C2002/3214, Transcript of Proceedings [2002] AIRCTrans 2925 (31 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

C2002/3214

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Barloworld
Coatings (Aust) Pty Limited for orders in
respect to the Barloworld Coatings (Aust) Pty
Limited Villawood operations in relation to
the use of video surveillance

SYDNEY

10.23 AM, TUESDAY, 16 JULY 2002

PN1

THE COMMISSIONER: Appearances in this matter, please.

PN2

MR A. MOSES: I seek leave to appear on behalf of the applicant, Barloworld Coatings Proprietary Limited.

PN3

THE COMMISSIONER: Thank you, Mr Moses.

PN4

MS J. SCHOFIELD: I appear for the LHMU.

PN5

THE COMMISSIONER: Thank you, Ms Schofield. Any objection to Mr Moses?

PN6

MS SCHOFIELD: No.

PN7

THE COMMISSIONER: Yes, leave is granted, Mr Moses.

PN8

MR MOSES: Yes, thank you, Commissioner. Commissioner, the application before you today is a section 127 application by Barloworld in respect of industrial action that has taken place at Villawood site as well as concern in relation to threatened and probably industrial action in respect of matters that have occurred since the matter was last before the Commissioner. If I could hand to the Commission an amended application for an order to stop or prevent industrial action.

PN9

The changes have been underlined at paragraphs 39 and continuing together with a draft order which we would be seeking from the Commission this morning if it determines the matter in our favour. There is also a statement of a Larissa Long which I, in due course, will refer the Commission to after I have outlined some of the factual matters concerning the company's position.

PN10

Ms Long is available within the precincts of the Commission should there be a requirement that she be cross-examined in respect of matters raised in her statement. Commissioner, as you would be aware Barloworld Coating Proprietary Limited manufactures and distributes paint under the brands Taubmans, Bristol and White Knight. Barloworld maintains a factory and warehouse situated at Birmingham Avenue in Villawood.

PN11

The employees at the site are covered by the Barloworld Coatings New South Wales Operations 2001 agreement to which the Australian Liquor Hospitality and Miscellaneous Workers Union is a party. During the negotiation of the agreement relations between the parties were at times heated including protracted industrial action by the union over a period of nine weeks. The behaviour of one delegate in particular, a Mr Stuart Roser, was the subject of some comment in respect of matters that he raised by Munro J in proceedings that were before the learned member of the Commissioner.

PN12

I might, just for background information, refer - provide the Commission with a copy of the transcript of the proceedings before the learned member of the Commission which took place on 21 September 2000. Thank you. The current round of industrial disputation is seen by the company to be a continuation of this pattern of behaviour which is contrary to the dispute resolution procedure set out in clause 50 of the 2001 agreement and provisions of the Workplace Relations Act.

PN13

The background for the recent industrial dispute is, as the Commission would be aware, was that the company was undertaking a legal and systematic investigation into serial theft at its facility at Villawood for approximately four months. As a result of those investigations several employees of the company were identified as being involved in the recurrent theft of paint from the company over a period of time.

PN14

As part of the investigations the company engaged the services of a licensed security operator to conduct discreet and covert video surveillance and other investigations in accordance with the Workplace Video Surveillance Act. On 3 June 2002 employees at Villawood detected one of the video surveillance cameras. At around 8.30am a meeting with management was requested by a party of delegates led by Mr Roser who is the union delegate.

PN15

Mr Roser demanded that the cameras be removed. The company informed Mr Roser that there was more than one camera and the company had a Court approved warrant to install and operate covert cameras. The company undertook to provide the union with a copy of the warrant which was held at the offices of the company's solicitors. However, the delegate, Mr Roser immediately conducted a mass meeting.

PN16

Mr Horan, the general manager of human resources for the company was off-site at the time and was informed of the events by telephone. Mr Horan rang the National Industrial Relations Officer for the union, MR Warburton and disclosed that the information about theft came in part from union members who had provided information to the company as well as provided information to Mr Warburton that the use of the covert cameras was legal and a Court had approved the warrant in respect of the matters.

PN17

Mr Horan subsequently arrived at the Villawood site on 3 June and Mr Roser restated that the warrant should be given to him to witness and the camera should be removed and the lost time should be paid to the union members. Mr Horan stated in response the warrant was on the way to the union office and that the cameras were installed legally and that no payment for lost time was allowed under the 2001 agreement.

PN18

The managers went to brief the executive and during this briefing industrial action commenced in the form of a work stoppage for 24 hours. The illegal industrial action on 3 June was in breach of clause 50 of the agreement and in contravention of the provisions of the Workplace Relations Act. As a result of the discovery of the surveillance the company decided to accelerate the disciplinary process with respect to nine workers based on the information that it had.

PN19

The company on the evening of Monday 3 June undertook to Ms Keys, a union organiser that the surveillance warrant, a map of the camera locations and other information would be available at 6.45 am on 4 June. The copies were given to Ms Keys at that time and a mass meeting commenced at 7 o'clock on 4 June. Ms Keys, the delegates and representatives of the AMWU requested a tour of the camera sites and a letter from Barloworld stating that there were no cameras operating.

PN20

These requests were agreed to by the company and arrangements were made for them to be delivered to the relevant union officials. Mr Horan, at that time, informed Ms Keys of the acceleration of the disciplinary process and the union was invited to take part in the process. The union was informed that due to the seriousness of the offences being investigated and the likelihood of future police involvement only broad allegations were being presented to avoid self incrimination by employees being investigated.

PN21

Mr Horan also informed Ms Keys later that day that some of the union delegates were implicated in the theft allegations and as a result the company supported the presence of the union organiser in the interviews but not the delegates. Throughout the interview process after 3 June the union was invited to be present during all interviews and accorded information. On 4 June Ms Keys attended with two delegates to participate in the process. Mr Horan requested the disqualification of one delegate but accepted the attendance of Mr Roser.

PN22

There then followed a meeting between union representatives and a solicitor representing Barloworld together with Mr Horan at which allegations of theft were put to individual employees. On 4 June police attended the Villawood site and were informed of the extent of the allegations and methods used to steal the product. The union was also informed as to the involvement of the police. On 7 June the company summarily dismissed by notice in writing six employees and placed on suspension two employees.

PN23

Both the terminations and the suspensions were on the grounds that the employees had committed serious offences and in accordance with clause 48(vi) of the agreement the company had the right to immediately dismiss the employees without further consultation. On or about 7 June Mr Horan received a telephone message from Ms Owens, the union state secretary. Ms Owens requested that the company provide the union with evidence and reinstated the offer of the opportunity for the employees to resign should they chose to do so.

PN24

Mr Horan requested that the union place its request in writing for consideration by management of the company in the next business day. On 11 June the company received a request by the e-mail from the union to be provided with evidence of the allegations as to distinct from general allegations and for the opportunity to be available to resign should they do chose to do so. On 11 June information was forwarded to the state secretary of the unionsetting out what the company had done in respect of notifying the union and allegations of these matters to the individuals. On 12 June Ms Keys the union organiser collected copies of statements of allegations from the company in respect of interviews that had taken place concerning the employees concerned. On 12 June Mr Roser approached management and demanded evidence against the six employees be provided to him. Management responded that the request would be considered and managers withdrew to consider his request.

PN25

Prior to a response from management a mass meeting was held with the union organiser Ms Keys present at which time a work stoppage was called for 24 hours from 10.30 am Wednesday, 12 June to 10 am on 13 June. At this time Ms Keys was presented with the e-mail and letter to Ms Owens. However no action was taken by the delegate or the organiser to recall the employees, all of whom were nearby or on the premises, so as to prevent the illegal work stoppage. The sudden and unforseen industrial action for the second time on 12 June was in breach of the agreement and in contravention of the provisions of the Workplace Relations Act.

PN26

The industrial action took place whilst the employer was in ongoing communication with the state secretary of the union at the specific instruction of Ms Keys to so refer the matters. The company at all times during this period acted in accordance with the provisions of the Workplace Relations Act and the EBA. On 14 June the Commission attempted to conciliate the section 99 notifications of both the union and the company. Those disputes were notified and listed within a relatively short period of time. At the conclusion of the attempted conciliation no settlement was reached between the parties and the learned Commissioner made recommendations which were set out on a statement published that day.

PN27

Following the recommendation made by the Commission on that day, the company made submissions as to its position in respect of the matter and in particular it would take whatever steps were necessary to protect its position and to enforce the law against the union and its members if there was a repeat of the industrial action of 3 and 4 June 2002. Following the submissions being made, a delegate of the union, Mr Roser, made comments of a threatening and intimidatory nature towards the company within the precincts of the Commission to the effect that the company had not conciliated in good faith and there would be repercussions for the submissions which the company had made to the Commission.

PN28

On 18 June 2002 subsequent to the proceedings before the Commission on 14 June 2002 a union report-back meeting was held outside the fence of the Barloworld Villawood site at around 2.30 pm at which Ms Keys was in attendance, the union organiser, together with Mr Roser. At that meeting a Mr Brook Shanahan said words to the effect of: if we can't take industrial action then we should put a ban on overtime or do unofficial go slow and then if they want to make our right to defend our mates off limits then let's stick it to them any way possible.

PN29

Ms Keys is alleged to have said to the meeting it wasn't possible because of the decision in the Commission and said: let's maybe do something like this in a couple of weeks but let things die down first, there's members going back and reporting the meeting to management. Anything that is said to management ends up being used in court or in the Commission. And then when that happens the people will be named and then everyone will know who is talking out of turn. On or about 21 June 2002 a threat was made by a Mr Franklin in respect of police officers coming on to the Barloworld site with their weapons.

PN30

There has been, Commissioner, a protracted dispute concerning the right of police officers to wear their firearms when they enter the Villawood site of the Barloworld operations. The union has indicated that they say there is an occupational health and safety concern about police officers being allowed on the site with their weapons. The company met with union delegates including a Mr Paul Franklin from the union who made an allegation that the bringing of the firearms on to the site was an unsafe work practice and that if guns were brought on the site again by police officers that the workers would march.

PN31

The position of the company at this time, Commissioner, is that it does have a concern based on the history of industrial disputation at the site as well as what has occurred in recent times of probable industrial action taking place because of what appears to be unfortunately a disregard by the union we say to act in good faith in respect of the provisions under the 2001 agreement. The order that is sought in the draft application that has been provided to the Commission is sought to stop industrial action and prevent further industrial action by employees of Barloworld and members of the union at the relevant site.

PN32

Section 127 of the Workplace Relations Act provides relief for a party where industrial action is happening or is threatened in pending or probable and it is under that section that we seek relief. If I can take the Commission to two authorities that deal with this point, and I won't take the Commission in any detail to them now but just hand the Commission copies of two decisions, that of the Full Bench of the Commission in Coal and Allied Operations Proprietary Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union reported at 73 IR at page 311 and a decision of Marshall J in NTIA v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union reported at 77 IR at page 87.

PN33

The point to be made in respect of the decision of the Full Bench in Coal and Allied is that the discretion under section 127 is a discretion which is manifestly at large. It is a matter for the member of the Commission dealing with this application to determine whether in his or her view industrial action is probable or is likely as a result of the conduct of a particular party. The industrial action is industrial action for the purposes of the Workplace Relations Act which is set out in section 3 of the Workplace Relations Act. I won't take the Commission to it but I do note that the definition excludes at section G industrial action which is caused by an employee's reasonable concern to their imminent safety subject to a number of conditions.

PN34

We respectfully submit that the industrial action does not fall within the exempted category which has been set out. The issues identified do not pose an imminent risk to the health or safety of employees, to any employee in respect of those matters. The industrial action we respectfully submit falls into the class of a legitimate action as set out by the Full Bench in the Coal and Allied operations decision, the relevant passage appearing at page 327 of the Full Bench. Further it is not protected action for the purposes of the Workplace Relations Act, although I do note that the Full Bench of the Commission stated that unprotected action was not illegitimate per se but that there had to be some form of conduct on the part of the contravening party that could be described at the commencement or continuation of it could be unlawful.

PN35

I refer to page 329 of the relevant decision. Commissioner, in our submission the considerations we say are as follows as to the Commission being satisfied that industrial action is probable at this site. The action which has taken place in the past is clearly not protected action within the meaning of section 170ML of the Workplace Relations Act. The industrial action that has taken place breaches section 170MN of the Workplace Relations Act. The stoppage that did take place was in support of dismissed employees who had been terminated on the grounds of misconduct as well as in respect of workplace video surveillance units that had been installed under lawful orders by a Magistrate of New South Wales.

PN36

The industrial action that took place is not the first incident of unprotected action engaged by employees on the site. We respectfully submit that on the evidence that we will put forward from Ms Long there appears to be a demonstrated commitment by members of the union to resort into industrial action to sort out issues on the site rather than utilising the dispute settlement procedure contained in the agreement or other procedures available under the Act. Industrial action is in direct contravention of established dispute settlement procedures which fall within the scope of the 2001 certified agreement.

PN37

Finally, the employer has suffered considerable disruption to its business as a result of industrial action taken by the union which included two Wild Cat strikes in recent times and there is a fear that, based on the conduct of the union officials since that time, that this will occur again. We say that the three elements that need to be satisfied for the Commission to exercise its power under the section have been made out. Firstly, that industrial action is threatened, impending, or probable and I referred to earlier, industrial action is defined pursuant to section 4 of the Workplace Relations Act which includes performance of work in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work, the result of which is a restriction or limitation on the performance of work.

PN38

The industrial action does not fall within the category specified in section 3 is exempt for the reasons which I have outlined earlier. Second, the industrial action must relate to either an industrial dispute for the negotiation of a certified agreement or work that is regulated by an award or certified agreement. We say that those conditions are met in respect of this matter and finally, the section requires any application to be made by either a party to the industrial dispute or a person who is directly affected or is likely to be directly affected by the industrial action and this application as made by Barloworld is being directly affected by the industrial action of the union.

PN39

The orders that have been set out have been framed, taking in to consideration what Justice Marshall set out in his decision in MTIA, which is reported at 77 IR at page 87. The orders are to take place for the life of the certified agreement 2001 which is until 30 September 2003. There is also something that I omitted to raise earlier, Commissioner, in respect of the submissions I was putting and that was that there is also a dispute ongoing between the union and the company in respect of the use of casual employees to perform the work of the six dismissed employees in the interim. The union has raised issues about whether or not the company can use casual employees to perform that work but I must concede that I can't point to that as being an indicator of threatened industrial action as a result of the use of casual employees but there is a concern as to whether the union is bona fide dealing with the company in respect of those casual employees.

PN40

Finally, Commissioner, if I can hand to you two documents. It is a decision of Justice Munro which was handed down on 13 May 2002. A decision of the Full Bench in Smith and Others v Moore Paragon Australia Limited which deals with the ability of the Commission to draw inferences from factual matters and that is relevant to a consideration of the issue concerning whether industrial action is probable. The Full Bench went in an exhaustive manner through the relevant principles re the drawing of inferences to be considered in matters and finally a statement of Larissa Long which was the evidentiary matters concerning the union meeting on 18 June and 21 June, comments by Mr Franklin.

PN41

The decision, if I can hand those three documents up to the Commission, thank you. The decision of Justice Munro I have provided to the Commission in accordance with my obligations as an officer of the Court to bring to the Commission's attention relevant decisions relating to the application of the provision that we move upon. In that case, the Commission will note that Justice Munro after dealing in an exhaustive fashion, with relevant principles relating to the application of section 127 made comment that in that case he would grant the section 127 orders but would make them in escrow form which would not be triggered unless he was provided with verifying evidence that satisfied him of renewed industrial action or threatened industrial action and that was the form of order that the learned member of the Commission contemplated in that case of his own motion, rather than what had been put forward by both the union and the employer.

PN42

We don't press for that of course. We press for our orders but that is something that you may want to have regard to and I thought as a matter of fairness to you, Commissioner, that I would bring his Honour's decision to your attention. On the question of Ms Long's statement of evidence I would seek to tender that statement as evidence in the proceedings. As I said, Ms Long is available to give evidence should she be required. The Commission will note that Ms Long does not disclose the identity of the member of the union who provided her with the information on 18 June.

PN43

The reason for that is as with other members of the union who have been providing information to the company is that there is a concern for their safety as a result of their cooperation with the company in respect of those matters. I apologise for the length of my opening, Commissioner, but those are the submissions that I wish to put in respect of the application.

PN44

THE COMMISSIONER: Yes.

EXHIBIT #M1 STATEMENT OF MS LONG

PN45

MR MOSES: Yes, thank you, Commissioner.

PN46

THE COMMISSIONER: Should I decide later on - or did you want to put her in the witness box, Mr Moses?

PN47

MR MOSES: Yes, if she is required for cross-examination she is available and I will seek to have her affirm the statement and she can then be cross-examined.

PN48

THE COMMISSIONER: Well, perhaps I might hear from Ms Schofield.

PN49

MR MOSES: Yes.

PN50

THE COMMISSIONER: Ms Schofield, before you start, I just think I should indicate, and, Mr Moses, you might want to comment on this, in respect of the document that you virtually went through, I must say that on 17 June I had a call from the union in chambers to indicate to me that they were having that meeting which occurred on the 18th, although I can't recall whether they told me the time. They told me that the purpose of that meeting was to report back to their membership the results of the conciliation that was held before me and the recommendation that I made or the statement I made I think correctly on that day and to recommend to their members that in relation to the people that were terminated at that time, and I understand there's been more since then.

PN51

I may be wrong there but I think I've heard that along the grapevine somewhere, that they would file unfair dismissals for those people and to assure me that no further industrial action over the terminations would occur. Has there been in your instructions any further - other than the thing that you talk about, the police officer with his gun, any industrial action about the termination of the employees since that date?

PN52

MR MOSES: Can I answer it this way, Commissioner? First of all we make no complaint about the fact that there was a union report-back meeting on 18 June that was appropriate. Our position is that there has been no industrial action since the meeting of 18 June 2002. There has been an apprehension of probable industrial action taking place as a result of statements that have been made in respect of actions of union members and a union official.

PN53

To answer your question, Commissioner, no, there has been no industrial action within the meaning of section 4 of the Workplace Relations Act taking place. Our application is more directed towards an apprehension of probable industrial action taking place as a result of what has transpired since.

PN54

THE COMMISSIONER: Yes, thank you. Ms Schofield?

PN55

MS SCHOFIELD: Thank you, Commissioner. Commissioner, firstly could I just indicate that Mr Warburton, who is the officer with responsibility for this matter and I think he has participated in previous Commission proceedings, was called to Darwin for other Commission matters at short notice on Friday of this week. So he is unable to be in attendance. As well as that, Ms Keys who is the organiser of the site is on annual leave and we have been unable to contact her. I will return to that point. So I just thought I would advise the Commission of where those relevant officers our.

PN56

In our submission, Commissioner, the company have failed to satisfy the requirements of the Act in addressing this application. The first step in an application of this nature is the finding that industrial action is happening, threatened or probable. This is a jurisdictional point and one which we say has not been met. The company referred to stoppages which occurred on 3 and 12 June. Each stoppage was of 24 hours duration. These stoppages were in response to specific matters in dispute. The first stoppage on 3 June was in response to a failure by the company to establish whether they had a warrant under the Workplace Video Surveillance Act to conduct filming at the site.

PN57

The second stoppage on 12 June was a result of the sacking of six members before putting specific allegations and evidence of allegations before each of those individuals. A section 99 dispute was heard by the Commission as currently constituted on 14 June and as a consequence of those proceedings which involved conciliation between the parties a statement was issued which, Commissioner, I'm sure we all are familiar with but I would draw attention to point 3 of the statement which says that no further industrial action should occur in respect of this matter by the union whilst the unfair dismissal applications are being determined by the Commission.

PN58

Since those proceedings occurred on 14 June there has been no further stoppage of work. We submit the stoppages on 3 and 12 June are no longer relevant for the purposes of this application. Indeed they were dealt with in the Commission proceedings on 14 June and to the extent that they constituted industrial action, they are not live issues. In short, industrial action is not happening, Commissioner. In terms of whether industrial action is threatened or probable, the company rely upon three things. Firstly they rely upon comments that were made by Mr Roser during the conciliation proceedings on 14 June and I would suggest to you that there were probably a lot of comments flying around the court room during those proceedings of what could be construed as an intimidating or threatening nature by all parties.

PN59

Nevertheless we note that those comments were made over a month ago and those comments constitute a statement by one person. The words in themselves do not constitute a form of industrial action within the meaning of the Act. There has been no industrial action taken or authorised by Mr Roser since that statement was made and significantly, your Honour, we would emphasise this point, there is no evidence that the union has authorised any action or that the comments made by Mr Roser if they were indeed made, and we don't necessarily accept those comments were in themselves conclusive, but we would say that those comments, any comments that were made were a personal opinion expressed by Mr Roser during conciliation proceedings and do not reflect any evidence that the union has authorised industrial action.

PN60

The comments of themselves do not provide a jurisdictional basis for this application to succeed. In relation to the revised application that we received this morning, we note that there are three additional points that the company are now seeking to rely upon. The first is in relation to Mr Shanahan. Point 39 states that the union held a meeting in which the possibility of future industrial action was alluded to by Mr Shanahan and Ms Keys the union organiser and I note the statement of Larissa Long deals with this in more detail. This was a paid stop-work meeting which the Commission was aware of.

PN61

The union put no recommendation to that meeting. All point 39 can indicate is that options were explored but at the conclusion of that meeting there was no endorsement by the union or any formal endorsement by anybody at that meeting that appears in any of the material submitted that industrial action take place. Point 40 refers to Mr Franklin, a union delegate alleging to have made a threat that employees would leave the site if armed police officers came on to the site. Commissioner, we would say that the health and safety issue is a live issue.

PN62

There were concerns expressed by employees about unsafe work practices and concerns were raised with relevant officers and I understand that a risk assessment is being undertaken but in any event in relation to Mr Franklin's alleged comments, I have no instructions from Mr Franklin and I was not aware that any evidence regarding a statement by Mr Franklin would be brought to these proceedings. So in the interests of procedural fairness we would seek an adjournment on the occupational health and safety issue so that I can obtain instructions from Mr Franklin about this issue and get further instructions more generally.

PN63

So we think that to the extent that the health and safety issue is significant in the Commission's deliberations on issuing the orders, we would formally seek an adjournment on that issue and get further instructions from Mr Franklin who is not here today. Commissioner, in short there has been no action at the site since 12 June and there is scant evidence of any further action, to the contrary. The union has been cooperating with the company in processing the unfair dismissal actions consistent with the statement made by the Commission on 14 June and the Commission should take that conduct into account when exercising discretion which is available to you under section 127.

PN64

In summary our submission is that there is no evidentiary basis for a finding that industrial action is happening, threatened or probable. To the extent that stoppages occurred on 3 and 12 June, they were resolved in the Commission proceedings on 14 June. The company have failed to establish this essential jurisdictional point that industrial action is happening, threatened or probable. Should the Commission find against us on this point, the Commission should exercise its discretion to refrain from making orders. The conduct of the union should be taken into account in considering the Commission's discretionary powers.

PN65

In any event, Commissioner, the orders would have no practical effect as there is no industrial action and would likely exacerbate an industrial situation at the site which the parties are working hard, very hard indeed to try and contain. Commissioner, in terms of the statement of Larissa Long, to the extent that you seek to place any reliance upon that statement I would seek to cross-examine Ms Long but I may need to also get further instructions on that statement by other individuals that are referred to.

PN66

THE COMMISSIONER: Yes.

PN67

MS SCHOFIELD: Thank you.

PN68

THE COMMISSIONER: Mr Moses?

PN69

MR MOSES: I will just be very brief in response, Commissioner. The main issue that has been raised in opposition to the orders being sought is that the first element under section 127 has not been established, that is the jurisdictional foundation for the order. It is said that the company has failed to show that industrial action is in effect threatened, impending or probable. We respectfully submit that on the material before the Commission and bearing in mind the inferences which the Commission can draw from the substantive evidence set out and as the Full Bench has set out in terms of the relevant principles in respect of the drawing of inferences, the Commission would be well satisfied that on the balance of probabilities that industrial action is probable in respect of the site given the history there.

PN70

Unfortunately the position that the company is in is that what the union and/or its delegates tell the Commission is not what the experience has been since the last time the matter was before the Commission. We have in the guise of Ms Keys, a union official who has made a statement to the effect that they would consider doing something along the lines of that proposed by Mr Shanahan in a couple of weeks but to let things die down first and that there is an apprehension, there is an apprehension that unfortunately this type of conduct is being, whether it be said directly or indirectly, condoned by statements made by a union official, even in the face of a statement made by this Commission.

PN71

Secondly, and I well understand the position that the union advocate is in because of not appropriate instructions or appropriate time being given for instructions to be obtained in respect of Mr Franklin but the position is that on 21 June at a meeting at which Mr Roser was present, who I note is present within the precincts of the Commission, it is alleged that Mr Franklin made a statement that if guns were brought on the site again by police officers the workers would march. Now, there is no reference there to any dispute procedure being followed.

PN72

A pattern of conduct in respect of what appears to be a non-observation of the provisions of the agreement and how true it is, as Munro J noted in the transcript of the proceedings that I've provided to the Commission back in 2000, that the company could always prosecute members of the union who breach the provisions of an agreement and seek penalties against them before the Federal Magistrate's Court. That is an option the company has and something that it takes into consideration but it seeks to utilise the processes of this Honourable Commission to obtain the orders in the hope, in the vain hope, that the agreement will be followed because it does regard the agreement as being sacrosanct, as being something that will guide it to manage what is a troubled site.

PN73

It does not want the matters to be escalated but unfortunately it can't afford other wild cat strikes at this site because of the economic harm that will occur, not only to the company but also to employees whose jobs will be at risk and that is why the company is here. It is not to do anything other than ensure that the position of the company and the employees there is protected. Ms Long is present, as I said, within the precincts of the Commission and we accept that the union may require an adjournment to obtain instructions on matters and we are happy to accommodate any reasonable adjournment that is sought in respect to the matter.

PN74

THE COMMISSIONER: Well, originally had this matter listed I think, on the 27th of last month. The company asked for an adjournment at that point in time.

PN75

MR MOSES: That is correct, Commissioner.

PN76

THE COMMISSIONER: I have problems if I adjourn today and I think that the union does have a right to investigate the new matters that put on the table only this morning. I think Ms Schofield has been put at a disadvantage.

PN77

MR MOSES: I think the adjournment that took place was I think, by consent to accommodate both parties.

PN78

THE COMMISSIONER: Yes.

PN79

MS SCHOFIELD: Yes, that is right.

PN80

THE COMMISSIONER: Well, if the matter is adjourned this morning it has got to be by consent because - - -

PN81

MR MOSES: I understand that.

PN82

THE COMMISSIONER: We might go off the record.

OFF THE RECORD

PN83

THE COMMISSIONER: I don't think I will take the evidence of your witness today, Mr Moses.

PN84

MR MOSES: Yes, Commissioner.

PN85

THE COMMISSIONER: I think that I will leave that. The union has asked for an adjournment, it will be not until August that I will re-list the matter, I have to get my diary and have a look, the parties will be notified. However, I might say, Ms Schofield, should any industrial action occur and I'm - I don't consider a police officer entering the premises with a gun on to be a - in any way a safety issue so even if it occurs around that issue the matter on request of the company will be listed very quickly by the panel head and dealt with in my absence. The matter stands adjourned to a date to be fixed.

ADJOURNED INDEFINITELY [11.10am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 STATEMENT OF MS LONG PN45