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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 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 1123
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
C2001/5614
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
concerning pickets at the Tottenham,
Braybrook Sites and the Brooklyn
Distribution Centre
MELBOURNE
9.98 AM, MONDAY, 5 NOVEMBER 2001
Continued from 2.11.01
PN203
THE D.PRESIDENT: Any change in appearances?
PN204
MR S. HOWELLS: If the Commission pleases, I now appear with MS WILES on behalf of the Textile, Clothing and Footwear Union of Australia and I seek leave to appear as counsel.
PN205
THE D.PRESIDENT: Thank you, Mr Howells. Any objection?
PN206
MR GARDNER: No, your Honour, and for the sake of the record I should say that I appear with MR KITE. I think I omitted from doing so on Friday when we were before you last.
PN207
THE D.PRESIDENT: Thank you, Mr Gardner. Mr Gardner?
PN208
PN209
MR GARDNER: Mr Kite, could you state your full name and address for the Commission?---Andrew Kite of care of Feltex Australia, 35-65 Paramount Road, Tottenham.
PN210
And what is your position with Feltex?---I am the Human Resources Manager with Feltex Australia. I am responsible mainly for the Braybrook operations but in the absence of my direct manager I am assuming the responsibility from an overall perspective.
PN211
Now, could you just briefly describe for the Commission the Feltex sites which are the subject of this application?---Yes. Feltex Australia has a number of different sites predominantly in the Western suburbs and in fact it is the ones in the Western suburbs which are - where we have the issues at the moment. They are at Somerville Road in Brooklyn which is the National Distribution Centre and that is bounded by Victoria Drive and Somerville Road as I said in Brooklyn. We also have a manufacturing facility in Tottenham which is bounded by Paramount Road and Olympia Street. And we also have another manufacturing facility in Braybrook which is actually spread out over several geographic locations but they are all essentially on the same location. There are some streets that separate some of the buildings.
PN212
Yes. Thank you, Mr Kite. Now, could you provide some background for the Commission to the events leading up to this application.
PN213
MR HOWELLS: Well, I object to this question, if the Commission pleases. I think a general question like provide background unduly prejudices us. We have not been given notice of this material and in applications of this sort - and one understands that from time to time it is necessary to have material given or evidentiary material adduced by a witness in this situation. The difficulty I think is that as I apprehend it we are going to have assertions made about the background and that probably will include observations of a kind that are going to be difficult for us to deal with on the run.
**** ANDREW KITE XN MR GARDNER
PN214
I wonder if I could ask the Commission to require my friend to perhaps direct his questions specifically. The Commission is obviously well appraised of at least some of the background of the matter and to have this witness simply make a narrative speech about it I think is not appropriate and I would ask my friend to perhaps confine himself to specific questions, particularly given that you, sir, have some considerable knowledge of the matter as it is at the moment.
PN215
THE D.PRESIDENT: Mr Gardner?
PN216
MR GARDNER: Your Honour, if I can - this might appease Mr Howells' concerns. This question was going to the nature of the industrial dispute as opposed to any of the conduct as such and I was simply seeking for the witness to provide some background in that respect.
PN217
MR HOWELLS: I think given that - you see the expression "industrial dispute", of course, as the Commission will see appears prolifically in section 166A and assertions about an industrial dispute, of course, constitute assertions of law for the purpose of any application under 166A. And that would create a difficulty I think if we are going to have this witness giving evidence about what constitutes a matter that you at the end of the day, sir, must determine in a judicial manner.
PN218
I think really it is going to be easier all round if my friend just concentrates on asking specific questions of this witness about what he has in his direct knowledge and what he might have seen that would be relevant. The rest of the matters you, sir, can deal with I think probably without much difficulty from the record and on the basis no doubt of submissions that will be made.
PN219
THE D.PRESIDENT: Mr Gardner, these questions are relevant are they or are they not to the matters set out in section 166A(1)?
**** ANDREW KITE XN MR GARDNER
PN220
MR GARDNER: Well yes, your Honour. There is a background to this which comprises - which has already been asserted that there are enterprise negotiations taking place. It is simply that issue which I am attempting to have this question - this witness deal with. It goes to the question, your Honour, of there being an industrial dispute and there being an issue which is capable of being dealt with by the Commission under 166A(1).
PN221
THE D.PRESIDENT: Proceed, Mr Gardner.
PN222
MR GARDNER: Mr Kite?---The company and the TCFUA have been involved in negotiations for a lengthy period of time on the -on an enterprise agreement. The previous enterprise agreement, which was known as the Shore Industries Enterprise Agreement, expired on 1 March 2001. Negotiations or discussions started somewhere in December last year and have continued in some form or another since then and just recently there has been notices of protected industrial action from the TCFUA and also from the company. The negotiations took a more I guess detailed or intensive path somewhere towards the latter part of August where the company was issued with a new log of claims and there was regular meetings between the company and the union. In relation to those claims the union first issued a notification of protected industrial action some three to four weeks ago which involved quite minuscule bans and limitations of which, for example, one was overtime bans. However, in terms of operations many employees continued to work overtime. Ultimately the company was issued with another notice of protected industrial action indicating that employees were to go on strike indefinitely from Wednesday, I think it's the 24th of - - -
PN223
MR HOWELLS: Mr Deputy President, I think this is where we are getting into difficulty. I mean the factual matters perhaps I suppose the Commission is able to receive and they may or may not be helpful. But if we are talking about notices that are issued or what is said to be logs of claims then we are talking about documents which are capable of being produced no doubt and provided to the Commission. This witness' interpretation of what constitutes a notice or what the effect of a notice is is not of assistance to you, sir. You, sir, can make a determination from the documents about what they mean.
**** ANDREW KITE XN MR GARDNER
PN224
As to what constitutes a log of claims, of course, it would appear that this witness' knowledge of that is somewhat limited having regard to the documents that I have seen. I think really he would be better just to concentrate on what it is that he has observed or what it is that he has direct knowledge about and my friend can confine the evidence in that way.
PN225
THE D.PRESIDENT: Mr Howells, are you maintaining that this evidence is not relevant to the matters set out in section 166A(1)? Is it relevant or not in your view?
PN226
MR HOWELLS: No, it is not relevant and it is not relevant because it is not directed to a matter that is in issue between the parties about 166A(1). It doesn't direct itself to the question of any of those matters that are identified there. It is talking about some negotiations that have gone on over a period of time and some notices about intended industrial action. Now, that is -
PN227
MR GARDNER: Your Honour - - -
PN228
MR HOWELLS: I wonder if I just might finish?
PN229
MR GARDNER: Yes.
PN230
MR HOWELLS: If that is all right. I think that the difficulty with it also, if the Commission pleases, is the form in which the evidence is being given. You see, at the end of the day the Commission has to weigh the probative worth of the evidence and, of course, the Commission is not limited in relation to hearsay or to material of that kind. The difficulty is that there comes a point in time at which the evidence is of such doubtful worth that it ought not to be received and that is the point at which - that I am suggesting that we have go to now.
PN231
THE D.PRESIDENT: Mr Howells, are you saying that the material to date put in evidence by Mr Kite is not relevant in relation to the words in relation to conduct by the organisation in contemplation or furtherance of claims that are the subject of an industrial dispute within section 166A(1)? Is that correct?
**** ANDREW KITE XN MR GARDNER
PN232
MR HOWELLS: What I am saying is that some of the material may be relevant to that.
PN233
THE D.PRESIDENT: Some of it may be.
PN234
MR HOWELLS: May be. It is a matter for my friend. But where we have got to now is that we are having the witness talking about what he says was meant by or what correct construction ought to be placed upon notices of intended industrial action. All I am saying, if the Commission pleases, that your Honour doesn't need that. You can form a view of that based on the documents some of which I note have been filed with the Registry.
PN235
THE D.PRESIDENT: Mr Gardner?
PN236
MR GARDNER: My friend is - appeared to accept that the relevant parties are in dispute over terms and conditions of employment that has been the subject of enterprise negotiations - then I am happy to move on.
PN237
MR HOWELLS: I can indicate that I am quite content with the proposition that you, sir, might accept that the TCFUA and Feltex have been in negotiation over matters concerning terms and conditions of employment. As to what has been involved there or what attitude Feltex has been prepared to take or what attitude of obstruction or hindrance it has adopted in relation to those negotiations I make no concession about that. I certainly make no concession about whether or not the negotiations have anything to do with what I presume is about to follow in terms of contentions about conduct and the like. I also make no concession about what claims it is that the negotiations have been made in pursuance of.
PN238
MR GARDNER: Could I ask you this, Mr Kite. There is no issue that there was a lock out of certain employees. Do you recall what date that was?---The company issued - - -
**** ANDREW KITE XN MR GARDNER
PN239
MR HOWELLS: Well again, if the Commission pleases, the difficulty with this is we have got an assertion that there was a lockout. Whether or not there was a lockout is a matter to be determined by you, sir, under the Act. Having this witness make observations about matters of law is not helpful. He can talk about what the company did. For example, he could say look, the company told people not to come to work and I could have no objection to that. But it is the - my friend is not helping the witness by asking questions in that form.
PN240
THE D.PRESIDENT: Mr Howells, you will have the opportunity to deal with any inadequacies of the evidence put by Mr Kite. You will have the opportunity to lead evidence of your own. Mr Gardner is currently leading evidence relating to matters which he says is relevant to section 166A(1) and the use of colloquial terms such as lockout are fully consistent with practice of this Commission.
PN241
MR HOWELLS: As your Honour pleases. I simply make the objection because we don't want at a later stage to have been said to have acquiesced in material which we say is objectionable. I understand what your Honour is saying.
PN242
THE D.PRESIDENT: Mr Howells, if you have difficulties with the evidence in terms of its inadequacy in relation to the functions as set out in the Act that we are required to perform today you will have full opportunity to put - lead evidence of your own and to put submissions as to that inadequacy. Mr Gardner?
PN243
MR GARDNER: Yes. Mr Kite, do you recall when that took place?---The company issued a notice to employees intention of locking out employees from the Tottenham and National site and the National Distribution site in response to the industrial action in the way of strike that was being applied to the - to those two sites and also the Braybrook site. That notice was issued to employees on Monday last week and it was effective as of the first afternoon shift of that day so effectively 3 o'clock on that Monday - pm.
PN244
Yes, thank you. Now, on Monday 29 October can you describe what happened at the Tottenham site?---In the - during the day there were a couple of - or two contractor delivery trucks which contained raw materials which were required to be delivered to the Braybrook factory. They both tried to exit out of the - - -
**** ANDREW KITE XN MR GARDNER
PN245
MR HOWELLS: Mr Commissioner, I really must object at this stage. This witness has not been asked whether he was present, whether he saw it, what he knew about it or whether he is talking about what was reported to him. That, on any view, would be quite objectionable and ought not to be received unless my friend properly qualifies the witness. I mean, that really would be a fundamental problem with the material and it is so simple to do it. He could simply say well, what are you talking about, something that you knew that you were present at or were you told about it. We are seriously prejudiced if that if able to go on.
PN246
MR GARDNER: I am - - -
PN247
THE D.PRESIDENT: Mr Gardner, could you - can you perhaps satisfy Mr Howells.
PN248
MR GARDNER: Yes. This particular event you are talking about how are you aware of it?---I was advised of these events by the owner of the contract trucks.
PN249
And when did that take place?---On the Monday.
PN250
And - - -
PN251
THE D.PRESIDENT: This is Monday the 29th of October?---Yes. Yes, it is.
PN252
MR GARDNER: And what were you advised?---I was advised that the two - by the - - -
**** ANDREW KITE XN MR GARDNER
PN253
Yes. And who was this individual?---The individual's name is Ken Richards. He owns the company K and M Transport which we contract to perform a multitude of different types of delivery whether it be raw materials or completed rolls of carpet or so on from many of our locations. In between sites and also to distribution centres and the like. He advised me that two of his trucks tried to leave the Tottenham site via the Olympia Street exit and were prevented from doing so by a group of picketers who formed a human barrier which prevented him from removing those two trucks from the site. The two trucks were then returned back to the building from where they came and an attempt was made - - -
PN254
Which building was that?---It was the - it's the twisting and heat setting building at Tottenham. It's - - -
PN255
THE D.PRESIDENT: I beg your pardon?---It's known as the twisting and heat setting building at Tottenham. It's one of our manufacturing locations where raw material was produced. Those two trucks were then sent to the Paramount Road exit to leave where again there were a group of picketers. One of the trucks managed to get out of the Paramount Road exit while the other was unable to because of again a human blockade. That truck was then returned to the twisting and heat setting building. A little bit later that truck was - it was arranged to use another exit that is never used for exiting the site by these trucks entering onto another public road called Sredna Street. Security personnel opened the gate very quickly and the truck drove out so it was able to escape and after that two vehicles were parked across the gate at Sredna Street blocking that exit.
PN256
All right. Now, on Tuesday 30 October at approximately 6.30 am are you aware of an incident at the National Distribution Centre?---Yes, I am aware of that. I was in fact - - -
PN257
MR HOWELLS: Well, I object again, if the Commission pleases. This is not in a proper form. We have no idea who it is that is actually said to have been the source of this material or what might have been said to have occurred and I object to it in the strongest terms, if the Commission please.
**** ANDREW KITE XN MR GARDNER
PN258
THE D.PRESIDENT: Mr Gardner, can you deal with those issues.
PN259
MR GARDNER: Did you witness this incident?---I was at the National Distribution Centre at about 6.30 am on the Tuesday morning. Yes.
PN260
And what did you see?---There is a gate with a very small driveway leading onto the road at the distribution centre. There were perhaps 20 or so people gathered at that gate. There was also two cars parked in front of that gate in the driveway itself and a further car parked on the roadside parallel to the other two cars preventing any access or exit from the distribution centre whatsoever. I was there and saw the manager of that location, Mr John Shackleton, try to enter the premises and being unable to do so because of the cars and the picketers.
PN261
When you say picketers what did you see?---I saw several employees and numerous non-employees all blockading or blocking the main entry into the distribution centre as well as the two cars parked parallel and a third car parked parallel to that.
PN262
Could you identify anyone in particular?---I can identify three people that I know were at that picket. They would be Stephen Stewart who was a shop steward, one of our employees at the distribution centre. Dorothy Peterson who is an organiser from the TCFUA and in fact it was one of her - it was - her car was one of the cars blockading the driveway. And another shop steward at Tottenham was there the name of Edgar Fernando.
PN263
Yes. Now, were you at the National Distribution Centre later that afternoon?---No, I was not.
PN264
Well, have you observed anything unusual at the National Distribution Centre or particularly to the entry or exit to Somerville Road?---Yes. During the day - and we believe around midday - a large concrete barrier the type which would - you would normally find in a median strip separating two opposing lanes of traffic - was placed hard up against the gate at the distribution centre probably - definitely blocking the entire entrance from any vehicle larger than a medium car.
**** ANDREW KITE XN MR GARDNER
PN265
Yes. If I could show you this photograph?---Yes.
PN266
Do you happen to know who took this photograph?---This photo was taken by a surveillance camera that is within the distribution centre.
PN267
Right. And what do you say the photo depicts?---This photo depicts the entrance and exit, the main entrance and exit from the distribution centre out onto Somerville Road. It shows the concrete block which has been placed in front of the gate preventing any vehicle - large vehicles - entering and exiting that site and also obviously there are picketers there as well.
PN268
All right. Well, I wish to mark that.
PN269
THE D.PRESIDENT: Do you wish to tender this as an exhibit, Mr Gardner?
PN270
MR GARDNER: Yes.
PN271
MR HOWELLS: I object to the tender, if the Commission pleases.
PN272
THE D.PRESIDENT: On what grounds, Mr Howells?
PN273
MR HOWELLS: If the Commission pleases, it is not clear from this witness how it is that he says he knows this photograph was taken by a surveillance camera. There is - the quality of the photograph is doubtful. He has not identified anything in it which could be relevant in a way that directs the Commission's attention to what is in it. He has made some assertions about it. He doesn't identify what it is that he says is contained there. He has purported to make some identification of people and there is simply no basis for it.
**** ANDREW KITE XN MR GARDNER
PN274
THE D.PRESIDENT: Mr Gardner?
PN275
MR GARDNER: Your Honour, the witness has said that it comes from a surveillance camera. That is the first point. Second, what he has done has said that that is the concrete to which he is referring to. That is a photo of it and it stands, your Honour, for no more than that. And if my friend has an issue with the probative nature of that well he can make submissions about that. But I fail to see that it is a basis of objection. He has identified its source and he has explained what he says it is.
PN276
THE D.PRESIDENT: Mr Howells - - -
PN277
MR HOWELLS: Yes, your Honour.
PN278
THE D.PRESIDENT: - - - Mr Gardner has said that - - -
PN279
MR HOWELLS: Yes, and I don't have any reply other than to say I press the submission and the objection that I make, if the Commission pleases. It is not admissible in that form.
PN280
MR GARDNER: Again perhaps if it could be - the issue could be left - the issue could be left to one of weight put to it. But we say it is admissible. The witness has described what this is a photo of. Now, if the other side want to challenge that they can.
[9.36am]
PN281
THE DEPUTY PRESIDENT: Can you assist Mr Howells in relation to his question about whether it is - to the effect that it is not clear where it came from.
**** ANDREW KITE XN MR GARDNER
PN282
MR GARDNER: Well, Mr Kite, can you provide some more detail please of where this photo came from?---Yes. Firstly, I have seen this block and it is there. This photo is taken from a 24-hour surveillance system which takes digital stills at a fairly rapid rate, several a second, and is all held on - digitally. This information was extracted from that system yesterday and saved as an image file and is date-stamped completely as to when that photo itself was taken as at 31.10.2001 1723 and 47 seconds, and that is completely recorded from that particular system. It actually takes the photo in colour and stores it in colour.
PN283
MR HOWELLS: If the Commission pleases, that actually makes the matter worse. This witness doesn't know how any of that happened, is not responsible for it, doesn't operate the equipment and can't even attest satisfactorily to the date upon which it is taken. Bear in mind, of course, there are all the other deficiencies with what on earth it is that this is said to be relevant to. It is not only inadmissible in terms of its form, if the Commission pleases, it is not even established what the relevance is.
PN284
THE DEPUTY PRESIDENT: Mr Gardner, in what way do you say this material is relevant?
PN285
MR GARDNER: This material is relevant because it points to an obstruction at one of the entry points to one of the premises of the applicant. That is why it is relevant.
PN286
THE DEPUTY PRESIDENT: Does it add anything to the evidence given by Mr Kite?
PN287
MR GARDNER: Well, we would be content with the evidence of Mr Kite, your Honour. We don't need the photograph.
PN288
THE DEPUTY PRESIDENT: Thank you, Mr Gardner; the photograph will not be admitted on that basis.
**** ANDREW KITE XN MR GARDNER
PN289
MR GARDNER: Mr Kite, can I jump ahead please to yesterday, 4 November. You were at the distribution centre yesterday?---Yes.
PN290
Can I ask you what happened yesterday?---Yesterday?
PN291
What did you see, Mr Kite?---What I - yesterday, a truck driven by one of our employees was taken to the distribution centre in order to pick up some finished product to take it elsewhere. I was in a vehicle following that truck. That truck was driven from Somerville Road, heading in an easterly direction, turned left into Victoria Drive and proceeded to position itself so that it could reverse into one of the roller doors in the distribution centre. When that happened, a number of people who were at the distribution centre came up to the truck and stood behind it between the back of the truck and the roller door. When the roller door was lifted, I personally asked those people to move - - -
PN292
I will just stop you there. When you say people, what do you mean by that?---These people were - consisted of at least two employees and some additional people I could not identify.
PN293
Yes. And what were the people doing?---They were preventing the truck from reversing into the distribution centre.
PN294
How are they doing that?---By standing at the back of the truck between it and the roller door and refusing to move when asked to do so.
PN295
Who asked them to move?---I asked them to move.
PN296
What did you say?---I said to them, "Please move aside and allow this truck to enter the distribution centre. You are involved in unlawful action and you are preventing this truck from going about its business."
**** ANDREW KITE XN MR GARDNER
PN297
Was there any response to that?---The only responses that I recall were, "Well, it is also" - something along of the lines of "It is also illegal to back over people or to hurt people."
PN298
So what then happened with the truck?---That truck could then not enter the distribution centre and was returned back to Braybrook.
PN299
And what was the impact of not being able to move that truck?---We were unable to pick up some completed rolls of carpet which are required by our customers, so they remain unable to be delivered.
PN300
Very well. Can I show you this; what is this, Mr Kite?---This is an image from a video camera that was taken yesterday afternoon which shows the truck on the left which is - - -
PN301
Before you go on, do you know who took this?---This video footage was taken by Jenny Anderson, who is another Human Resources Manager with Feltex.
PN302
How did you get your hands on this photo?---Sorry?
PN303
How did you get your hands on this image?---This image was taken directly off the video camera and saved in a format which could then be printed. That was done by myself.
PN304
All right. Are you in this photo?---Yes, I am the person - - -
PN305
Where do you say you are?---The person on the right.
PN306
Can you be a bit more particular?---I am the person on the right with their arm behind their back. It is actually a black shirt. If you want me to identify by pointing to you, I will. This one; that is me.
**** ANDREW KITE XN MR GARDNER
PN307
And what does the photo show?---The photo shows the attempts that we - - -
PN308
MR HOWELLS: Well, I object to this. The photograph, if it is admissible, which it isn't, again for the same reasons that the other photograph is not admissible, is it speaks for itself. This witness can't interpret the photograph. He can simply identify himself, which is the best he seems to be able to do.
PN309
MR GARDNER: Well, he has also pointed to the fact that the photo was taken during the incident which occurred yesterday.
PN310
THE DEPUTY PRESIDENT: In what way, Mr Gardner, is this image relevant to the matters set out in 166A(1)?
PN311
MR GARDNER: I am content to leave the matter, your Honour.
PN312
THE DEPUTY PRESIDENT: You are not pressing its admission?
PN313
MR GARDNER: I won't press it.
PN314
All right, thanks, Mr Kite, that was yesterday. Can I take you back to the afternoon of Tuesday last at Braybrook. Did you see or did you hear of any relevant incident?---I was at Braybrook on Tuesday afternoon and witnessed and saw a situation where a truck was trying to leave the Braybook premises via the Breen Street exit. That truck was prevented from doing so by a group of people who surrounded the truck and pushed against it while it was trying to inch its way out. We also had the situation - - -
PN315
When you say - I am sorry to interrupt you - a group of people, who were these people?---A number of people. Some of them were identifiable as employees.
**** ANDREW KITE XN MR GARDNER
PN316
Yes. Are you able to name them in particular?---At that particular occasion - we have had numerous of these occasions, I am trying to pick exactly which one that was.
PN317
Yes or no; if you can't, you can't?---No, not off the top of my head, not right now.
PN318
All right. And the vehicle that you speak of, the truck, what was it carrying?---That truck was carrying completed rolls of carpet which were ready to be delivered either to a separate distribution centre or to a customer.
PN319
Yes, all right.
PN320
THE DEPUTY PRESIDENT: What was the date of this alleged incident?
PN321
MR GARDNER: This was 30 October. Can I move to Wednesday, Mr Kite?---Yes.
PN322
Are you aware of an incident at the Tottenham site on Wednesday morning?---Yes.
PN323
How are you aware of - - -?---I am aware of an incident that occurred at Tottenham through a direct report from Jenny Anderson, who is the Human Resources Manager, who also took video footage of an incident that morning.
PN324
Yes. And as describe to you, what was that incident?---In that incident a truck was trying to leave via the Olympia Street exit. That truck was prevented from doing so by people standing in front of it, refusing to move even though they were requested to do so.
**** ANDREW KITE XN MR GARDNER
PN325
Well, do you know who requested them to do so?---Jenny Anderson requested them to do so.
PN326
And these people, who were they?---They were employees, and then a car was brought from the side street and parked in front of the truck to prevent it from leaving.
PN327
All right. Are you aware of any incidents at Braybrook on that same day?---Yes, there were several incidents on that day where trucks were leaving via the Breen Street - - -
PN328
MR HOWELLS: Again, I wonder, Mr Deputy President, whether we - I don't know that the witness is talking about what he saw or whether it is again a repetition of something he might have been told.
PN329
MR GARDNER: Yes, well, he will come to that.
PN330
THE DEPUTY PRESIDENT: Mr Gardner.
PN331
MR GARDNER: He was answering the question.
PN332
Well, if I take you to whatever you say is the first incident, how are you aware of it?---The first incident, I am aware of it from two sources; firstly, from reports from Neville Giles, who is the plant manager at - covering of manufacturing sites of Feltex in Australia, and also from surveillance footage taken of the incident.
PN333
Which you have seen?---The incident which - the first occasion a truck tried to leave the Breen Street exit and was surrounded by a group of predominantly employees who stopped it from leaving the site, and including I think at least one person sitting in front of it.
**** ANDREW KITE XN MR GARDNER
PN334
And do you know where that truck was going or what its - - -?---That carpet - again contained completed rolls of carpet to be distributed to a storage location or to customers.
PN335
Yes. Now, Mr Kite, are there any other incidences which you have witnessed on any of the sites?---On that day?
PN336
Yes, on that day?---There are two other incidents I am aware of at Braybrook on that day.
PN337
Yes, but you didn't - - -
PN338
MR HOWELLS: I think the question of the witness was whether he had witnessed anything further and he is now wanting to traverse into an area that appears to be directed to things that he might have been told rather than witnessed.
PN339
MR GARDNER: Well, the other incidents at Braybrook which you have heard about, what did you hear? What were you told and by whom?---There is two further incidences at Braybrook that I did not directly witness, but have had reports - direct reports from Neville Giles and again have seen video footage of the exact incident where two trucks - on the first occasion a truck was surrounded by a group of people, predominantly employees, with the intent - which prevented it from leaving. And in the afternoon, again a report from Neville Giles and I have seen the surveillance video, a truck was trying to leave the Breen Street exit and a group of perhaps 15 to 20 employees actually sat directly on the driveway so that the truck could not get past.
**** ANDREW KITE XN MR GARDNER
PN340
All right. On last Thursday, 1 November, are you aware of any incidents and if so, how?---On Thursday morning, and this was reported to me by Ken Richards, the owner of K and M Transport, that two trucks which were in Tottenham and have been - or had been in the Tottenham factory since Tuesday and had been unable to leave, tried to leave at - I think it was between half-past-four and 5 o'clock in the morning through a little-used exit, but their attempts to do that were unsuccessful because a car was parked directly in front of the roller - in front of the gate, so those trucks were unable to be exited.
PN341
Right. Now, approximately 6 am at Braybrook, are you aware of any incident which took place there?---Yes. I am aware of an incident at Braybrook.
PN342
Yes. Well, could you state how for Mr Howells?---Yes. I have had a report from Mr Stan Kent, who is a supervisor in our tufting building at Braybrook, and also seen video footage whereby - and I have also had a report of the same incident by Peter McKenny, who is the manager of the dye house.
PN343
THE DEPUTY PRESIDENT: I am sorry?---Peter McKenny from the dye house. The dye house and the tufting buildings are on a separate block of land which have only two entrances, one being Carruthers Street and the other being Ashley Street.
PN344
How do you spell McKenny?---I am always getting into trouble for this at work. It is M-c-K-e-n-n-y.
PN345
Thank you.
PN346
MR GARDNER: Yes. And what was the effect of that?---Employees were sitting across the driveway at the Ashley Street entrance and were unable - and block the driveway which prevented employees bringing their vehicles into work - - -
**** ANDREW KITE XN MR GARDNER
PN347
MR HOWELLS: I object to this. We are really now traversing, if the Commission pleases, into mere speculation. Number one, we are talking about second or even third hearsay. We don't know who it is that told Stan or Ken or Neville or any of these people any of the things that are being spoken of, and then to have interpretative material about what was done and why it was done really traverses into this witness giving evidence about the state of mind of other persons, so there are at least three objections to this evidence and its admissibility. It really makes it of so little probative value, if the Commission pleases, and so hopeless prejudicial that it oughtn't to be received in this form.
PN348
I know where my friend is heading, and so does the Commission; he wants some evidence about what he says is going on. Well, he has dealt with that. He has given apparently the best evidence this witness can give about what he has actually seen. To traverse into this other material raises a question about whether it really assists the Commission or is more likely to prejudice the Commission's processes.
PN349
THE DEPUTY PRESIDENT: Mr Gardner, Mr Howells has raised a number of issues, including whether this is first-hand hearsay, second-hand hearsay.
PN350
MR GARDNER: Yes. Mr Kite, was any more - if you could just confine your evidence as to what was described to you?---Stan Kent reported to me directly that he was unable to enter the Ashley Street entrance - - -
PN351
Sorry, who is Stan Kent?---Stan Kent is the supervisor of the tufting mechanics section. He reported to me that he was unable to drive his vehicle into Ashley Street because people, which involved employees, were sitting on the footpath and driveway and preventing him to get his vehicle through the gate, and he indicated to me that he asked them to move and they didn't.
PN352
Thank you.
**** ANDREW KITE XN MR GARDNER
PN353
THE DEPUTY PRESIDENT: I think one of the issues raised was whether this is first-hand hearsay, second-hand hearsay or the like. Now, whether you deal with that issue or not is a matter entirely for you, but it is, of course, relevant to probative value.
PN354
MR GARDNER: Well, as I understood - - -
PN355
THE DEPUTY PRESIDENT: The issue is did Mr Kent see this incident himself or not or is he acting on reports of others? What is the basis of his knowledge? We now know the basis of Mr Kite's knowledge, a report from Mr Kent.
PN356
MR GARDNER: Yes.
PN357
THE DEPUTY PRESIDENT: We don't know the basis of Mr Kent's knowledge.
PN358
MR GARDNER: Mr Kite, could you answer that question?---Mr Kent actually tried to enter the Ashley Street entrance himself. He was reporting on what actually happened to him.
PN359
All right. Mr Kite, have you had any - seen or are you aware of any incidents which took place on Friday, 2 November?---I am aware of one incident that occurred Friday afternoon.
PN360
And how are you aware of it?---From a direct report from Neville Giles, who is the General Manager of Manufacturing in Australia, who saw a truck being prevented from entering and I have seen video evidence of this.
PN361
So can you describe - - -
**** ANDREW KITE XN MR GARDNER
PN362
MR HOWELLS: Your Honour, the difficulty is descriptions again of what is in any event hearsay material are not going to assist the Commission. My friend has got some material that no doubt he says he can rely on to have it, but to persist in having these second and third-hand reports described in the imperfect way in which they are being described, is not assisting the Commission. I have been very patient about this. In the ordinary course, one might make an application that the material simply be excluded.
PN363
Now, of course the Commission knows how to weigh evidence and determine probative worth, but we are just descending into recitation as the witness learns what he perceives to be the requirements of the evidence as a result of listening to me make objection and you, sir, attempt to assist my friend at least to understand what he has got to do, and my friend then to try and explain to the witness what he has got to do and then me have to reply to that. It is not helping the Commission, if the Commission pleases.
PN364
THE DEPUTY PRESIDENT: Yes. Mr Howells, I wasn't attempting to assist Mr Gardner, I was attempting to ascertain the basis on which the evidence was being led.
PN365
MR HOWELLS: I understand what your Honour says about that. I didn't intend that remark to be somehow a suggestion that Mr Gardner was receiving assistance that he oughtn't to receive. What I am simply saying is that your Honour did identify for him, because he appeared not to have understood, what the deficiencies were or what the potential deficiencies were, and he has attempted to correct that by dealing with it with the witness. The witness is struggling to understand what it is that is the problem and we have a melange of evidence, if the Commission pleases, which is just not helpful and it leads the Commission - it tempts the Commission to fall into error in relying upon material which could have been put in the appropriate form.
**** ANDREW KITE XN MR GARDNER
PN366
Now, on one view of it, if the Commission pleases, unless we have got other direct evidence from this witness, then it can't get any better than it is in the sense that we have got his account and presumably we have got his most recent account of his direct knowledge which apparently is said to have occurred yesterday. To have a recitation of what he might have had reported to him on Friday, with respect, doesn't improve his position at all and it just makes life difficult for the Commission and it certainly prejudices my client. I would ask my friend to desist unless he has something better.
PN367
THE DEPUTY PRESIDENT: Mr Gardner.
PN368
MR GARDNER: There are some incidents which Mr Kite has seen directly which we have covered, and there are others which are by way of hearsay evidence. I can't put it any higher than that, your Honour.
PN369
THE DEPUTY PRESIDENT: We have to be clear about the basis on which evidence is relevant, and relevant evidence is within the knowledge of the witness and how it is sought to be put - - -
PN370
MR GARDNER: Yes.
PN371
THE DEPUTY PRESIDENT: - - - otherwise we are not able to use that evidence or it is of no assistance to our task under section 166A(1). Now, you were in the middle of leading evidence in relation to an alleged incident on 2 November.
PN372
MR GARDNER: Yes, and that is an incident which has been merely described to Mr Kite.
PN373
THE DEPUTY PRESIDENT: Perhaps if you could start again, Mr Gardner, dealing with all the issues raised by Mr Howells, including the basis of the knowledge of Mr Giles and the like.
**** ANDREW KITE XN MR GARDNER
PN374
MR GARDNER: Mr Kite, you explained to the Commission that Mr Giles conveyed to you a description of events of 2 November?---Yes.
PN375
What do you understand to be the basis of Mr Giles' knowledge?---Mr Giles has an office which directly looks over the entrance where he is based and he advised me that he saw the truck try to enter the Breen Street entrance and it was prevented by picketers. He then showed me video evidence which showed directly that.
[10.07am]
PN376
THE DEPUTY PRESIDENT: Mr Gardner, do you intend to lead evidence as to when this conversation or conversations took place?
PN377
MR GARDNER: Yes, your Honour. When was this conveyed to you, Mr Kite?---The first time it was conveyed to me was during a break during the Commission proceedings last Friday when - - -
PN378
Right, and how was it conveyed?---Over the phone. I spoke to Mr Giles and he advised me that a vehicle had been prevented from entering. I saw Mr Giles on Saturday. He provided me further detail and showed me the video that showed exactly as it happened and as he had described it to me.
PN379
Mr Kite, you have provided some description, either directly or indirectly, of the inability to move vehicles. Are you able to describe, based on your understanding, what the impact of that is on the business?---Yes. The national distribution centre holds all the finished carpet that we make which is distributed locally and nationally to both small and large retailers, as well as commercial construction sites where our carpet is required. We have been unable to move any carpet from that location the entire period of last week. My understanding on the cost impact from Ray Bennetts who is the General Manager of Operations, Australia and New Zealand, for Feltex and is, in fact, a qualified accountant, is the impact of that is around $200,000 a day.
**** ANDREW KITE XN MR GARDNER
PN380
Yes, I have no further questions.
PN381
PN382
MR HOWELLS: How long have you worked for Shaw or Feltex, Mr Kite?---I commenced with the company on the - in March 1996.
PN383
And you are a human resources officer of some sort, are you; is that what you do?---Yes, Human Resources Manager.
PN384
Are you aware of what the company's attitude is towards negotiating about terms and conditions with the union?---Yes. Sorry, the - - -
PN385
MR GARDNER: Sir, I am not sure how that - I am not sure how the attitude of the company towards negotiations is relevant.
PN386
MR HOWELLS: Highly relevant, if the Commission pleases. My friend led it. He led evidence about attitude, if the Commission pleases, and it was evident from conduct. Now, I am entitled to ask this witness about that for that reason. I am also entitled to - when one looks at 166A, it is clearly relevant if the attitude of the company is one of antipathy to negotiation; clearly relevant if its attitude is one of obstruction. And this witness is brought as the only witness on behalf of the company, and he is said to be the human resources officer or an officer of that kind. Clearly those things are within his knowledge.
PN387
THE DEPUTY PRESIDENT: Proceed, Mr Howells.
PN388
MR HOWELLS: Thank you, sir. What is the attitude of the company to being prepared to negotiate terms and conditions of employment with the union at the moment, Mr Kite?---The company's view is that it is willing to negotiate a fair and reasonable enterprise agreement.
**** ANDREW KITE XXN MR HOWELLS
PN389
Yes, and it is prepared to do that today?---It is always prepared to do that.
PN390
And how is the relevant officer to negotiate on behalf of the company about those matters, Mr Kite?---It involves more than one individual.
PN391
Yes. Well, who does it include, Mr Kite?---In terms of the group of people that have been involved in direct face to face negotiations, it would include myself, Neville Giles, John Shackleton who is the manager of the distribution centre, Barry Grigg who is the general manager for human resources when he is at work, he is currently - has an illness. Ray Bennetts has been involved who is the general manager of operations, Australia and New Zealand.
PN392
Who makes the decisions as to what can be allowed by way of agreement, Mr Kite, by way of agreement to terms and conditions matters; who makes the final decision about that?---The final decision would be made by the - that would depend on the nature of the issues, I would imagine.
PN393
Well, just suppose it was a matter concerning an enterprise bargain; just suppose it was that, who would make the final decision about that?---Well, there are many components in enterprise bargaining. Some of those decisions are made very rapidly by people on the situation.
PN394
Come on, Mr Kite. Who has authority at the end of the day to approve, for example, a pay increase; who has final authority to approve that?---That would be the Board of Directors.
PN395
Yes, and who on the Board of Directors would you deal with in relation to a matter like that?---The CEO.
PN396
Yes, and who is the CEO, what is his name?---His name is Sam Magill.
**** ANDREW KITE XXN MR HOWELLS
PN397
Right. Is Mr Magill, to your knowledge, prepared to enter into negotiations about an enterprise agreement with the union as of today?---Mr Magill - I can't answer in terms of Mr Magill directly on that issue.
PN398
Do you have any reason to suppose that he wouldn't be prepared to?---The view that he has expressed is that he is not supporting negotiation while industrial action is in place.
PN399
Right, and does he know about the notion of protected action, to your knowledge; is that something that you have discussed with him?---It is - the notion of protected action?
PN400
Yes?---Yes.
PN401
Does he say he is prepared to negotiate while protected action isn't being undertaken?---That is not the words he used with me.
PN402
No. What words did he use with you?---The words that were used were that he was not prepared to negotiate while employees were on strike.
PN403
Regardless of whether that was protected action or not; is that right?---I didn't enter - - -
PN404
That must be the presumption, must not it, Mr Kite?---If - it is up to you to work that out.
PN405
It must be the presumption. It is your presumption, isn't it?---No.
PN406
No?---No.
**** ANDREW KITE XXN MR HOWELLS
PN407
You don't know what he thought; is that what you are saying?---I am not saying - well, I never know exactly what anybody thinks.
PN408
No, but you have been giving a lot of evidence about what you think people think this morning though, haven't you?---
PN409
Now, Mr Kite, you also know that Mr - what is the name of the CEO again, Mr Sam - - -?---Magill.
PN410
Magill. Mr Magill also told you, didn't he, and has told you over the past twelve months that he wishes to discourage union involvement at the workplace, hasn't he?---No.
PN411
Other members of the Board of Directors have said that to you, haven't they?---No.
PN412
And it is your view, isn't it, that you wish to discourage union involvement at the workplace, isn't it?---No.
PN413
Are you sure about that?---Yes.
PN414
Not the attitude of the parent company?---No.
PN415
No. No knowledge of any matter of that kind or attitude of that kind?---No.
PN416
Now, have you also had managers speak to employees about the desirability of them returning to work?---
**** ANDREW KITE XXN MR HOWELLS
PN417
Have you instructed managers or supervisors to speak to employees and encourage them to return to work?---I haven't personally.
PN418
Have you got any knowledge of that, Mr Kite?---I have knowledge that in general terms we are encouraging people who wish to work to work, yes.
PN419
So you have got managers and supervisors encouraging people to do that; is that right?---We have a general view that we are encouraging employees to return to work.
PN420
Now, Mr Kite, did you visit any site other than the national distribution centre yesterday, that is on Sunday?---Yes.
PN421
Which sites did you visit?---Braybrook.
PN422
You are aware that trucks went in and out of Braybrook yesterday, aren't you?---I am aware one truck left Braybrook.
PN423
Yes. Unimpeded, that is right, isn't it?---It was unimpeded.
PN424
Yes. Did you go to any other sites?---No.
PN425
No. You are aware, aren't you, that trucks went in and out of Tottenham?---No.
PN426
No. You are aware that employees walked in and out of Tottenham yesterday; no?---Not aware of that.
PN427
No, I see. Did you go to any other sites?---Just only three.
**** ANDREW KITE XXN MR HOWELLS
PN428
Yes. You didn't go to any other place other than the ones - the two that you have mentioned, is that right?---That is correct.
PN429
And did you go to any sites this morning?---No.
PN430
No, I see. Nothing further, if the Commission pleases.
PN431
THE DEPUTY PRESIDENT: Thank you, Mr Howells. Any re-examination, Mr Gardner?
PN432
MR GARDNER: No, your Honour.
PN433
PN434
THE DEPUTY PRESIDENT: Mr Gardner.
PN435
MR GARDNER: Your Honour, if I could take the Commission to - we don't seek to call any further witnesses, your Honour. I don't know if the other side has any witnesses.
PN436
MR HOWELLS: I wonder if my friend could indicate whether he is closing his case. In the ordinary course, call me old fashioned, but in the ordinary course he closes his case and then we deal with what we deal with, if the Commission pleases.
PN437
THE DEPUTY PRESIDENT: Of course, Mr Howells.
PN438
MR GARDNER: Yes, well, we do close our case.
PN439
MR HOWELLS: I am obliged to my friend. I wonder if I could hand an affidavit to the Commission, please. Could I have those back? Actually, I am sorry, I have got the draft copy. I am sorry, I have done it again. I have handed your Honour the copy. Could I hand an original, if the Commission pleases. And I have provided two copies, your Honour, for the Commission's record. This is an affidavit that I seek to rely on of Vivian Lee Wiles. You will see, sir, that she has deposed to the fact that she is a union secretary and I think that should be corrected, it should be a union industrial officer, if the Commission pleases. I don't know whether my friend seeks to - whether we need to have that attested to. We can correct the affidavit in due course, but she is an industrial officer.
PN440
Save for where otherwise stated, she says she makes this affidavit from her own knowledge and belief. And where in the affidavit she deposes to a fact based on information from other people, she believes the information to be true and correct. So there is a normal averment as to the reliability of the material. She says, as you will see in paragraph 2:
PN441
I am employed as an industrial officer with the Textile, Clothing and Footwear Union of Australia ...(reads)... on the morning of 5 November 2001 -
PN442
that is this morning, if the Commission pleases -
PN443
I visited each of the following sites of Feltex Proprietary Limited ...(reads)... referred to as the sites. At 6.20 -
PN444
she says in paragraph 4 -
PN445
I visited Paramount Road entrance to the Tottenham site. At this gate I observed ...(reads)... no vehicles had entered or exited the site during the course of the morning up until the time of my arrival.
PN446
And that is the material. If the Commission pleases, that is the material upon which we intend to rely. It is a search that has been - a thorough reconnoitre that has been done this morning of those sites and those entrances, and we have no further material upon which we seek to rely. I wonder if I could ask the Commission simply to mark that affidavit.
PN447
THE DEPUTY PRESIDENT: You are not calling this witness; you are tendering it as a - - -
PN448
MR HOWELLS: No, sir, I just - - -
PN449
THE DEPUTY PRESIDENT: - - - as an exhibit.
PN450
PN451
THE DEPUTY PRESIDENT: Do you have any - - -
PN452
MR GARDNER: Your Honour, I wonder if I could - this has been handed to me this morning. I don't - - -
PN453
THE DEPUTY PRESIDENT: I beg your pardon.
PN454
MR GARDNER: This has been handed to me just now and I make no criticism of the other side for that, but I am wondering if I could have ten minutes or so to - - -
PN455
MR HOWELLS: Well, your Honour, with respect, this really is not acceptable. We have been provided with viva voce evidence about which we had no notice and in a form which really left a lot to be desired, if I can say with respect, and not done in the normal way, if the Commission pleases. Now, I have attempted, because I know the Commission needs to deal with these things expeditiously, I have attempted to deal with that material on the run and the idea of - I mean, I could have stopped and said: Oh, I need an adjournment to listen to all of this and hear about it, and go and get instructions, and all the rest of it. And sometimes those sorts of approaches are adopted.
PN456
We have not adopted that approach and we don't seek to stand in the way of the Commission dealing with matters in an appropriate way. For my friend to say that with, you know, quite frankly, a 2_ page affidavit about matters that are patently apparent, transparent on their face, is really not tolerable and I would urge the Commission to ask my friend just to get on with his submissions in the circumstances. I mean, I understand the Commission is always concerned to make sure that people are given a proper opportunity and so on, and that is, of course, one of the fundamental principles that governs the way the Commission deals with matters but really, I mean, unless my friend has got some serious problem with it, he really ought to proceed.
PN457
THE DEPUTY PRESIDENT: Mr Gardner, what do you say to that?
PN458
MR GARDNER: Is the witness here?
PN459
MR HOWELLS: The deponent is here.
PN460
MR GARDNER: Yes. Well, I wonder if I could take the opportunity to cross-examine that witness.
PN461
THE DEPUTY PRESIDENT: I beg your pardon.
PN462
MR GARDNER: I will take the opportunity to cross-examine that witness.
PN463
THE DEPUTY PRESIDENT: You are not pressing your application for an adjournment?
PN464
MR GARDNER: No, your Honour.
PN465
THE DEPUTY PRESIDENT: And you wish to call this witness?
PN466
MR GARDNER: Yes.
PN467
THE DEPUTY PRESIDENT: For cross-examination?
PN468
MR GARDNER: Yes.
PN469
THE DEPUTY PRESIDENT: The witness is present?
PN470
MR HOWELLS: She is, but I wonder if - ask if my friend could explain in relation to what. It is difficult to see how there could be cross-examination of an affidavit of this kind.
PN471
THE DEPUTY PRESIDENT: Mr Gardner.
PN472
MR GARDNER: Well, there are references to caravans and portable toilets and other things, and I seek to explore that with the witness, explore her knowledge about this.
PN473
THE DEPUTY PRESIDENT: The witness is present in the room, is she - - -
PN474
MR HOWELLS: Yes, and I can call the witness, and I will do so.
PN475
THE DEPUTY PRESIDENT: Thank you, Mr Howells.
PN476
MR HOWELLS: I will ask Ms Wiles to go to the witness box. The witness is taking an affirmation and I presume, sir, that all that will be required is that she take that affirmation. The affidavit already having been tendered, I don't seek to introduce the affidavit to her. She has a copy of it with her.
PN477
THE DEPUTY PRESIDENT: You may wish to ask whether this is a true and correct statement.
PN478
MR HOWELLS: Well, your Honour, the reason that I wasn't intending to do that was because it, having been sworn and filed and tendered and accepted and received with you, theoretically I don't need to do that.
PN479
THE DEPUTY PRESIDENT: No, but now that she has been called - - -
PN480
MR HOWELLS: But I am quite happy to do that if that would assist you, yes, sir.
PN481
PN482
MR HOWELLS: Ms Wiles, can I confirm with you just in a formal way before Mr Gardner asks some questions that he has for you, that your full name is Vivian Lee Wiles?---That is correct.
PN483
And you are an industrial officer with the Textile, Clothing and Footwear Union?---That is correct.
PN484
Yes, and the - do you have a copy of the affidavit which was referred to and which you prepared for this proceeding?---I do.
PN485
You do, and are you able to confirm just so that for thee Commission's record that the contents of that affidavit are, to the best of your knowledge and belief, true and correct?---That is correct.
PN486
And that you are happy that they form part of your evidence in the proceeding?---Yes.
PN487
Yes. Thank you, Ms Wiles.
PN488
PN489
MR GARDNER: Thank you, Ms Wiles. Now, you say you visited the Tottenham site this morning?---That is right.
PN490
Were you at the Tottenham site on Monday, 21 October 2001?---No, I wasn't.
PN491
All right. You say at the Tottenham site there is a caravan and a portable toilet. Has that caravan and portable toilet been placed there by the TCFUA?---I don't have any information about how the caravan and the portable toilet got there.
**** VIVIAN LEE WILES XXN MR GARDNER
PN492
So just to be clear, you are employed by the TCFUA?---That is right.
PN493
That is right. Well, can I ask you whether the caravan has been used by the TCFUA over the past week?
PN494
MR HOWELLS: With respect, the difficulty with that question is that my friend says: Has it been used by TCFUA. The TCFUA is a corporate body; highly unlikely that it as a corporate entity would have used a caravan or a toilet. It simply couldn't do that. If he is going to ask a question, he needs to ask a question about people and, given that this witness has no knowledge other than what she has deposed to about this morning's surveillance, it is difficult to see how the question is an appropriate one.
PN495
MR GARDNER: Well, has the caravan been used by, to your knowledge, any members or officials of the TCFUA?---Well, I haven't been present at the sites other than this morning and last Friday morning.
PN496
All right. So you haven't been at these sites in the past week at all?---I attended on Friday morning because I received a telephone call in relation to an incident which occurred at the Ashley Street site.
PN497
All right. Other than that, it would be fair to say that you - I take it you haven't been present at any of these sites in the past week when there has been attempts to move vehicles to or from the sites?
PN498
MR HOWELLS: I object to this question. You see, the problem with this question is it is a bit like the one about, have you stopped beating your wife. My friend says, you haven't been present when there have been attempts. Well, first of all, he hasn't established the underlying presumption or assumption in that question; that is that there have been attempts, number one. Number two, having regard to the witness's evidence, highly unlikely that the answer would be anything other than: well, I don't know anything about these matters. Where does that take my friend? He hasn't established the underlying assumption of his question which is that, as he says, there have been some attempts to move vehicles.
**** VIVIAN LEE WILES XXN MR GARDNER
PN499
THE DEPUTY PRESIDENT: The question will be allowed. Continue, Mr Gardner.
PN500
MR GARDNER: Sorry, the question will be allowed?
PN501
THE DEPUTY PRESIDENT: Yes?---Could you repeat the question, please?
PN502
MR GARDNER: You have not been present in the past week when there has been an attempt to move any vehicle to or from any of the relevant sites?---No, that is right.
PN503
All right. You were at the distribution centre this morning?---Yes.
PN504
And you say there were five people seated approximately 15 to 20 feet from the gate at the entrance to the site. Do you know who these people are?---No, I don't.
PN505
Do you know any of the people to be affiliated in any way with the TCFUA?
PN506
MR HOWELLS: I object to that. The answer was: doesn't know the people.
PN507
MR GARDNER: Well, she - - -
PN508
MR HOWELLS: Couldn't possibly go further and make any assertion beyond that.
PN509
MR GARDNER: Well, she might not know their names but she might - - -
**** VIVIAN LEE WILES XXN MR GARDNER
PN510
MR HOWELLS: That wasn't the question. The question was, did she know them; not did you know their name, or did you know more than their name, or know them in some other way, or by reference to some other criterion.
PN511
MR GARDNER: The people that you saw, are you aware that they have - or are you aware that they are employees of Feltex?---I don't have any knowledge about their relationship to Feltex.
PN512
Have you had any involvement with Feltex in the past?---Yes. I was involved in two negotiating meetings in relation to this current EBA. I believe it was - it was on a Monday and Tuesday prior to the protected industrial action commencing.
PN513
The protected industrial action by who?---By both parties, by the union and the company.
PN514
So the people that you - the people you refer to in paragraph 7, you wouldn't know whether they were employees of Feltex or not?---That is right.
PN515
They may be, but you just don't know.
PN516
MR HOWELLS: I object to that. The idea - my friend has asked the question three times, and now we get "they may be." Really that is absurd. It is speculative, and it is not appropriate that the witness be required to answer the question.
PN517
MR GARDNER: Well, she might have a good reason why they may not be. Now, I have just asked that they may. I stand by my question, your Honour. She might be able to say why they may not be, and if she can't, she can't but the question stands. The question that I put was: you don't know - in essence, you don't know whether or not the employees - the people referred to in paragraph 7 are employees of Feltex or not. And I went on to ask, they may be but you don't know that.
**** VIVIAN LEE WILES XXN MR GARDNER
PN518
[10.36am]
PN519
MR HOWELLS: I press the objection, sir. She said, "I know nothing about them." She has been quite categoric. It is of no assistance. Your Honour could come to a conclusion independently that they might be and your Honour could come to a conclusion that they might be a delegation from the Labor Party coming to speak to Feltex or a group of Essendon football players. I mean, you could easily come to any of those conclusions. My friend's question is just absurd. The witness has said, "I know nothing about them."
PN520
THE DEPUTY PRESIDENT: Mr Gardner, I think that is a fair point.
PN521
MR GARDNER: Well, all right. I have no further questions, your Honour.
PN522
THE DEPUTY PRESIDENT: Thank you. Any re-examination?
PN523
MR HOWELLS: No, sir. I would ask that the witness be excused and allowed to return to the bar table, if I might.
PN524
THE DEPUTY PRESIDENT: The witness is excused.
PN525
PN526
THE DEPUTY PRESIDENT: Mr Howells.
PN527
MR HOWELLS: I am assuming that my learned friend will make his submissions first. I have no further evidence as I have indicated, I have nothing further to lead by way of evidentiary material, but we will seek an opportunity to respond to my friend's submissions if we might.
PN528
THE DEPUTY PRESIDENT: Mr Gardner.
PN529
MR GARDNER: Yes, your Honour. Can I begin, your Honour, by referring the Commission to a Full Bench decision of 20 January 1997.
PN530
THE DEPUTY PRESIDENT: Thank you. It won't be necessary to mark this.
PN531
MR GARDNER: No, your Honour. It is, as I say, a Full Bench decision of January 1997 and the decision dealt with, in part, the extent to which the Commission must be satisfied that there is conduct which might be actionable in tort; that is, because of the terms of 166A(1) which provides a bar on an action in tort which may not be brought against certain organisations in relation to conduct by certain organisations or people acting in a capacity of contemplation or furtherance of claims that are the subject of industrial dispute. So this decision spoke the character of the conduct and, your Honour, if I can refer to and quote the bottom of page 32.
PN532
THE DEPUTY PRESIDENT: Thirty-two?
PN533
MR GARDNER: Thirty-two, yes:
PN534
For much of the same reasons as we were given in the decision of the Full Bench ...(reads)... needs to be of a character that might reasonably be the subject of a declared intention to bring an action in tort.
PN535
That sets the scene, your Honour, for the way in which matters of this type ought to be approached and I will come back to that. Before doing so, I will refer to another decision. This is another decision of a Full Bench, your Honour. It is 19 April 1999, and on page 9 - sorry, your Honour, this is the Transfield-Obayashi Joint Venture case. On page 9 the Full Bench picks up on the points raised in the passage to which I have previously referred the Commission in the Mobil Full Bench decision of 20 January 1997 where it spoke of:
PN536
The substance of the Commission's duty under section 166A is to conciliate and attempt to stop the conduct that may be the subject of a notified intention to commence an action in tort.
PN537
It goes on to say:
PN538
In Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 72 IR 27 at 33 a Full Bench said that ...(reads)... that might reasonably be the subject of a declared intention to bring an action in tort.
PN539
It goes on to say:
PN540
It is not the Commission's function under section 166A to embark upon an inquiry into the foundation of a notified intention to bring an action in tort.
PN541
Your Honour, we say that the conduct falls within those four points mentioned in the Full Bench decision. We say the conduct concerns what is often described as aggressive picketing as opposed to passive picketing which, amongst other things, has prevented the access to and exit points from three sites of Feltex Carpets, being the national distribution centre, Tottenham and Braybrook. The picketing has involved the TCFUA and employees of Feltex who are members of the TCFUA and the conduct arises out of - flows from enterprise negotiations and a dispute with Feltex Carpets. Those factors, your Honour, satisfy the four points raised in those decisions.
PN542
My friend has taken issue with much of the evidence which has been provided. Your Honour, Mr Kite has given evidence directly of certain conduct and that of itself we say is sufficient for the purposes of 166A. He has given other evidence which is of an indirect nature, but we ask the Commission to consider that evidence in light of the direct evidence which has been provided and in the context of the Commission's approach to these type of matters.
PN543
THE DEPUTY PRESIDENT: Which are the incidents you say that Mr Kite has given direct evidence of which is conduct falling within 166A?
PN544
MR GARDNER: There was the - - -
PN545
THE DEPUTY PRESIDENT: In summary.
PN546
MR GARDNER: Yes. There was the incident on Sunday afternoon at 4.30 pm at the distribution centre.
PN547
THE DEPUTY PRESIDENT: I am sorry, which Sunday is this?
PN548
MR GARDNER: This is yesterday.
PN549
THE DEPUTY PRESIDENT: Yesterday.
PN550
MR GARDNER: Then there was an incident at Braybrook on Tuesday afternoon, 30 October, and there was also an incident on Tuesday morning, 30 October, at the national distribution centre.
PN551
THE DEPUTY PRESIDENT: So those are the three direct incidents, are they?
PN552
MR GARDNER: Yes, they are, your Honour.
PN553
THE DEPUTY PRESIDENT: And the indirect incidents?
PN554
MR GARDNER: Well, there are a number of those. There is Monday, 29 October at Tottenham. There is Wednesday, 31 October at Tottenham at approximately 9.30. Then there is 9 am at Braybrook on that same day.
PN555
THE DEPUTY PRESIDENT: And was this first-hand or second-hand material in summary?
PN556
MR GARDNER: This is material which was described to Mr Kite.
PN557
THE DEPUTY PRESIDENT: By?
PN558
MR GARDNER: Well - - -
PN559
THE DEPUTY PRESIDENT: Persons who had themselves seen it or - - -
PN560
MR GARDNER: Yes, persons themselves seen - who had been involved directly in the incident. Your Honour, then there was an incident at 4.30 am on Thursday, 1 November at Tottenham.
PN561
THE DEPUTY PRESIDENT: Thursday - I beg your pardon, what date?
PN562
MR GARDNER: 1 November.
PN563
THE DEPUTY PRESIDENT: 1 November.
PN564
MR GARDNER: And at Braybrook at approximately 6 am.
PN565
THE DEPUTY PRESIDENT: 1 November?
PN566
MR GARDNER: I am sorry, your Honour?
PN567
THE DEPUTY PRESIDENT: Which day?
PN568
MR GARDNER: This is Thursday, yes, again. Then we come to Friday, 2 November, and we have an incident which again was described to Mr Kite as occurring at approximately 3 pm.
PN569
THE DEPUTY PRESIDENT: Thank you.
PN570
MR GARDNER: Now, I apprehend that my friend, based on the evidence that was provided, may seek to make a submission to the effect that the conduct has stopped based on the observations made of his witness this morning. We say that the Commission should, in considering that issue, look at that there has been consistent conduct since at least last Monday and each day there has been an incident falling within the meaning of conduct where there have been picketers involved who have prevented the movement of vehicles, and it would still seem that even on the evidence provided that there are still people present, in that regard we refer you to paragraphs 5 and 7 of the affidavit of Ms Wiles. We would say that the consistent conduct plus the presence of existing people is enough for you to find that the conduct is continuing.
PN571
The requirements of 166A in no way suggest that, for instance, because there hasn't been an attempt to move a truck at 8.59 this morning that there is no conduct. That is not the way in which the provision should be interpreted, your Honour. I ..... to 9 am because that is the expiry time of the 72 hours. What we do know first-hand from Mr Kite was that there was a truck which was prevented yesterday afternoon at 4.30 and we know that there are still people present in the vicinity of the picket this morning and there are still caravans and portable toilets - - -
PN572
THE DEPUTY PRESIDENT: How do we know that?
PN573
MR GARDNER: Portable toilets and caravans?
PN574
THE DEPUTY PRESIDENT: Sorry, you said there are persons present this morning, I think; was that what you just said?
PN575
MR GARDNER: Yes. This is based on the affidavit provided by the other side.
PN576
THE DEPUTY PRESIDENT: I do have other questions to ask; is this an appropriate time to - about the indirect evidence or the evidence indirectly obtained. Is this an appropriate time to ask it or would I be interrupting you in your flow?
PN577
MR GARDNER: No, it would be a convenient time, your Honour.
PN578
THE DEPUTY PRESIDENT: Thank you, Mr Gardner. Do you have any other submissions to put on those, I think, five incidents that - six incidents that you have put in summary occurred based on the witness evidence of Mr Kite to the effect that he had received reports? Do you have any other submissions to put in relation to that evidence, in particular in summary when those reports were made to Mr Kite and the like?
PN579
MR GARDNER: Well - - -
PN580
THE DEPUTY PRESIDENT: Or is that all you wish to say on the issue of indirectly obtained evidence?
PN581
MR GARDNER: Well, the evidence was provided on the same day - sorry - the descriptions provided to Mr Kite were provided on the same day as they occurred and in many instances he also viewed video evidence of the actual incident as described to him.
PN582
THE DEPUTY PRESIDENT: Did Mr Kite give evidence of that fact, that - - -
PN583
MR GARDNER: Yes, he did.
PN584
THE DEPUTY PRESIDENT: - - - in each of those six cases - - -
PN585
MR GARDNER: Of the video evidence?
PN586
THE DEPUTY PRESIDENT: Did Mr Kite give evidence that the reports were provided to him on the same day, I think was your phrase, in each of those six cases?
PN587
MR GARDNER: Well, I understood that he had, but my friend obviously takes objection to that. What Mr Kite did say in conclusion and which he can say directly is that Feltex has been unable to move any carpet since last week and that is not something the company has done. The carpet has not been moved and he provided of what that loss was. But, your Honour, the direct evidence he provided we say is enough to satisfy you that there is conduct occurring.
PN588
The other evidence, albeit indirect, shows that this has been a consistent theme over the last week and hence open for you to find that that goes to motivation of Feltex in seeking this 166A certificate. Your Honour, the 72 hours having passed at 9 am this morning, and the Commission not being able to stop the conduct within the 72 hours time frame, we say means that it is mandatory that a certificate issues under 166A, in particular 166A(6)(c). If it pleases the Commission.
PN589
THE DEPUTY PRESIDENT: Do you have a draft certificate you wish to provide to the Commission?
PN590
MR GARDNER: Yes, I do, your Honour. Your Honour, I apologise, I - - -
PN591
THE DEPUTY PRESIDENT: Perhaps that can be provided later if necessary.
PN592
MR GARDNER: Yes, I can get a copy to the Commission quickly.
PN593
THE DEPUTY PRESIDENT: That may require submissions from Mr Howells on its form or otherwise, that is the difficulty with providing a draft following Mr Howells' submissions. He may ask for an opportunity to put submissions on the form or otherwise. Perhaps it is not necessary where - thank you, Mr Gardner. Mr Howells.
PN594
MR HOWELLS: We will reserve our position about that matter and I understand what your Honour says and we are grateful for that indication that we would have an opportunity to comment. If the Commission pleases, these are serious matters. Section 166A certificates are serious matters. They involve the potential for penalty to be visited upon and some disadvantage, significant disadvantage, to be visited upon a party against whom an order is made.
PN595
Let us remember, of course, if the Commission pleases, what the terms are. 166A(1) requires that the Commission direct its attention to:
PN596
...an organisation of employees, an officer, member or employee of such an organisation -
PN597
that is not employee of a particular employer or workplace, we are talking about an employee of such an organisation -
PN598
in relation to conduct by the organisation or by the officer, member of employee acting in that capacity.
[11.06am]
PN599
You see, we are talking about action by as it were unions, if the Commission pleases: their officers, their members and their employees, and those people in that capacity. There is no evidence before you, sir, that connects any of what is said to be the alleged conduct with either the union, an officer or a member or an employee of the organisation. We have got Mr Kite giving some evidence that he thinks that he saw some people who were his employees. Well, simply not satisfactory.
PN600
Then we have got, if the Commission pleases, the question of conduct: what sort of conduct. It would appear that when one goes to the authorities referred to by Mr Gardner, that there are tests to be satisfied. And I think probably the better explication of them is to be found in the CFMEU v Coal and Allied decision of Vice President McIntyre, Senior Deputy President Harrison and Commissioner Foggo in (1997) 77 IR 142. Can I just hand up a print of that, if I might.
PN601
THE DEPUTY PRESIDENT: Thank you, Mr Howells.
PN602
MR HOWELLS: And ask the Commission to - I am only going to the passage that has been quoted in the other authorities that my friend has gone to. But it is the recitation on the left hand side of page 146, about halfway down the page, citing AFMEPKIU that it required only to identify conduct, and in the ordinary course it might be thought, well, it is a reasonably straightforward exercise. And in those circumstances, if the Commission pleases, it is really incumbent on an applicant who comes here seeking this kind of relief to assist the Commission.
PN603
The applicant really ought to come here and provide the Commission with real help. That is adequate evidence in an appropriate form, comprehensive evidence in an appropriate form, the necessary summaries, and then some submissions that will really assist having dealt with all of the matters that are required to be established. That is really what an applicant should do in this sort of a situation. And it is going to be my submission, if the Commission pleases, that the applicant hasn't helped; hasn't helped the Commission, hasn't helped you, sir, in the appropriate way in providing adequate evidence in an appropriate form directed to all of the elements.
PN604
And the elements are that are set out there on page 146 that it is:
PN605
Conduct capable of being the subject of a notice under the section.
PN606
So we have got to satisfy the requirements of 166A and, in particular, those things that are set out, of course, in 166A(3) which in turn refers us back to (1).
PN607
Secondly, the second dot point there:
PN608
Conduct capable of being the subject of conciliation proceedings.
PN609
Well that, of course, raises a whole host of matters. It would need to be a matter that was within the jurisdiction of the Commission to conciliate about. Thirdly:
PN610
Capable of being the subject of attempts by the Commission to stop the conduct.
PN611
Now, with respect, if the Commission pleases, if you have got an employer that over the weekend has refused to participate in conciliation - and that has been reported to you - refused to participate in conciliation and an employer who, on Mr Kite's evidence - Mr Kite's evidence was that the CEO said: not prepared to talk while they are on strike. Not not prepared to talk while there is a protest or while there is unlawful action or unprotected action, but not prepared to negotiate while they are on strike regardless of whether it is protected action or not.
PN612
Now, that is not satisfactory because it puts the - it really renders the conduct, conduct which is not capable of being the subject of attempts by the Commission to stop the conduct - because we have got an employer that doesn't want to participate in the processes of the Commission. Now, the reality is that the Act provides, and in this form has done largely since the 1996 amendments, provides for protected action. And there is no doubt but that there is protected action being taken, and the employer has acknowledged that. As I am instructed by my instructors here, they say it was made clear on Friday to them that the action involved was accepted by the company; that is that there was - the stop-work action was protected action, no dispute taken about that. But we have got an employer who is not prepared to negotiate. Then we have got to - - -
PN613
THE DEPUTY PRESIDENT: Mr Howells, you said that the company is not prepared to participate in conciliation. What is the basis of that statement?
PN614
MR HOWELLS: I am instructed that that is the position of the company on Friday expressed to - publicly expressed. I am - and I am going on what I have been told about the way in which the matter proceeded. I mean, I am sure my friend can confirm whether that is the case. If they are not prepared to, then they ought to say - if they are prepared to, contrary to what Mr Kite said, they ought to say so. Because it puts the Commission in an invidious position.
PN615
THE DEPUTY PRESIDENT: There may well be a difference between participation and conciliation, Mr Howells, and refusal to make any substantial concessions or negotiate.
PN616
MR HOWELLS: Yes, true enough, but, you see, what - - -
PN617
THE DEPUTY PRESIDENT: That may be the distinction being drawn.
PN618
MR HOWELLS: It may be but Mr Kite said, and Mr Kite saying: not prepared to negotiate while people are on strike. And as I am instructed - and no doubt my friend will contradict this if this is the case - as I understand it, over the weekend: not prepared to participate in conciliation. And I am also instructed that we were told that the CEO refused to come to the conciliation hearing on Friday on that basis.
PN619
THE DEPUTY PRESIDENT: The company took part in conciliation on Friday night.
PN620
MR HOWELLS: Through other officers, no doubt, of course.
PN621
THE DEPUTY PRESIDENT: Yes.
PN622
MR HOWELLS: And it can do that - - -
PN623
THE DEPUTY PRESIDENT: The company was present and took part in conciliation. The company was not asked, nor was the TCFUA asked to take part in further conciliation following that meeting. So I am just a bit puzzled by that submission, Mr Howells.
PN624
MR HOWELLS: Well, what I am instructed as to is that not - the attitude was expressed of not being prepared to participate further than what occurred on Friday night, and that we have today an expressed attitude under oath recounted about the attitude of the CEO not prepared to negotiate while people are on strike. That creates a significant difficulty, in my submission, and it needs - it is the sort of thing, if the Commission pleases, which needs to be made very, very clear to the Commission, beyond any doubt, before the Commission is asked to exercise power under 166A. It is just something that ought to be made very, very clear, and while it is left doubtful it undermines the processes of the Commission, particularly in conciliation.
PN625
And the Commission, as you, sir, would be well aware, goes to considerable trouble. It is not - the requirement that there be conciliation is not a hollow requirement. It requires activity, real action which the Commission always takes; real steps taken, that is the Commission involving itself in discussions, bringing parties together; requiring even to the point of being quite directive with parties that they participate in discussions and so on, and that they contribute in a meaningful way; and the parties being required to enter upon that, not to undermine it by simply having a position of not being prepared to talk or not being prepared to be involved, not prepared to negotiate. And that doesn't mean, of course, if the Commission pleases, that they are not entitled to say that on certain matters we are not prepared to make concessions. But there is a very deep trench between not being prepared to make any concession on the one hand, and not being prepared to negotiate because non-concession might still admit of discussions aimed at finding a way around problems.
PN626
I am just instructed by my instructors here that they have it on reliable authority that Mr Magill has been to the - visiting the sites. He talks to the employees and says that he does not intend to negotiate with the union whilst there is industrial action. Now, it is - in the light of Mr Kite's evidence, if the Commission pleases, that is really the hook upon which this depends. One might say: well, what is said by a particular participant at one stage of the game is one thing, but if you have got a witness, the HR officer, in the witness box saying that he knows that the CEO has that particular attitude towards negotiation, it raises a serious question about whether or not you, sir, could be satisfied that the matters are matters capable of being the subject of conciliation proceedings and capable of being the subject of attempts by the Commission to stop the conduct.
PN627
Then we have got to go back and look at the evidence, if the Commission pleases. And let us just have a look at the deficiencies of the evidence, and these are quite stark, if the Commission pleases, in circumstances where it is readily - it really is easy to go out and get proper evidence from people who actually saw something at a relevant time. We have got no evidence of a direct witness, other than what Mr Kite was prepared to depose to in respect of some events yesterday and on Tuesday. And bear in mind, if the Commission pleases, that the national distribution centre is a place where I think on the record it is apparent - probably also from the notices that were filed with this application - it is apparent that the national distribution centre is a place where there was a lock out. That is a relevant factor to take into account.
PN628
So far as the contemporanity of the evidence is concerned, we have got in respect - at least in respect of so called incidents on Thursday, we have got Mr Kite saying that he had a telephone conversation with Mr Giles on the Friday. He said he spoke to Mr Giles, as I understand it, on the Friday in respect of events that occurred on the Thursday. And the difficulty with it is, if the Commission pleases, we have not got that normal chain of evidence that provides a sound evidentiary basis. We have not got Mr Kite able to say: look, I went there, this is what I saw. Or I received a report from a person who I can tell you about who holds a relevant position and who told me where he or she was at the time and precisely what they saw with perhaps a note about it. We don't have any of the video material in an admissible form, in an appropriate form. We don't have any of that. We don't have even a description from Mr Kite about what he saw that makes clear that what we were talking about is action by - and those key words at the beginning of 166A(1), if the Commission pleases, in respect of:
PN629
Conduct by an organisation, an officer, member or an employee.
PN630
We have got none of that. How do we know anything about that? Knows nothing about whether or not they are members. No evidence about the involvement of the union at all. And that is very important, if the Commission pleases, because what is being asked for is a certificate that you are satisfied about certain matters and which, of itself, imposes or exposes people to a prejudice.
PN631
Now, as the Commission will be well aware, in the Davids Distribution case - that is Davids Distribution v NUW which is at [1999] FCA 1108; (1999) 91 IR 198, there is recitation. In that case they were looking at this question of whether or not what is said to be picketing in its various forms constitutes industrial action for certain purposes under the Act including section 127. And can I indicate that what happens, of course - what is dealt with in this decision is a very close analysis of a number of authorities that deal with the question of industrial action and of picketing. There is a recitation from a decision of the Court in CFMEU v AIRC, and there is a passage which reads as follows:
PN632
The only basis on which picketing might be comprehended by the definition of industrial action ...(reads)... conditions of employment in the workplace.
PN633
Could I just ask for leave for my instructor to approach the Bench and provide a - I am afraid I didn't have time for copies this morning. It is just the passage in Davids there that you will see marked with the yellow arrow - the blue arrow. And it is just that passage there that deals with the fact that we do have - there is a notion of lawful assembly. Now, it is the case in this country that persons are entitled - there is the earlier - there is the later passage that is marked there I think, the further passage if your Honour goes down to the next yellow sticker.
PN634
THE DEPUTY PRESIDENT: Yes.
PN635
MR HOWELLS: There is a further passage there which I have marked.
PN636
THE DEPUTY PRESIDENT: Yes.
PN637
MR HOWELLS: It might be worth looking at, but it is only for this simple point, your Honour. As we know, the fact that people gather outside a workplace to express a grievance to make a protest is not, of itself, picketing of an unlawful kind. It is not, of itself, tortious conduct. It is not, of itself, in any manner unlawful. It depends upon what happens.
PN638
THE DEPUTY PRESIDENT: Are you suggesting that the notifier has to demonstrate that this is - what is taking place is tortious conduct?
PN639
MR HOWELLS: Well, if we go back to what Vice President Macintyre said and that is at page 146 of that report that we were at earlier, sir.
PN640
MR GARDNER: You don't have a copy of that, do you, Mr Howells?
PN641
MR HOWELLS: I don't. It is just reciting the dot points, the four points that I think my friend went to in AFMEPKIU.
PN642
THE DEPUTY PRESIDENT: This is the - - -
PN643
MR HOWELLS: You will see the fourth dot point on 146. Does your Honour have 146?
PN644
THE DEPUTY PRESIDENT: Yes, I have it, yes.
PN645
MR HOWELLS: Yes:
PN646
...that might reasonably be the subject of a declared intention to bring an action in tort.
PN647
THE DEPUTY PRESIDENT: Thank you.
PN648
MR HOWELLS: They don't have to establish that it is - they don't have to, as it were, satisfy you because, of course, the Commission is not called upon to make adjudication of these sorts of matters, but there has got to be a reasonable basis. Now, we have got a situation, if the Commission pleases, where we have no evidence as to who it was that was involved in the events on - said to have occurred on Sunday. And we have direct evidence this morning that at most it can be said that there are five people gathered some 15 to 20 metres I think away from - sorry, 15 to 20 feet away from the gate at the entrance of the distribution centre. No evidence this morning of people gathered across a gate or inside the premises. So really it is incumbent, if the Commission pleases, particularly when it is being indicated today, and that is apparently consistent with the earlier - this is consistent with the earlier position taken by the company that they were relying on paragraph (c), the 72 hour provision, if the Commission pleases.
PN649
The thing about the 72 hour provision is that they are really going to have to be able to show that the conduct is continuing at the time when they ask for the certificate and at the time - and 72 hours of conduct continuing has occurred. And they have got to do better than just ask your Honour to make the big leap because that is really what they are asking in this case. It is not satisfactory to have some - to have a sloppy approach to this. Really what they needed to be able to do this morning was to produce some evidence that would enable a conclusion to be drawn or a reasonable inference to be made that conduct was likely to continue. And that can't flow, if the Commission pleases, from what has been put before you. And can I tell your Honour why?
PN650
My friend says: oh, well, look, there have been - these incidents have occurred and, therefore, he says you should expect that it will continue. Well, there are a number of reasons why it might not. For example, the parties might - those persons - just suppose we had a situation where you had people involved in picketing action that was - that actually was shown to have been hindering in a relevant way. They might take the view, if the Commission pleases, that being warned of the fact that a section 166A application was in the offing, they might have decided to stop. They might have decided, if the Commission pleases, to modify the conduct. They might have got tired of it. They might have decided that they were about to have a breakthrough in their negotiations.
PN651
It is just not satisfactory to say that the Commission ought to jump to a conclusion that conduct is continuing, particularly once you have an affidavit of the kind that has been provided by Vivian Wiles where she says, I have conducted a morning surveillance and there is no evidence of people standing across drives, on her evidence, there is no evidence of impediment. Going back, sir, to the inadequacies of the evidence that has been - - -
PN652
THE DEPUTY PRESIDENT: Sorry, on that point, Mr Howells, do you have any submission to put on section 166A(7) which relates to conduct stopping and starting and the like; is that relevant to our task?
PN653
MR HOWELLS: That is directed - I don't think so here. I mean, just suppose these events - let's say we had had the application properly mounted before you and let's say we had proper evidence and they had done it thoroughly, and let's suppose that you had evidence of conduct of a relevant kind. It then stops and there is an hiatus, and then they come back again a few days later and say, it has started again.
PN654
THE DEPUTY PRESIDENT: Yes.
PN655
MR HOWELLS: (7) is directed to enabling you to draw a link between the two instances; that is, to connect them for the purposes of continuing. I don't think we have even got to that stage; even assuming that they had brought some proper evidence before you in the proper form, we really haven't got to that stage yet. What they would need to have, if the Commission pleases, is evidence that there is something going on now or has been this morning. It is really not - I don't think (7) assists them in the present circumstance.
PN656
But all of that is hopelessly undermined, if the Commission pleases, by the fact that we have got no evidence of the involvement of the union. No evidence of an involvement by an officer, a member or an employee. The only direct evidence appears to be in relation to the national distribution centre and Braybrook, and really, sir, I do urge upon you the course of excluding from consideration or from the allocation of any probative weight to the indirect evidence, it is just not satisfactory. Those people presumably could have been called.
PN657
We have got no identification, if the Commission pleases, of what was said to be the motor cars and how they actually got there, no evidence of why it was said, look, I know that that car is owned by so-and-so. Well, that is really not satisfactory; you can do a lot better than that. We didn't even find out what sort of car it was, you know, if it was a Rolls-Royce which number plate ABC 123, whatever it was, we got none of that, and that is not satisfactory.
PN658
We have got no evidence of how it is said that there is a link between what Mr Kite describes as a concrete block. It is really quite unsatisfactory to have it suggested that reliance can be placed upon Mr Kite's evidence that he has found a concrete block at the entrance to the work place. That is just unsatisfactory. It is an attempt to connect that with the union and there is simply no evidentiary basis for that. It might even have been put there by staff of the company - one doesn't know - for company purposes; you just don't know. We weren't even graced with evidence from Mr Kite to the effect that he had made the appropriate inquiries and satisfied himself that there was no other explanation. We didn't even have that. It is not fair, in my submission, for the Commission to be asked to give a certificate when the evidence is in such a shabby state.
PN659
Then we have got the problem, if the Commission pleases, of industrial dispute. The Commission will see that in 166A we are talking about conduct in contemplation or furtherance of claims that are the subject of an industrial dispute. Well, what evidence have we got of that?
PN660
THE DEPUTY PRESIDENT: Mr Howells, can I interrupt for one moment?
PN661
MR HOWELLS: Yes, of course, sir.
PN662
THE DEPUTY PRESIDENT: I intend to adjourn for 10 minutes if that is not inconvenient and I would hope that Mr Gardner could provide you a copy of any draft certificate that he might have obtained which would enable you to consider that.
PN663
MR HOWELLS: Yes.
PN664
THE DEPUTY PRESIDENT: I will adjourn now.
SHORT ADJOURNMENT [11.33am]
RESUMED [11.43am]
PN665
THE DEPUTY PRESIDENT: Mr Howells.
PN666
MR HOWELLS: If the Commission pleases, I was dealing with the question of industrial dispute which, of course, is a similar requirement for the purposes of an application under 166A. The definition that is referable is the definition in sub-section 4(i) which the Commission will be familiar with. That is:
PN667
Industrial dispute means an industrial dispute including a threatened, impending or probable ...(reads)... dispute of the kind referred to in paragraph (a) and includes a demarcation dispute -
PN668
And so on. Now, the difficulty we have got is, if the Commission pleases, we are not talking about a demarcation dispute it would appear. We are talking about an interstate industrial dispute. Now no other, as I read the Act and if I am wrong about this my friend will tell us no doubt, but I don't read any of the other references to industrial dispute as being relevant to section 166A which of course falls within division 7 of Part VI. What is the industrial dispute?
PN669
THE DEPUTY PRESIDENT: Mr Howells, in relation to that point is section 493 relevant to this present matter?
PN670
MR HOWELLS: Well, my friend may make an application in that regard. He would have to satisfy you, sir, that it is. But we have got no evidence of what it is that it is about at the moment. It is not clear what he is relying on and he can't make that up by way of reply. There needs to be evidence about it and with respect there isn't. If he relies on 493 and the additional effect of the Act in relation to Victoria well he needs to spell that out and he certainly didn't. And he can't seek to sort of jump that hurdle in reply. It simply prejudices us.
PN671
It is another aspect of the deficiencies in the way in which this matter has been brought before you, sir. So at the end of the day, if the Commission pleases, the evidence simply does not disclose relevant conduct at the relevant times being continuing conduct such that you could be satisfied - because what he is asking you to do, if the Commission pleases, if one looks at the certificate he is asking you, sir, as a Deputy President of the Commission on 5 November 2001 to certify that the Commission has not stopped the conduct to which the notice given by Feltex relates and that 72 hours have passed since the notice was given.
PN672
He is asking you to certify that that is the situation where we have got no evidence about any activity by anyone this morning and no evidence of any activity by the organisation, its officers or members of employees. None of that over the past week direct or indirect. Just a whole lot of speculation about those matters. Even if, if the Commission pleases, even if the Commission was satisfied that there are people - and that they happen to be employees of Feltex - gathered at gates during last week that does not make the relevant connection with the organisation. It just does not. And that is in a circumstance where you are being asked to certify something, if the Commission pleases, to give a certificate.
PN673
It is an important power and a duty under the Act and the Commission is entitled to be assisted by the applicant with proper material. And as to this material satisfying you that there are reasonable prospects of an action in tort, that is the words that were - that might reasonably be - sorry, I have misquoted - might reasonably be the subject of a declared intention to bring an action in tort. Presumably that means against the union for the purposes of 166A because it is talking about organisation, officers, members and employees. It is simply not made out.
PN674
Now then, if the Commission pleases, there is the question about conduct which of itself is having an impact and my friend sought to lead some evidence about that. Well, that evidence was frankly worse than the evidence about what is said to have been going on at particular gates. First of all he does not address you, sir, on the question of the effect of his company's lockout. A lockout might have had a very substantial effect upon supplies and so on. He doesn't take that into account. It is their decision to have a lockout. Secondly, doesn't take into - doesn't give you evidence - direct evidence - of somebody in a position to know.
PN675
He just says we have got somebody who has spoken to somebody who is said to be an accountant. Well that may not be particularly reliable and then we have got a round figure of $200,000 a day. All of that is hopelessly unsatisfactory and it is against the backdrop where we have direct evidence from Mr Kite that this is a company who's CEO doesn't want to be involved in negotiations while people are on strike even though we have got protected action for a strike. It is all unsatisfactory, if the Commission pleases.
PN676
What ought to happen, if the Commission pleases, is that the applicant - it should be - the applicant's application for a certificate should be rejected and dismissed. If they wish to go and do it properly they are always at liberty to do that. The Commission - neither we - certainly we can't and the Commission can't stop a party from making an application in an appropriate way at an appropriate time. And in the meantime, if the Commission pleases, the applicant ought to use its best endeavours to engage in negotiation and conciliation, preferably under the auspices of the Commission, to sort out whatever it is that they say are their difficulties. That ought to be the way in which the matter is progressed, if the Commission pleases. Those are the submissions unless there is any question that your Honour has of me.
PN677
THE DEPUTY PRESIDENT: No further submissions on the draft certificate, Mr Howells?
PN678
MR HOWELLS: Well, the difficulty with the draft certificate, sir, is that first of all it just refers to conduct. It doesn't identify which conduct other than to say it is conduct in respect of which notice was given. When we go to the notice the notice refers to the TCFUA Dorothy Peterson, Vince someone from the AMWU, Denis Evans from the CFMEU - no evidence about any of this.
PN679
THE DEPUTY PRESIDENT: Those two - - -
PN680
MR HOWELLS: I am instructed that those two were withdrawn but - - -
PN681
THE DEPUTY PRESIDENT: That is correct.
PN682
MR HOWELLS: But I don't know whether there has been a formal notice or amendment has there?
PN683
THE DEPUTY PRESIDENT: Yes, there has been. No, there has - an application was made.
PN684
MR HOWELLS: And granted.
PN685
THE DEPUTY PRESIDENT: And that was granted.
PN686
MR HOWELLS: Thank you, sir, I wasn't aware of that. My instructor has indicated that they were taking them out. I wasn't sure whether that had been dealt with. And the conduct that is referred to below then is set out presumably in paragraph 11. Now there is no evidence of conduct - if one looks at paragraph 11 it talks about conduct referred to that has involved the TCFUA and some or all of its employees, officials and agents. And then we have got the blinding error "as well as employees of Feltex who are members of the TCFUA". No evidence about any of that.
PN687
No evidence of the involvement of TCFUA or of the officials. I don't know where agents comes from in terms of 166A. And employees of Feltex who are members. Well, no evidence again of that. No evidence of the direct or indirect interference with contracts. No evidence of what the contracts were. Certainly no evidence of a conspiracy.
PN688
THE DEPUTY PRESIDENT: Sorry, where are you reading from, Mr Howells?
PN689
MR HOWELLS: I am sorry, sir. Paragraph 11. It is fundamentally important.
PN690
THE DEPUTY PRESIDENT: Yes, of course.
PN691
MR HOWELLS: My friend didn't take you to it. I don't know why not but he probably thought it wasn't necessary. Para 11 of the notice - does your Honour have that?
PN692
THE DEPUTY PRESIDENT: Yes, I have it in front of me.
PN693
MR HOWELLS: Relevant conduct. Involve the TCFUA and some or all of its - - -
PN694
THE DEPUTY PRESIDENT: I am sorry, yes. I see the quotation. Yes.
PN695
MR HOWELLS: Yes. It is just - and what worries me about this, sir, is you are being asked to give a certificate which calls up all of what is in paragraph 11 with the paucity of evidence that you have about any of this. We have got an allegation in 12 which is said to be conduct. Well, it couldn't be conduct, they are talking about the alleged loss and damage. What is the conduct? Basically para 11, and you are being asked to certify that that is what is going on in the absence of any evidence, a shred of evidence, about the involvement of the TCFUA, not a shred.
PN696
Now, in my submission, sir, it is simply not in the appropriate form, not supported by adequate evidence or appropriate evidence, doesn't meet the requirements, those four dot point requirements. In any event, doubtful whether they could be established in circumstances where we have an employer who HR officer says that the CEOs view is that there will be no negotiation while there is any industrial action.
PN697
THE DEPUTY PRESIDENT: I am sorry, Mr Howells, you said it is not in an appropriate form; are you referring to the notification, the draft certificate or what?
PN698
MR HOWELLS: Well, all of it. The evidence is not in an appropriate form, but certainly the certificate is not in an appropriate form and the expression in paragraph 11 is not directed to - or isn't connected sufficiently with the evidence. They haven't directed themselves to establishing the connection with the TCFUA.
PN699
THE DEPUTY PRESIDENT: No, I understand that point. What is the alleged deficiency in the draft certificate, Mr Howells?
PN700
MR HOWELLS: Your Honour, first of all, it ought to - if you are going to have a certificate, you ought to specify a conduct rather than referring to something else in another document. I don't want to help my friend with how to run his case - - -
PN701
THE DEPUTY PRESIDENT: No, no.
PN702
MR HOWELLS: - - - but, I mean, one has seen these things done before and, you know, we learned about in the law school, your Honour, but the 72 hours seems to be where they are coming from. They are relying on 166A(6) and confining themselves to that and confining themselves to what appears to be the paragraph 11 conduct, and yet their evidence doesn't relate to it, and I mean, we don't have any specification of the time or anything of that kind.
PN703
It is just - sometimes it is thought that these ought to be, sort of, automatic things, if the Commission pleases. The trouble is that in a sense there is a sort of a benchmark of evidence that would be satisfactory to establish a basis for a certificate of this kind, and the difficulty is that at some stage later when a certificate is looked at and the proceedings looked at, it might be said, well, you know, they could have done a better job in terms of producing adequate evidence and the Commission has been asked to act on something that really isn't adequate.
PN704
It is my submission that is not an appropriate way for the applicant to proceed particularly when, as I say, the only reasonable inference that the Commission should draw from the evidence at the moment is that whatever might have been alleged to be the conduct has certainly stopped at this stage of the game. If the company later says, well, look, it has started again, then they can come back to the Commission with some proper material. Those are the submissions, if the Commission pleases.
PN705
THE DEPUTY PRESIDENT: Thank you, Mr Howells. Mr Gardner.
PN706
MR GARDNER: Your Honour, Mr Howells seeks to say that - he made a submission that the conduct is not something which can be capable of conciliation proceedings. We say nothing is further from the truth, your Honour. The conduct, being the picketing, which is referred to in paragraphs 7 and 8 of the notice provided to the Commission, that conduct, it is open to the Commission to find, relates to a hiatus in bargaining and a dispute between the parties about the terms and conditions of employment.
PN707
The mere fact that conciliation wasn't as fruitful as the TCFUA might have liked on Friday is not the point. The quality of the conciliation, for want of a better term, is not relevant. The question is whether the conduct is such that it is capable of proceeding before the Commission. We draw a comparison; if, for instance, there was a domestic dispute, that would not be something that would be capable of conciliation before the Commission.
PN708
There was, of course, conciliation which did take place on Friday and that conciliation in part was designed or directed towards stopping the conduct which is a requirement under section 166A(5), and despite those attempts, there was a first-hand account from Mr Kite about a truck being prevented from entering one of the sites just yesterday at 4.30 in the afternoon.
PN709
We take no issue with the fact that where there is an assembly of a peaceful nature and which does not go to preventing access to premises, that that can be of course - or that is lawful activity, and we don't take any issue with a picket of that nature, and I have previously made clear nor do we take any issue - and this application and this certificate is not directed towards any of the industrial action which might be protected. This is about picketing of what might be termed an aggressive nature which is not industrial action within the meaning of the Act and, your Honour, that is also clear from the David's Distribution v National Union of Workers case to which Mr Howells referred, that there is a distinction between peaceful picketing and aggressive picketing.
PN710
Your Honour, many of the attacks which Mr Howells has placed on the evidence are ones which we say ultimately will be more properly for the Court. If I can give one example. He took issue with the effect of the lock-out and took issue with the evidence which went to the loss which Feltex is suffering. The Full Bench has said that the conduct needs to be of a character that might be the subject of a declared intention to bring an action in tort; that is all. It is not for us to prove here indeed that there have been losses, not for us to prove those losses, but simply to say that the conduct is of a sufficient character whereby an employer such as Feltex in this circumstance might be reasonably subject to have an intention to bring an action in tort.
PN711
In terms of the conduct ceasing, Mr Howells put to you that you would need to be satisfied that there is a reasonable inference that the conduct is likely to continue. He also said that it might be the case that the fact the conduct has stopped and the mere making of the application has brought about that circumstance, but the fact is it hadn't stopped last night and this morning there are picketers still present.
PN712
MR HOWELLS: Well, there is no evidence of that and my friend oughtn't to mislead about the evidence. There is no evidence that they are picketers, there is evidence that there are some people gathered at some distance from a gate, if the Commission pleases.
PN713
MR GARDNER: Yes, and we say that that is a sufficient enough inference upon which the Commission can safely rely that there is conduct on - there was no movement of the vehicle from last evening, at least prior to the hearing this morning. We don't - but that is not a sufficient basis to say that the conduct has, in fact, stopped.
PN714
THE DEPUTY PRESIDENT: What do you say, Mr Gardner, about the submission that has been put that there is nothing to - if you go to section 160A, A(1) refers to an action in tort not being able to be brought by a person against an organisation, etcetera, in relation to conduct by the organisation or by the officer, member or employee acting in that capacity. One of the points made by Mr Howells was that there is no evidence of conduct by the TCFUA, an officer, member or employee acting in that capacity. What is your view on that?
PN715
MR GARDNER: Well, there is evidence of - for instance, a Ms Peterson that drove a vehicle, and that was - - -
PN716
THE DEPUTY PRESIDENT: I beg your pardon?
PN717
MR GARDNER: There is evidence of a Ms Peterson; that was in relation to the Tuesday morning incident at the national distribution centre.
PN718
THE DEPUTY PRESIDENT: Tuesday?
PN719
MR GARDNER: Morning.
PN720
THE DEPUTY PRESIDENT: At the national - - -
PN721
MR GARDNER: Distribution centre. And she was the driver of one of the vehicles.
PN722
MR HOWELLS: That is not what the evidence is. My friend really ought to confine - he just took instructions from Mr Kite at that moment and repeated what Mr Kite said to him just then. He hasn't recounted to you what Mr Kite said in evidence, if the Commission pleases, and the evidence did not rise to a proposition of the kind that Ms Peterson was a driver of a vehicle. It simply wasn't - that wasn't the evidence. And even if it were, he would need to go a hell of a lot further, if the Commission pleases, to establish the point that he is seeking to make. It is not fair for us to be prejudiced by my friend seeking to recount evidence inaccurately for the Commission. It prejudices us, with respect.
PN723
THE DEPUTY PRESIDENT: Mr Gardner, the submission made by Mr Howells was that that was not actually put in evidence by Mr Kite. Just remind us of what Mr Kite - - -
PN724
MR GARDNER: The evidence, as I recall, was that it was a vehicle which Ms Peterson is known to have driven.
PN725
THE DEPUTY PRESIDENT: Sorry, so the - - -
PN726
MR GARDNER: It is a vehicle of Ms Peterson's.
PN727
THE DEPUTY PRESIDENT: So the evidence of Mr Kite was?
PN728
MR GARDNER: That the vehicle was a vehicle driven by Ms Peterson.
PN729
MR HOWELLS: With respect, that wasn't the evidence, your Honour.
PN730
THE DEPUTY PRESIDENT: Sorry, do you have anything to add to that, Mr Gardner?
PN731
MR GARDNER: No, your Honour.
PN732
THE DEPUTY PRESIDENT: Is there any other evidence apart from that in your view that sustains a connection between the TCFUA, its officers, employees, members - - -
PN733
MR GARDNER: No, your Honour.
PN734
THE DEPUTY PRESIDENT: That is the evidence?
PN735
MR GARDNER: Yes, it is.
PN736
THE DEPUTY PRESIDENT: Thank you.
PN737
MR GARDNER: In relation to the industrial dispute point, your Honour. Section 493 does answer the issue that there being a dispute in Victoria.
[12.11pm]
PN738
THE DEPUTY PRESIDENT: I beg your pardon?
PN739
MR GARDNER: There being a dispute in Victoria. Finally, in terms of the notice and the application can I refer your Honour to paragraphs 7 and 8 of the application. That makes reference to certain conduct. The reference to paragraph 11 goes to the potential tortious nature of that, but again that is a matter ultimately for the Supreme Court.
PN740
THE DEPUTY PRESIDENT: This notice is, of course, not evidence. You are relying on the evidence of Mr Kite to support - - -
PN741
MR GARDNER: Yes, yes, that is correct. In any event, your Honour, the certificate referring to conduct is a reference to the picketing conduct at the three sites. It is the conduct which is preventing access to and movement from the premises by the illegal blockades. Again, the question of who put the concrete block there and when, that is something for the Supreme Court, your Honour, that is not something which you need to concern yourself with. That is what the Full Bench said in Re AFMEPKIU when it spoke about:
PN742
It is not necessary in our view for the Commission to establish either the specifics or the conduct or make an assessment of the probability of the conduct being actionable.
PN743
If it pleases the Commission.
PN744
MR HOWELLS: Your Honour, I seek leave to reply to that last submission because it really was quite - - -
PN745
THE DEPUTY PRESIDENT: Yes, Mr Howells.
PN746
MR HOWELLS: - - - it really - I am sorry, your Honour.
PN747
THE DEPUTY PRESIDENT: Yes, proceed.
PN748
MR HOWELLS: It really was taking things too far. The four points that are identified in the Metal Workers decision which I took you to, I think, sir, in the decision in CFMEU v Coal and Allied, and particularly that passage on page 146, identify that the Commission has to be satisfied that there is evidence of certain matters. True it is you don't have to make a determination at the end of the day, a final determination about what conduct occurred, who was responsible for it, in a final way or whether it was tortious for the purposes of a proceeding, but you have got to be satisfied on the basis of reasonable evidence, if the Commission pleases, that there was a relevant conduct and that there was a relevant connection with the union, its officers, its employees or members, and that is where the problem is for the applicant. They have really not brought anything to you that would satisfy you about that, particularly given that it has got to be ongoing over 72 hours, and to be reasonable, there has got to be some evidence of it going on at the time when the application is made. It really is not satisfactory otherwise.
PN749
To suggest that the Commission doesn't need to be concerned about the specifics of the conduct, it has got to be - the conduct has got to be there. You have got to have evidence of conduct. My friend says it doesn't matter who put the concrete block there. Just suppose, your Honour, that you had evidence that it was delivered by accident by a contracting company who thought they were supposed to deliver it there, does my friend say you don't need to concern yourself with that?
PN750
It would be different, your Honour, if it were just one other element of an otherwise well-prepared case with a lot of very direct evidence dealing with matters that had occurred over the previous week or so. That is just not the case. The application that is made is cobbled together with really the slenderest pieces of evidence none of which make the necessary chain, and the authority that my friend cites doesn't really get him off the hook in that way. If the Commission pleases.
PN751
THE DEPUTY PRESIDENT: Mr Gardner, Mr Howells was given leave to make an additional submission; do you - - -
PN752
MR GARDNER: I don't propose to make a reply.
PN753
THE DEPUTY PRESIDENT: No, you don't wish to? All right.
PN754
THE DEPUTY PRESIDENT: The Commission will adjourn until 2 o'clock.
PN755
MR HOWELLS: Your Honour, before your Honour rises - - -
PN756
THE DEPUTY PRESIDENT: Sorry? Yes, Mr Howells.
PN757
MR HOWELLS: - - - I wonder if I could ask - I may not have done this, I think I handed up a copy of - - -
PN758
THE DEPUTY PRESIDENT: Is there an additional issue? I still have that copy. I was - - -
PN759
MR HOWELLS: Does your Honour desire to keep that? I am quite - - -
PN760
THE DEPUTY PRESIDENT: I intend, Mr Howells, to copy it over the luncheon adjournment and return it to you.
PN761
MR HOWELLS: As your Honour pleases.
PN762
THE DEPUTY PRESIDENT: I certainly had not forgotten it.
PN763
MR HOWELLS: No, no, indeed.
PN764
THE DEPUTY PRESIDENT: Thank you. The Commission will adjourn until 2 o'clock.
LUNCHEON ADJOURNMENT [12.18pm]
RESUMED [2.07pm]
PN765
THE DEPUTY PRESIDENT: In this matter I have had regard to the evidence led and submissions put. Having regard to the evidence led and submissions put, I am not satisfied that conduct referred to in section 166A(1) subsection (1) of the Workplace Relations Act 1996 is taking place. I am therefore unable to issue the certificate sought by the notifier.
PN766
Reasons for decision will be published in due course. These proceedings are adjourned sine die.
ADJOURNED INDEFINITELY [2.08pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ANDREW KITE, SWORN PN209
EXAMINATION-IN-CHIEF BY MR GARDNER PN209
CROSS-EXAMINATION BY MR HOWELLS PN382
WITNESS WITHDREW PN434
EXHIBIT #H1 AFFIDAVIT OF MS V.L. WILES PN451
VIVIAN LEE WILES, AFFIRMED PN482
EXAMINATION-IN-CHIEF BY MR HOWELLS PN482
CROSS-EXAMINATION BY MR GARDNER PN489
WITNESS WITHDREW PN526
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