of Division 7 of Part VI ...(reads)... his Honour was required to immediately certify in writing to that effect -
PN141
this is important -
PN142
speedy conciliation is, in our view, the essence of the Commission's powers under Division 7 ...(reads)... Maritime Union of Australia case. See the passage we have quoted earlier.
PN143
And then it goes on to say: Ground 3(c), we can skip ground 5, and ground 6:
PN144
Ground 6 contends that Bryant DP erred and that he failed to pay any or any sufficient regard to the union's submission ...(reads)... a matter about which Bryant DP was required to hear evidence to determine.
PN145
Exactly the sort of evidence that my learned friend wants to be able to lead and wants the Commission to determine, exactly what you don't have to determine:
PN146
These in our view are matters for the Court to hear evidence about and to determine, and are not matters that must be determined by the Commission in proceedings under 163D.
PN147
Ground 8 and ground 2 we can skip over which go to reasons, and then the reasons are dealt with at page 96, and then at the conclusion of 96:
PN148
We accordingly dismiss the union's appeal with respect to the certificate under 163D.
PN149
Then they move on to 166A, and again the same comments under 166A:
PN150
Most of these grounds assert that there was before Bryant DP no evidence or not sufficient evidence to establish the union was an organisation which had committed a tort. Our views in respect of these grounds are in general the same as those we expressed with respect to the corresponding grounds in the appeal relating to the 163D certificate.
PN151
That is you don't need evidence, the Commission is not required to hear evidence, and it is not required to determine these issues:
PN152
Division 8 has, in our view, characteristics similar to those of Division 7. In our view Bryant DP was entitled ...(reads)... his Honour was required to immediately certify in writing to that effect.
PN153
Again, repeating under 166A:
PN154
Speedy conciliation is in our view the essence of the Commission's power under Division 8 as we have earlier said is under Division 7 ...(reads)... determine issues as contended in the union's appeal.
PN155
Ground 3 deals with the proposition that the union is not an organisation, and ground 2 deals with the reasons question, whether he was obliged to give reasons for his decision to issue a certificate under 166A(6)(a). And the appeal was dismissed in relation to the certificate. Now every case that has been determined by a Full Bench after this case has followed the same line. The same principles apply.
PN156
And when Mr Howells told you that the applicant really ought to come here and provide the Commission with real help, that is adequate evidence in appropriate form - comprehensive evidence in the appropriate form - the necessary summaries and then some submission that really assists, having dealt with all the matters required to be established; that is really what an applicant should do in this sort of situation. The applicant hasn't helped - hasn't helped the Commission, hasn't helped you, sir - in the appropriate way by providing adequate evidence in the appropriate form directed to all the elements, is completely misconceived.
[2.20pm]
PN157
THE DEPUTY PRESIDENT: Mr Wood, what is the procedure you propose we follow in this matter then? Do you propose - we have this afternoon, we could sit to hear your submissions. We can commence that; that is one option. We have until approximately 4.30 pm that is available. If your submissions were followed; is that what you are proposing?
PN158
MR WOOD: Yes, that upon the jurisdiction being invoked, the Commission is obliged under subsection (5) - I will read out the words:
PN159
...to take immediate steps to try or to continue to try by the exercise of its powers under this Act to stop the conduct.
PN160
Now, that might involve the Commission going into conciliation, it might involve the calling of a compulsory conference, it might involve whatever powers the Commission thinks fit to try to stop the conduct. But if the Commission was minded to go into conciliation, we would say, given what we understand about the union's attitude to this proceeding this afternoon, it is not going to be long before the Commission forms the opinion under subsection (6)(a) that it is not likely to be able to stop the conduct promptly, and if the Commission forms that opinion, then we will ask the Commission to issue the certificate.
PN161
Now, it may be that if we proceed along that route, it may be that the union's attitude to not being available here today might change; I don't know, we will just have to wait and see.
PN162
THE DEPUTY PRESIDENT: So are you asking me to adjourn into conciliation conference? That is one option.
PN163
MR WOOD: Yes, that would be what we would say is the appropriate first step that the Commission should take to try or to continue to try to stop the conduct. That is what we say the appropriate course ought be, and then it is a matter for those conciliation proceedings as to what the Commission might do next.
PN164
THE DEPUTY PRESIDENT: Yes. Mr Wood, I note section 166A(5). We did adjourn briefly into conference in an endeavour to settle procedural issues and to tackle what we termed the more substantive issues. It is open to us to do that again, there is no doubt about that, and that is your submission, is it?
PN165
MR WOOD: Yes.
PN166
THE DEPUTY PRESIDENT: Mr Bandt.
PN167
MR BANDT: Your Honour, a couple of things. The reason that some emphasis was placed on potential evidence that might be led is that last time that this application was made before your Honour, your Honour declined to issue the certificate. Now, that declining to issue the certificate stands and we had presumed that it would be the notifier's view that they would probably need to bring something additional if they were to satisfy your Honour that circumstances had changed such that a certificate ought now be issued.
PN168
We presumed that that may be in the form of evidence, but a reading of the transcript will note that contrary to what Mr Wood suggested I said, that I said whether it is going to be done by evidence or submissions from the bar table, we still want the opportunity to be able to get these instructions about is said in anticipation that he may make the kind of submissions that he actually made. The decision that he took your Honour through does not stand for the proposition that a mere allegation of industrial action is enough for the automatic issuing of a certificate.
PN169
There is still built into section 166A(5) a requirement that there be immediate steps to stop the conduct, and in 166A(6)(b) the requirement that the Commission make a decision and the Commission decide, and presumably the Commission decides on some basis. What the decision stands for is that the Commission has some latitude in determining on what basis it will decide that, but it still nonetheless has to decide it and it has to be satisfied of certain things. There are steps that I would say are - could call procedural, but in fact are mandated by the Act, that there be some conciliation with the appropriate people first.
PN170
In that situation we had just presumed that there would be something more than last time to warrant going through the steps and issuing of the certificate, and if there is going to be something more than last time, which Mr Wood suggests there will, whether it is from submissions from him or statements, then the union - and they are going to rely on that to convince your Honour to come to a decision, then we want the right to be able to get instructions about that, the right to respond to it and to make submissions to your Honour through our counsel who is familiar with the matter, and we will do it all within an expeditious time frame.
PN171
It would seem to me, your Honour, to be perfectly consistent with the Act and the application that is made, if tomorrow morning, when we were back before here, a 166A(5) conciliation took place.
PN172
THE DEPUTY PRESIDENT: Mr Bandt, if for example, we started to hear whatever witness evidence Mr Wood has to hear, it may or may not be completed by 4.30 pm today in which case further hearings tomorrow would take place. Would that be sufficient to meet your concerns?
PN173
MR BANDT: Well, your Honour, we wouldn't be in a position to cross-examine today, and so if Mr Wood was in a position to have whoever he is going to rely on give their examination-in-chief, and if it was possible for transcript to be made available expeditiously so that we could have overnight to consider it and be prepared for cross-examination tomorrow, then that may well be a useful use of the next hour or so, your Honour.
PN174
THE DEPUTY PRESIDENT: Alternatively, Mr Wood has provided you with witness statements, as I understand it.
PN175
MR BANDT: Yes.
PN176
THE DEPUTY PRESIDENT: You have indicated that to me. That is really a substantive indication of the nature of evidence-in-chief that Mr Wood wishes to lead. Yes.
PN177
MR BANDT: Yes.
PN178
THE DEPUTY PRESIDENT: What about Mr Wood's suggestion that we now adjourn into conference for conciliation; do you agree with that submission?
PN179
MR BANDT: Your Honour, I agree with the submission that this should be adjourned into conciliation, it is required by the Act. It would be my submission that the most fruitful way of doing that would be for it to happen first thing tomorrow morning so that proper representatives of the union can be able to participate in proper conciliation and fruitful conciliation that might resolve it.
PN180
THE DEPUTY PRESIDENT: Are you saying that there is no prospect of union officials appearing today?
PN181
MR BANDT: I could make inquiries, your Honour, but the instructions that I had before coming here were that the relevant union officials who could be in a position to give instructions, are involve in negotiations for other certified agreements in relation to other disputes and that they have previously offered to sit over the weekend to be involved in these 166A conciliations in relation to this matter and it is simply a timing thing and they will be here first thing in the morning.
PN182
THE DEPUTY PRESIDENT: Well, it seems to me that there is - correct me if I am wrong - there is little prospect of any meaningful conciliation without the presence of those who are instructing you. Perhaps we could adjourn for 10 minutes to enable you to contact those instructing you to see if they would be willing or able to attend these proceedings and participate in conference. We will adjourn.
PN183
MR BANDT: Would your Honour have in mind that that would commence immediately?
PN184
THE DEPUTY PRESIDENT: Yes. We will adjourn for 10 minutes.
SHORT ADJOURNMENT [2.30pm]
RESUMED [2.51pm]
PN185
THE DEPUTY PRESIDENT: Mr Bandt.
PN186
MR BANDT: Your Honour, I have spoken to the Branch Secretary of the union, Ms O'Neill, and she confirms that I had conveyed to your Honour before, namely that the union is - and the senior officials and staff are heavily involved in negotiations, which are I understand at a crucial stage, but someone would be able to leave those negotiations to come here and they will be able to leave inside an hour and have said that they would be able to get here by 4 o'clock.
PN187
THE DEPUTY PRESIDENT: Those are your submissions?
PN188
MR BANDT: Yes, your Honour. Your Honour, there are two other matters that perhaps I will mention now and your Honour can tell me how you want to deal with them. One is that in relation to the issue of the proper service of this application, I don't understand that any submissions have been made about that and I just note that we reserve our position in respect of that.
PN189
THE DEPUTY PRESIDENT: I was going to come and deal with that now, Mr Bandt, and I had intended - I had asked Mr Wood in relation to that issue, if you will just bear with me. As I understand it, your submission is that rule 29(2) requires a notice to be served on each organisation of employees and each of its officers or employees before the notice is given to the Commission or Registrar.
PN190
MR BANDT: Yes.
PN191
THE DEPUTY PRESIDENT: Your submission was in this case that did not take place; is that correct?
PN192
MR BANDT: Yes.
PN193
THE DEPUTY PRESIDENT: We do have a statement of service from Feltex which sets out the sequence of events. In summary, the Registry stamped as receiving the notice at 5 pm on 7 November and according to the statement the notice was served at 11.31, 8 November on the National Secretary of the TCFUA, at 9.45 am on 8 November on the Victorian Branch Secretary, Ms Dorothy Pearson and Ms Michelle O'Neill, and at 9.40 on 8 November service was effected on Slater and Gordon.
PN194
MR BANDT: Your Honour, can I just say I haven't seen that document, I don't know what - - -
PN195
THE DEPUTY PRESIDENT: Which document?
PN196
MR BANDT: The one that you were just referring to.
PN197
THE DEPUTY PRESIDENT: The statement of service.
PN198
MR BANDT: Yes.
PN199
THE DEPUTY PRESIDENT: I am sorry, Mr Bandt, I wasn't aware of that.
PN200
MR BANDT: But it would seem to me if I have - - -
PN201
THE DEPUTY PRESIDENT: I may have a spare copy I can provide you with now.
PN202
MR BANDT: Thank you, your Honour.
PN203
THE DEPUTY PRESIDENT: Do you have any submissions you wish to put in relation to that document?
PN204
MR BANDT: Having read that statement of service, that statement of service makes it clear on my reading that a process server served on the National Secretary of the TCFUA, the Victorian Branch Secretary, Dorothy Peterson and Michelle O'Neill, and on myself at Slater and Gordon notice of intention to take action in tort on 8 November for each of those.
PN205
The understanding that I have from your Honour is that the notice was actually given to the Commission yesterday at 5 o'clock, and on the basis of the statement of service signed by a Mr Gary William Smythe, which your Honour I would seek to tender, it appears that service was only effected today and not in accordance with the rule, and on that basis, your Honour, I would say that this notice of intention to bring an action in tort has not been properly served in accordance with the rules, and that prior to moving into conciliation the appropriate course would be for the action to proceed no further.
PN206
The Commission doesn't have jurisdiction in relation to this matter. Jurisdiction is founded on proper service, especially so in a case where there is a notice to bring action in tort and it involves substantial prejudice to the legal rights of individuals. The provision is all the more important in this case because had it actually been given to the union prior to being filed in the Commission as is envisaged by the rules, it would have been within a business day and we wouldn't be in this problem that we are in. And clearly the rule is envisaged on making sure that a person who is told that they may be sued is given more notice of it than the Commission and given as much possible notice. Your Honour, I understand that your Honour has a copy of it; I would seek to tender that statement of service.
PN207
MR BANDT: The other small housekeeping matter, your Honour, was that I think I have referred to, but haven't tendered, a copy of the 8 November letter that is our application for an adjournment, and for completeness sake I would seek to tender that.
PN208
MR BANDT: Those are my submissions, your Honour.
PN209
THE DEPUTY PRESIDENT: I beg your pardon?
PN210
MR BANDT: Those are my submissions, your Honour.
PN211
THE DEPUTY PRESIDENT: Mr Wood, this issue of rule 29(2) specifically, the submission has just been put that first of all the rule was not followed, and secondly, I think, that the proceeding should go no further today. Do you have an application to make in relation to rules?
PN212
MR WOOD: Well, it is a little bit farcical - well, it is very farcical, Deputy President. I shouldn't say it is - - -
PN213
THE DEPUTY PRESIDENT: I am sorry, do you agree that the rule was breached or what is your submission on that issue?
PN214
MR WOOD: Firstly, no, and secondly, it doesn't matter. The reason I say no is we got a letter from Slaters saying they accept service for these people. Mr Bandt stood up here today and appeared for them. In circumstances where solicitors, in the normal conduct of their business, say that they accept service on behalf of a person, it is inappropriate and unprofessional to actually serve it on the individuals.
PN215
If we had have complied with the rule in its form, we would have been subject to a criticism by my learned friend that you have ignored our letter, that we told you we were on record, we told you we acted for these people and you went and obeyed the rules when you knew that we were on record and we were advising them and you did that to prevent us from having as much time as possible. That is our first submission.
PN216
The second submission is it doesn't matter because the principle behind these rules is to enable persons who might be affected by decisions of the Commission to have notice of that fact and to take such steps as they might see as appropriate. The parties to this proceeding, the TCFUA and the two natural persons, have had plenty of time to appear before the Commission in an urgent application where there is picketing conduct, we are losing $180,000 per day. For this type of submission to be made is - I just find it extraordinary that - - -
PN217
THE DEPUTY PRESIDENT: Mr Wood, Mr Wood, could I take you to exhibit B2 which is the statement of service; do you have that in front of you?
PN218
MR WOOD: Yes.
PN219
THE DEPUTY PRESIDENT: Thank you. Could you turn to page 2 of the statement of service, paragraph 3.
PN220
MR WOOD: Yes.
PN221
THE DEPUTY PRESIDENT: It states there that the solicitor firm of Slater and Gordon were served at approximately 9.40 am on 8 November; is that correct?
PN222
MR WOOD: As I understand it, that is personal service; that is, there is the informal service that is normally appropriate in these sort of proceedings by fax, which my learned friend accepts he received at - I think he said 5.49 pm, he might have said 5.48 pm, I can't recall, last night. He went on to say that he tried to get counsel last night and couldn't get them. This - - -
PN223
THE DEPUTY PRESIDENT: Thank you. So if that fax was sufficient service within the rule, remembering that service - does service have to be in person; is facsimile service sufficient, Mr Wood?
PN224
MR WOOD: I haven't looked, sir, closely enough at the rules to see what service is. I can perhaps have a look at those.
PN225
THE DEPUTY PRESIDENT: Do you have rule 29(2) in front of you?
PN226
MR WOOD: Yes. Perhaps I will answer the question and then come back to the substance of the matter.
PN227
THE DEPUTY PRESIDENT: Well, yes, perhaps if we can just dispose of this first issue first. Rule 29(2) says:
PN228
Before giving written notice to a member of the Commission or Registrar, the notifier must, in accordance with paragraph 72(2)(a), (b) or (c), serve a copy of the notice on each organisation of employees.
PN229
Now, you say that the notice was faxed to the TCFUA last night.
PN230
MR WOOD: Faxed, as I understand it, to Slater and Gordon.
PN231
THE DEPUTY PRESIDENT: To Slater - yes.
PN232
MR WOOD: And also to the TCFUA last evening at around 5 o'clock. Then this morning personal service of the same applications was effected by these process servers referred to in the statement of service.
PN233
THE DEPUTY PRESIDENT: Now, do you have exhibit B2 in front of you, Mr Wood?
PN234
MR WOOD: Yes.
PN235
THE DEPUTY PRESIDENT: Do you see the final letter from Slater and Gordon? The final page.
PN236
MR WOOD: Yes.
PN237
THE DEPUTY PRESIDENT: The first paragraph says:
PN238
I confirm that we act on behalf of the TCFUA and advise that we have instructions to accept service of any documents in the above matter and any other proceedings in relation to the matters at issue between the TCFUA and Feltex.
PN239
MR WOOD: Yes.
PN240
THE DEPUTY PRESIDENT: Now, is it your submission that service by fax on 7 November in accordance with that paragraph is service on the TCFUA consistent with the requirements of rule 29(2)? In the letter, Slater and Gordon have advised that any document served should be served on Slater and Gordon.
[3.05pm]
PN241
MR WOOD: Yes, that is our first submission. Our second submission is, if that be incorrect - - -
PN242
THE DEPUTY PRESIDENT: Sorry - - -
PN243
MR WOOD: Yes.
PN244
THE DEPUTY PRESIDENT: There may be one other issue, Mr Wood, do you make any application under section 111(1)(p) or (t) of the Workplace Relations Act 1996 relating to - - -
PN245
MR WOOD: In relation to what, Commissioner?
PN246
THE DEPUTY PRESIDENT: In relation to any breach of that rule that did occur, or you are not making that application?
PN247
MR WOOD: Well, whether it is made under 111(1)(p) or (1)(t) or under rule 6.
PN248
THE DEPUTY PRESIDENT: Yes.
PN249
MR WOOD: We would say that if there has been a non compliance with those rules then we would ask the Commission to dispense with compliance with the requirement - as I understand it, the requirement that we would, on my learned friend's submission, ask for the Commission to dispense with is the requirement that we give the written notice before. Give the written notice to the persons subject tot he proceeding before giving the written notice to a member of the Commission or a Registrar.
PN250
THE DEPUTY PRESIDENT: Yes.
PN251
MR WOOD: That is all we would seek relief from, is the requirement of that word "before".
PN252
THE DEPUTY PRESIDENT: Yes.
PN253
MR WOOD: No, I must say, I find this utterly extraordinary. In my, almost 10 years of practice, I have never seen or heard of an application that is made in a serious matter like this upon these grounds. This the most frivolous, vexatious, inappropriate application in circumstances where there are solicitors on record and where there is notification by fax and by personal service in circumstances where the union official decided not to attend, where we are losing almost $200,000 odd per day, this is the most extraordinary thing I have, I think, seen in this Commission.
PN254
THE DEPUTY PRESIDENT: Thank you.
PN255
MR WOOD: It is - - -
PN256
THE DEPUTY PRESIDENT: Thank you, Mr Wood. Do you have anything in response?
PN257
MR BANDT: Yes, your Honour, a number of things. The - I will be happy to be contradicted, but I am not aware of any other rule in these Commission rules that requires service on a party prior to bringing it to the Commission's attention. As far as I am aware, and I will be happy to be contradicted, but as far as I am aware, when a bargaining period is notified or when action is taken pursuant to an MO notice or - and I don't even know that in an industrial dispute there is an obligation to advise the other side, but the other side is notified and then you bring it to the Commission's attention.
PN258
The exception is with respect to these notices of bringing action in tort. And we get told that it is a technical rule and this is an absurd objection, abut it is exactly the same point that brings us here for the reason of seeking an application for an adjournment today. And the point is this, when you are going to sue someone, you give them notice of it and then you invoke the Commission's jurisdiction and the mechanism of section 166A kicks in.
PN259
THE DEPUTY PRESIDENT: Mr Bandt, you did indicate before, did you not, that you received that notice by facsimile transmission on or around 5 pm last night?
PN260
MR BANDT: No, it arrived at our office at 6 past 6.
PN261
THE DEPUTY PRESIDENT: I am sorry, 6 past 6.
PN262
MR BANDT: Yes.
PN263
THE DEPUTY PRESIDENT: So that - now, what is the substantive disadvantage to you that has arisen from the fact that it wasn't handed to you in person, it was sent by facsimile transmission?
PN264
MR BANDT: We don't have adequate counsel or union presence here today.
PN265
THE DEPUTY PRESIDENT: Arising from the fact that it was sent by facsimile - - -
PN266
MR BANDT: Well there is a reason that you are required to bring it to the attention of the other side first. Whether it is the other side personally or if their representatives are on record, and there is a reason - and it makes it inappropriate to grant relief from the rules in this particular instance. And that is that this whole - this is the only rule that requires you to bring it to the other party's attention first before you bring it to the Commission. Had that occurred in this situation we would have got it in business hours, we wouldn't have been forced to make late night phone calls to try and get counsel here who can't come.
PN267
Would have got it in business hours. It would have been served in accordance with the rules and we could have made proper attempts to have proper representation from the union and of counsel here today. Rule 29 is about giving parties the maximum possible notice and there is absolutely no reason why it couldn't have been served on us during the court. And that is the same point that I was making earlier in support of the application for adjournment. It could have been served on us during the course of yesterday and then we would be here today running the case.
PN268
THE DEPUTY PRESIDENT: Mr Bandt, if it had been sent by facsimile to you at 4.59 rather than 6.06, would that have made any difference regarding the availability of Mr Howells as counsel today?
PN269
MR BANDT: Well, I don't know about where it would have made a difference regarding Mr Howells' availability of counsel, but it we get an application before people go home and during the course of a business day, then the union is in a much better position to be able to try and arrange people to come here tomorrow. As it is, it arrived at the fax at 6 past 6, it wasn't seen and discussed until well after that, and we were trying to arrange representation for an important matter at night, when it could have all been avoided had they complied with the rules. If they had complied with the rules we wouldn't be here having this issue.
PN270
THE DEPUTY PRESIDENT: Thank you, Mr Bandt, those are your submissions for that issue. We now come to this issue, Mr Wood, of the availability of someone from the TCFUA at 4 o'clock, I believe, Mr Bandt?
PN271
MR BANDT: Yes.
PN272
THE DEPUTY PRESIDENT: I propose to adjourn these proceeding until 4 pm.
SHORT ADJOURNMENT [3.12pm]
RESUMED [4.05pm]
PN273
THE DEPUTY PRESIDENT: Before we adjourned the TCFUA had submitted that rule 29 subrule 2 of the Australian Industrial Relations Commission Rules had been breached in that the notification filed by Feltex Australia Pty Limited had not been served on the TCFUA prior to the notice being given to the Commission or Registrar. The statement of service filed by Feltex, exhibit B2 in these proceedings, reveals that service was affected on the morning of 8 November while the Registry received the notice at 5 pm on 7 November 2001.
PN274
However, the TCFUAs solicitors received the notice by facsimile transmission at approximately 6.06 pm on 7 November. They then took action in relation to that notice. They had also written to Feltex in this matter advising that they would accept service in this matter as stated in exhibit B1. In these circumstances there is no injustice caused to the TCFUA and I waive compliance with rule 29, subrule 2, as sought by Feltex Australia Pty Limited. Now, we have this matter of conciliation conference. Mr Bandt, you were able to contact someone?
PN275
MR BANDT: Yes, your Honour, prior to the adjournment you requested, and I undertook to get someone from the union here at 4 o'clock, Ms Vivienne Wiles, who is the industrial - - -
PN276
THE DEPUTY PRESIDENT: Sorry, Ms?
PN277
MR BANDT: Vivienne Wiles. W-i-l-e-s, who is the union's industrial officer, has left the negotiations she was involved in and has come here. The - I don't know what the Commission has in mind, but we would certainly be prepared to engage in discussions with the representatives of Feltex, but of course we understand that we do so without prejudice to our application for an adjournment until tomorrow morning.
PN278
THE DEPUTY PRESIDENT: Thank you, Mr Bandt. We will now adjourn into conference.
SHORT ADJOURNMENT [4.08pm]
RESUMED [4.41pm]
PN279
THE DEPUTY PRESIDENT: This Commission is now resumed. Mr Wood?
PN280
MR WOOD: Thank the Commission.
PN281
THE DEPUTY PRESIDENT: We have a short period of time in which you may make your application you foreshadowed. You will need to provide the Commission with sufficient material relating to conduct and any other submissions you wish to put.
PN282
MR WOOD: Yes.
PN283
THE DEPUTY PRESIDENT: We only have a brief time.
PN284
MR WOOD: I will hand up three statements.
PN285
THE DEPUTY PRESIDENT: Do you wish them marked separately or as one document?
PN286
MR WOOD: Separately, please, Deputy President.
PN287
PN288
PN289
PN290
THE DEPUTY PRESIDENT: Have you provided those to the TCFUA?
PN291
MR WOOD: Yes.
PN292
THE DEPUTY PRESIDENT: When were they provided?
PN293
MR WOOD: At 10 past 1, I think it is common agreement between the parties.
PN294
THE DEPUTY PRESIDENT: Today?
PN295
MR WOOD: Yes.
PN296
THE DEPUTY PRESIDENT: Proceed Mr Wood.
PN297
MR WOOD: I will hand up also an outline of - - -
PN298
MR BANDT: Well, your Honour, can I just clarify whether or not Mr Wood intends to rely on the contents of those statements, or whether he is just tendering them for identification purposes?
PN299
MR WOOD: We rely upon the contents.
PN300
MR BANDT: And, your Honour, we would seek to cross-examine those people and repeat the application for a period of time to get instructions regarding the contents of those statements.
PN301
MR WOOD: We would oppose that application on the grounds that I indicated in relation to the adjournment application previously made. The - I will hand up an outline of argument to the Commission. The Commission can ignore paragraphs 1 through 7 because that relates to matters that are not listed and if you just deal with paragraph - - -
PN302
THE DEPUTY PRESIDENT: Do I mark this as an exhibit, Mr Wood?
PN303
PN304
THE DEPUTY PRESIDENT: I am sorry, the paragraphs to be ignored are - - -
PN305
MR WOOD: You can ignore for present purposes paragraphs 1, or at least dot points 1 and 2 and paragraph 2, 3, 4, 5, 6 and 7 and paragraphs 8 through to 22 are relevant to this application. They are also, as it happens, relevant to the other application, we can deal with that at another time. And I suppose, for the sake of clarity, paragraph 1 should be amended to the applicant has made one application, given the other two applications are not before the Commission at the moment.
PN306
THE DEPUTY PRESIDENT: Thank you. What is the application you are making, Mr Wood?
PN307
MR WOOD: This is an application under section 166A(6)(a). That is:
PN308
After the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly.
PN309
We would say, and I will come to the outline of argument in a moment, that the question of the commission's opinion is one that the Commission can rely upon what it has observed in the two conciliation conferences which have occurred in this dispute. That is the one that occurred today and has just ended and the one the occurred last Friday.
PN310
THE DEPUTY PRESIDENT: I think we have had two conciliation conferences today, have we not, Mr Wood?
PN311
MR WOOD: Yes, that is true, I beg your pardon.
PN312
THE DEPUTY PRESIDENT: Or is it more?
PN313
MR WOOD: Yes, no - you are quite correct. We have had two today. Yes, at least two, and one last Friday that related to the industrial dispute. The Commission, we would say, is entitled to form the opinion. It is not likely to be able to stop the conduct promptly, and - excuse me, the key word is promptly, without going into what was discussed during conciliation, it is patently obvious that after almost a year of negotiation the parties have reached their bottom line in these matters.
PN314
There are still matters that neither party is willing to either concede or move on and the conduct that we refer to in our application is not - again I have to be careful to not reveal what has been said in conciliation, Deputy President, but it is clear that there is - the Commission, we would say, could not form the opinion that the conduct is going to be stopped promptly. The subject matter of the dispute, or the real heart of the dispute between the parties, is in fact whether the conduct is occurring.
PN315
Once we get over that threshold, as I think we must, it would seem to be clear that the Commission almost must form the opinion it is not able to stop the conduct promptly, unless - in relation to that question I perhaps might deal in reply from my learned friend, because he might say something that has not been said in conciliation, and it might convince the Commission that the matter - conduct could be stopped promptly, but on the current indication it is clear that it cannot be.
PN316
That brings us to the question of what the conduct is, and it is set out in the affidavits. It is a picketing conduct which has taken place since 30 November - sorry, October, I am a bit ahead of myself, since 30 October, that is last Tuesday. It has been going for about 9 days. The evidence makes it clear that it is taking place today and from last Monday, when the Commission refused to grant a certificate in a separate application. The test, as I have indicated in previous submissions about the adjournment, are set out in paragraph 20 of the application and the - sorry, the outlined, I beg your pardon.
[4.48pm]
PN317
THE DEPUTY PRESIDENT: Yes, sorry. Could you take me briefly, Mr Wood, given the time, to the paragraphs of exhibits W1, 2 and 3 which you say establish the conduct referred to in - the conduct by the TCFUA which satisfies section 166A(1)?
PN318
MR WOOD: Yes.
PN319
THE DEPUTY PRESIDENT: These are signed statements, are they?
PN320
MR WOOD: No, they are not, but I am instructed that the deponents accept the truth of what is in them. The - sorry, the deponents, the witnesses, the primary proposition we make about conduct is that these statements show that a picket is in existence in circumstances where enterprise bargaining negotiations have broken down. That is, the type of submission that one would make on an injunction in a court would be that there is a serious question that the picket has been organised by the union from the mere circumstances of - from the mere background, that is, negotiations having broken down, a strike having occurred, a picket starting the same day as the strike.
PN321
It follows as night follows day, we would say, that there is a serious question that the union organised that picket. But the test we have to satisfy is easier than that. We just have to show that it is conduct capable of being the subject of a notice under section 166A or conduct that might reasonably be the subject of a declared intention to bring an action in tort, and - - -
PN322
THE DEPUTY PRESIDENT: Mr Wood, can you take me to the paragraphs in this - in exhibits W1, W2, W3 which indicate a direct knowledge of - a direct knowledge of a TCFUA role?
PN323
MR WOOD: We don't have to.
PN324
THE DEPUTY PRESIDENT: No, that may be the case. I am asking is there - - -
PN325
MR WOOD: Very well.
PN326
THE DEPUTY PRESIDENT: I am not - there may be various arguments on the issue you have raised, Mr Wood.
PN327
MR WOOD: Yes.
PN328
THE DEPUTY PRESIDENT: And in order to forestall any such arguments, could you just briefly indicate what evidence there is there of a TCFUA role?
PN329
MR WOOD: Yes. In paragraph 12 - - -
PN330
THE DEPUTY PRESIDENT: Of Jennifer Louise Anderson's.
PN331
MR WOOD: - - - of Jennifer Louise Anderson's statement - - -
PN332
THE DEPUTY PRESIDENT: Exhibit W1, yes, paragraph 12.
PN333
MR WOOD: Yes, exhibit W1, paragraph 12 deals with what happened last Tuesday.
PN334
THE DEPUTY PRESIDENT: Yes.
PN335
MR WOOD: We say that TCFUA involvement in the picket - - -
PN336
THE DEPUTY PRESIDENT: Yes.
PN337
MR WOOD: - - - comes from the fact that the people were present as employees, people present as employees of Feltex. There was present on the picket line Dorothy Peterson from the TCFUA, Steven Stewart and Edgar Fernando who were shop stewards of the union.
PN338
THE DEPUTY PRESIDENT: Thank you.
PN339
MR WOOD: There was a car parked in paragraph 13, there is a car belonging to Dorothy Peterson who is an organiser with the TCFUA.
PN340
THE DEPUTY PRESIDENT: Thank you.
PN341
MR WOOD: There were - there is evidence that there was - and I think the Commission is aware of this evidence - that there was a concrete block placed - - -
PN342
THE DEPUTY PRESIDENT: Yes.
PN343
MR WOOD: - - - on Tuesday, the 30th. We would say, and I won't - given the time, I won't burden the Commission with the details of that, but we would say again that is the type of material that a court would draw an inference from that there is a serious question that the union has organised that in the circumstances. In paragraph 19 there are employees, employees of Feltex - you see, my learned friend sniggers about it.
PN344
But the point is people who put concrete blocks in the middle of the road don't normally advertise the fact, put a neon light up and say, this was me, I've done that and it's in aid of the industrial dispute. They normally don't do it, because it is a criminal offence. That is, advertise the fact that they have done it. But a court is more than able - and the Commission is more than able - to draw an inference from the fact that a concrete block has been put in a driveway to say that that has been done by the union or by the picketers.
PN345
THE DEPUTY PRESIDENT: Proceed.
PN346
MR WOOD: Paragraph 19.
PN347
THE DEPUTY PRESIDENT: Yes.
PN348
MR WOOD: Again, employees involved on the picket line. In paragraph 20, there is a union shop steward Steven Stewart again asked to move out of the way because they were blocking the driveway said, I'm just standing, here, it's a nice afternoon, none of the persons behind the vehicle moved.
PN349
THE DEPUTY PRESIDENT: This is Mr Steven Stewart referred to in paragraph 20, is it.
PN350
MR WOOD: Yes.
PN351
THE DEPUTY PRESIDENT: And he is, you say, a union shop steward?
PN352
MR WOOD: That is correct.
PN353
THE DEPUTY PRESIDENT: All right.
PN354
MR WOOD: Approximately - and then in paragraph 23 - - -
PN355
THE DEPUTY PRESIDENT: Yes.
PN356
MR WOOD: - - - there is picketers again Edgar Fernando, who is a union shop steward and other employees.
PN357
THE DEPUTY PRESIDENT: Yes.
PN358
MR WOOD: There is an individual from the AMWU, who is referred to in paragraph 25, 24, 25, again, trucks could not leave the site. That mere fact by itself, we would say, again is conduct that is capable of being the subject of an action in tort. After - at trial we would have to seek discovery, interrogatories, maybe subpoenas against third party. We might have to subpoena the driver of the truck to try and identify this. We might have to cross-examine the employees who were picketing to understand what sort of instructions - - -
PN359
THE DEPUTY PRESIDENT: No, no, I understand.
PN360
MR WOOD: Yes.
PN361
THE DEPUTY PRESIDENT: Are there any other?
PN362
MR WOOD: Paragraph - - -
PN363
THE DEPUTY PRESIDENT: Yes.
PN364
MR WOOD: Paragraph 29, the employees, 30, the employees again. And then it comes to what will be new to the Commission - - -
PN365
THE DEPUTY PRESIDENT: Yes.
PN366
MR WOOD: - - - at paragraph 32, there are employees and Ms Pereck who is an employee, says this truck is not going anywhere. Again, other employees at paragraph 33 put their trucks there. Other employees at 34 at the Braybrook site. Another employee yelling abuse at a guard. Another employee involved in a human cordon around the truck in 35. And again Simon Stewart, a shop steward. Sorry, Steven Stewart, lying in front of the truck endeavouring to leave the site. At 37 a number of employees - - -
PN367
THE DEPUTY PRESIDENT: This Mr Steven Stewart in paragraph 36 is a union shop steward, is he?
PN368
MR WOOD: A shop steward, yes. 37, 38, again employees. In relation to the union shop steward, I will hand up a case which is a decision of Wilcox J and it deals with the extent to which a conduct of a shop steward can be taken to be conduct of a union. I might just hand that up to you in a moment. Actually, I will hand it up to you now. I am sorry, I don't have a copy for my learned friend, but the key element is his decision where it says:
PN369
As is notorious, the function of a job delegate is to act as a link between the union members on a particular job and management. On the site the job delegate is the voice of the union. When the job delegate speaks to management about the union position on an industrial matter prima facie he or she speaks for the union.
PN370
I will just hand that up to the Commission.
PN371
THE DEPUTY PRESIDENT: For the record, this is a decision of the Federal Court of Australia, Wilcox J.
PN372
MR WOOD: And I have marked the relevant paragraph.
PN373
THE DEPUTY PRESIDENT: Thank you.
PN374
MR WOOD: The importance of that evidence, and I will take the Commission to the evidence in Mr Kite's statement in a moment, is that as I have set out in the fourth dot point on page 3, it is not for the Commission to determine whether the conduct is unlawful and this is what the Full Bench say in Coal and Allied again - - -
PN375
THE DEPUTY PRESIDENT: Mr Wood.
PN376
MR WOOD: Yes.
PN377
THE DEPUTY PRESIDENT: It is common ground between the parties that the summary of the Commission's role set out in the Transfield Obayashi case at page 9, for example, the statement that:
PN378
The Commission is required only to identify conduct that might reasonably be the subject of a declared intention to bring an action in tort.
PN379
That is common ground. It is not necessary for you to traverse that.
PN380
MR WOOD: Yes.
PN381
THE DEPUTY PRESIDENT: Could you - - -
PN382
MR WOOD: And then the importance of that, of course, is as I set out in the third dot point, that if you get it wrong the prejudice is caused if the court rules that it does need a certificate. But if you get it right and you grant a certificate when you don't need one, then there is no prejudice caused and that is set out at dot point 3.
PN383
THE DEPUTY PRESIDENT: Mr Wood, you have put submissions and material relating to conduct as set out in section 166A(1). What are the other submissions you wish to put? And do you have a draft certificate - - -
PN384
MR WOOD: Yes, I will hand up - - -
PN385
THE DEPUTY PRESIDENT: - - - you wish to speak to?
PN386
MR WOOD: Yes.
PN387
THE DEPUTY PRESIDENT: Have you provided it to the TCFUA?
PN388
MR WOOD: Yes, I will hand that to the TCFUA now. I will hand a copy up to the Commission. I will hand a copy to the union. There is some other evidence in Mr Kite's statement and I won't go through it, but there is evidence of a caravan portaloo, banners and throughout it at paragraph 11 Dorothy Peterson. Paragraph 21 Steven Stewart. Paragraph - - -
PN389
THE DEPUTY PRESIDENT: I have taken the opportunity of reading that material, as we - as you were speaking, Mr Wood.
PN390
MR WOOD: Yes. All right. Well, I don't think there is anything else I need to say, Deputy President. If the Commission forms its - we would say that the test in relation to conduct is a very low test. We have satisfied that on the material. Whatever the union says about that, there will be a - there still will be a conduct that is capable of being the subject of a notice under section 166A. We might not succeed at trial. We might fail on every ground, but it is capable of being the subject of a notice under section 166A.
PN391
THE DEPUTY PRESIDENT: Mr Wood, do you have anything to say about section 166A(6)(b), substantial injustice? You raised this in your notification.
PN392
MR WOOD: Not - given the way the matter has proceeded today, Commissioner, we think we are on safer ground in relation to subsection (a). We could say something about subsection (b), but the way the matter has developed today, it seems to us that subsection (a) is a better ground for us. The Commission has had experience of this matter. It has been involved in one related application.
PN393
If the Commission is of a view that there is substantial injustice because of the conduct which is alleged to have occurred, or which is capable of being the subject of a notice under section 166A, then we would be happy to have a certificate in relation to - on the grounds of subsection (b), but we think that in the Commission's opinion we cannot see how it is - the Commission could say that it is likely to be able to stop the conduct probably given everything that has gone on in conciliation, and that is all we need to rely on, we would say.
[5.03pm]
PN394
THE DEPUTY PRESIDENT: Thank you, Mr Wood. Mr Bandt.
PN395
MR BANDT: Your Honour, the - before we went into conciliation I made it clear that we understood that we were participating in some discussions and that was without prejudice to our application for an adjournment. Since that conciliation it obviously is going to be with prejudice to our application because unforeshadowed to us Mr Wood has switched feet mid-application and is now relying on the contents of the conciliation to urge the Commission to issue a certificate.
PN396
I also presume, your Honour, that the fact that we are now at the stage where we have had statements tendered and submissions made that your Honour has ruled against us with respect to the submission for the application for the adjournment. It is our submission that with respect to the material that has been provided to your Honour no weight should be given to statements that the person who is submitting them isn't prepared to have the maker of them be able to be cross-examined and subject to being tested, no weight should be given to statements like that.
PN397
The union's submission is that there is - the union and Ms O'Neil's and Ms Peterson's submission is that there is no conduct that is capable of being the subject of an action in tort. The union opposes the making of this certificate to the extent that your Honour hasn't ruled against us on those other applications. I repeat those applications that we made before, and I would also request that Feltex advise the Commission whether it intends to commence proceedings against the union and/or its officials and/or its members either in respect of the action complained of in the certificate or otherwise.
PN398
THE DEPUTY PRESIDENT: Mr Wood. Do you have anything in reply? I would ask you, Mr Wood, one thing, if I could.
PN399
MR WOOD: Yes?
PN400
THE DEPUTY PRESIDENT: Mr Bandt said that no weight should be given to exhibits W1 to W3. What do you have to say about that? Is it appropriate for the Commission to act on such material?
PN401
MR WOOD: Absolutely. It is the equivalent of the type of letter that was approved as a manner of - as sufficient evidence.
PN402
THE DEPUTY PRESIDENT: It is stronger than that, isn't it?
PN403
MR WOOD: It is, it is much stronger than that, and the point of Webb v Jahines is that you don't need cross-examination, you don't need to make a determination about that. You just have to be satisfied that there is some conduct, that there is something there. And we would say you are easily satisfied about that, and you don't have to be satisfied that we are going to prove it tried, you don't have to be satisfied that we are going to get damages, just whether there is conduct capable, and we would say it is - it passes that test.
PN404
THE DEPUTY PRESIDENT: Thank you, Mr Wood. This Commission will adjourn for 20 minutes.
SHORT ADJOURNMENT [5.06pm]
RESUMED [5.29pm]
PN405
THE DEPUTY PRESIDENT: This matter is before the Commission by way of a section 166A notice lodged with the Registrar by Feltex Australia Pty Limited, which seeks a certificate under section 166A subsection 6, subsection (b) of the Act or in the alternative under section 166A subsection 6(a) or section 166A subsection 6(c). The matter was listed today at 1 pm, 8 November for hearing. During the day the matter was adjourned into conference on at least two occasions. The substance of this matter has also been before this Commission in a previous notification under section 166A which was refused.
PN406
During those proceedings an extensive conciliation conference was conducted in an endeavour to resolve the matter. The notifier has tendered material which satisfies me that the TCFUA is engaging in the requisite conduct set out in section 166A subsection (1) consistent with the discussion of conduct within section 166A(1) set out in paragraph 32 of a decision of the full bench of this Commission in CEPU v Transfield Obayashi, a decision of this Commission of 19 April 1999 reported in 94 IR page 1.
PN407
I have also formed the opinion that consistent with section 166A subsection 6A I am not likely to be able to stop the conduct promptly. I will therefore issue the certificate sought by the notifier. Reasons for decision will be published shortly. This matter stands adjourned sine die.
ADJOURNED INDEFINITELY [5.32pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #B1 LETTER FROM SLATER AND GORDON TO FELTEX, DATED 05/11/2001 PN54
EXHIBIT #B2 STATEMENT OF SERVICE PN207
EXHIBIT #B3 APPLICATION FOR ADJOURNMENT DATED 08/11/2001 PN208
EXHIBIT #W1 STATEMENT OF J.L. ANDERSON PN288
EXHIBIT #W2 STATEMENT OF M.J. SHACKLETON PN289
EXHIBIT #W3 STATEMENT OF D.KITE PN290
EXHIBIT #W4 OUTLINE OF ARGUMENT PN304
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