C2002/3935, Transcript of Proceedings [2002] AIRCTrans 3233 (22 August 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT05202

A 21.8.02

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2002/3935

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Australian Die Casting Pty Limited
and Another re action against Automotive,
Food, Metals, Engineering, Printing and
Kindred Industries Union in relation to
industrial action at the entrance to
Australian Die Casting (Springvale premises)

MELBOURNE

4.12 PM, MONDAY, 5 AUGUST 2002

PN1

MR G. WATSON: I seek leave to appear for the notifiers in this matter with MR H. SKENE.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union together with MS L. POPE and MR P. ORAM. We oppose leave for Mr Watson.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Watson, why should I grant you leave?

PN4

MR WATSON: Your Honour, this is an urgent matter, notified under section 166A of the Act. The Commission is required to take certain steps when it receives such a notification and also to take further steps in the event it is satisfied of certain circumstances as specified in sub-section 6 of section 166A. The seriousness of this situation whereby urgent deliveries are required to vehicle manufacturers in order that those manufacturers can continue manufacturing vehicles, prompts this application - this notification and indicates the seriousness of it.

PN5

We intend making application for a certificate to be issued immediately. In the light of the circumstances, we do not know precisely what position will be taken by the union, but from what we can ascertain we apprehend that the union will contest allegations as to the existence of conduct relevant to the notice that we have filed. That matter will involve a consideration of the requirements for notification and the matters that need to be satisfied, and my client desires to be represented in a way that allows it to address the issues which may be raised by the union and to obtain a certificate by the Commission at the earliest opportunity which, our application would be this afternoon.

PN6

The relevant issues therefore, that are involved in this matter are urgent, involve important consequences and are not without complexity. We say that in the light of the nature of the subject matter involved, there are special and urgent circumstances which justify leave being granted. We also say that it is appropriate that parties in such matters be permitted the representation of their choice, if they believe that representation otherwise available to them is not sufficiently experienced given the sort of matters that may arise in matters of this nature. We say that a combination of those circumstances justify leave being granted under section 42(3) of the Act.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN8

MR ADDISON: Yes, thank you, your Honour. Your Honour, maybe if I start with the last submission first, that is parties being allowed the representation of their choice. Unfortunately, the legislature decided that that wasn't appropriate when the legislature inserted section 42 into the Workplace Relations Act and there are requirements to be met for counsel to be given leave to appear in this Tribunal. I note, your Honour, that the company is also represented by its industry association this afternoon, AIG. I note Mr Pels presence at the Bar table on behalf of AIG, one presumes.

PN9

AIG do have an automatic right of representation in this place, whereas counsel doesn't. Your Honour, with regard to the submission pursuant to sub-section B of section 42(3), Mr Watson talked about the subject matter and indeed, that sub-section does talk about the subject matter and reads:

PN10

By leave of the Commission, granting an application made by a party if the Commission is satisfied that having regard to the subject matter of the proceeding there are special circumstances that make it desirable -

PN11

etcetera. Your Honour, this is an application pursuant to section 166A. The requirements to be met for the issue of a 166A certificate are well known, and well known to all of the practitioners in the industrial relations arena. I am sure well known to AIG and they are not complex, in my submission. There is a mountain of authority with regard to what are the requirements needed to be satisfied, and on the basis of that, we would say that Mr Watson's application subject to sub-section B, should fail.

PN12

With regard to his application in terms of sub-section C, as I apprehend in his submission with regard to parties of choice, we say that that manifestly fails on the basis that AIG is present at the Bar table this afternoon, and the company can adequately and properly be represented by AIG. So on the basis of those submissions, we say that the Commission should not grant Mr Watson leave to appear in these matters this afternoon, if the Commission pleases.

PN13

THE SENIOR DEPUTY PRESIDENT: Anything in reply, Mr Watson?

PN14

MR WATSON: Only this, your Honour, that my friend has not indicated the nature of arguments that will be raised by him this afternoon. We are still none the wiser as to what may be raised. We have sought to apprehend what might be involved, and really in the absence of a clear understanding as to the nature of the arguments, we say that the Commission can't be satisfied that the parties can be adequately represented or that the matter is straight forward, subject to particular straightforward issues such as he alleges. In fact, recourse to the authorities in this matter indicated that there are indeed numerous potentially complex issues that do arise and in the light of the urgency and importance, we say that clearly the requirements of section 42 are met in this case.

PN15

THE SENIOR DEPUTY PRESIDENT: Leave to appear is granted. Mr Watson.

PN16

MR WATSON: Thank you, your Honour. The notification made under the Act is under section 166A. The conduct subject to the notice is picketing activities by the AMWU through its organisers, Linda Pope and Malcolm Parry and certain of its members, at two sites of the companies - the notifiers. The company MET Proprietary Limited operates sites at Noble Park and picketing activities occurred at that site on the 31st of last month and they ceased later that day.

PN17

The company Australian Die Casting Proprietary Limited operates operations at Springvale. Picketing activities commenced on 1 August, namely last Thursday, and are still continuing. Both companies manufacture - they are part of the same group of companies. They manufacture components principally for the vehicle manufacturing industry. They do so directly for the vehicle manufacturing companies and also indirectly for other suppliers to the vehicle manufacturing industry.

PN18

It is high volume components of various types in the order of 40,000 items per day produced by the companies. The operations are run on the basis of manufacturing of a large number of components nad immediate delivery to the clients of the company and through the vehicle industry which operates on the just in time system. The Commission is aware - the Commission as currently constituted is aware of an industrial dispute between Australian Die Casting and the AMWU, and has been involved in conciliation proceedings involving that matter.

PN19

It concerns the decision of the company to cease toolmaking functions at ADC and consequent redundancies and issues relating to those redundancies including the redundancy pay. Those matters have been before the Commission on 17 July last, and 30 July. Since the picketing activities occurred at the Springvale site, there have been various attempts to make deliveries of product out of the operations. Production activities are continuing but it is deliveries of product away from the Springvale site which has been affected by the picketing activities.

PN20

When it became clear that the picketing at Springvale was not only affecting deliveries, deliveries were not able to be made, but also that the picketing was continuing last Friday, the company took immediate steps to engage legal representation and hence this notice was served and filed on Friday afternoon. The advice we have from the registry is that that notice was received by the registry at 4.16 pm on Friday afternoon. As I indicated earlier, the matter is of considerable importance.

PN21

The components are required by the vehicle companies as a matter of urgency and indeed, deliveries are required to leave the Springvale premises today for Holden in South Australia where the components concerned are critical to the vehicle build operations and are required for afternoon shift tomorrow afternoon. The advice from Holden is that they have components for the day shift tomorrow, but they do not have the required components beyond that.

PN22

If they are not delivered by that time, then the vehicle building operations will be disrupted on afternoon shift tomorrow afternoon. The deliveries are by truck and there is obviously several hours travel involved between Springvale and Elizabeth in South Australia where the Holden operations are conducted. Other manufacturers also require the components, however the Holden situation appears at this stage, to be the most critical deliveries that are required.

PN23

The Commission has an obligation under section 166A of the Act, when a notice is made in accordance with section 166A, to take immediate action by the exercise of its powers to stop the conduct and also to immediately certify when it forms opinions on one of three circumstances as specified in sub-section 6. The listing of this matter this afternoon has really left no time for the Commission to exercise its powers prior to one of the events occurring, namely, the expiry of 72 hours following the filing for notice in the Commission.

PN24

In view of the urgency of this matter, my client approached the Supreme Court of Victoria this afternoon and obtained an injunction issued by Neville J of the Supreme Court. When we came to the Commission this afternoon, that injunction was in the process of being served on the parties. His Honour has adjourned the matter until 4.15 tomorrow afternoon to further consider the continuation of that injunction. Before commencing these proceedings we checked on the situation at the Springvale site. The relevant conduct of the picketers included parking of vehicles over a number of entrances and exits to the operations.

PN25

The establishment of a caravan, a bonfire in the gateway to - the main gateway into the operations, together with chairs and an informal tent arrangement, large wooden spindles were also put in place around the area and in the case of one of the entrances, completely covered the driveway to the entrance. There are a number of entrances and each of the entrances had obvious picketing activities attended by numbers of people and with signs indicating AMWU picket line and cars were parked over other entrances - the driveways of other entrances.

PN26

On checking the nature of the activity and circumstances at the site before commencing the proceedings this afternoon, I am instructed that all of that picketing activity and physical obstruction remains in place. In the circumstances, your Honour, we submit that the Commission is obliged pursuant to section 166A(6) to certify that the conduct subject to the notice has not stopped. There is some authority in relation to that paragraph for various Full Benches of the Commission. It has been held that it is not relevant whether the Commission has attempted to stop the conduct by the end of the 72 hours.

PN27

Rather, the question is, has the conduct stopped? If the answer is no, then the circumstances in paragraph (c) are satisfied. Aside from that proposition is a number of Full Bench decisions, but initially in a case concerning CFMEU v Coal and Allied which is reported at volume 77 of Industrial Reports at page 142, the relevant quote being at page 150. Given the expiry of 72 hours, we say it is not necessary to consider whether any of the other circumstances in sub-section 6 are satisfied.

PN28

If the opportunity was available we would have made application under sub-section B in particular, but the situation is such that the circumstance in sub-section C has occurred and we say that the Commission must immediately certify in writing to that effect and we would make that application. If your Honour is disposed to grant that application, we would undertake to provide a draft of a certificate so that it can be issued at the earliest opportunity, if your Honour pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Watson, was the application to the Supreme Court ex parte?

PN30

MR WATSON: I am sorry, I didn't hear that.

PN31

THE SENIOR DEPUTY PRESIDENT: The application to the Supreme Court ex parte?

PN32

MR WATSON: Yes, it was, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN34

MR WATSON: We served the materials that were filed in the Supreme Court on the AMWU prior to approaching the Court and my friend indicated before we commenced that he had copies of that material. Today was ex parte and the orders issued by the Court required to be served indicate that the matter is adjourned until 4.15 tomorrow.

PN35

THE SENIOR DEPUTY PRESIDENT: So does the injunction only last till tomorrow?

PN36

MR WATSON: Yes, your Honour, normal course being, however, that with the matter back before the Court tomorrow, that allows for any application for it to be extended beyond the date technically it might expire at 4.15. The situation as we apprehend it is that there is ongoing conduct and unless there is a clear removal of that conduct in a complete sense and some assurance that it will not be reinstituted, then we would apprehend that we would be seeking a continuation of that injunction when the matter returns to his Honour tomorrow.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Addison.

PN38

MR ADDISON: Yes, thanks, your Honour. Your Honour, Freehills did make available copies of their material to my team this afternoon with regard to that matter in the Supreme Court. I note that there is an injunction. I don't have the same interpretation as Mr Watson necessarily. It doesn't state that it expires tomorrow, however as Mr Watson said, there will be opportunity for parties to make various applications tomorrow afternoon and certainly we would be seeking to modify that injunction as it currently stands to reflect the reality.

PN39

Your Honour, we do not concede for one second that there is any illegal or improper conduct occurring at ADC, from our part. Quite the reverse. We say, your Honour, that this company has acted in an extremely unconscionable fashion, that the deal brokered between the union and the company, and as I understand it, with your assistance, your Honour, was put to our members for a vote and was accepted. That the company subsequent to that modified the deal. That the company withdrew various aspects of the agreement that had been reached.

PN40

As I understand it, your Honour, there have been conciliation proceedings involving yourself; an arrangement was arrived at between the union and the company that a package would be made available to employees. That package would be four weeks per year of service or part thereof, and that package would be uncapped. That was the deal to resolve the matters between the parties. That package was voted on by the employees and accepted, however, after that the company modified it by removing its agreement to part years and also by trying to impose a cap on the arrangement of 52 weeks.

PN41

We say, your Honour, that that is acting in extreme bad faith and we say that the company has acted in a wrong way. Now your Honour, the issues between the parties in terms of their current disagreement, are exactly that. That is the scope of the issues between the parties and if agreement can be arrived at between the parties with regard to those matters, then the disagreement will go away. So we say that the disagreement is a disagreement not of our making, but a disagreement at the making and behest of the company. Your Honour, certainly people have expressed their annoyance with the company and have informed people seeking to enter and leave the site what is going on.

[4.35pm]

PN42

PN43

The people have acted in a completely legal way. There has been no physical obstruction. There has been no harassment. It has been an absolutely legal protest line where people have asked trucks to stop, told the truck drivers what is going on and the truck drivers, at their own initiative, have left. That is perfectly legal, your Honour. There is absolutely nothing illegal about that. Your Honour, I just want to refer quickly to a decision of Commissioner Simmonds, this is print R6327, I only have one copy unfortunately but I sure Mr Watson is familiar with it, it is the Atco decision, if I can just a copy up.

PN44

And I apologise to Mr Watson, print R6327. This is a matter involving the AMWU and Atco which was notified in a very similar way. I note that it was notified by Freehills also. It was notified at 4.30 on a Friday afternoon and there was no chance for conciliation between the parties to try and resolve the matter. At the end of the day Commissioner Simmonds did issue a 166A certificate on the basis that he believed he had no choice in the matter because the 72 hours had expired.

PN45

Now, the question becomes, your Honour, I don't have a stamped application in this matter. I am told by Mr Watson that the application was filed in the Registry at 4.16 last Friday. I do not know whether that is absolutely correct or not. If the application was in fact filed after 4.30 or after the close of the Registry then technically the clock would not begin to run until 9.30 this morning in which case the 72 hours would not expire until 9.30 on Thursday morning. Now, as I say, your Honour, I do not have a stamped copy.

PN46

THE SENIOR DEPUTY PRESIDENT: The Commission's file says: date lodged 2 August 2002, 16.16.

PN47

MR ADDISON: 16 minutes past 14 and the Registry closes at 4.30, is that correct, your Honour or is it 4 o'clock these days?

PN48

MR WATSON: 5 o'clock.

PN49

MR ADDISON: It is an important question. Well it is not 5 o'clock, I know it is not 5 o'clock. I am not sure whether it is 4 or 4.30.

PN50

THE SENIOR DEPUTY PRESIDENT: I can't answer that Mr Addison.

PN51

MR ADDISON: But it is an important question, your Honour. There is authority with regard to the fact that if it is lodged after the close of the Registry then the clock doesn't start until the next working day so it is a fairly important question.

PN52

THE SENIOR DEPUTY PRESIDENT: I have got my doubts it is 4 o'clock.

PN53

MR ADDISON: I think it is 4.30 myself, to be honest. So on that basis I guess that the clock is running. In fact the clock has run out according to the clock on the wall here, your Honour. However, your Honour, there are four criteria, if you like, which have been determined with regard to the issue of a certificate under this particular section of the Act. Those four criteria have been endorsed by a number of Full Benches. They are referred to in the Atco decision on - I think it is the fifth page - fourth page and they are that:

PN54

The action which is complained about -

PN55

and as I say there is no concession from this side of the bar table that there is any action -

PN56

must be capable of a notice. It must be capable of a subject of conciliation proceedings. It must be capable of attempts by the Commission to stop it and -

PN57

finally -

PN58

it must be of a character that might reasonable be subject to a declared intention to bring an action in tort.

PN59

Now, your Honour, we say that there is a difference between the parties. We are happy to attempt to conciliate that difference. I have described to the Commission, as currently constituted, the full scope of the argument between the parties and would suggest that it is readily capable of resolution with some good will on the part of the company and for them to take half a backward step and back to where they were prior to them in acting in an unconscionable manner and we are more than happy to try and resolve that.

PN60

With regard to the conduct that Mr Watson says is occurring and there is no evidence of that, your Honour, none whatsoever, with regard to the character of that, we say that whatever is occurring is occurring absolutely legally and therefore the criteria that the conduct might reasonable be subject to a declared intention to bring an action in tort cannot be reached and we say the certificate should not issue. At the very least, your Honour, given the requirements of the Act at subsection 5, 166A, subsection 5, that:

PN61

The Commission must take immediate steps to try or continue to try to exercise its powers under the Act to stop the conduct.

PN62

We say the only way that this conduct can stop in a proper fashion is for the parties to go back to where they were a short time ago and for the Commission to exercise its powers of conciliation with regard to this matter to try and attempt to assist the parties to get back to that point. If the Commission pleases.

PN63

THE SENIOR DEPUTY PRESIDENT: Mr Watson, in the written notice of intention to bring action in tort, it says at paragraph 4:

PN64

On Wednesday 31 July 2002, the AMWU, its officials, employees, delegates and agents including Ms Pope and Mr Parry commencing picketing and blockading activity the entrance to premises of -

PN65

I presume that means at the entrance to premises of -

PN66

ADC at 13 Newcomen Road, Springvale, Victoria (the Springvale premises).

PN67

I thought you said that the picketing started on 1 August.

PN68

MR WATSON: Yes. What I said, your Honour, is correct. There was picketing activities on 31 July and that was at Noble Park and the picketing activities at Springvale did not commence until the Thursday, the 1st.

PN69

THE SENIOR DEPUTY PRESIDENT: So are you seeking to vary this to - paragraphs 4 and 5 should read: 1 August instead of - - -

PN70

MR WATSON: That is correct. We seek to correct what is contained in the notice by the change in the dates concerned.

PN71

THE SENIOR DEPUTY PRESIDENT: And paragraph 7 - this can't be right, can it? You say they have threatened - that is the one where it started and finished.

PN72

MR WATSON: Yes, that is the one where it started and finished. Picketing activities did occur on the 31st at the Noble Park premises and that paragraph should reflect that circumstance rather than the nature of a threat as such and what we say is that picketing activities at both sites. The conduct at the moment is only at the Springvale site so for the purposes of a certificate the immediate conduct is the Springvale site however the conduct does involve picketing activities at two sites over a period from last Wednesday to the present date.

PN73

We would say that given that the nature of the dispute is a single one concerning a single set of issues, redundancies at Springvale, that the relevant conduct should be viewed in a broad sense rather than the narrow sense of site by site. Therefore it is the entirety of the conduct which is relevant for the purposes of this notice and the issue of a finding under subsection 6(c).

PN74

THE SENIOR DEPUTY PRESIDENT: Well (7) should probably read:

PN75

The AMWU commenced picketing premises of MET at 28 to 35 Overseas Drive, Noble Park, 3174, Noble Park premises on -

PN76

what is it?

PN77

MR WATSON: 31 July.

PN78

THE SENIOR DEPUTY PRESIDENT:

PN79

31 July 2002 - - -

PN80

MR WATSON: 2002

PN81

THE SENIOR DEPUTY PRESIDENT:

PN82

and ceased that day.

PN83

Didn't it?

PN84

MR WATSON: And ceased - yes, later that day.

PN85

THE SENIOR DEPUTY PRESIDENT:

PN86

...and ceased that picketing later that day.

PN87

Is it?

PN88

MR WATSON: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Now, Mr Addison concedes nothing and all I have got is this statement. Do you have any witness statements etcetera?

PN90

MR WATSON: Yes, your Honour. He says he concedes nothing but the wording of what he says is perhaps more to the point. He says that he does not concede that there is any improper conduct.

PN91

THE SENIOR DEPUTY PRESIDENT: Let me cut to the chase on this. He has not conceded that it has taken place by AMWU officials, employees, delegates and agents, Ms Linda Pope or Mr Malcolm Parry, who are the people against whom you seek this certificate. I have nothing before me - true he says there is a picket but he hasn't said it is his picket etcetera. Have you got any material in that regard? I presume you have, you have been in the Supreme Court.

PN92

MR WATSON: Yes, yes we have and - but there is a question in terms of how much the Commission needs to consider material of this nature given that the 72 hours has expired. What I would propose to do is provide to your Honour an affidavit that was filed in the Supreme Court and it was provided to the AMWU office on my instructions this morning. Can I hand to the Commission a copy of an affidavit of Sven Westphal dated 5 August 2002?

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR WATSON: That affidavit gives some background of firstly Mr Westphal's position, the Westphal Group and its operations including Australian Die Castings and MET. It outlines the manufacturing process of MET, it then indicates the nature of the customers of MET and Australian Die Casting customers commencing at paragraph 12, then commencing at paragraph 14 deals with the relationship with the vehicle manufacturers.

PN95

Also materials contractors, those involved in deliveries are mentioned in paragraph 19, employment arrangements are dealt with in paragraphs 20 to 23, history of change of ownership of Australian Die Castings is mentioned, paragraphs 24 to 27, the nature of the industrial demands mentioned at paragraphs 28 to 30, the nature of redundancies at the Springvale site are mentioned at paragraphs 31 to 36. Then there is mention of the Commission proceedings commencing at paragraph 37 and then for present purposes Mr Westphal addresses firstly the situation at the Noble Park site and attached to the affidavit are some photos of that site and some of the activities which occurred on Wednesday 31 July.

PN96

One of the - a number of the photos have a picture of a truck on its way out of the Noble Park site and a white vehicle parked across the driveway. There is a gentleman in a sort of fluorescent green vest who I am instructed is the driver of that vehicle who sought to leave the premises with deliveries, sought to get those involved in parking the vehicle to move the vehicle so he could exit. That did not occur until the police attended the site, the vehicle was moved and the truck subsequently left.

PN97

I will just hand - this is not the place to argue as to the legality of conduct but there is - one of the picture I have and I am not too sure which order it is in but it has - I think it is exhibit 3 and one of the photos in that group has the gentleman in the green iridescent vest and a cap speaking to two people who are leaning against the white vehicle. Those people are Ms Pope and the tall gentleman with grey hair is Mr Parry. I understand the other people involved were some of the redundant employees made redundant last week.

PN98

As I said, this is not the place to argue the legality of conduct, simply whether there is conduct that is capable of being subject to a notice under this section but it is certainly very clear that any physical obstruction of egress and ingress of any premises is not only actionable under the civil law but also a breach of the criminal law. The affidavit of Mr Westphal then deals with access to the Springvale site. He outlines those circumstances, its location and the entrances and exits at paragraphs 55 - sorry 46 and following. He gives detail of that material and commencing at paragraph 50 he indicates the nature of picketing activities firstly in respect of the Noble Park site and then commencing at paragraph 67 at the Springvale site.

PN99

He details the nature of that conduct in some detail including the attempt by various truck drivers to enter the site. He then also details the situation subsequently on Friday 2 August, Saturday 3 August and Sunday 4 August commencing at paragraph 78. He attaches as exhibit SV5, copies of photographs taken of the Springvale site and amongst those photographs is the main entrance which has a bonfire right in the middle of the driveway, a caravan parked to the side, a sign placed to the left of the driveway.

PN100

THE SENIOR DEPUTY PRESIDENT: Where is this?

PN101

MR WATSON: It is exhibit SV5, your Honour, and it is - - -

PN102

THE SENIOR DEPUTY PRESIDENT: SV5, is it?

PN103

MR WATSON: Yes. There is a collection of photographs. I am not too sure, I think it is the first one is the one I am referring to.

PN104

THE SENIOR DEPUTY PRESIDENT: I am trying to find SV - SV5, first one, this is the one with the caravan and a fire and something, is it?

PN105

MR WATSON: Yes.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, this is on Saturday?

PN107

MR WATSON: There is a notation that is 5.30 pm on Saturday 3 August.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes.

PN109

MR WATSON: And there is a piece of cardboard somewhat eschewed to the left of the driveway which appears to me to say "AMWU" at the top and I believe the next word is "picket" so - and then there is something else written on the third line but "AMWU picket" is included on that sign. There is a canvas item spread out from the driveway. There are chairs. There is supplies of wood at that location. The other photos which the - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Does the picket continue this minute?

PN111

MR WATSON: Pardon, ma'am.

PN112

THE SENIOR DEPUTY PRESIDENT: Does the picket continue this minute?

PN113

MR WATSON: On the last time we checked, it is, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: When did you last check?

PN115

MR WATSON: Yes, we are happy and get an update.

PN116

THE SENIOR DEPUTY PRESIDENT: No, when did you last check?

PN117

MR WATSON: When?

PN118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN119

MR WATSON: We checked just before - after 25 past 3, it was, that we checked.

PN120

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN121

MR WATSON: The other photos indicate other entrances and they show cars parked across the entrances and in one case wooden spindles - large wooden spindles piled too high, six thereof, parked across one of the other entrances. I don't propose to read all of that material and the effect of the picketing is a separate matter but as to the existence of conduct which is capable to use the terminology of the Full Bench in the Mobil case of which - as it has been applied on numerous occasions by the Commission since that time and no doubt by Commission Simmonds in the case my friend referred to, the Mobil case being reported at 72 IR 27, the four requirements are subject to - or required to be satisfied by the Commission are identified in that case and the full passage in fact in that case reads:

PN122

Mr Watson's submission to Commissioner Tolley suggested that it is only necessary to identify that there is conduct capable of being the subject of a notice, capable of being the subject of conciliation proceedings, capable of being subject to attempts by the Commission to stop the conduct. We would add to that list of requirements only that the conduct needs to be of a character that might reasonably be the subject of a declared intention to bring an action in tort. Ordinarily the member of the Commission dealing with an application under section 166A should be able to rely upon the material placed before the Commission as sufficient to discount the possibility that there is no adequate connection between the conduct complained of and the commencement of a tort action.

PN123

And there is reliance on an earlier Full Bench matter in Willinger Holmes. You Honour, we rely on that evidence. Mr Westphal is present in the Commission. We do say, however, that the notion of - given that the time period has expired and the Commission's obligation to immediately certify, should be carefully considered, especially in the light of whether there is any intention to call contrary evidence. So, we say, that that material is clearly capable of being relied on for the purposes of the Commission satisfying itself that there is conduct occurring.

[5.00pm]

EXHIBIT #ADC1 AFFIDAVIT OF SVEN WESTPHAL

PN124

THE COMMISSIONER: Mr Watson, do ADC Pty Ltd, or Australian Die Casting Pty Ltd and MET Pty Ltd both operate at Springvale?

PN125

MR WATSON: No, they don't, your Honour. They are part of the same group but the operations at Springvale are conducted under the name of Australian Die Castings Pty Ltd.

PN126

THE SENIOR DEPUTY PRESIDENT: Right, okay, thank you. And the certificate that you seek, have you got that?

PN127

MR WATSON: Yes, we have - we don't have in Court - yes, the form of the certificate, we do not have at this stage. But as we said we can prepare that and provide it at an early opportunity.

PN128

THE SENIOR DEPUTY PRESIDENT: So the certificate would be in respect of Australian Die Casting and the metalworkers and who else?

PN129

MR WATSON: Your Honour, we seek the certificate in relation to both parties - both ..... notifies. We acknowledge - - -

PN130

THE SENIOR DEPUTY PRESIDENT: Is there any conduct in respect of MET?

PN131

MR WATSON: Your Honour, we submit - our primary submission that there is a series of conduct initially at MET and now at ADC at more than one location - - -

PN132

THE SENIOR DEPUTY PRESIDENT: But hasn't the conduct stopped at MET - at Noble Park?

PN133

MR WATSON: Your Honour, it is a question of what one regards as the conduct. But we say that the conduct is picketing activities at operations within the group of companies. Now, MET did not have any actual dispute or anything of that nature with the union, however, its operations were disrupted. It notified - it was part of this notification and we say the conduct is a course of conduct not a series of individual pieces of conduct. Such that - - -

PN134

THE SENIOR DEPUTY PRESIDENT: But is it - a course of conduct inconsistent with the Act? I mean, a course of - - -

PN135

MR WATSON: Indeed, indeed, your Honour, the conduct - it is a factual enquiry as to what conduct has been engaged in and is regarded as continuing. We say that the conduct is picketing at operations of Australian Die Casting and other companies within the group, namely, MET, that is the conduct, we say, is subject to the notice. And even though it has moved in location, it is nevertheless conduct of an ongoing nature. And is the subject of a notice on which we seek the issue of a certificate on the basis that it has not stopped.

PN136

The alternative argument we put is that, certainly, beyond any shadow of a doubt, the conduct out at Springvale, if that is seen narrowly as conduct confined to that site, it is covered by the requirements of the section. And it did not stop and the Commission would clearly certify that it has not stopped at the end of the 72 hours. However, we say that the union has not viewed this in a narrow manner. They have sought to disrupt operations of the companies within the group. They have chosen to move picketing activities.

PN137

There is nothing fallen from them as to any assurances not to engage in conduct of that nature at any other location. And given that they are the ones who have engaged in the moving, picketing activities, then the Commission is quite entitled to form the view that the conduct is broader than a series of activities confined to particular locations. So, it comes back to the view taken as to what the conduct is. And also that it is continuous and a single line of activities which has, to date, taken place all in one location.

PN138

THE SENIOR DEPUTY PRESIDENT: So, who are you seeking it against? You want the two companies and the AMWU, is that all?

PN139

MR WATSON: We also want the two officials named in the notice, namely, Ms Pope and Mr Parry. And we say that - and we seek the issue of a notice in terms of the union, its officials, employees, delegates and agents as referred to in the notice. In other words, the activities of the union through those natural persons who customarily act on behalf of the union.

PN140

THE SENIOR DEPUTY PRESIDENT: Well, do you need that?

PN141

MR WATSON: Yes, we do, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Why do you need that/

PN143

MR WATSON: Well, it may be that a - employees of the union, other than those that have taken part in the activities to date, suddenly start taking part in activities. It is - - -

PN144

THE SENIOR DEPUTY PRESIDENT: Hang on, who, employees of the union?

PN145

MR WATSON: Yes.

PN146

THE SENIOR DEPUTY PRESIDENT: Well, won't they be covered by the AMWU?

PN147

MR WATSON: Well, it might mean that the AMWU itself is - would be bound if they were doing so in that capacity. But the AMWU itself is a corporate entity. The conduct is engaged in through natural persons in a way which implicates the corporate entity. But the individuals are also committing the unlawful activity and if they are the ones who have contributed to loss and damage then it is certainly my client's intention to take appropriate proceedings. Can I just correct something I said earlier, your Honour.

PN148

I had thought that it was simply the case of Australian Die Casting conducting its activities at Springvale. That is true in relation to the primary manufacturing activities. However, MET does employ some employees at the Springvale site, given that it is a group of companies, there is integrated activities of the manufacturing and marketing activities, etcetera. Certainly MET and its employees are affected by the conduct at Springvale alone.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes. So it is Die - Australian Die Casting and MET and AMWU, for short, and it is officials, employees, delegates and agents and Linda Pope and Malcolm Parry?

PN150

MR WATSON: Yes, Ms Linda - - -

PN151

MR WATSON: In respect of the conduct set out in the notice - - -

PN152

MR WATSON: As amended - - -

PN153

THE SENIOR DEPUTY PRESIDENT: As amended.

PN154

MR WATSON: - - - and referred to in the affidavit of Mr Westphal.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you, Mr Watson. Mr Addison?

PN156

MR ADDISON: Yes, thanks, your Honour. Your Honour, as I indicated earlier, the affidavit that Mr Watson relies on to establish that there is conduct - I indicated earlier that we had received that at 2.19. I was in error there. I do apologise, It was actually 2.13, on a closer examination of the facts - information. Your Honour, I still have not read this in any great depth. I have no instructions with regard to it. And would say, as a matter of procedural fairness and natural justice that the AMWU is entitled to test this evidence on the basis that it is the sole evidentiary basis that Mr Watson relies upon to say that there is some action occurring.

PN157

On that basis, I seek an adjournment of the matter until tomorrow to consider that position and get some instructions with regard to that affidavit. However, I am mindful of the fact that the 72 hours have effectively passed. And the Commission, as currently constituted, may well be under an obligation simply to issue the certificate. I do say that Mr Watson's submissions, particularly with regard to Noble Park go well beyond the scope of the Act and well beyond the scope of the authorities. And Mr Watson - sir, I retract that.

PN158

The Act concerns itself with conduct. There is no conduct of any description at Noble Park - none. On Mr Watson's own proposition there is nothing to link the AMWU, or anybody associated with the AMWU, to any conduct whatsoever at that site. And on that basis we say the Commission cannot - does not have the power to issue a certificate that relates to non-existent conduct at that site.

PN159

THE SENIOR DEPUTY PRESIDENT: What do you say about officials, employees, delegates and agents?

PN160

MR ADDISON: Once again, there is nothing to link that generic group of people to any conduct that is occurring, nothing at all. Your Honour, that 166A certificate would apply to me under those circumstances. I don't like going into Springvale or Noble Park particularly, there is no tram tracks there, I get lost. I certainly don't intend to be out there and therefore I haven't been out there for a couple of months. So Mr Watson can't possibly link me to any conduct that has occurred out there at Noble Park or Springvale.

PN161

And we say that is far and away beyond what the Act requires. It is far and away beyond what the authorities say. Now, the authorities say - and I concede Mr Watson's point with regard to Willinger, and other authorities, that the Commission does not have to go into a forensic exercise to determine what the scope of the conduct is, if you like. It doesn't have to determine for itself whether the conduct is in fact tortious or not. But it does have to be satisfied that there is in fact conduct.

PN162

Your Honour, the Transfield Obayashi case, which was a full bench decision. And that is recorded at print R3884. Is a similar proposition where Commissioner Tolley, in fact, issued a 166A certificate on the Transfield Obayashi site. However, the conduct complained of had in fact ceased. It ceased some little time before the certificate was issued. And the full bench, at the end of the day, squashed the 166A certificate on that basis, that there was no conduct, therefore there was no nexus. Therefore, no jurisdiction to issue a certificate.

PN163

So, we say, on that basis, that no certificate should issue at all. We say, even if the Commission is minded on the scant evidence, and the untested evidence, if the Commission is minded to issue a 166A certificate on that basis, because the 72 hours have in fact elapsed. We say the absolute maximum extent the Commission should, and can, in my submission, go to, is to issue a certificate with regard to the Springvale site and that certificate on the AMWU. And this is putting Mr Watson's evidence at its absolute highest. Mr Watson has got a photograph of, what he says, is Ms Pope and Mr Parry.

PN164

I have got to see it, your Honour. I can't make head nor tail of the photographs. All I have got are black boxes. That sort of thing, your Honour, just black boxes. So I can't make anybody out in these photographs. But let us presume that that is all true and above board. The best evidence he has got is a picture of Ms Pope and Mr Parry leaning against the car in Springvale.

PN165

THE SENIOR DEPUTY PRESIDENT: Are both Ms Pope and Mr Parry officers, members or employees of the AMWU?

PN166

MR ADDISON: Ms Pope is an elected official of the AMWU - an elected organiser of the AMWU. Mr Parry is an appointed organiser of the AMWU.

PN167

THE SENIOR DEPUTY PRESIDENT: He is a member?

PN168

MR ADDISON: He is a member, yes.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN170

MR ADDISON: So, at its highest, your Honour, we say that is as far as the Commission should and can go. If the Commission pleases.

PN171

THE SENIOR DEPUTY PRESIDENT: I am going to adjourn into conference. I will speak to the AMWU first.

SHORT ADJOURNMENT [5.14pm]

RESUMED [5.21pm]

PN172

THE SENIOR DEPUTY PRESIDENT: In light of the submissions that have been put to me in this matter I intend to issue a certificate. The certificate will issue from my chambers at 9.30 tomorrow morning and will be available for collection therefrom at that same time. I will now adjourn.

ADJOURNED INDEFINITELY [5.21pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ADC1 AFFIDAVIT OF SVEN WESTPHAL PN124