C2001/1162, Transcript of Proceedings [2001] AIRCTrans 711 (2 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 6782

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2001/1162

REVOCATION BY COMMISSION MEMBER
OF ENTRY PERMIT

Application under section 285G by BHP Iron
Ore Pty Limited to revoke any permit issued
to William Warren Tracey under section 285A

MELBOURNE

10.31 AM, FRIDAY, 6 APRIL 2001

PN1

MR M. LUNDBERG: I appear for the applicant this morning, with your leave.

PN2

MS B. O'NEILL: I seek leave to appear on behalf of the respondent, Will Tracey.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted in both cases. I have called this matter on for mention to ascertain the basis upon which the application is made, or least the submissions about that, and to get some idea of the period of time that the matter might occupy. Yes, Mr Lundberg?

PN4

MR LUNDBERG: Yes, sir. Can I say at the start that my friend appears this morning for Mr Tracey it would seem, but not for the relevant unions. The unions have been served and I think the notice of listing requested serviced by us on the Federal and State branches of the CEPU and the AWU, and that has occurred. I don't have proof of that service this morning, but I understand that my friend's firm does in fact act for those unions as well. I make that as an aside at the start. Sir, perhaps I can start at our finish point and that is the hearing itself and the length of time it is likely to take.

PN5

We would respectfully suggest that at least four days needs to be set down for the hearing of this matter. At this stage we will attempt to confine our witness list as much as possible, and I would hope to have no more than six substantive witnesses to be called from BHP. The reason we need at least six is that the relevant conduct, sir, has occurred at a number of sites. There are three primary sites in question and the conduct, that is the entry by Mr Tracey has occurred on three sites. That is the finish point I suppose for the purposes of today sir, the length of the hearing.

PN6

I have a minute of proposed directions. Perhaps I can hand that up and speak to that and just raise a couple of other issues subject to your views sir. Perhaps if I could have a copy given to Ms O'Neill.

PN7

THE SENIOR DEPUTY PRESIDENT: By all means Mr Lundberg, but I will just give the indication that it may not be me who ultimately deals with the matter.

PN8

MR LUNDBERG: But bearing that in mind, perhaps I can raise a discrete issue as to the programming of the matter and its general conduct. The issue is this. Sir, you will be aware that there was a previous application to this brought under section 285A.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR LUNDBERG: There was a hearing scheduled in late February, early March, before Deputy Industrial Registrar Ellis, and that was an application brought by my client against Mr Tracey to revoke two permits he had then had issued. A number of steps were taken in relation to the preparation for that hearing. It was a three day hearing as I say, and you may have seen from the files sir, that on the day before the hearing, indications were made that the permits would be surrendered. That was on the Monday at about, I think from recollection, 3 o'clock Perth time, in preparation for a Tuesday trial to take three days.

PN11

We appeared before Mr Ellis, the Registrar, and that hearing was aborted on the basis that the permits were surrendered. Transcript may have been made available to you on the file sir, which would indicate what happened, and essentially as we understood the position, that was the end of things. Permits which were being used by Mr Tracey to authorise his entry onto our client's work sites, were surrendered. As we understood the matter, Mr Tracey would no longer seek to gain access to our sites. We don't know the precise date, but it may be as little as a week thereafter, Mr Tracey obtained a fresh permit through the agencies of the Australian Workers' Union.

PN12

We understand he did that as an employee of that union, but we don't know that that is the case because we haven't been able to obtain a copy of the application document for that permit. Since that point, which was early March, Mr Tracey has continued what we might loosely describe as his campaign of entering our client's work sites for purposes we say that do not fall within the permitted purposes under the Act. So taking a holistic view, sir, and as brief as I can be given your observations this morning and the nature of this hearing, our client has been faced with a campaign since 9 January of this year, of multiple entries onto our client's work site which may now number over 100 days of individual access, and on some of those days there are multiple entries.

PN13

On some of those days Mr Tracey has given notice that he may or may not enter the site over a 12 hour period. Our client brought its first application on 10 January for revocation. We thought that was all over on 27 February. Plainly it is not, and Mr Tracey continues to enter our client's sites. Sir, we apprehend that the surrender of the permits in late February was done in full knowledge that BHP were about to present evidence, direct probative evidence, that Mr Tracey was entering our client's sites for the purposes of the dissemination of industrial propaganda. There is a - - -

PN14

MS O'NEILL: Your Honour, I object to these allegations that are being made from the Bar table. All of these matters will obviously be the subject of debate and contested evidence at a proper hearing in relation to the merits of the company's application and, in our submission, it is inappropriate for the purposes of a hearing restricted to the mention, to do otherwise than in an objective fashion outline very briefly for your Honour the background to the proceedings. We don't take any objection to providing your Honour with a summary of what has transpired to date, but the nature of Mr Lundberg's submissions are quite emotive and obviously contested by my client, allegations that go to the merits of any application.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Lundberg, you may continue, but I would ask you to confine your remarks to a bare outline of the nature of your allegations.

PN16

MR LUNDBERG: Yes. Thank you, sir. I will move on but pause to say this. The primary issue that we think emerges in this case is a fight as to whether or not Mr Tracey is exercising his permit for purposes covered by section 285B. He can only be entering our client's site, for an objective suspicion there has been a breach of the Act. I pause to note there is no Federal award in place, or Federal orders in place that might make out a more complex situation.

PN17

The only basis he can be on the site is a suspected breach of the Act, and the position for which we contend and propose to lead this positive and direct evidence at trial, which is why I think it will take four days, is that Mr Tracey has been entering the site to, and we obviously say this as our contention of fact, that he is entering the site and he is distributing information about workplace agreements and things of that nature. I could spend half an hour, and I won't, outlining that evidence. It was obviously in apprehension of that evidence that the surrender occurred in February.

PN18

We found ourselves having to bring a further application to protect our client's rights and the position we are in, may it please you sir, is we consider there is an industrial dispute that has arisen in this case. Strictly speaking it is probably between my client and the Australian Workers' Union as the authority, as the industrial organisation in respect of whom the permit was granted. Mr Tracey is the conduit. That is the industrial dispute. It is a matter of significance and what is of real concern sir, is that we are now in early April and the campaign has continued since early January.

PN19

Our concern sir, and the reason that I have made those comments this morning, and ordinarily I wouldn't, is we have a real apprehension that on the eve of the next trial, we are going to see some hands in the air and perhaps a white flag being flown and it being indicated again, back off now we will surrender these permits. You don't need to have a hearing of this matter; our permits have been surrendered.

PN20

That is a position which I can only say would be barely tolerable for my client, because it would be no resolution at all, and the point we wish to make sir, and obviously it is perhaps not a matter that the Commission always entertains, is we would be pressing in due course for a hearing of this matter, whether or not there is a surrender of the permits, and we think that that would be in the interests of industrial harmony, that there be some clear resolution to the dispute between the parties.

PN21

Sir, I am not sure, in light of your comments this morning, how the Commission is placed to deal with the matter. We would like to move to an early hearing, but bearing in mind that the timetable I have proposed this morning regarding - in the document that I will perhaps speak to now, there is obviously pragmatic issues to take into account, and if we are having in Perth, sir, you would be better placed than me to know whether we could have a Commissioner or a Senior Deputy President available to hear a four day hearing. I understand sir, you have a long-running case at the moment.

PN22

THE SENIOR DEPUTY PRESIDENT: A number of them.

PN23

MR LUNDBERG: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: But what I - it is useful I think to understand the nature of directions which would be sought and the timeframe, because it then gives me some indication of (a) precisely how long it would be, and how long it would be before the applicants thought it was listed and perhaps the respondent.

PN25

MR LUNDBERG: Yes, and sir, there is two orders that are perhaps not the usual forms of orders, but order (1) and order (6) I have proposed - order (1) we are in a position where we have put the respondent union, the AWU as well as the CEPU in the former matter, and Mr Tracey, on notice of our concern as to the status of his position with the Australian Workers' Union. Mr Tracey is an organiser with the ACTU. All of his correspondence is signed "Organiser ACTU". It is, and must be accepted, that the only basis upon which a permit can be issued is that Mr Tracey is an officer or employee.

PN26

The previous permit was apparently granted on the basis that he was an officer and we certainly dispute that. We don't think he is an officer, bearing in mind the strict limitations under the Australian Workers' Union rules about who can be an officer. It may be that he is an employee of the Union. In either case, we have a serious concern as to whether the permit has been validly issued. It is for that reason that we would seek as the very first order in this case, the very first direction, that the respondent make available to the applicant, the evidence, and it must be easily to hand, which demonstrates he is an employee of the union.

PN27

Sir, I understand the practice of the registries is not to require evidence of the relevant appointment when granting a permit. I have seen the applications that have been filed by AWU officials seeking the permit, and, this is for the old permits, and they seem to simply declare he is an officer. That is not a formal declaration under the rules and the controversy in this case, is likely to be significantly reduced if that evidence is made known to us now, whatever document it is, is made known to us now, we can put that issue behind us, it will leave the question of the validity of the permit to one side, and the trial would only focus on the factual controversy, namely why is Mr Tracey on the site, there is no 285B purpose here.

PN28

The second perhaps unusual order, is order (6), direction (6), and that is, we have not been permitted access to the Australian Industrial Registry's file in relation to the issue of this current permit. Sir, I pause there to say that the practice from my recent experience in this matter, the practice between the registries seems to differ. The Tasmanian Registry has made available documents to us in the previous hearing, simply by letter of request. The New South Wales Registry informed us that we could not have access to the application document and we think it would be important for us to see that.

PN29

THE SENIOR DEPUTY PRESIDENT: I should have thought it was a public document.

PN30

MR LUNDBERG: And that is obviously the position the Tasmanian Registry took. We have been denied access by the New South Wales Registry. If it is something that doesn't need a specific direction, and ordinarily I wouldn't seek it sir, we are happy to perhaps press the issue and liaise with your associate on that point, but as I say, we were not permitted access when we sought access. So those are the only two orders. What I have proposed is, and I am not sure what your practice is for hearings sir, but I thought it might be desirable that both parties file their outline of, and appreciating that you might not be hearing it, but an outline of contentions of fact and law, some form of summary document, which explains what is going on, and witness statements.

PN31

Can I make two observations there sir, without delaying you too much. The first is that we have already filed, if I can just show you sir, effectively this lever arch file represents the witness statements filed in the first hearing before the Registrar. We would seek to have those stand as statements in the current proceeding without having to file fresh statements, although we do intend to file some supplementary statements. That is the first observation. The second, sir, is that as happened with the last hearing, this is a dynamic campaign from Mr Tracey and it continues on a daily basis.

PN32

There is likely to be probative evidence that we gather after we have filed our witness statements, and so we would seek to reserve our position to file supplementary witness statements if that is necessary, because, as happened in the last hearing, Mr Tracey was on site up until the Friday and the Saturday before the Tuesday hearing, and we had already filed our witness statements, so that is perhaps as brief as I can be, sir, without delaying you or my friend this morning, with the complex factual scenario. We are in your hands sir, regarding listing. Perhaps you would like to hear from my friend in that respect, may it please you.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms O'Neill?

PN34

MS O'NEILL: Your Honour, clearly on behalf of my client, we do not accept any of the allegations that have been put forward by Mr Lundberg. Moving directly to the progress of this matter, we had in fact provided Mr Lundberg with a copy of directions that we proposed to be made in this matter, and I will provide copies of the directions that we consider appropriate. In general terms, there is no dispute about the kind of steps that need to be taken, or in fact about the overall timing, the question is more as to the steps and the sequence of the steps to be followed.

PN35

The critical issue from our perspective, your Honour, is that the application that has been filed is very abrupt and I note that the application is fundamentally of a different nature to the previous application before the Deputy Industrial Registrar, and accordingly it is impossible for our clients to respond adequately without sufficient particulars of the grounds under section 285G that the applicant seeks to rely upon. In particular, for example your Honour, we have no information in the application or the schedule to the application, that identifies the nature of the alleged industrial dispute that the application seeks to prevent or settle, nor do we have any particulars as to how the granting of the application would in fact allegedly prevent or settle such industrial dispute as may exist.

PN36

So, from our perspective, we would require full particulars to be provided as a starting point, your Honour, so that we know the case against my client, and can respond adequately. There also clearly will be an issue as to the relevance of the material filed in relation to the earlier application and whether it is probative to any extent or relevant to a fresh application in relation to an entirely different permit, and that will be an issue between the parties. So, the directions that we would seek are in fact, that firstly, the company provide the particulars of the grounds so that we may respond, and then a process of simply the filing of witness statements and any other evidence and the order set out in the proposed order.

PN37

So they would be the directions that we would seek, and we would take no objection if further directions were issued in relation to the filing and serving of outlines of contentions of fact and law. We would think that is most appropriate, your Honour, after the filing of witness statements rather than prior to them. I would take objection to the timeframe and the order set out in my friend's proposed directions, for example, the notion that my client would only have three days to file witness statements - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, I did notice that.

PN39

MS O'NEILL: - - - seems fairly unreasonable, and the filing and serving of contentions prior to seeing the evidence, seems to also be putting the cart before the horse from our perspective. In relation to orders (1) and (7) in my friend's proposed directions, without the particulars, without knowing that my friend presses a, or says that a ground for their application is that my client isn't entitled to have a permit, then evidence as to his employment status is or is not relevant. So again we would require particulars prior to any such material, and if it is an issue in contention, then one would presume that it would be in my client's interest to adduce such evidence in the form of attachments to witness statements and so forth, so we would not see any need for any separate direction in relation to that and certainly not in the first order of things.

PN40

I make no particular submissions in relation to the access to the registry's files, that is not for my client to consider, if the Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms O'Neill. Mr Lundberg, have you got anything by way of response? I might say that I do think that a period of three days to prepare witness statements is a bit short.

PN42

MR LUNDBERG: Well perhaps we were hoping to encourage our friends to move a little quicker than they did in the last hearing, but, yes, I don't say anything about that, and as to the suggestion of contentions of fact and law being swapped over with witness statements, I am not sure it is a cart and horse situation. The contentions of fact and law document that we had in mind was in the nature of a pleading type document and I think it is proper that that go before the witness statements be filed. We are conscious here that, sir - - -

PN43

THE SENIOR DEPUTY PRESIDENT: My practice is to require them to be filed concurrently as a general rule; the contentions of fact and law by the applicant together with the witness statement, without limiting the right to file additional witness statements. File such witness statements as are appropriate at that time, then to require response is my normal, with the answering contentions together with witness statements.

PN44

MR LUNDBERG: Perhaps then I can - - -

PN45

THE SENIOR DEPUTY PRESIDENT: It may not be me who is hearing it, I just foreshadow that that would be my usual practice.

PN46

MR LUNDBERG: Well sir, if that is, obviously we are moving to making some directions today. If that is your usual direction we don't have a problem with that, and we would even propose that our filing and serving occur on 20 April so that we file both documents, that is the outline of contentions and the witness statements on the 20th, and our friends file theirs, perhaps then by the 27th, giving them a full week to absorb the material, and we would see that not requiring the further order my friend talks about, which is a particulars of ground document.

PN47

The contentions of fact document will address those issues and will flesh those out for our friends and for the Commission, may it please you.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN49

MS O'NEILL: Your Honour, could I just make one further point. It seems in fact that we are converging back in general terms, to the proposed directions that we have proposed, and I would just ask your Honour to bear in mind that there are geographical difficulties. My client is based in the Pilbara. We will need to talk to a number of other people over there, and there are just simple logistic difficulties that make seven day timeframe for production of witness statements unrealistic in our submission. We would request two weeks as a minimum for that.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. I am conscious, Mr Lundberg, of your client's concern about this matter. I will ensure that directions are issued very shortly, but I do want to consider who is the best person to issue those directions, and I think both parties can expect them in the next few days, but it won't be today, because I will consider whether it is possible for me to do the matter or whether it will have to be done by somebody else, and to confer with that person about what has been said today, so that they may issue the directions.

PN51

Ms O'Neill, I will certainly bear in mind your latest submission about the timeframes involved. I don't think there is anything further we can do today, as I have indicated, unless you have got anything further to put. Directions will be issued as expeditiously as possible having regard to who is going to deal with the matter.

PN52

MR LUNDBERG: Yes, the only point was to confirm that the hearing would be in Perth?

PN53

THE SENIOR DEPUTY PRESIDENT: Yes. It is obvious if there are witnesses involved and some of them will have to be brought from the Pilbara, it is just not practicable. (a) it is not practicable I think to hear it up there and (b) it is not practical to bring everybody to Melbourne, so yes.

PN54

MR LUNDBERG: I think my client has already faced that task in the Federal Court trial before her Honour Justice Kenny. I think there were some 80 or so witnesses who were brought from various points around Australia to Melbourne, and that was obviously a significant burden.

PN55

THE SENIOR DEPUTY PRESIDENT: It seems to me that Perth is a fair halfway house. The matter will be listed in Perth. We will adjourn on that basis.

ADJOURNED INDEFINITELY [11.01am]