C2002/2035, Transcript of Proceedings [2002] AIRCTrans 1788 (22 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT03857
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/2035

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the
Act by Palmer Tube Mills Australia
Pty Limited re alleged industrial
action at 1 Tube Street, Sunshine

MELBOURNE

4.05 PM, WEDNESDAY, 8 MAY 2002

Continued from 7.5.02

PN34

MR K. BLAKE: I seek leave to appear on behalf of Palmer Tube Mills Australia Proprietary Limited.

PN35

MR M. ADDISON: I appear on behalf of the AMWU together with MR L. DIEHM, and I also appear this afternoon on behalf of the CEPU and we oppose counsel in this matter.

PN36

MR P. SMOLJKO: I appear on behalf of the AWU.

PN37

THE COMMISSIONER: Thank you. There are changed appearances but yesterday I took submissions as to whether I would grant leave for Mr Blake to appear and subsequently I did that to the extent of a threshold argument but I am satisfied that I should grant leave for him to appear in this matter. Yes, Mr Blake.

PN38

MR BLAKE: Thank you, Commissioner. I might start by saying the company presses its application for orders and relief under section 127(2) of the Workplace Relations Act. I will begin by just handing up to the Commission a couple of documents. They just go to the service and notification that was sent to the unions in relation to this particular matter. First, was a copy of a fax lodging the application with the Industrial Registry on 6 May, copy to the unions, which I will hand up. And the second facsimile was sent to the unions on the evening of 6 May. That was a copy of the application sent with a notice of listing. Again, the facsimile records indicate that was received by the unions at their national offices and at the relevant state branches.

EXHIBIT #PTM1 COPY OF FACSIMILE DATED 6 MAY LODGING APPLICATION WITH THE INDUSTRIAL REGISTRY

EXHIBIT #PTM2 COPY OF APPLICATION SENT WITH NOTICE OF LISTING FAXED TO UNIONS ON 6 MAY

PN39

MR BLAKE: In addition to that we took the precaution of personally serving the unions at their national and state offices. I will hand up to the Commission two affidavits of service. The first one was an affidavit from Nawal Silfani of our Sydney office who effected service on the AMWU national office and also the CEPU national office in Sydney.

PN40

MR ADDISON: Commissioner, if it assists, we don't contest any of these, we agree.

PN41

MR BLAKE: You agree? Well, then, I will just quickly hand up a set of affidavits - - -

PN42

THE COMMISSIONER: I will mark it in any event as PTM3.

EXHIBIT #PTM3 TWO AFFIDAVITS OF SERVICE ON THE AMWU AND CEPU NATIONAL OFFICES

PN43

MR BLAKE: It is the company's submission that the jurisdictional requirements for the making of an order under section 127(2) are satisfied. I will make detailed submissions about that after I have called the evidence of Mr Clinnick. That that evidence will show that there is industrial action presently happening at the company's Sunshine manufacturing plant and that industrial action has been continuing since Friday, 3 May 2002. The industrial action that is occurring is in relation to work that is covered by a current certified agreement, the Palmer Tube Mills, Victoria, Certified Agreement, with a nominal expiry date of March 2003.

PN44

That the company is a person that is directly affected by the industrial action. There is presently no work occurring on site, there is no production and the company is incurring losses as a result of the action that has been taken by the unions and the employees. The evidence, in our humble submission, will also show good grounds as to why the Commission ought exercise its discretion in this matter to grant the order. I would now like to call Mr Clinnick and ask him to give evidence.

PN45

THE COMMISSIONER: Thank you.

PN46

MR BLAKE: I will hand up to the Commission a copy of Mr Clinnick's affidavit.

<IAN NORMAN CLINNICK, SWORN [4.10pm]

<EXAMINATION-IN-CHIEF BY MR BLAKE

PN47

MR BLAKE: Thank you, Mr Clinnick. What is your full name?---Ian Norman Clinnick.

PN48

And your address?---1 Tube Street, North Sunshine.

PN49

And you are employed by Palmer Tube Mills Australia Proprietary Limited?---That is correct.

PN50

In what capacity, what position do you hold at Palmer Tube Mills?---Operations Manager, Sunshine Branch.

PN51

Have you sworn an affidavit in relation to this matter?---I have.

PN52

Is that affidavit true and correct to the best of your knowledge?---It is.

PN53

I seek to tender that to the Commission.

EXHIBIT #PTM4 AFFIDAVIT OF IAN NORMAN CLINNICK

PN54

MR BLAKE: Mr Clinnick, I want to ask you just a few additional questions in relation to the evidence in your affidavit. Could I ask you, please, to turn to paragraph 22?---Is that 22?

PN55

Paragraph 22?---Yes.

PN56

You will see in that paragraph that you recount a meeting which occurred on Monday, 6 May, between yourself and Mr Melham?---Yes.

**** IAN NORMAN CLINNICK XN MR BLAKE

PN57

Now, I want to ask you in relation to that meeting, was Ken Price, a representative of the AWU, also present at that meeting?---This was on the?

PN58

6 May?---Which was?

PN59

You may want to - if you need to read paragraph 21 on the preceding page that will give you the background?---Okay, sorry, yes. Yes, that was the Monday morning Ken Price was present at that meeting.

PN60

Do you know Isaac Allisey?---Yes.

PN61

Is he a representative of the AWU?---He is.

PN62

Was he also present - - -?---He was.

PN63

- - - at that meeting. Do you know Frank Rafael?---Yes.

PN64

Is he a representative of the AWU?---He is.

PN65

Was he also present at that meeting?---He was.

PN66

Do you know Eddy Rowe?---Yes, I do.

PN67

Was he a representative of the AWU?---He was.

PN68

Was he present at that meeting?---He was.

**** IAN NORMAN CLINNICK XN MR BLAKE

PN69

Do you know Joe Dimitric?---Yes.

PN70

Is he a representative of the AMWU?---He is.

PN71

Was he present at that meeting?---He was.

PN72

Do you know Phil Stinchcombe?---I do.

PN73

Is he a representative of the CEPU?---Yes.

PN74

Was he present at that meeting?---He was.

PN75

The employees held a meeting this morning, is that correct?---That is correct.

PN76

And was there anyone present from the unions offices at that meeting this morning?---There was, yes.

PN77

Who was present from the union offices this meeting?---The gentleman - this gentleman here and this one here. Peter - - -

PN78

MR SMOLJKO: Smoljko?---Cesar Melham indicated that he wouldn't be able to attend and that Peter would be in his place.

PN79

MR BLAKE: And I think you also pointed to Mr Addison?---Yes. I am sorry, I don't - I wasn't aware of your name, but, yes, he was present.

PN80

And those gentlemen, to your knowledge, were present at the meeting of employees?---They were.

**** IAN NORMAN CLINNICK XN MR BLAKE

PN81

And at the end of that meeting they came to see you?---They did.

PN82

And what did they tell you when they met with you?---They said that they had come from the meeting and the members required that Jeff Harper be reinstated and that there was full reinstatement without any other further consequences as far as that matter would be finished and they would return to work.

PN83

What was your response to that?---Myself and two other of the staff members went from the room and had a meeting and came back and said that that was not acceptable and we were happy to go along with the Commissioner's recommendations.

PN84

And you previously mentioned at that meeting we were talking about in paragraph 22, that Mr Price, Mr Allisey, Mr Rafael, Mr Rowe, Mr Dimitric and Mr Stinchcombe were present. Were they also present at the meeting this morning?---They were.

PN85

Can I ask you to read paragraph 25 of your affidavit?---25:

PN86

As a result of the industrial action occurring on the site, PTM are unable to supply steel tubing products to the suppliers. I am informed by Steelmark, Union Steel and Metalcorp and verily believe that they are already running out of certain products that we manufacture by the Sunshine plant. Some of these products are unable to be supplied by our PTM Brisbane facility.

PN87

Do you know what the rolling program is at Palmer Tube Mills?---Yes, I do.

PN88

Can you explain to the Commission what the rolling program is?---The rolling program is the orders that have been placed by customers to be made on specific days to meet that deadline. They place an order knowing what our lead time is, they expect that order on a certain date and work on those dates.

**** IAN NORMAN CLINNICK XN MR BLAKE

PN89

And prior to the commencement of the industrial action, let us say last Thursday afternoon, was the rolling program running to time?---Both mills' rolling programs were on time.

PN90

And since then you have lost three days - three and a half days of production?---Yes.

PN91

Is the rolling program now on time?---No, it is not. Each day we lose puts the program at that time behind.

PN92

How much - do you have any idea about how much product is manufactured - the volume of product that is manufactured by the plant each day?---Approximately - it fluctuates, but round about 300 ton we work on.

PN93

Do you also export steel - - -?---We do.

PN94

- - - product. And how is that exported?---By ship.

PN95

And when is the next loading or shipment due?---Tuesday the ship - is the cut-off time for that particular vessel.

PN96

And how much of your product do you have to load in order for it to be shipped?---Well, there are 10 flat-topped containers to be loaded and wrapped and attached to those particular containers. So there is 10 have to be in there by Tuesday.

PN97

These containers are called bolsters?---Bolsters.

PN98

And they are similar in size to shipping containers?---Shipping but have - don't have the sides of the normal container.

**** IAN NORMAN CLINNICK XN MR BLAKE

PN99

Do you have any idea how many bolsters are loaded?---Negligible. We might have one break bolt which is an individual package and not on a bolster. So basically none of those are done at the moment.

PN100

So you would need to load 10 bolsters by - - -?---By Tuesday.

PN101

- - - Tuesday. What happens if you don't load 10 bolsters by Tuesday?---We lose our position on the ship for a start off. Our product goes under deck and it goes in first, needs to go in. So we would miss our spot and we would have to wait for the next ship.

PN102

When is the next ship due?---Approx - three weeks.

PN103

And which countries does the product end up at?---Singapore, New Zealand, Hong Kong.

PN104

I have nothing further.

PN105

THE COMMISSIONER: Mr Addison.

<CROSS-EXAMINATION BY MR ADDISON [4.19pm]

PN106

MR ADDISON: Yes, thanks, Commissioner.

PN107

Mr Clinnick, the employee involved is known by the name of Jeff Harper, is that correct?---That is correct, yes.

PN108

And you say that Mr Harper told the supervisor to fuck off?---That is correct.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN109

Is that the reason for his dismissal?---That is the - that is the - yes, the reason for the dismissal. He was given a directive prior to that which led up to the confrontation between the supervisor and Jeff Harper but the - not the words he used but in the manner and aggression that it was delivered.

PN110

Well, were you there?---I wasn't there.

PN111

So you go on this - on what you have been told do you?---By the shop steward which is an AWU member. When I questioned both Mr Harper and Mr McPhedran in my office in the presence of Brent Clarke who was the shop steward, Mr Harper denied that he said it in that context and Mr Clarke said, "Yes" - "No, you did say it and I'll not - I won't lie for anybody". That is the words he said.

PN112

Well, Mr Clarke said he did say it?---He did - he was present there when it happened and he said that is what happened.

PN113

Now, did you conduct any further investigations to determine the truth of how the incident had occurred?---I spoke - I asked Mr Harper if he had anything to add or Mr Brent Clarke, and they had nothing to add and that is when I said they left me no other option but to dismiss him for that unacceptable - - -

PN114

I put it to you - - -?--- - - - unacceptable behaviour.

PN115

I put it to you that Mr Harper didn't say, "Get fucked", to the supervisor. I put it to you that Mr Harper said, "This is fucked"?---That is what Mr Harper was saying and that is when Mr Clarke said, "No, that is not correct, I heard you".

PN116

Well, my instructions are somewhat different to that because I have been to the shop as you know and carried out some investigations myself this morning. Now, I put to you that Mr Harper had his back turned to McPhedran when he said it and he said, "This is fucked", not, "Get fucked"?---That is the story that they are now saying but that is not the story that was said in my office by the shop steward representing the union member.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN117

Now, you refer in your witness statement to the employee handbook. You refer to 3.8 of the handbook and you refer to two issues. You refer to insubordination and insolence. Do you agree?---Yes. Yes, I do.

PN118

What do you say the insubordination and insolence was?---The insubordination is the failing - he failed to carry out a directive which led to the insubordination and the way he spoke to his supervisor.

PN119

So was it the fact that he refused to put the newspaper in the bin that you say is the insubordination?---No, it - well, that is a work instruction that he failed to carry out. That is not the issue. The issue is in the manner that he spoke to his supervisor, the way he directed it.

PN120

So you say the insubordination is Mr Harper looking his foreman in the eye and saying, "Get fucked"?---That is an unacceptable behaviour in the workplace.

PN121

No, no, I am just trying to clarify just exactly the issue you say is the insubordination?---That is the - that is the issue.

PN122

That is the issue?---The issue is the manner in which he spoke to him.

PN123

And you also refer to, "Refusal to carry out lawful and reasonable instructions of the employer", in your witness statement. Now, is that the same issue that you are talking about or - - -?---It is the same issue. This is the issue that led up to Mr McPhedran having to go and get a witness which was the shop steward to try and get that work instruction carried out.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN124

Now, I put it to you that everybody - there might be one or two exceptions - but in the main everybody at the tube mill says, "Get fucked", from time to time?---No-one at the tube mill tells their supervisor to, "Get fucked". They may use it in normal language, I accept that but - we are not disputing that. It is in the manner and it may have not have been, "Get fucked", it might have been, for argument's sake, "You can piss off". In the manner in which it was delivered is the point of our reason for dismissal.

PN125

And I also put to you that your supervisors used the term towards employees, "Get fucked". I put that to you and you know it is true, don't you?---They may use that language. As you said, it is common practice, but they don't tell their - the men, and we have had a number of sessions with our supervisor to be - make sure that everybody is treated equally. I have counselled Don by talking - when I say "counselling" as a verbal meeting with him and his opposite shift supervisor, I have had reason to talk to him about it to make sure that you treat people with the same respect that you would get.

PN126

Indeed, you have had a talk to all of your supervisors of recent times, haven't you?---I have, yes, and we need to make sure that they are aware of people's right to be treated in a manner which they would expect to be treated.

PN127

And your foremen are the subject of constant complaints from the shop stewards with regard to their attitude and behaviour towards the employees, aren't they?---There are some people that perhaps would complain about them but in the majority I would say 99 per cent of the employees at Palmer Tube Mills do not have a complaint with their supervisors.

PN128

However, there is a complaint of harassment against every single one of your supervisors currently lodged with the Victorian WorkCare Authority, isn't there?---Not that I am aware of.

PN129

Well, there is?---Well, I am not aware of that.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN130

And I put it to you you are aware of it?---I am not aware of that.

PN131

Well, you should be?---I am not.

PN132

Now, I want to show you another document if I could. Can you have a look at that document? I apologise to my friend for not having a copy for him. I meant to make four and I only made three for some reason.

PN133

Can you identify that document there?---Yes, this is our company general policy on - disciplinary policy.

PN134

Can I tender that, Commissioner?

EXHIBIT #AMWU1 PALMER TUBE MILLS DISCIPLINARY POLICY

PN135

MR ADDISON: Can I take you to appendix 5 of that policy?---Termination of Employment, yes.

PN136

Summary Termination of Employment. Summary Dismissal. Appendix 5, not clause 5, appendix 5. I do apologise. It is half a dozen pages through. Maybe a bit more?---"First Written Warning. Termination of Employment", is that what you are talking - - -

PN137

Summary Dismissal?---Summary Dismissal.

PN138

It has got, "Appendix 5", on the top - top left-hand corner?---Summary Dismissal, yes, yes.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN139

Got it?---Mm.

PN140

Now, this policy allows for summary dismissal on specific grounds, doesn't it?---Yes.

PN141

And the specific grounds relate to the incident that I can identify - those grounds are gross insubordination and abuse. I can't find any other that would fit the current circumstances, can you?---No, I would accept that, yes.

PN142

You would accept that?---Yes.

PN143

Now, in the context of an industrial environment where people regularly tell each other, "Get fucked", in the context of supervisors who you, yourself, have had reason to counsel with regard to approach and attitude, in the context of the stewards filing with the WorkCare Authority charges of harassment against your supervisors, why do you say Mr Harper's words, "Get fucked", constitute gross insubordination?---No, as I said before - as I said before, it is not Mr Harper's words of, "Getting fucked", it is in the manner which the abuse was directly abused, when looking at the eye of Mr McPhedran. That is the - what it is based on and not the use of the words, "Get fucked".

PN144

Well, there is a factual dispute there isn't there?---No, I don't believe so. It doesn't matter what the words are, it was in the manner in which - and the aggressive tone that was used when delivering that particular abuse.

PN145

Commissioner, can I indicate at this point in time? We expected this matter to be brought on at 2 or after 10 tomorrow morning. We did meet with the stewards this morning, myself and my comrade from the AWU, and the stewards had indicated that they were going to try and get here. Unfortunately, because of the short notice and because of the time they haven't been able to get here. I am going to need to call rebuttal evidence with regard to this matter. So when this witness is finished I will be seeking an adjournment because my instructions are absolutely contrary to the evidence that is being given. So I just need to foreshadow that, Commissioner, that I will need to call some rebuttal evidence with regard to the matter.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN146

Now, Mr Harper, when he was asked to move the newspaper, indicated to the foreman that the newspaper wasn't his, didn't he?---That is right. That is correct.

PN147

In fact he said, "It is there from the last shift"?---Something like that, that is right.

PN148

Now, that is not disputed, is it? Agree with that?---No, no, we are not disputing that.

PN149

Mr Harper says that he wasn't reading the newspaper at all?---He did say that.

PN150

Is there any dispute with regard to that?---That is really not that important. He may not or he may not have been. I wasn't there and I - you know, if he says that he wasn't reading it, that is fine. That is not the issue at hand.

PN151

Okay. Yet Mr McPhedran, is it, the supervisor?---Yes, it is.

PN152

Told to move the newspaper?---He did.

PN153

And Mr Harper said, "It is not mine. It is there from the other shift"?---Correct.

PN154

But Mr McPhedran continued to insist that he move the newspaper, didn't he?---That is right.

PN155

Can you tell me where the reasonableness in that is?---It is because Mr Harper works at what is known as the flash butt entry on number one - on number two mill. Flash butt welder, for those that don't know, does send off some sparks and whatever. It is a part of keeping your workplace clean and safe.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN156

And what is his workplace, is he in a pulpit?---Basically he has a little work station that he is at and when he is doing the welding he might come and sit in his little station. He runs a coil which may take 15, 20 minutes to run and his job then is to watch to see that his part of the operation runs smoothly and safely, correctly.

PN157

It is more than 20 years since I have worked in a steel mill but my recollection is they are in enclosed pulpits. Are your employees out in the open are they?---Basically, he does have a - it is basically something like this where he sits. It does have a side and things but the front is open. The front that faces his mill is open so he can actually see the operation.

PN158

And does he have other papers on his desk?---He may at times but the instructions are that there are to be no papers in the workplace because we had an issue with people reading the paper while the operation was in progress which could be a safety issue to all concerned.

PN159

As I understand your memo - your memo - - -?---Yes.

PN160

Your memo is attached to your witness statement. It is exhibit IC2. Your memo doesn't say there is to be no papers in the workplace does it?---It doesn't say no papers, it is newspapers, magazines, etcetera.

[4.34pm]

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN161

Well, it doesn't say, "Not to be in the workplace", does it? It says they are, "Not to be read in the workplace", doesn't it?---Exactly, correct.

PN162

Now, there is no dispute between us. One, the paper wasn't ours. Toby wasn't reading it. There is no dispute on those two aspects. You now then say to me: Well, he shouldn't have the paper there anyway because there is to be no newspapers in the workplace?---No, it says - - -

PN163

However your memo doesn't support that contention?---It is a - as I said, the reason why that was asked to be put away for safety reasons so that - and also to keep your workplace clean and tidy.

PN164

I put it to you that this particular foreman is in the habit of intimidating and winding up people like Harper?---I think actually it would be the opposite.

PN165

I put it to you that this particular foreman deliberately stuffed up Harper's pay two weeks in a row?---That is incorrect.

PN166

I put it to you that this particular foreman has spent weeks staring and winding Harper up on the job?---That is incorrect.

PN167

Now I also put it to you that your evidence with regard to our conversation this morning is incorrect. I put it to you that the words "that they return to work" which you ascribed to myself, were not uttered?---Can you elaborate? I am - - -

PN168

I said to you this morning that following a meeting with the troops, that the troops had a view that the dismissal of Harper was wrong, harsh - - -?---Yes, yes.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN169

The troops sought for Harper to be reinstated on the job with no further action - - -?---That is right.

PN170

- - - and that would be the end of any problems. They were the words I said to you?---Well yes, maybe in your exact words but I don't see any difference to what I have said.

PN171

Yes. I also said to you this morning that of course there would be ongoing discussions with the unions and yourself and whoever else from the company with regard to the document AMWU1?---That is our policy.

PN172

That is your policy?---You did say that.

PN173

And the appropriate way of dealing with these matters in the future?---Yes, but not this particular matter.

PN174

That is correct. They are the words I said to you. Do you agree?---I agree, yes, certainly. I don't dispute that at all.

PN175

Okay. Now on either Friday or Monday of last week, a proposition was put to you by Mr Melham, wasn't it, to resolve this particular difficulty?---I have spoken with Mr Melham on a couple of occasions about other options. If you are talking about the one on the Friday where he suggested that we call status quo, is that the one you are talking about, and - - -

PN176

Yes, I think Mr Melham - I will tell you my understanding and you can confirm it or otherwise?---Okay, fair enough.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN177

I believe Mr Melham put to you that Harper should be reinstated, that the disputes settlement procedure should be invoked whilst Harper was on the job and a proper investigation conducted and then whatever came out of the investigation would be implemented?---No, that is sort of about half of it but that part is correct. The rest of it was that he would go down now, give me 10 minutes and I will go down and endeavour to get the employees back to work.

PN178

Endeavour to get the employees to agree to that proposition?---To agree to that - no, and to go back to work, because - - -

PN179

Yes, yes, absolutely, absolutely. But the first step is getting the employees to agree. You would agree?---Well he didn't seem to, when he left. He seemed quite confident that that would happen.

PN180

Now my instructions are that that was acceptable to the company at that point in time?---It was. We had a discussion and we said yes, we would accept that.

PN181

Okay. So you would accept to have Harper back on the job and an investigation to proceed?---And Mr Melham did say if you still enforce your decision at the end of discussions, that is fine, you still have the right to do that.

PN182

Now Mr Melham went to the troops with that proposition, didn't he?---He did.

PN183

And the troops told Mr Melham that that wasn't acceptable to them?---That is correct. He reported back and said that it wasn't acceptable and they would be leaving site.

PN184

So the troops rejected that proposition and it was a proposition from Cesar wasn't it?---Yes, it was.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN185

So you would agree that Cesar, on behalf of the AWU, made his best efforts to get the blokes back to work on that Friday?---Yes, I believe he did present that. I think that when we left at the meeting, Cesar was quite sure that he would get the troops back to work.

PN186

Now can I ask you, during your current difficulties, has an official of the CEPU or the ETU attended site at all?---Yes. Yes, they have.

PN187

When?---I think it was Monday morning. On the Friday when the incident happened and it was only the day shift that were present and there were a number of unions not represented. On Monday, I believe all unions were represented.

PN188

Well my instructions are different. Who was the CEPU organiser if you said there was an organiser there?---I am not sure of his name. I didn't speak with him.

PN189

Well my instructions that there was no CEPU organiser on the site. However, that is another matter I may have to take up. Now there has only been one officer of the AMWU attend the site and that has been myself. That is correct?---You attended the site this morning.

PN190

That is correct?---That could be so. I am not sure.

PN191

Well Mr - who is with me is the responsible organiser. You haven't seen Mr Diehm on the site since before - - -?---No, I think I have seen him yesterday.

PN192

Yes, in the Commission, yes?---Yes, that is right, and he did actually ring me.

PN193

All right. And the position adopted this morning by myself and the AWU was one of putting propositions to the people to get them back to work, wasn't it?---It was.

**** IAN NORMAN CLINNICK XXN MR ADDISON

PN194

So you would agree that we tried unsuccessfully to get the troops back to work this morning?---Yes, I don't question that. That is right.

PN195

I have nothing further, Commissioner.

PN196

THE COMMISSIONER: Mr Smoljko? Nothing? Mr Blake.

<RE-EXAMINATION BY MR BLAKE [4.42pm]

PN197

MR BLAKE: Just a couple of matters, Commissioner. Can I borrow your policy?

PN198

MR ADDISON: I am sorry, I do apologise.

PN199

MR BLAKE: Do you have the policy that Mr Addison showed you?---Yes.

PN200

Would you have a look at the top, right hand corner of the document. Can you see there is a date there?---Yes.

PN201

Can you read that date?---20 October 1994.

PN202

Are your policies updated from time to time?---They are.

PN203

Is this the latest version of the policy?---I believe so. This one was printed out of the computer, I believe.

PN204

This morning? Do you know or you don't know?---No, it wasn't this morning. It was probably Friday, I would say. Friday or Monday.

**** IAN NORMAN CLINNICK RXN MR BLAKE

PN205

Could you have a look at your affidavit?---Yes.

PN206

And the first exhibit marked IC1, which is a copy of the employee handbook?---Yes.

PN207

Can you see at the bottom left hand corner there is a date there?---Yes.

PN208

Can you read that date out?---May 2000.

PN209

And your evidence is that each employee receives a copy of this handbook?---Each permanent employee, yes.

PN210

Now Mr Addison was asking you some questions before about his meeting this morning?---Mm.

PN211

And that he met with the troops and that he tried to get them back to work. You had discussions with Mr Addison, is that right?---Yes.

PN212

Did Mr Addison tell you that the troops would return to work only if Mr Harper was reinstated?---Perhaps not in those words but that is how I understood it, yes.

PN213

What did he say?---I think, as he said before, about it would be the end of the issue but he did say about wanting to take up with us our policy, maybe some alterations in that and for the future, yes.

PN214

And you understood it to be the end of the issue of Mr Harper was reinstated?---Yes.

**** IAN NORMAN CLINNICK RXN MR BLAKE

PN215

THE COMMISSIONER: You are excused, witness. Thank you very much.

<THE WITNESS WITHDREW [4.45pm]

PN216

MR BLAKE: I am not intending to call any more evidence, Commissioner.

PN217

MR ADDISON: Well on that basis, Commissioner, as I indicated earlier, my instructions are somewhat different than the evidence that has been presented. I was hoping to have the stewards here this afternoon. Unfortunately it is just one of those things that just hasn't occurred because of the timing and the short notice. I was told at about 2 o'clock that this matter was listed for four. I spoke to Mr Maddison almost immediately after that and asked Mr Maddison to ring Ms Angus. I am instructed by the AWU that Ms Angus is actually down the bush so I don't know whether he got onto ..... or not but I am not - - -

PN218

THE COMMISSIONER: But the listing of the matter this afternoon, given that the employees didn't return to work this morning and that they rejected the Commission's recommendation, wouldn't have come as a surprise.

PN219

MR ADDISON: It didn't come as a particular surprise.

PN220

THE COMMISSIONER: Nor would it come as a surprise to those delegates that you say - - -

PN221

MR ADDISON: We in fact advised the delegates this morning that we expected to either be on at 2 this afternoon, because you indicated the slot was available then, or alternatively at 10 tomorrow morning and I didn't speak with the delegates directly - - -

PN222

THE COMMISSIONER: It turned out that the 2 o'clock slot wasn't available.

PN223

MR ADDISON: It got taken, obviously. As it turned out, I didn't speak to the delegates personally ..... they were on this afternoon. I might ask if he can give you an explanation of the discussions he had with the delegates but I actually seek an adjournment of the matter so that rebuttal evidence can be brought with regard to the evidence that has been led by the company.

PN224

THE COMMISSIONER: Do you - first of all, do you reject the submissions of Mr Blake that the prerequisites to establish jurisdiction are established?

PN225

MR ADDISON: That is a matter for Mr Blake to prove.

PN226

THE COMMISSIONER: You do reject it?

PN227

MR ADDISON: I do. It is a matter for Mr Blake to prove.

PN228

THE COMMISSIONER: I see.

PN229

MR ADDISON: It is not my job to make Mr Blake's case for him. Yes, that is a matter for him.

PN230

MR BLAKE: We vigorously contest a further adjournment of this matter, Commissioner, for the following reasons. Firstly, the first exhibit that I handed to the Commission today, PTM1, was a facsimile to all the unions at about 2 pm on Monday foreshadowing the bringing of this application. Since then - and that is why I went to the trouble of tendering those documents, formal notification of all listing times has followed. The Commission - they arrived here yesterday and the unions sought an adjournment on the basis that they needed to get further instructions in order to respond to this application and that adjournment was granted.

PN231

The Commission foreshadowed yesterday what would occur if the recommendations were not complied with; that was that the Commission would sit at 2 pm or 4 pm or 10 am tomorrow to hear this matter. They have been on notice since that time. Furthermore, the employees and the delegates are presently at home. There is no reason why they couldn't have been here today. Mr Addison himself was on site this morning, he knew what the Commission had said yesterday and he certainly could have notified those employees that they were required to attend to present evidence in this Commission hearing. He chose not to do that.

PN232

It is just, in our respectful submission, not good enough for the union to come here today and ask for a further adjournment in light of the opportunities that have been granted to them at this point. Furthermore, the nature of the rebuttal evidence that Mr Addison proposes to call, while it might be interesting and certainly very relevant to the termination of employment issue, don't go to the grounds for the granting of a section 127 order. That is the focus of the Commission's hearing here today and Mr Addison really hasn't presented any contrary evidence at all which would affect, in our respectful submission, the granting of those orders, so we would vigorously contest the adjournment and we are prepared to make our closing submissions today.

PN233

THE COMMISSIONER: Please proceed.

PN234

MR BLAKE: Commissioner, the jurisdiction to make an order under section 127 has been discussed by the Commission in a number of cases. I would like to hand up perhaps the two most relevant to the Commission. They are a decision of Vice President Ross in Patrick Stevedores v Maritime Union of Australia and also a decision of the Full Bench in Coal and Allied.

PN235

THE COMMISSIONER: I will mark them in sequence PTM5 and 6.

EXHIBIT #PTM5 DECISION OF VICE PRESIDENT ROSS IN PATRICK STEVEDORES V MARITIME UNION OF AUSTRALIA

EXHIBIT #PTM6 DECISION OF FULL BENCH IN COAL AND ALLIED

PN236

MR BLAKE: Now at page - if I can take the Commission first to the decision in Patrick's. Page 244 of that decision, second paragraph. Vice President Ross sets out clearly what is required in order to give the Commission jurisdiction to grant a section 127 order:

PN237

In summary, the Commission will have jurisdiction where there is industrial action that is happening, threatened, impending or probable, where the industrial action is in relation to an industrial dispute or the negotiation of a proposed agreement or work that is regulated by a certified agreement. Thirdly, that the application is brought by a person who is directly affected by the action.

PN238

Now I would like to deal with each of those matters by reference to the evidence one more time. The industrial action firstly is happening. You have heard Mr Clinnick's evidence on that point, that is that industrial action commenced at about 12 noon on 3 May 2002 and that that strike is continuing and definite and that this morning the employees voted to not return to work and to have another meeting tomorrow at about 3 pm. Now the evidence of Mr Clinnick in relation to that is set in paragraph 16 onwards and as I understand it from this side of the table, that the industrial action is presently happening is not a matter that is contested.

PN239

The second issue to which Vice President Ross referred was whether there is work that is regulated by an award or certified agreement. There is a current certified agreement in place. It is the Palmer Tube Mills Victoria Certified Agreement 2000. Mr Clinnick deposes to that in his affidavit at paragraphs 3 to 4. There doesn't seem to be any contention about that.

PN240

THE COMMISSIONER: Are all three unions bound by that agreement?

PN241

MR BLAKE: All three unions are bound by that. I am happy to hand the Commission a copy.

PN242

THE COMMISSIONER: And I will mark that PTM7.

EXHIBIT #PTM7 PALMER TUBE MILLS VICTORIA CERTIFIED AGREEMENT 2000

PN243

MR BLAKE: So in our respectful submission, that ground is ..... Is Palmer Tube Mills a person directly affected by the industrial action and our submission the answer to that can only be yes. As I stated to the Commission yesterday, the Sunshine manufacturing facility produces rectangular and round tubing and is supplied to various distributors for sale in various industries, particularly the plumbing industry, the agricultural sector and so forth. Since Friday, the applicant has been unable to produce that and has been required to make alternative arrangements and liaise with its customers.

PN244

You have before you the affidavit of Mr Clinnick, in particular paragraphs 24 to 27 and in particular paragraph 26. In addition to that, you have Mr Clinnick's evidence today about the rolling program, the effect of the stoppage on that program. You have his evidence about the exports of the product and the effect it will have if they cannot meet the shipment which is due next Tuesday. Again, none of this evidence has been contested today by my friends.

PN245

In our respectful submission, all of those grounds are made out and the grounds for the Commission to make an order under section 127 are made out and most, and if not all of that evidence, is uncontested by my friends here. The one remaining issue for the Commission is whether it ought exercise its discretion and the Full Bench, in Coal and Allied, have set out very nicely for the Commission what is to be looked at in order - or what should the Commission take into account in considering whether to exercise its discretion.

PN246

At page 327, the final paragraph, they say:

PN247

The exercise of such discretion requires that the Commission be satisfied that it is appropriate to direct that the relevant industrial action cease or not occur ...(reads)... that it cease or not occur.

PN248

And they go on to say that the exercise of the discretion is a serious step in the sense that it involves both a finding that the relevant industrial action is or will be illegitimate. Now Vice President Ross also examined the issue of discretion in Patrick's and on pages 246 and 247 of that decision Vice President Ross sets out the factors that ought to be taken into account when the Commission is considering whether or not the industrial action is illegitimate.

PN249

In summary, those points are, and what needs to be taken into account is the conduct of the parties both prior and during the industrial action, any compliance or non compliance with the disputes procedure, the existence of current certified agreements governing the work. Now in relation to those principles, and we submit the reason why the Commission ought to exercise its discretion in this case is as follows.

PN250

Firstly, it is our submission that the unions and the employees in this case have persisted in taking industrial action. They have done so despite repeated attempts by the company to settle this using the disputes settlement procedure provided for in the certified agreement. The company, in good faith, agreed to enter into a conference yesterday which was chaired by this Commission and in that, gave a commitment to be bound by the disputes settlement procedure. The Commission's recommendation was ignored by both the unions and the employees. In our respectful submission, that is the first reason why the Commission ought exercise discretion in this matter.

PN251

Secondly, the industrial action, we say, is illegitimate because it constitutes a breach of the disputes settlement procedure. The disputes settlement procedure provides that the parties are committed to avoiding industrial action while attempts are made to resolve the matter. In this case, even before any discussion could be had about using the disputes settlement procedure, the first act of the employees was to cease work.

PN252

Thirdly, we say the Commission ought exercise its discretion because the industrial action is illegitimate because it breaches the terms of a certified agreement. It is a contravention of the Act. It is capable of giving rise to a penalty being imposed pursuant to section 178(5)A of the Act. It is also, this industrial action, illegitimate because it runs counter to the scheme of the Act and I will take the Commission to a case, CBI Constructors v AMWU.

PN253

THE COMMISSIONER: PTM8.

EXHIBIT #PTM8 CBI CONSTRUCTORS V AMWU

PN254

MR BLAKE: The relevant passage in CBI Constructors can be found at page 87, approximately half way down the page. The Commission states:

PN255

In our view, the scheme of the Act is such that it does not contemplate that industrial action will be taken during the currency of a certified agreement, section 170MM ...(reads)... when a certified agreement is in place.

PN256

They go on to say the discretion was pointed out in CEPU v AG Coombs Fire Protection. In addition to the point made by the Commission in relation to the scheme of the Act in that matter, we raise two other points. Firstly, if one goes and turns to the purposes of the Act, section 3E provides that the objects of the Act are, among other things, to ensure that the parties abide by awards and agreements that apply to them during their life. That is the first point.

PN257

Secondly, in relation to the scheme of the Act, there is the existence of section 170MM which contemplates that industrial action must not be taken during the nominal term of a certified agreement and that is exactly what is occurring here. Another reason why discretion ought be granted with this case is that terms of the disputes settlement procedure, and I have touched on this in a different sense before, have not been complied with. Section 92 of the Act provides that procedures for settling disputes and that the Commission shall take into consideration to exercise powers in relation to the industrial dispute have regard to the extent to which, if any, disputes settlement procedures have been complied or not complied with, so we raise that point.

PN258

Finally, in relation to this point about discretion, we raise the existence of the unfair termination provisions in the Act. These provisions, which have been around for some time now, were brought into the Act to cover the very situation which the unions and the employees complain of, that an employer may have acted harshly, unjustly or unreasonably in dismissing an employee and those provisions of the Act provide that if the employer has acted in that manner, then the employer is liable not only to pay compensation but the primary remedy available to an employee is reinstatement.

[5.03pm]

PN259

Those provisions, in our respectful submission, were brought into the Act to deal with this situation. The unions and the employees, in this case, have chosen not to utilise them. I might take the Commission to one more decision, and that is the decision of Commissioner Foggo in One Steel Proprietary Limited. Mr Addison, I think, was involved in that.

PN260

MR ADDISON: I think I was.

EXHIBIT #PTM9 DECISION OF COMMISSIONER FOGGO IN ONE STEEL PROPRIETARY LIMITED

PN261

MR BLAKE: Now, in that case, the relevant unions took industrial action in response to the dismissal of an employee, and the company sought orders under section 127. Paragraph (28) indicates that one of the factors Commissioner Foggo took into account, in deciding to grant the orders sought, was the existence of a mechanism in the Act which provides redress for employees who believe they have been harshly dismissed. She stated that:

PN262

The issuing of an order ...(reads)... Mr Young from the Geelong Whale?.

PN263

Now, in response to that, the - in summation, I would say that the unions today have called no evidence at all to detract from the propositions, and what needs to be proved to the granting of a section 127 order. Mr Addison, while cross-examining at length Mr Clinnick about the attitudes of supervisors - the fact that harassment claims - not only didn't call any evidence in support of those assertions he made at the bar table, couldn't even produce written complaints which he said were in existence to at least show to the Commissioner, or cast some doubt that there was - that there might be, perhaps, some reason for not exercising the discretion.

PN264

In our respectful submission, none of that is relevant anyway, because none of it goes to the grounds for the granting of the order. They are very relevant submissions in relation to whether or not this company has acted harshly, unjustly or unreasonably under section 170CE. In our respectful submission, we would request that the Commission grant the orders.

PN265

THE COMMISSIONER: Mr Addison?

PN266

MR ADDISON: Yes, thanks, Commissioner. Commissioner, first of all, Mr Blake is correct - evidence hasn't been called because we are not in a position to call that evidence today. I presume my application for adjournment was denied?

PN267

THE COMMISSIONER: No, I haven't expressed a view about that yet. I am waiting to hear from you now. I just allowed Mr Blake to continue his submissions.

PN268

MR ADDISON: Right. Well, Commissioner, I will re-state my application for adjournment on the basis of rebuttal evidence.

PN269

THE COMMISSIONER: But what will that rebuttal prove?

PN270

MR ADDISON: Well, I am not in a position to give you written complaints, because I haven't got them with me, but I know they exist. I think that - and I agree with Mr Blake, the discretion is an important issue, and I think Patricks - - -

PN271

THE COMMISSIONER: Do you also agree with him that there is other avenues for properly proceeding with this matter, such as 170CE of Act?

PN272

MR ADDISON: Commissioner, the evidence that is before you at the minute would not allow you to grant the order that is sought. It wouldn't allow you to do it. The evidence quite clearly demonstrates that the three unions; the AWU, the AMWU and the CEPU have either not been involved or have actively tried to resolve the matter to the satisfaction of everybody. The evidence of Mr Clinnick was that Mr Melham put propositions. He was confident the employees would go back to work, went to the employees, asked the employees to go back to work, but was unsuccessful.

PN273

The evidence of Mr Clinnick was that myself and my comrade from the AWU this morning went there, actively put propositions to try and resolve the matter, actively went to the members, and were unsuccessful again. The company seeks orders against the AWU, the AMWU and the CEPU. There is no evidence - no evidence at all to support that order being granted against those parties. Now, that is the first point. With regard to the employers, we would submit that the employees should not have an order made against them, and we would rely on Senior Deputy President Williams' comments in the Sizeria case, which I know you are familiar with, Commissioner, because we have been through it a few times. Where Senior Deputy President Williams says:

PN274

An order should not be made against unnamed and unspecified ...(reads)... with regard to the proceedings.

PN275

I seek my adjournment on that basis, Commissioner, so that I can bring the evidence from people who are purported or sought to be banned by the terms of the order that Mr Blake seeks you to make, and if Mr Blake seeks those orders not only to be made against organisations where there is no evidence that the organisations have acted in any other way than a bona fide manner to try and resolve the matter. In fact, the evidence is that the three organisations, through their officers, have acted in a fully bona fide manner to try and resolve the issue.

PN276

So we say that the order can't be made against those. The order is sought to be made against Mr Melham, and once again, the evidence clearly says Mr Melham went there, tried his best to resolve the matter. Actively put propositions to the company which the company accepted. The company's evidence is that, in a further attempt to resolve the matter, we, along with the delegates - and the delegates are sought to be banned by this order - we, with the delegates this morning, put that same proposition back, on the basis that we could fix the matter - we could resolve it - and the words that I used this morning were not - in fact, I think the words I used this morning, conceded by Mr Clinnick in any event, that it was about resolving the current problem, and I put a proposition to the company this morning that had previously been agreed to by the company, and that evidence is in front of you.

PN277

They agreed to it on Friday. They wouldn't agree to it this morning. Now, that is a matter that is relevant in terms of your discretion, and Vice President Ross deals with that in Patricks, and he deals with that in Patricks at page 247, and he talks about the conduct of the parties. That it is relevant for the Commission, when exercising its discretion, to take account of the conduct of the parties. We say it is awfully strange for a company to agree to something on a Friday to resolve the matter, then when they are armed with a recommendation from the Commission which goes in their favour, they then reject the exact same proposition on a Wednesday, to fix the problem.

PN278

We say that is a relevant consideration - an absolutely relevant consideration for you to take into account. Now, far from a refusal to abide by the dispute settlement procedures. We haven't refused to abide by the dispute settlement procedures. In fact, the evidence is that Mr Melham said, "Put them back on and then we will use the dispute settlement procedures". So, we will use them. The evidence is this morning I said, "Put them back on and yes, we will have further discussions with regard to the disciplinary process - the disciplinary policy".

PN279

That is not a refusal to abide by dispute settlement procedures. We want some discussions. We want to resolve the matter. The first thing we have got to do, however, is resolve the immediate hurdle in front of us. I think the comments of Commissioner Lewin in Southcorp matter are important with regard to that whole question. As you know, Commissioner, Commissioner Lewin's observations in the Southcorp case, which is a fairly old case now - it is a 1997 case - but his observations were that:

PN280

Section 127 is placed in the Act in a specific ...(reads)... of the Act.

PN281

And in that particular case, he found that the action that was being taken was protected, but he made the observation:

PN282

Even if it wasn't protected ...(reads)... it would not resolve the dispute.

PN283

In my submission, the Commission ought not exercise its discretion to issue an order that simply arms an employer with the next step in the process - because that is where this will go - the next step in the process. Particularly when that employer has acting in a manner that is questionable. Particularly when the union respondent has sought to bring rebuttal evidence with regard to it, because if this section 127 is issued, after my attendance at the mass meeting this morning, I am not confident those employees will go back to work in any event, and we will end up in the Federal Court, which is fine, and they will get their injunction, which is fine, and we will ignore that as well probably, based on the discussions I had with those employees this morning, and then we will see if the Smorgans Group is prepared to sue its own employees for contempt. Then we will see. Then we will be in a shipping war. Then we will have a proper face.

PN284

So that is why I see it is important that the Commission do grant a bit of latitude, so that rebuttal evidence can be brought and the matter can be dealt with. With regard to the submissions on CBI - CBI was decided in a particular context. CBI was decided when there was a view, with regard to section 170NN. That view has been somewhat overridden in recent times. Justice Kenny's decision in Emwest makes it clear that the view we all had about MN the whole time is actually not the correct view. It is not the correct view, and Justice Kenny's view is that industrial action can be taken during the life of a certified agreement, even if - I will withdraw that - can be taken within the life of a certified agreement, or the matters that are not contained within a certified agreement.

PN285

Now, further to that, the leading case in this area is still Coal and Allied, which has been handed up to you, Commissioner. It is still Coal and Allied, and Coal and Allied further makes it clear, not withstanding section 170MN, Coal and Allied says even though industrial action may not be protected, and it may be taken during the currency of a certified agreement, it may well not be illegitimate. They are views of Coal and Allied. Hence the discretion which is vested in the Commission, and that discretion, as Mr Blake says, is at large, and that discretion - and there has been a number of attempts to define just exactly what is in the discretion, or what aspects should be taken into account when exercising the discretion, - and I think Patricks is still, in my view anyway - it might not mean much, but in my view, Patricks does lay out some quite clear guidelines with regard to it.

PN286

Now, Vice President Ross, in Patricks, after talking about the conduct of the parties, does go on to talk about dispute settlement procedures. Well, there is an offer on the table. There is an offer on the table to deal with. There is an offer on the table; let us get over the immediate problem then let's sit down and have some discussions. Let us work through the dispute settlement procedure. Let us get ourselves to a position where we don't get into this nonsense again. So we say that the unions have acted in a bona fide way. We say, with regard to the order that is sought, that it cannot be made against the unions. It ought not be made against the employees or the delegates without an opportunity for them to give some evidence with regard to the matters.

PN287

We say, with regard to the definitions in 3(b), that this is an attempt to have a blanket order with regard to any action on the site. Now, Marshall J has made in clear in the MTIU case and various other cases, that orders need to be specific and clear:

PN288

If orders are to be granted against people ...(reads)... complained about.

PN289

Now, the company says there is a strike, and the company says there is strike over the dismissal of Mr Harper. That is the matter complained of. If an order is to issue, it should be confined to a strike, and it should be confined to a strike about Mr Harper, in line with the authorities. With regard to subsection (c) which seeks the AMWU, the AWU and the CEPU, and their delegates and officers to take any and all steps necessary and available under their rules to ensure that members comply with the order. Well, there might be some instances when that particular paragraph might have some problems.

PN290

It is our strong submission, in tis particular instance, it has no relevance. First of all, in terms of specificity, if Mr Blake is referring to particular rules of the AMWU for instance, he ought point to the rules that he is talking about. He ought to identify which rule he says gives the AMWU the authority, or the constitutional capacity to do what is sought, and that is only fair. With regard to a general proposition however, the evidence in this matter, the evidence before the Commission right now says the AMWU, the AWU and the CEPU have already done everything they can to try and resolve the matter. That is the evidence, it is there.

PN291

Now, we say that that paragraph ought not be included in the order.

PN292

THE COMMISSIONER: That paragraph being?

PN293

MR ADDISON: Being subparagraph (c) of clause (3).

PN294

THE COMMISSIONER: Yes.

PN295

MR ADDISON: With those submissions made, in the absence of my ability to call any evidence, I don't think I can go much beyond that at this point in time, Commissioner. I press my application for an adjournment. If that is not granted, in the alternative I stand by the submissions that the order ought be amended, if the Commission decides to issue it, but that the Commission should not issue the order as sought, on the grounds that it will resolve nothing. If the Commission pleases.

PN296

THE COMMISSIONER: Mr Smoljko?

PN297

MR SMOLJKO: Yes, Commissioner. I would just like to add a number of points in regard to the evidence that is being sought by both parties - well, three parties - the CPU, the AWU and the AMWU. Today was my first meeting - my first opportunity to attend Palmer Tube Mills. We made two attempts this morning to try and resolve it; once before the mass meeting and once post the mass meeting, and after those meetings, my understanding from the brief that I received late last night, was that there was two times that were available. It was either 2 o'clock today or early Thursday morning. I wasn't aware of the 4 o'clock gap that was available there, and as such, notified the delegates that they would be required, and they, all of them, assured me that they do wish to attend and give evidence, and also the - so, I received notice at approximately 2.30 this afternoon.

PN298

At that time, the understanding of myself and the delegates was that the hearing would be tomorrow morning. Once I tried to contact the delegates a lot of them had gone to pick up their children or other issues, well, under the understanding that they wouldn't be required today. So, I would just like to express those concerns in regards to the union, because I think we have been quite diligent in trying to resolve it, and this is not a ploy to stall it deliberately. Legitimately, we haven't had the opportunity to get the people here that we require.

PN299

THE COMMISSIONER: Well, if the Commission were of a mind to make an adjournment, how would you get them here by 10 o'clock in the morning?

PN300

MR SMOLJKO: Commissioner, I have the contact numbers of the delegates that I spoke to this morning. I have called each individual today at approximately 2.30, when I received notice. They are expecting the hearing tomorrow morning or they were expecting it today at 2 o'clock or tomorrow. They are anticipating a hearing. Not today, but they are anticipating one tomorrow morning. I have their home numbers and shouldn't have any problems getting them here.

PN301

THE COMMISSIONER: Mr Blake, do you want to put further submissions in response to what has been put, and I don't take away any of your rights for further submissions again.

PN302

MR BLAKE: Just very briefly in reply. Firstly, my friend is quite wrong about the knowledge of the unions and their involvement in this regard. The elected representatives of the unions on site were there at all times. The union itself - each of these unions have been aware of this application since Monday morning. It is not good enough, and the union ought not to be able to hide behind its own lack of communication with its own organisation. That is the first point I would make.

PN303

The second point I would make in relation to employees being bound by the order. This was the subject of a recent Full Bench decision. Vice President Ross, Senior Deputy President Lacey and Commissioner Simmonds, Tennix Defence Systems was an appeal against a decision of this Commission. I don't propose to take the Commission to any great facts of that, other than to illicit the propositions the Full Bench established in relation to the order that was there sought against the employees. Those propositions can be summarised as follows:

PN304

An employer need not serve each ...(reads)... notified of the hearing.

PN305

There seems to be no contention here that the entire workforce was aware of this hearing today. That print number - I don't have a copy to hand the Commission, but the print number of that decision is PR913519.

PN306

THE COMMISSIONER: Yes.

PN307

MR BLAKE: That is an appeal against a decision issued by this Commission. There is also an earlier decision which deals with a similar point. That is a Full Bench decision which goes back a while - 1997. The Full Bench of Vice President McIntyre, Boulton and Cargill. The case was ARTBU v Coal and Allied Operations, and the print number for that is P7014. Again, I apologise for not having a copy, but that also elicits similar propositions to those espoused by the most recent Full Bench decision in Tennix.

PN308

So we draw the Commission's attention to those. The only other point we would make in relation to Mr Addison's submissions is that they are somewhat misleading. The company has been asked, in this case, to enter into dispute settlement procedure with a gun at its head, and that is, basically, that it re-instate the employee before discussions can occur. That is the evidence. Those are my submissions in reply.

PN309

THE COMMISSIONER: I intend to grant the request for the adjournment. I am going to adjourn and re-convene at 10.00am in the morning, and the unions can bring their rebuttal evidence and other arguments that they wish to make, and I indicate again to you, Mr Blake, you are at liberty to make further submissions then. Can I also urge the parties to have discussions in the meantime, this evening, until 10.00am in the morning to try to come to some sort of mutually acceptable outcome.

ADJOURNED UNTIL THURSDAY, 9 MAY 2002 [5.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PTM1 COPY OF FACSIMILE DATED 6 MAY LODGING APPLICATION WITH THE INDUSTRIAL REGISTRY PN39
EXHIBIT #PTM2 COPY OF APPLICATION SENT WITH NOTICE OF LISTING FAXED TO UNIONS ON 6 MAY PN39
EXHIBIT #PTM3 TWO AFFIDAVITS OF SERVICE ON THE AMWU AND CEPU NATIONAL OFFICES PN43
IAN NORMAN CLINNICK, SWORN PN47
EXAMINATION-IN-CHIEF BY MR BLAKE PN47
EXHIBIT #PTM4 AFFIDAVIT OF IAN NORMAN CLINNICK PN54
CROSS-EXAMINATION BY MR ADDISON PN106
EXHIBIT #AMWU1 PALMER TUBE MILLS DISCIPLINARY POLICY PN135
RE-EXAMINATION BY MR BLAKE PN197
WITNESS WITHDREW PN216
EXHIBIT #PTM5 DECISION OF VICE PRESIDENT ROSS IN PATRICK STEVEDORES V MARITIME UNION OF AUSTRALIA PN236
EXHIBIT #PTM6 DECISION OF FULL BENCH IN COAL AND ALLIED PN236
EXHIBIT #PTM7 PALMER TUBE MILLS VICTORIA CERTIFIED AGREEMENT 2000 PN243
EXHIBIT #PTM8 CBI CONSTRUCTORS V AMWU PN254
EXHIBIT #PTM9 DECISION OF COMMISSIONER FOGGO IN ONE STEEL PROPRIETARY LIMITED PN261