C2001/1620, Transcript of Proceedings [2001] AIRCTrans 550 (10 April 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C 2001/1620

BHP STEEL (AIS) PTY LIMITED

and

THE AUSTRALIAN WORKERS UNION
AND OTHERS

APPLICATION UNDER SECTION 127(2) TO STOP
OR PREVENT INDUSTRIAL ACTION

SYDNEY

11.18 AM, MONDAY, 26 MARCH 2001

HEARING CONTINUING

PN1

THE COMMISSIONER: Can I have the appearances, please?

PN2

MR D. LLOYD: I seek leave to appear for BHP Steel (AIS) Pty Limited with MS BERNASONI.

PN3

MR. M. KARAKATSANIS: I appear on behalf of K & R Fabrications and LJC Pty Limited, the two contractors on site.

PN4

MR G. ROBERTS: I appear for the Australian Workers Union.

PN5

MR W. PHILLIPS: I appear for the Australian Manufacturing Workers Union.

PN6

MR P. ZABOYAK: I appear for the CFMEU.

PN7

THE COMMISSIONER: Mr Lloyd?

PN8

MR LLOYD: Before the Commission are two applications that seek section 127 orders in relation to employees of contractors presently working at the hot strip mill of the company's Port Kembla steelworks. By way of background, the company operates a hot strip mill as part of its integrated iron and steel making process at the Port Kembla steelworks. Presently there is a major maintenance shut down of that hot strip mill and that maintenance shut down commenced on 11 March for a period of 25 days. For the 25 days both company employees and employees of contractors are performing major maintenance repair and upgrade work 24 hours a day seven days a week.

PN9

Last Friday morning at 7.00 am a stop work meeting occurred involving employees of contractors working at the hot strip mill and arising out of that stop work meeting strike action was taken and that strike action continued Friday, Saturday and Sunday. There was then a further meeting of the employees of the contractors this morning together with relevant union representatives and the information we have arising out of that meeting is the strike action is continuing, so in terms of section 127, we would say clearly industrial action is happening at present.

PN10

The company has been told by officials of the unions that the strike action has been taken because there is non union labour working at the hot strip mill and we understand that this relates to employees of a particular contractor, a contractor called Hi Lube. That contractor is one of many of the contractors working on site. We understand that some employees of that contractor are members of unions, some are not, and we've been told that the strike action has been taken because of the non union labour working for Hi Lube. Those employees have continued to perform work despite the strike by the unionised workforce.

PN11

Commissioner, the strike is having a significant effect in disrupting the maintenance programme and the effect of the stoppage will be to increase the length of that maintenance programme. It was scheduled for 25 days and with every day of strike action the length of the shut down unfortunately increase. That will inevitably affect the company's production when it wants to start up at the end of the shut down period. That's a matter we will deal with in evidence. We were proposing to rely on evidence of two gentlemen, Tony Green and Jim Graham. Tony Green's evidence relates to the background to the hot strip mill maintenance shut down. That evidence has been reduced to writing. A copy was provided to the Commission this morning and to the unions. From Mr Green we have no other evidence other than that statement.

PN12

Mr Green would just be subject to any cross-examination in relation to his statement. The second gentleman, Mr Graham, would need to bring some very short oral evidence in relation to the events of Friday last weekend and the events of this morning, so we would need to bring some short oral evidence in that regard, and that is the evidence we would need to rely on in support of the application. I should just add, the contracting companies that are mentioned in the applications are the main contracting companies working at the hot strip mill. They're not all of the contractors, they are the main contractors and they are the ones that come within the jurisdiction of this Commission.

PN13

In terms of the award and certified agreements applying to those, we have copies of those. The relevant names are mentioned in the applications, subject to me needing to make a couple of comments about parts of it, but we can provide copies of those to the Commission and we've got a summary page that lists the awards and certified agreements. Commissioner, those are the matters I would place on the record.

PN14

THE COMMISSIONER: Thank you. I just might hear an overview from Mr Roberts on the union side.

PN15

MR ROBERTS: Having not been directly involved in this matter, Commissioner, I put it to you the way that it's been to me. A meeting was organised for Friday morning to talk about a number of issues concerning members of the unions working in that particular maintenance area, rather large shut down, several hundred people. As you would be aware there's always a number of issues people want to talk about. During that meeting it was established by some people at the meeting that one of the companies, Hi Lube, had continued to work and not attended the meeting. That was the subject of some discussion including the issue of whether or not people were members of the union, whether or not they were actually employees or subcontractors, a whole range of issues arose with that.

PN16

That meeting adjourned until this morning. Several discussions were held, as I understand it, between the union officials responsible and the companies. There was a lot of short change given to the union officials of people not really interested and a number of other employees being approached by employers indicating to them that they didn't have to be in the union, and that was again reported at this morning's meeting. This morning's meeting again discussed the issue and has now adjourned until tomorrow morning with a resolution carried that all contractors who work on the BHP site to attend the meeting tomorrow morning.

PN17

The issue arose through a normal meeting that takes place about safety and other issues. People believe they shouldn't attend a meeting for one reason or another and as you would be aware, those sorts of things on major projects like this one just lead to confrontation, and having seen orders, whether it's 127 or any other type of dispute order being able to fix that, it's a matter of the parties being able to try and have a way to work through the issue and get on with it. So maybe that can be taken on account by the company and their advocates when they're putting it because I don't think that whether the orders are issued or not there would be any resumption of work while a dispute remains.

PN18

THE COMMISSIONER: Thank you. Mr Phillips?

PN19

MR PHILLIPS: Thank you, Commissioner. I have been involved from the start of the dispute and as Mr Roberts has put, it was to discuss some general issues. Most of those were resolved on the Friday morning at the meeting. We sought and received some information from Mr Tony Green over one of the issues that was resolved fairly quickly, Mr Tony Green being the manager of the strip mill, so that was resolved fairly quickly. Things then developed into questions about who was at the meeting and who wasn't and one thing led to another and members determined that they would not come back to work until everybody who was affected with the issues being raised working on the site should come up and take part.

PN20

It was made clear to the union officials that in our members' views there are no more free rides. If people want to participate and enjoy some of the conditions, etcetera, wage that apply, then they should contribute. We went down and approached BHP company officers, we had some words with them, we then had a meeting arranged and they brought in some contracting directors or managers, management, from various contractor companies and it was quite clearly put to them what the union's position was. My members have made it quite clear that the position as late as this morning, we don't really care whether these people are members of the union or not, made it quite clear on Friday understand what we were asking for was illegal under the Act, know all that, but the members are saying they're just not going to work with them.

PN21

They want to have the choice of not being in the union that's fine. Our members have a choice of not working with them. I can't put it any plainer than that and any more honestly and open than that. That's the facts. BHP has made a decision to oppose it, contractors have made a decision to oppose it. At the end of the day, whether we've got orders or not, somewhere down the track, somewhere in the future, we'll sit down and see if we can resolve this thing so it doesn't blow up like it is at the moment, in the future, but the company has drawn the line in the sand, set us up for a dispute, well, we've now got it. So I suppose we'll get into it and see where it ends up.

PN22

THE COMMISSIONER: Mr Zaboyak?

PN23

MR ZABOYAK: Thank you, Commissioner. I've only got limited briefings on what happened. I wasn't at this meetings at Port Kembla. The company involved from our side is a company called Andrecco Hurll, in fact a bricklaying company. I received a call late on Friday afternoon, it was after 5 o'clock, indicating that there was industrial action taking place. I only got brief insight into the issue that was at hand. I've got mixed reports involving shonky contractors operating on site, some people being in the union and not being in the union, people working on illegal individual contractors and various arrangements and various insurances not in place and so forth.

PN24

The company which has our members said that our members were blase, they really didn't know what was fully going on. There were two shifts involved. As I understood it there was a day shift and a night shift involving Andrecco Hurll. The night shift hadn't been fully briefed on what was going on. The workers were told that they work in some sensitive areas where they need to have look outs, they need to have safety representatives watching as they work, confined space people and so forth. Further, the company was instructed by whoever, I didn't get any details, extremely scant, but no ambulances or other first aid facilities would be made available if they went to work. The company then decided that it didn't want to put its workforce on risk and subsequently it didn't work that afternoon or that night shift.

PN25

I've only had a very extremely brief report on what transpired this morning. My understanding is that Andrecco Hurll are working within the confines of BHP in other areas. Our union has no direct industrial action involved that other than I understand they participated in a mass meeting. I certainly intend to head to Wollongong today to find out what is going on. I have asked the secretary of the Australian Workers Union Port Kembla branch give me a ring and brief me on what's going on because I don't know. I spoke briefly to our official, Mr Brian Fox, who indicated that he in fact had last week asked a couple of purported offending companies for a list of their insurances and superannuations and other legal requirements. That was also brought to the attention of BHP local management in the hot strip mill and his requests were ignored. The company seemed intent on trying to continue work at all costs, which flies in the face of past practices and arrangements with the company which usually we act pretty swiftly to ensure that all contractors that in fact are engaged by the said company meet the lawful and legal obligations.

PN26

We have concerns that some of the contracts that appear to have been let are extremely competitive and some of those alleged companies are not meeting their legal obligations. We haven't taken any action as such. I understand it's a company called Malsave involved, and as I said, I hope to be more fully briefed and appraised of the situation of what's going on down there this afternoon, but we would objecting to any orders being issued against our union. We seem to have been swept up in some action. Certainly we have no dispute with BHP. We have nothing planned or any planned disputes with BHP. The company involved is a contractor. None of our members who are direct employees of BHP are involved, that's my understanding. Again, as I said, based very briefly on the very scant information that's been made available to me I would be opposing any orders being issued against our union.

PN27

THE COMMISSIONER: Thank you. We seem to have two positions from the unions' side; one is in opposition to orders being made, another is that if orders are made it doesn't seem to be any opposition to such. Well, then, they won't resolve the problem. The easiest thing for me to do is, subject to me being satisfied that industrial action is happening, threatened or probable, is to issue orders but that seems to me to avoid the fundamental question which is what can be done to resolve the dispute in hand, and what can be done to resolve the dispute without any further polarisation between the parties, which seems to be fairly evident. Mr Lloyd, are there representatives of your clients here today who are able to negotiate or to confer with the union officials?

PN28

MR LLOYD: There are, Commissioner.

PN29

THE COMMISSIONER: We seem to be on the precipice of a potentially serious dispute and if some time today can be used to try and take a step back from that I think it might be productive. Given that I do have an excuse to adjourn for another matter it might also be timely. I'm going to adjourn until 12.30 when I'll ask the parties to report back. In the interim we'll provide a conference room and I would ask that the officials and those company officials who are directly concerned and if necessary their representatives spend that time to go into conference to see if the matter can be resolved or something can be taken back to the meeting tomorrow morning which can lead to the resolution of the dispute. I will adjourn until 12.30.

SHORT ADJOURNMENT [11.37am]

RESUMES [1.12pm]

PN30

MR G.J. HATCHER: If it please Commissioner, I now appear for BHP Steel (AIS) Pty Ltd and with me is MR D. LLOYD.

PN31

THE COMMISSIONER: Tell me what's happened since we adjourned earlier?

PN32

MR HATCHER: There have been some discussions, Commissioner. They've not resulted in a resumption of work or any alternation to the application which my client would press, and my client wishes to advance that application as urgently as is possible before the Commission.

PN33

THE COMMISSIONER: All right. I'll hear the arguments and submissions. I do have some difficulties before too, its probably, if you haven't already had lunch, I certainly haven't, it might be an appropriate time. Can I stress on the unions that what's before me is a serious matter and which can have implications for, and I'm sure I'm not telling you anything new, but you may well decide that you don't want to respond to the application, but I would ask that you give that serious consideration. And bearing in mind the consequences of if I were to issue an order, there ought to be some serious consideration given to what the company is putting, or what the applicants are putting in this matter.

PN34

So with that I'll adjourn until 2 pm to hear submissions by the applicant. Thank you.

LUNCHEON ADJOURNMENT [1.14pm]

RESUMES [2.04pm]

PN35

THE COMMISSIONER: Yes, Mr Hatcher?

PN36

MR HATCHER: Yes, Commissioner, there are two matters before the Commission. Matter 1623 of 2001 and 1620 of 2001. As I understand it the Commission has called the two together, treated them as joint. In our submission that's appropriate.

PN37

THE COMMISSIONER: I have the one file, Mr Hatcher. Although I do note the different reference to the CFMEU. Is that 1623 is it?

PN38

MR HATCHER: It is.

PN39

THE COMMISSIONER: You were operating by remote control on Friday, between States.

PN40

MR HATCHER: I understand that, Commissioner, but we say that it's appropriate that the two be heard together, which is as I understand it how the Commission has dealt with the matter to date. Commissioner, could I make some formal amendments to the application in 1620 of 2001? They simply relate to some better understanding of the instruments that apply to my client's contractors. Could I invite the Commission in the first paragraph that identifies the instruments that apply, to delete the reference to the National Electrical Electronic and Communications Contracting Industry Award 1998.

PN41

THE COMMISSIONER: I'm sorry I'm having trouble locating that.

PN42

MR HATCHER: In the second last line of that same paragraph, this is in 1620, Commissioner:

PN43

In the matter of work that is regulated directly under the heading, "Application for an Order to Stop or Prevent Industrial Action".

PN44

THE COMMISSIONER: Yes.

PN45

MR HATCHER: If the Commission just puts a line through the second line of that paragraph. Then in the fifth line after the words, "agreement site operations" insert the word "and" and at the end of that line delete the words "and Ralph M. Lee Pty Ltd Enterprise Agreement 2001 to 2003". Now in clause (2), paragraph (a), subparagraph (iv), could I invite the Commission in the second line, to insert the word "and" between the words "Wollongong Pty Limited" and "LJC Pty Limited". Then further down in that same paragraph the Commission will see another reference to the National Electrical Electronic and Communications Contracting Industry Award 1998. Can I ask that that be struck out? In the fourth line from the bottom, after the words "Enterprise Bargaining Agreement Site Operations" could I ask the Commission to insert the word "or" before the words "LJC Pty Ltd" and delete the words at the end of that next line "or Ralph M. Lee Pty Ltd Enterprise Agreement 2000 to 2003".

PN46

If it please, Commissioner, one other matter was just drawn to my attention in that preparatory paragraph, where there is a reference to ABB - sorry, in that paragraph I was just dealing with, subparagraph (iv), Commissioner. ABB Engineering Construction Pty Limited has apparently changed its name since it executed the agreement. The agreement's name remains the same but the company is now described as ABB Services Pty Ltd. So if that alteration could be made in the first line of subparagraph (iv) of clause (2) paragraph (b).

PN47

Now if I could then go to the grounds of the application on page 3, Commissioner. In ground 3 the Commission will see there is another reference to ABB Engineering Construction Pty Ltd which should again be varied to refer to ABB Services Pty Ltd. Travelling up that page, Commissioner, to clause (4) Service Of Order, in subparagraph (ii) of paragraph (a) the Commission will see a reference to the main contractors. Could I ask that the words "as defined below" be inserted there. In grounds, Commissioner, towards the bottom of the page and indeed over the page, the end of the second line, could I ask that the word "or" be inserted between the words "agreement site operations" and "LJC Pty Ltd" and the words "Ralph M. Lee Pty Ltd Enterprise Agreement 2000 to 2003" be deleted.

PN48

If it please the Commission, with those alterations we press the application pursuant to section 127 of the Workplace Relations Act 1996. The Commission as presently constituted is well familiar with that provision. It is a path that is reasonably well trodden these days and if my memory serves me correctly, you Commissioner, sat on the Full Bench that basically set down the test in Coal v. Allied.

PN49

THE COMMISSIONER: No.

PN50

MR HATCHER: My memory does me a disservice.

PN51

THE COMMISSIONER: But I have read it.

PN52

MR HATCHER: Yes. That seems to be the pre-eminent case in this jurisdiction, Commissioner. In my respectful submission following the tests in that case the Commission will be compelled to the conclusion that orders should in this case be issued. If one has regard to the section, it is first necessary to satisfy the Commission that there is industrial action happening, threatened, impending or probable. The Commission already has on my instructions on the record this morning, a concession that there is industrial action both happening and threatened to continue happening. It is not in issue as I apprehend the situation, but that work is regulated by the awards and certified agreements set forth in the application.

PN53

So Commissioner, one then turns to subsection 2 which is the section pursuant to which my client is entitled to make application. My client being a person directly affected by the industrial action. If the Commission were to need any authority for that, there is a case, Commissioner, Australian Petroleum Pty Limited versus, ironically enough, the same unions as involved in this case, where Commissioner Lawson issued orders pursuant to section 127 requiring assessing of industrial action by employees of contractors to Australian Petroleum Pty Limited during a shut down at the Kurnell site.

PN54

Commissioner Lawson ultimately issued the orders but it was after, her Honour, Deputy President Drake as she then was, had considered the question of jurisdiction and the standing of my client or of, Australian Petroleum I should say, to seek those orders.

PN55

THE COMMISSIONER: Do you have the print number of that?

PN56

MR HATCHER: I'm afraid I don't, Commissioner, I've come straight from another matter. But we can certainly communicate that to your office this afternoon. If it pleases the Commissioner, it then comes on the tests applied by the Full Bench in Coal & Allied to consider whether that industrial action which is occurring is illegitimate in the sense of warranting particular relief in this Commission.

PN57

On my instructions Mr Phillips this morning has informed the Commission that the reality of the situation is that members of the relevant unions are engaged in industrial action on the basis that they decline to work alongside people who are not members of those organisations. That conduct is of course prescribed under the provisions of the Workplace Relations Act. We concede that it's conduct in respect of which my client has other remedies, that my client has considered it appropriate to first approach this Commission and have this Commission exercise its undoubted jurisdiction to order the conduct to cease.

PN58

If it please the Commission, I am in a position to call evidence if anything that I've put is in dispute. It doesn't appear to be in dispute given what's already been put on the record by the union. We ask that the Commission make orders on the terms sought.

PN59

THE COMMISSIONER: Thank you. Mr Roberts?

PN60

MR ROBERTS: Commissioner, my position at this stage to say to the Commission orders should not be issued at this stage and just put to the Commission that the unions have firstly, met with the company in regards to a number of issues that we see are important in resolving the dispute some point of time over the next couple of days. We've had little co-operation from the company in being able to resolve a number of issues with a couple of companies in them co-operating in and participating in the question of the bona fides of two companies.

PN61

We've sought to receive information that is part of the normal things that genuine employers keep, in regards to payroll tax and a list of employees and registration and superannuation payments and so on. It is the union's position at this stage that we will be seeking from the companies involved, those things as a matter of urgency. It's on that basis that we intend to talk to those companies and seek their bona fides this afternoon and it's on that basis that we will be recommending to the members in dispute at the meeting tomorrow morning that they resume work. On that basis that there is going to be that recommendation, I would put to the Commission that the order is not the issue at this stage but the matter be adjourned to be called on following the meeting, if it's considered still necessary by the applicant.

PN62

THE COMMISSIONER: Thanks, Mr Roberts. Could I ask you, the decision to continue the stoppage this morning, I don't particularly want to know numbers but I want to get a feel for a feeling of the rank and file around this issue. Because, I'm trying to gauge whether or not the recommendation tomorrow will be sufficient to retain a resumption of work.

PN63

MR ROBERTS: Well, I wasn't at the meeting this morning and Mr Phillips was, maybe he can answer that.

PN64

THE COMMISSIONER: Mr Phillips?

PN65

MR PHILLIPS: Commissioner, certainly this morning members were fairly upset that two companies in particular thumbed their noses so to speak and continued to work Friday, Saturday, Sunday and today, when the rest of the site was in dispute. It was a fairly fiery meeting. We went through a number of issues. The members gave us a directive to seek assistance from other people around the plant. We adjourned for some 15 to 20 minutes. The officials then went back and re-convened the meeting and informed the members that in our view, what they were seeking was - it certainly would have blown up the dispute and we put to them that they should allow us time to gather our thoughts, so to speak and adjourn til tomorrow at 7 o'clock and that was accepted by the mass meeting.

PN66

I would think that - well, there was some fairly lengthy discussions this morning about the orders or the application by the company to seek orders that was read to the meeting. We also read to the meeting the news release by BHP which called us, "It's an act of industrial bastardry and deliberate act of sabotage," and so on and so forth from the President of BHP. That didn't go down too well. However, members did accept the position that we put to them to, at this stage, not to escalate it too much, but to allow us to come up here and see where we could go.

PN67

So, in the nutshell, yes, members were pretty cranky to put it mildly, at the start. Made some decisions, however, once things calm down a bit and we continue to talk with them they follow with our recommendation to allow us to come here and argue and then resume tomorrow at 7 am. I think the issues that Mr Roberts has put up is on behalf or a unanimous decision from this side of the table anyway, this side of the bench, that we think that's the way to go.

PN68

We took the time in the adjournment, as it was suggested by yourself, to meet with the company. Some 25 minutes after we adjourned they invited us in to have a discussion with them. In those discussions we talked about a number of things. We put those issues to the company but they declined, so I say that it's pretty obvious the company doesn't want to resolve it at this point in time but is dead set keen to just get the order up and move one.

PN69

I think there is some reason to move. I have spoken, during the break, to my state executive and had their support to recommend the steps that Mr Roberts has outlined, that we seek as a matter of urgency those details from the companies and having that done, recommend to the guys in the morning to return to work. I would support what Mr Roberts has put forward that that being the case that we then come back and can report back to this Commission, the outcomes of those discussions.

PN70

Because, I think in reality, we can get the orders. The Commission can issue the orders but I still think that we need to, at some time, sit down with the two companies and still go through the issues with order or without orders we still have to do it. So I would seek at this point in time that orders not be issued. That we do have a step forward whether the company believes that or not. I think that it is a step forward and I ask to put that in the pipe. If they are that keen to get the orders, I mean what's 24 hours going to be for them.

PN71

THE COMMISSIONER: Are the two companies - probably a fair bit of money in their view.

PN72

MR PHILLIPS: Well, this could have been resolved last Friday, Commissioner. They made it quite clear that they weren't keen to do anything.

PN73

THE COMMISSIONER: The two companies you talk about could you tell me the names of those companies again.

PN74

MR PHILLIPS: Hi Lube and Malsave Pty Ltd.

PN75

THE COMMISSIONER: Who?

PN76

MR PHILLIPS: M-a-l-s-a-v-e, Malsave Pty Limited.

PN77

THE COMMISSIONER: I take it they are not here this afternoon?

PN78

MR PHILLIPS: Certainly Hi Lube's representative is, but Malsave, no. They are not here, no.

PN79

THE COMMISSIONER: It is your desire to have discussions with at least Hi Lube this afternoon?

PN80

MR PHILLIPS: Hi Lube and Malsave if possible, yes. It has been put to the company in the adjournment. That's what we put to BHP, but prior to coming back here they understand that they said, "No stick it in writing some particular thing that you want and we will have a look at it". So that's where we are at.

PN81

HIS HONOUR: Mr Zaboyak?

PN82

MR ZABOYAK: I've got nothing further, Commissioner.

PN83

HIS HONOUR: Mr Hatcher?

PN84

MR HATCHER: Commissioner, Mr Phillips version of without prejudice discussions appears to be different from the views arrived at by those instructing me. I should say Mr Phillips version was given in response to a question by you Commissioner as to whether there was likely to be a resumption of work tomorrow. In the discussions in respect of which privilege has been waived by Mr Phillips. It is clear that whilst Mr Roberts proposed a way forward Mr Phillips made it plain that he did not believe that there would be a resumption of work whatever might be done short of breaching the legislation. It is my client doing what was demanded of it last Friday and act contrary to the provisions of the Workplace Relations Act.

PN85

So, Commissioner, we are left in this position. We have Mr Roberts undertaking and we accept that it is genuine that his organisation will recommend a resumption of work tomorrow. We have Mr Roberts in a position where he cannot tell the Commission whether that would lead to a resumption. We have Mr Phillips who has disclosed to the Commission that he was there and does know feeling of the meeting having told my client that there won't be a resumption unless and until there are breaches of the Workplace Relations Act. Now in those circumstances, Commissioner, it seems there is little utility in granting the adjournment that Mr Roberts seeks and the Commission ought not be moved by the submission. Apparently put somewhat more concisely but to the same effect as the submissions now put by Mr Phillips that there is no point in making an order because they don't propose complying with it. That is not a reason not to make orders.

PN86

The Commission is entitled to assume that whatever rhetoric is engaged in at the bar table its orders will be complied with. Commissioner, Mr Phillips says somewhat flippantly that "what turns on 24 hours". Mr Phillips well knows what turns on 24 hours as does everyone in this room. My client suffers direct losses in the order of $½ million every 24 hours that this shutdown is delayed. Not only does my client suffer those direct losses on the shutdown potentially a large number of Australian manufacturers will suffer substantial losses by the extension of time that the shutdown takes. They cannot access the raw materials for their products potentially that means that the raw material will not be sourced in this country any more. Those people will turn to other suppliers. That's just a fact of economic life.

PN87

THE COMMISSIONER: Mr Hatcher, given what you say is the rhetoric of Mr Phillips. If I were to issue orders today. I might say that I am sympathetic to the application and they were ignored tomorrow at 7 o'clock what is the intension of company then.

PN88

MR HATCHER: To exercise its legal amenities, Commissioner.

PN89

THE COMMISSIONER: So in terms of process it could still be some days before a legal remedy might be found to this dispute.

PN90

MR HATCHER: No, Commissioner.

PN91

THE COMMISSIONER: What do you say?

PN92

MR HATCHER: If my client sought to exercise its legal remedies urgently it would gain access to the appropriate jurisdiction. I would think before lunch time tomorrow. Effectively, Commissioner, what you are being asked to do is as Mr Phillips quite properly conceded delaying my clients access to remedies by 24 hours.

PN93

THE COMMISSIONER: Not necessarily given what I'm thinking in my own mind at the moment. I know that you are pressing for the orders as I said I'm sympathetic to the application. However, I think as I said this morning before you appeared Mr Hatcher that the easiest thing for me to do is to issue orders and then step back and see what happens. I am more concerned though in seeing the matter resolved on the grounds by agreement between the parties. Without further polarisation between the parties.

PN94

MR HATCHER: The difficulty with that, Commissioner, is the demand that is made of my client is a demand with which it simply cannot agree not compliant with its obligations at law.

PN95

THE COMMISSIONER: You have advised the union such.

PN96

MR HATCHER: Yes.

PN97

THE COMMISSIONER: I understand that, Mr Hatcher.

PN98

MR HATCHER: I don't think that there is any doubt whatsoever between us as to that, Commissioner. So all the conciliation in the world is not going to, so far as I apprehend the processes of law making in this country these days, alleviate the situation. Even if the legislature was minded to alter the words it would still take months.

PN99

MR ROBERTS: Could one ask what Mr Hatcher is referring to as the demands, because the only demand that we left the company with in the conciliation process we were going through is an agreement both BHP and the unions would jointly look at a number of records of two companies. First of all they ascertain whether they were keeping their contractual agreement with BHP in regards to being on site and that goes a little bit further than their contract, but also a contract with the unions in regards to the code of ethics adopted by contractors. That that be done first of all as a matter of urgency. The company hasn't co-operated with that so we don't have to do it on our own BHP don't want to be a part of that that's fair enough.

PN100

That's the only claim that's been put on the company in that conciliation process. At the end of the conciliation process a position was put on behalf of the three unions. It wasn't Mr Roberts and Mr Phillips having a different debate. Things were said but at the end of it there was a position put that we had seen a way forward. The company walked away from that so the only position that is before us now is the unions position in regards to seeing the bona fides of these two contractors that's created the problem on site. The only position that union has taken at this point of time is to allow us to go to the membership tomorrow morning recommend a resumption of work so that can be done.

PN101

As I indicated earlier that if the issue of orders was adjourned until after that meeting tomorrow morning then maybe it would be a way forward in the dispute, but there is no other demand whether at law or not on the company. It is quite legal for the unions to request the information that we sought an examination of company records in regards to the things that we have been seeking to look at.

PN102

MR ZABOYAK: I might add Commissioner, that I myself being a senior official of our union, will be at that meeting tomorrow morning. I might add that other colleagues, senior officials will be at that meeting tomorrow morning. I understand the urgency the company seeks a resolution to it. As I said in an earlier submission before this Commission, that I didn't know what was going on. I've got a fair guise and understanding of what is going on now. I think its in the interests of all parties that we resolve this issue, and certainly from my union's perspective, I won't be there with tins of petrol to re-ignite the already smouldering flames. So certainly from my union's perspective we will be seeking a resumption of work tomorrow morning and we'll be exercising our rights under the Workplace Relations Act and certainly seeking those records as Mr Roberts has already indicated.

PN103

THE COMMISSIONER: Thank you.

PN104

MR HATCHER: If it please Commissioner, just so there is no doubt the demand as my client apprehends it is the demand expressed by Mr Phillips on the transcript earlier, and repeated thereafter, that non-union members not be allowed to work on the site. The matters of facilitating discussions with contractors are matters that my client sought to facilitate last Friday and it was made clear that that wasn't the real issue.

PN105

Having said that of course, my client will be grateful for anything that becomes the issue that removes the intractable, but my client has no confidence that Mr Phillips is doing anything other than that which he has promised to do, and that in the absence of orders there is not much of a prospect of resumption of work.

PN106

THE COMMISSIONER: I hear what's being said by both parties this afternoon as distinct from what was being said particularly by the unions this morning. I think there is a distinction. I intend to adjourn the application until 10 am tomorrow morning, and in doing so indicate to the unions that, as I have already said, I am sympathetic to the application and I would envisage the orders being made and the terms sought by the company tomorrow after 10 am if there not a resumption of work prior to that.

PN107

I think the practical implication of an adjournment will not prejudice the company's rights to legal redress if a resumption does not take place when the people meet, when the workers meet at 7 am.

PN108

MR HATCHER: Please, Commissioner, if I could just be heard on the time of relisting tomorrow. If the Commission were minded to relist at 9, it would assist my client in this regard. We would have an opportunity of serving the orders and seeing whether there is compliance to entitle us to take the next steps in the process tomorrow. In other words it may well save us 24 hours that we may lose if the Commission doesn't sit until 10.

PN109

THE COMMISSIONER: Mr Phillips?

PN110

MR PHILLIPS: Could I just respond, Mr Commissioner? We I think in reality were having a meeting at 7 am in the morning. I don't expect that by 5 past 7 that everything will be rosy. I think its going to take a bit of time to go through a proper discussion with the members and non-members who might turn up. But we will be putting a recommendation to them. Then we have to jump in the cars, grab some delegates and head up to here, I don't think to be quite honest, we're not going to get here by 9 o'clock. That's the simple facts of the matter. Its just impossible.

PN111

MR HATCHER: Well the simple facts of the matter are, what will occur tomorrow because none of the factual matters I have put, have been put in dispute, is the union will be entitled to put whatever further discretionary material they wish. The unions are all well funded organisations with officers other than those, no doubt able, who are here today and the telephone so far as my last investigations revealed does work even in Port Kembla.

PN112

MR PHILLIPS: We have carrier pigeons actually.

PN113

THE COMMISSIONER: I think Mr Phillips, the factual issue tomorrow will be whether or not there has been a resumption. If there has been a resumption it won't be necessary for you to come. You might be able to convey that to me or my associate by 9 o'clock. If there hasn't been a resumption, I think the issue becomes whether or not the union seeks to have legal representation here by 9 o'clock tomorrow morning. And on that basis I will adjourn until 9 am tomorrow morning. Thank you.

ADJOURNED UNTIL TUESDAY, 27 MARCH 2001 [2.38pm]