C2001/2167, Transcript of Proceedings [2001] AIRCTrans 987 (28 May 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 7251

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

C2001/2167

RESTRICTION ON CERTAIN
ACTIONS IN TORT

Application under section 166A of the Act
by Fluor Deniel Diversified Plant Services
Pty Limited and Another for order re
restriction on certain actions in tort

MELBOURNE

6.43 PM, MONDAY, 7 MAY 2001

PN1

MR J. TUCK: I seek leave to appear on behalf of the notifier, Qenos and notifier Fluor Daniel Diversified Plant Services Proprietary Limited.

PN2

MR J. DANBY: I appear on behalf of the AMWU.

PN3

MR R. GRAY: I appear on behalf of the Australian Workers Union.

PN4

THE COMMISSIONER: Thank you, Mr Gray. Yes, gentlemen, is there any objection to Mr Tuck's appearance? Leave is granted, Mr Tuck.

PN5

MR TUCK: If the Commission pleases. The Commission has before it an application pursuant to section - notice pursuant to section 166A of the Workplace Relations Act. Commissioner, I note that there is also in relation to this dispute an application pursuant to section 127 of the Act. The company wishes to place on the record that it is eager for that matter to be heard and determined as soon as possible. We understand the Commission has indicated that it may list that matter for tomorrow at 3 pm. Again, we now by that stage, Commissioner, we just note that that will be, I think, day 4 or day 5 of the strike in which that order is sought.

PN6

THE COMMISSIONER: I should note that it was not lodged until - - -

PN7

MR TUCK: Friday.

PN8

THE COMMISSIONER: Late on Friday afternoon.

PN9

MR TUCK: That is correct. Commissioner, the notice of intention to take industrial - take action in tort, which has been filed, sets out the background upon which the certificate is sought. I understand it is agreed that the notice was received by the Commission late on Friday afternoon, it is accepted that it was received in the Commission at 4.30. The 72 hours expired. The Commission has sought to use its powers to stop the conduct as it is required to do under section 166A subsection 5.

PN10

Having exercised its powers and not stopped the conduct pursuant to section 166A sub-paragraph 6, sub-paragraph (c), the Commission must immediately certify in writing to that effect, that it has not been able to stop the conduct. Commissioner, the background of this, the conduct upon which the certificate is sought, is set out in the notice which has been filed and served. The relevant conduct, we say, is the direct-indirect interference with the contracts between Fluor Daniel and other persons, its customs and clients including Qenos and its employees in relation to Qenos, its contracts with Fluor Daniel.

PN11

Those allegations in terms of what the Commission needs to be satisfied of in relation to an application made under section 166A is that it is conduct capable of being subject of the notice, the conduct is capable of being subject to conciliation proceedings, conduct is capable of being subject to attempts by the Commission to stop that conduct and the conduct is of a character that might reasonably be subject of a declared intention to bring in an action in tort.

PN12

If the Commission pleases, I refer to the cases of Mobil Oil, Whittington Homes, and Transfield Obayashi as setting out those principles. An outline of evidence, Commissioner, was faxed to the Commission and to the National and State branches of each of the respective unions this afternoon at approximately 3.30 pm. The notifiers are in a position to call evidence if the Commission requires that.

PN13

And the parties - I will put it this way, Commissioner, if the Commission is satisfied on the material that she has gleaned from the conciliation attempts and the various conferences she has conducted between the lodging of the notice and now, we would ask that the Commission move to certify pursuant to section 166, sub-paragraph 6(c), and we ask that the Commission do that. Otherwise we can call evidence if that is in dispute and the Commission needs that further material in order to satisfy yourself that that conduct sill exists.

PN14

Can I just clarify what the conduct is. In paragraph 10 of the notice, Commissioner, it said that the employees at the Qenos site at Altona went on an indefinite strike. It is the employees engaged by Fluor and employed on the shutdown. Just so that matter is clear. It is the conduct undertaken by those employees in going on strike which is the conduct in part the subject of the notice for which each of the notifiers seeks a certificate. If I can hand up to the Commission.

PN15

Commissioner, I have prepared certificates which each of Fluor Daniel and Qenos seeks this evening in relation to the matter. Depending on what the view of the unions is, Commissioner, they are the submissions on behalf of each of the notifiers. I would seek to have tendered the outline of evidence. I am not sure if the Commission has a copy in front of her. I can - - -

PN16

THE COMMISSIONER: I have. Thank you.

PN17

MR TUCK: Maybe that can be marked as an exhibit, and we rely on that in terms of the conduct still continuing. If the Commission pleases.

PN18

THE COMMISSIONER: Thank you, Mr Tuck. Is there any objection to, I think, gentlemen, you now also have a copy of the document that Mr Tuck referred to, which is the outline of evidence of Kim Gorham.

PN19

MR DANBY: Commissioner, firstly, Tuesday, 11 April 2001, is it Tuesday or is it Wednesday, because April 11 2001 was a Wednesday. So that their evidence is in tatters from the start. How accurate is the rest of it.

PN20

THE COMMISSIONER: Hang on, sorry, I am lost.

PN21

MR DANBY: That is Kim Gorham's affidavit.

PN22

THE COMMISSIONER: Yes, at what paragraph?

PN23

MR DANBY: On page 4.

PN24

THE COMMISSIONER: Yes, paragraph 6.

PN25

MR DANBY: Paragraph 6.

PN26

THE COMMISSIONER: Yes.

PN27

MR DANBY: On Tuesday, April 11 2001, my diary tells me April 11th is a Wednesday.

PN28

THE COMMISSIONER: Okay.

PN29

MR DANBY: And I was actually, in fact, at Chadstone with one Mrs Mary Chang.

PN30

THE COMMISSIONER: Okay.

PN31

MR DANBY: At 2 pm, so it could not have been that time, at that time.

PN32

THE COMMISSIONER: Okay.

PN33

MR DANBY: And it is the wrong day and date. What is right?

PN34

THE COMMISSIONER: Okay, but - - -

PN35

MR DANBY: Why is it in tatters? Why I can't take anything right?

PN36

THE COMMISSIONER: Well, hold on, okay, look, look, look, the question that is being asked of you by Mr Tuck, you and Mr Gray, is whether you - whether basically you dispute the evidence of Mr Gorham that, in essence, on Thursday 3 May employees engaged by Fluor on the shutdown went on an indefinite strike. I mean, that is really - that is the conduct that is being complained of, and that is, essentially, what Mister - the bottom line is that that is what Mr Gorham's witness statement goes to.

PN37

If you wish Mr Gorham can be popped in the witness box and you have the opportunity to test that. If you don't accept that on Thursday, 3 May, those people - that is, employees engaged by Fluor - and on the shutdown went on an indefinite strike. Do you understand?

PN38

MR DANBY: I do and and I don't. I don't understand why we only have to accept the part of their evidence that suits them. In this paragraph 6 where they are saying here - - -

PN39

THE COMMISSIONER: Yes, but does anything turn on whether it was Tuesday or Wednesday?

PN40

MR DANBY: But it goes a little bit further down - anyway, I won't bother with it.

PN41

THE COMMISSIONER: Well, no, no, no, it's not that, Mr Danby. It's really the purpose of this proceeding is that the Commission, essentially, has to certify that it has not stopped the conduct which is referred to in the notice, that the Commission did not stop that by 4.30 this afternoon. I have to make a finding basically, or I have to be satisfied that the conduct is happening, and I have to certify then that I have not stopped it. Now, if you have got an argument about whether the conduct is still continuing, you need to put it. Otherwise - - -

PN42

MR DANBY: If the Commission pleases, essentially, that is correct, the action has not stopped, but their evidence supporting it is in tatters, and I would just like to make that point.

PN43

THE COMMISSIONER: Okay. Well, do you wish to take that further? I mean, do you wish Mr Gorham to be in the witness box and - - -

PN44

MR DANBY: No, thank you.

PN45

THE COMMISSIONER: All right. Okay, fine. Mr Danby, do you wish to say anything else in response to Mr Tuck's submissions?

PN46

MR DANBY: No, thank you.

PN47

THE COMMISSIONER: Thank you, Mr Danby. Mr Gray.

PN48

MR GRAY: No, nothing further to add, just that their submission is in tatters and when you are going on competition, you get the rules wrong you have to do it all over again and it might - should apply. They should have to go and do it again.

PN49

THE COMMISSIONER: Yes, but hold on, hold on, hold on, you can't just make wild submissions from the bar table without being prepared to do something about it, like prove through cross-examining Mr Gorham that it is in tatters, because you are saying that on the one hand both of you gentlemen, but you are saying on the other hand that the facts are that the guys went on strike, on indefinite strike on Thursday and are still not back at work, and that is - is that correct or not?

PN50

MR GRAY: Well, we aren't legal eagles and we have got a stat dec in front of us drawn up by legal eagles that my colleague here has found incorrect. Now, I don't know where the next step is from there. There is silk on that site on the table, there is none on this side of the table. So if anything is wrong it should be done again. That is the way I was taught at school.

[7.00pm]

PN51

THE COMMISSIONER: Yes. Mr Gray, if you haven't worked it out, what I am trying to do is to get the balance and I am spelling it out in black and white to both unions as to what is available to you, so that it is a level playing field before me this afternoon. Now, I have been quite clear, I think, about what options are available and you have also been equally clear about you not wishing to avail yourselves of those. Now, that is fine, that is your decision, but I want to make it clear that that opportunity has been very clearly provided.

PN52

MR DANBY: If the Commission pleases. I don't really want to prolong this and drag it on, but I have only just been handed this when I walked in and the further I read through it the worse it gets. I can't do justice to defend these people here, having been just handed this and every paragraph I read there are inconsistencies or - - -

PN53

THE COMMISSIONER: At the end of the day, in terms of this matter, the Commission is really looking at paragraph 12. Because all the Commission has to be satisfied about is that that conduct has not stopped. I hear what you say about the other, but I am being pragmatic, Mr Danby. At the end of the day the Commission has to be satisfied that the Commission has been unable to stop what is in paragraph 12, that is the end of it, beginning and end of it.

PN54

MR DANBY: Even that I have got objection to, because that should - if we are going to be precise and correct, and there is a lot of money involved in this matter, people should be saying in paragraph 12, on 3 May employees of Fluor Daniels Global Diversification terms is blah, blah, blah, and put it down quite clearly and precisely what you mean.

PN55

THE COMMISSIONER: Well, I have done that - - -

PN56

MR DANBY: Not employees of Qenos, they could be a couple of painters.

PN57

THE COMMISSIONER: All right. Sorry, my apologies, it has been a long day. I have done that. I have been quite specific in saying that the conduct that has been complained about is that it has been undertaken by those employees who are engaged by Fluor and who are engaged on the shutdown and the action - the conduct that they have taken is that they went on indefinite strike at 12.40 pm on 3 May. And that is what I will be putting in my version of the certificate. And to give Mr Tuck his due as a result of the discussions in conference prior to going on the record in this matter, he did clarify, and was quite specific about that during these proceedings. Because that is what I - it is his words I write down, I don't essentially - - -

PN58

MR TUCK: I take the notice as being amended to that effect.

PN59

THE COMMISSIONER: Yes. Thank you.

PN60

MR TUCK: And it is the notice which you certified, the conduct to which the notice by Fluor relates, not the statements, the outline.

PN61

THE COMMISSIONER: Yes.

PN62

MR TUCK: It is simply as the Commission has received a concession from the other side that that conduct is continuing to take place and that is now on the record. But that employees are out on strike. If it satisfies the Commission we do not intend in any other proceedings to take this outline of evidence which we ask the Commission to accept for the purposes of satisfying the Commission that the conduct continues in relation to those individuals in any other proceedings, as any agreement or a concession by either of the unions that the statements contained in that outline are in fact correct and ought not to be in future challenged. We do not seek - I just make that clear if it assists, Commissioner.

PN63

THE COMMISSIONER: Does that help, Mr Danby, in terms of your concerns?

PN64

MR DANBY: I am not satisfied at all.

PN65

THE COMMISSIONER: Okay. Now, you were seeking the outline of evidence of Mr Gorham to be marked as an exhibit weren't you?

PN66

MR TUCK: Yes.

PN67

THE COMMISSIONER: Mr Danby, what is your position on that?

PN68

MR DANBY: Position on which?

PN69

THE COMMISSIONER: I beg your pardon?

PN70

MR DANBY: Position on which?

PN71

THE COMMISSIONER: On the Commission marking as an exhibit the outline of evidence of Mr Gorham?

PN72

MR DANBY: As I was saying before, I am at somewhat of a disadvantage, so is my colleague, Mr Gray. We have only just been handed this to browse through. I am at variance with almost every paragraph I read, bar the fact there is a stoppage, the stoppage is still there. But I fail to see how you come to the Commission, start off in tatters with just a general shot gun approach of the whole thing, and then expect to get what you want. If we came in with an application like that, this is like your mother sending you for, you know, a bottle of milk and you come home with four magic - - -

PN73

THE COMMISSIONER: Mr Danby, I actually do not have to rely on this document at all. I simply have to rely on what you have said from the bar table, and that is that there is a stoppage and that it started on Thursday.

PN74

MR DANBY: Okay.

PN75

THE COMMISSIONER: And that it is still continuing. Because that is what is being complained about and you have confirmed that it is still there, it is still taking place. And so I do not actually have to do anything with this document.

PN76

MR DANBY: Well, I suppose I've complained enough and bitterly enough that I am at variance with their other evidence for it to be noted.

PN77

THE COMMISSIONER: Yes, clearly, yes, you have. You have. Mr Tuck.

PN78

MR TUCK: Well, I am not sure what you intend to do with that document, Commissioner. I am happy for it to be marked. If the Commission is otherwise satisfied of the essential elements that there is conduct of various elements as set out in the cases which I referred to previously, the Commission is satisfied by virtue of the concessions made at this end of the bar table, and from your experience in the conciliation and the conference in obtaining the information as to what is going on at the Qenos in relation to Fluor Daniel employees engaged on the shut.

PN79

There is conduct which is capable and might reasonably be declared with an intent, the subject of an intention to take industrial action in tort. In my submission the Commission can be so satisfied and should certify to that effect. The 72 hours has expired. If the Commission pleases.

PN80

THE COMMISSIONER: Thank you, Mr Tuck.

PN81

MR TUCK: Yes, I am not sure that that certificate is handed up as assistance, but if the notice is now being corrected as indicated by me previously, the certificate may still suit for the purposes of the proceeding.

PN82

THE COMMISSIONER: Mr Tuck, do you have a difficulty with me getting the red pen out to your - - -

PN83

MR TUCK: No, I don't.

PN84

THE COMMISSIONER: Good.

PN85

MR TUCK: I don't have a difficulty with getting the red pen out, Commissioner.

PN86

THE COMMISSIONER: Good. Okay.

PN87

MR TUCK: I still reserve the comment - the opportunity to comment as to what you intend to put down.

PN88

THE COMMISSIONER: Yes, Mr Tuck. I was not actually going to tell you till I issued it.

PN89

MR TUCK: Commissioner, the only thing is - I just clarify that, that that change that I indicate in relation to paragraph 10 of the notice, if we can ask that that be formally made, so any certificate that you make will have as a reference point a notice with that amendment is made to clarify the employees.

PN90

THE COMMISSIONER: Right. Yes.

PN91

MR TUCK: If the Commission pleases.

PN92

THE COMMISSIONER: Okay. Mr Danby and Mr Gray, I have heard your comments concerning - and particularly Mr Danby, concerning the outline of evidence of Mr Gorham. I have decided that based on the submissions that have been made from your end of the bar table with respect to the fact that the action by employees engaged by Fluor and engaged on the shutdown, in terms of an indefinite strike and it starting at 12.40 pm on 3 May and is currently still continuing, and it being an indefinite one, on that basis I shall not mark the exhibit, because I am satisfied, given the submissions that you have made, as to the conduct. I do not need to rely on the outline of evidence by Mr Gorham. Okay. Are you right, Mr Tuck?

PN93

MR TUCK: Yes.

PN94

THE COMMISSIONER: Okay. Fine. In this matter the applicants who are Fluor Diversified Plant Services Proprietary Limited and Qenos Proprietary Limited gave written notice to the Commission of their intention to bring an action in tort at 4.28 pm on Friday, 4 May 2001.

PN95

The Commission convened a conference of the parties on Saturday, 5 May 2001, and also this afternoon prior to the formal proceedings. So that is Monday, 7 May. Having heard the submissions from the parties this afternoon, and based on the discussions with the parties that I was a party to on Saturday, 5 May and also this afternoon, Monday, 7 May, I am satisfied as to the following matters.

PN96

One, the respondents - that is the AMWU and the AWU - have and are engaging in conduct in contemplation of furtherance of claims that are the subject of an industrial dispute.

PN97

And two, pursuant to section 166A(6)(c) of the Workplace Relations Act, the Commission has not stopped the conduct that is complained of in the amended notice.

PN98

As it is 72 hours since the applicants gave written notice to the Commission of their intention to bring an action in tort, I certify pursuant to section 166A(6)(c) of the Workplace Relations Act 1996, that this Commission has not stopped the conduct to which the notice in matter C No 2001/2167 refers. Namely, conduct undertaken by those employees engaged by Fluor and those employees engaged on the shutdown who went on indefinite strike at 12.40 pm on 3 May 2001.

PN99

This certificate will take effect from 7.15 pm on Monday, 7 May, as 72 hours have elapsed since the notice was given.

PN100

As Mr Tuck has indicated, there will be a compulsory conference with respect to the matters in dispute between the parties tomorrow afternoon at 3 pm. That is Tuesday, 8 May, at 3 pm. In addition, following that if the matter is unresolved, the section 127 application by Fluor will be heard. On that basis the Commission stands adjourned.

ADJOURNED INDEFINITELY [7.15pm]