C2002/259, Transcript of Proceedings [2002] AIRCTrans 4663 (18 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT05595
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER O'CONNOR

C2002/259

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Devaugh Pty Ltd re Devaugh Maintenance and
Modification Agreement 2001

PERTH

12.10 PM, WEDNESDAY, 6 NOVEMBER 2002

PN1

MR M. BORLASE: I appear on behalf of the applicant, Devaugh Proprietary Limited, in this matter.

PN2

THE COMMISSIONER: Right, thanks, Mr Borlase.

PN3

MR L. EDMONDS: I appear for the respondent, sir, I seek your leave to appear today, sir.

PN4

THE COMMISSIONER: You are counsel are you?

PN5

MR EDMONDS: Yes, sir, I am.

PN6

THE COMMISSIONER: You don't work for the AMWU?

PN7

MR EDMONDS: Yes, I do, sir.

PN8

THE COMMISSIONER: Well if you are employed by them you don't have to - if you are an employee you don't have to seek leave.

PN9

MR EDMONDS: Yes, sir, thank you, sir.

PN10

THE COMMISSIONER: Right, Mr Borlase.

PN11

MR BORLASE: Thank you, sir. Sir, this is an application for an order to stop or prevent industrial action pursuant to section 127 of the Act. Sir, just before I start there is one point which I need to clarify in respect of the application and I do apologise for it. At point 2 of the application we have indicated that employees of Devaugh Proprietary Limited that were engaged at the Worsley Alumina site left work on 4 October 2002, that was a misunderstanding on my part in terms of the instructions I received. Apparently the employees did not leave site on that particular day.

PN12

Sir, by way of background, there has been a series of meetings which have been called by the - and I will use their shortened name - the Automotive Metal Workers Union or the AMWU for the purpose of seeking a site wide agreement to apply at or to contractors engaged on work at the Worsley Alumina site. To that end there is a number of documents which have been issued by the AMWU, which I would provide to the Commission.

PN13

THE COMMISSIONER: Thank you.

PN14

MR BORLASE: Sorry there is one more. Sir, just taking you through those, the first is one which is on AMWU letter head and it is - it has got some numbers written up the top which are not relevant, but it is entitled: attention all Worsley contractors. And what that indicates is that the AMWU State President, Colin Saunders, and South West Union Official, Shaun Currie, will be holding a mass meeting of all Worsley contractors:

PN15

This meeting will be held at the main car park at 3.30 pm on Tuesday, 10 September 2002. This meeting is being convened to discuss ...(reads)... expansion projects being undertaken by Worsley over the next few years. All contractor employees are urged to attend.

PN16

The second document I would draw your attention to is the other single page document, which is again on AMWU letter head and it is referred to as: a compulsory stop work meeting for all Worsley contractors. And that says that:

PN17

The AMWU and CEPU will be holding a mass meeting of all Worsley contractors ...(reads)... All contractor employees are urged to attend.

PN18

And that is authorised by Shaun Currie, AMWU Organiser. The third document which is of relevance is the large document which I provided to you. Again on AMWU letter head dated 8 October and that is a letter which is directed to: the Human Resource Manager/Manager, Devaugh Builders, Civil Engineers Contractors, 5 Hale Street, Bunbury, WA 6230; and it reads:

PN19

Dear Sir/Madam, Enclosed is a Without Prejudice draft copy of the Worsley contractors maintenance ...(reads)... discussions. Yours sincerely, Jock Ferguson, State Secretary.

PN20

Sir, from those documents, it is quite clear what is being - or what is effectively at the heart of the dispute which exists down at the Worsley site. Sir, following a meeting which occurred on Monday, 4 November, employees I am instructed of Devaugh who attended a meeting, which was scheduled by the AMWU, were encouraged to not cross a picket line, which was effectively set up some four or five kilometres outside of the Worsley site.

PN21

And, as a consequence of that, employees of Devaugh did not attend for work on Monday, 4 November. I am also instructed that on Tuesday, 5 November the picket line remained in place and, again, employees of Devaugh were sought by those people who were staffing that picket line not to cross that picket line and, effectively, be in breach of their contracts of employment. And, as a result, those employees did not attend for work.

PN22

I also understand that this morning much the same has occurred, in that there is a picket line still in place and those employees are being encouraged or incited not to attend work and not to cross that picket line. Sir, as will be seen by the agreement - sorry, by the application there is an agreement in place, being the Devaugh Proprietary Limited Maintenance and Modification Agreement 2001, being AG2001/5612.

PN23

That is an agreement which has been registered in the Commission pursuant to section 170LK of the Act and is in force until, I believe, approximately 16 November 2004. I will just confirm that for you, sir, yes, 16 November 2004. And, as I said, that is an agreement reached pursuant to section 170LK. Sir, what I would like to do at this point before I make further submission in respect to the orders that we seek, is I would like to call Mr Aaron Barnes to give evidence in respect of what is occurring at the site.

<AARON BARNES, SWORN [12.19pm]

<EXAMINATION-IN-CHIEF BY MR BORLASE [12.19pm]

PN24

MR BORLASE: Mr Barnes, could you tell the Court who your employer is?---My employer is Devaugh Proprietary Limited in Bunbury.

PN25

And what is your role with Devaugh Proprietary Limited?---I'm a Site Supervisor at Worsley Alumina for the maintenance project.

PN26

Okay. And are you in a position to know whether employees of Devaugh Proprietary Limited are attending work or have attended work at that site over the last three days?---Yes, I am.

PN27

And can you tell the Commission whether or not employees attended for work on Monday, 4 November?---They did not attend for work.

PN28

Okay. Do you know why they did not attend for work?---They reported to a meeting, there was a motion put forward and I - I don't know what exactly transpired but I know that the blokes were told that there was a picket line effective immediately.

PN29

THE COMMISSIONER: How do you know this?---I beg yours?

PN30

How do you know this?---I've had discussions with employees that were present at that meeting.

PN31

MR EDMONDS: Sir, in the circumstances, sir I think those employees should be called to give evidence.

PN32

THE COMMISSIONER: Yes, that is hearsay, Mr Borlase.

**** AARON BARNES XN MR BORLASE

PN33

MR BORLASE: I understand that, sir. Having regard to the Coal v Allied case in respect of the rules of evidence in respect of that particular matter, given that this is a discretionary position or a discretionary power which is available to the Commission, it is one where the Commission is either satisfied - and I refer to print P2071, being the matter of Coal and Allied operations Proprietary Limited in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries union and others, a decision of Munro J, Senior Deputy President Harrison and Commissioner Leary, Sydney, June 20, 1997.

PN34

And at page 7 of that roneo copy the issue of onus of truth was discussed in that particular aspects. And effectively what was said is that where there is this matter of discretion, as in the case of section 127 is exercisable on the Commission own motion, in short the Commission is either satisfied that it should exercise the discretion or it is not. It matters little how the Commission arrives at that state of mind.

PN35

THE COMMISSIONER: I've got to arrive at the state of mind on the basis of proper regard to procedural fairness. And there is indeed - the onus is indeed upon you to prove that the circumstances exist that you're alleging and which require - which you rely on for the proposed order, or in fact the actions that you claim should cease in the order are actions that are actually happening.

PN36

Now, one of the problems I've got about persons not attending for work because there is a picket line is that, to prove that those persons are being coerced not to cross the picket line or whether they just don't want to go in because they find that the wages proposed in the agreement that the union are trying to negotiate are far more attractive than the wages they are already receiving. And the state of mind might well be that we are not going in because we hope to make some material gain out of the actions of this union.

PN37

MR BORLASE: Sir, I will rephrase the question, sir. Mr Barnes, have you been told by employees why they are not attending for work?---They have been asked by other persons to support the action of the decision at that meeting.

**** AARON BARNES XN MR BORLASE

PN38

Is that what you have been told by employees of yours?---Yes, that is what I've been told by employees.

PN39

Have they told you who asked them?---No.

PN40

They haven't, okay. Now, in terms of - - -

PN41

THE COMMISSIONER: Could those other persons be employees of other companies that work on the site?---Correct.

PN42

MR BORLASE: Sorry, sir, was your question, could it have been or?

PN43

THE COMMISSIONER: Could it have been employees of, you know, you've got a mass of blokes milling around at the gate.

PN44

MR BORLASE: Could it have been. Sorry, I just didn't quite hear the question. Yes. In terms of the - of Tuesday, 5 November, being yesterday did employees of Devaugh attend for work?---They did not attend for work.

PN45

Okay. Now, did you - - -

PN46

THE COMMISSIONER: Just before we - I'm sorry, you only have one witness, do you?

PN47

MR BORLASE: I do, sir.

PN48

THE COMMISSIONER: Yes, well that is all right, you go on.

**** AARON BARNES XN MR BORLASE

PN49

MR BORLASE: In terms of - were you aware whether there as a picket line set up to stop access to the Worsley site?---I was aware there was a picket line.

PN50

And how were you aware?---On my way to work on Tuesday the 5th at approximately ten to six am, there was a notice board with a sign saying: combined unions picket line, chasing a better deal for contractors; to that effect. And two flags, AMWU flags, one on either side of the road with approximately half a dozen guys manning that post.

PN51

Okay. Did you have any other occasion to go to that picket line on Tuesday the 5th?---I had a phone call from one of my employees at around ten to seven, saying that there was a picket in place and they weren't going to cross that picket. Myself and the other supervisor on site made our way down to that picket line and had a meeting with the men on at that point.

PN52

Okay. And what did you see in terms of activity occurring at that picket line?---At that point there was approximately eight to 12 people on the side of the road. Some with Eureka flags and AMW flags, waving vehicles down and I - speaking to people, I don't know what transpired, but speaking to people and - and that was going on basically as I pulled in.

PN53

Okay. Now, did you - - -

PN54

THE COMMISSIONER: Just before you go, how many employees do you have on the site?---At that meeting there was about 18 employees on that day.

PN55

Eighteen, okay, sorry go on.

PN56

MR BORLASE: Okay. In terms of - sorry, did you have a discussion with your employees at that point in time?---Yes, I did.

**** AARON BARNES XN MR BORLASE

PN57

And did they tell you why they were not going to cross the picket line?---They - - -

PN58

Sorry, I beg your pardon. Did they tell you whether or not they intended to cross the picket line or not?---They - they instructed us that they weren't prepared to cross the picket line and that they had been asked to support the picket line.

PN59

Okay. And did they tell you who had asked them to support the picket line?---No, they did not.

PN60

Okay. All right. Can you tell the Commission what the affect of the picket line is in your employees not attending for work on Devaugh Proprietary Limited?---The affect is that Devaugh as a company has an alliance with Worsley Alumina and part of that alliance is this agreement with no strike action. All our contracts are time and material based contracts, so if we are not working the company is not effectively making money and that snowballs down the line.

PN61

Okay. Do you have any idea approximately what it has cost the company on the Monday and the Tuesday?---It costs the company about $20,000 a day when personnel don't attend work.

PN62

Okay. Now, are your employees at work today?---No, they are not.

PN63

Okay. Have you been told the reason why they are not at work?---There was another meeting held this morning and a motion was put forward and, once again, I received a phone call to say that they had decided to go out for another 24 hours. And there was a picket line to be put in place immediately.

PN64

Okay. Have you been told who has been running the meetings on the Monday or the Tuesday or the Wednesday?---I was informed that Shaun - - -

**** AARON BARNES XN MR BORLASE

PN65

MR EDMONDS: Sorry, sir, this is still hearsay, sir.

PN66

THE COMMISSIONER: Yes.

PN67

MR EDMONDS: If he has attended the meetings then let us hear that evidence, if he hasn't attended the meetings he can't really say.

PN68

THE COMMISSIONER: Yes.

PN69

MR EDMONDS: It is really a question of weight more than anything, sir.

PN70

THE COMMISSIONER: Yes, that is correct and, I mean, these interlocutory applications are - you know, the evidence has got to be produced in a proper manner as far as I'm concerned because the consequences of issuing these orders are far reaching if they are issued and they're breached. So it is a pretty serious step 127.

PN71

MR BORLASE: Yes, I understand that, sir. There is also obviously degrees of difficulty in circumstances such as this at times. Management are not usually people that are welcomed to meetings such as this and not necessarily a simple matter to be able to achieve first hand evidence. As Mr Edmonds has indicated it is a matter of weight which you need to give to the evidence. And it - and I take the point, sir, that his evidence is no more than that which he has been told but that is the evidence that we would seek to put before the Commission for your consideration.

PN72

THE COMMISSIONER: If he has a meeting with his workers at the gate, as he did, and he addresses them and they address him that is one thing but for him then to try and go further and say what somebody else said at another meeting is starting to stretch it a bit.

**** AARON BARNES XN MR BORLASE

PN73

MR BORLASE: I understand that, sir. Effectively, as I said it is a question of weight that you are prepared to give.

PN74

THE COMMISSIONER: Yes, all right, continue on, I guess it is that.

PN75

MR BORLASE: Thank you, sir. In that conversation that you had with the employees, did they - have they indicated to you who was running the meeting?---Yes, they have.

PN76

And who did they tell you was running the meeting?---They said that all the meetings they've been to Shaun Currie was present and I am not sure whether at the last meeting, Jim Murphy.

PN77

Okay. Thank you. Now, are you aware as to whether or not you have an agreement in place with your employees which has been registered in the Industrial Relations Commission?---Yes, I am.

PN78

And do you know if that agreement is still within its current term?---Yes, I believe so.

PN79

Could I ask the witness to be shown these two documents, please? Do you recognise those documents, Mr Barnes?---Yes, I do.

PN80

And Commissioner, I would like to tender the documents. I have already provided them to the Commission. They are two documents on single pages on AMWU letterhead, the first headed: Attention All Worsley Contractors. The second, under the letterhead, headed: Compulsory Stop Work Meeting.

EXHIBIT #B1 DOCUMENT HEADED: ATTENTION ALL WORSLEY CONTRACTORS

**** AARON BARNES XN MR BORLASE

EXHIBIT #B2 DOCUMENT HEADED: COMPULSORY STOP WORK MEETING

PN81

THE COMMISSIONER: Sounds like a television show, doesn't it?

PN82

MR BORLASE: It would probably be more fun, sir.

PN83

Mr Barnes, could you tell the Commission how you came to be - or sorry, whether you have seen these documents before?---Yes, I have seen the documents before.

PN84

And in what circumstances did you see those documents?---I was handed copies of these documents on site by other contractors.

PN85

By other contractors. You mean by employees of other contractors?---By employees of other contractors.

PN86

Okay. And do you recall approximately when that occurred?---No, I couldn't - couldn't answer that question.

PN87

No? Okay. If I could ask the witness to be shown this particular document, please? Do you recognise that document, Mr Barnes?---Yes, I do.

PN88

And Commissioner, I would like to tender that document as well. That is the letter dated 8 October 2002 from the Australian Manufacturing Workers Union to Devaugh Builders.

EXHIBIT #B3 LETTER DATED 08/10/2002 FROM THE AMWU TO DEVAUGH BUILDERS

**** AARON BARNES XN MR BORLASE

PN89

MR BORLASE: Mr Barnes, have you had any discussions with your employees that would indicate whether or not the industrial action which is occurring at Worsley relates to the claims that are contained in these documents?---Not - not directly at that document, no.

PN90

Okay. Have you had any discussion with your employees as to what the industrial action that is being conducted at Worsley is about?---Yes, only on the basis that it is chasing a site wide agreement.

PN91

Okay. Have your employees indicated to you whether or not they wish to have a site wide agreement or whether they are comfortable with their existing agreement?---The information I've been given by our employees is that they are comfortable with their agreement that they have in place.

PN92

Thank you. I have no further questions, thank you, sir.

PN93

THE COMMISSIONER: Right. Thanks. Mr?

<CROSS-EXAMINATION BY MR EDMONDS [12.35pm]

PN94

MR EDMONDS: Mr Barnes, you advised the Commission that your employees are not currently attending work. You also advised the Commission you were aware of a picket line. Did you have any difficulties with crossing the picket line in question?---Not at all.

PN95

Did anyone try and obstruct from you from entering work?---Not at all.

PN96

Have you had any experience with that alleged picket line trying to obstruct anyone else from entering work?---No.

**** AARON BARNES XXN MR EDMONDS

PN97

Now, you say that to your knowledge, the purpose of the picket line is to get a site wide agreement, is that correct?---Correct.

PN98

Now, you have also said that your employees are happy with the agreement they have got in place at the moment?---Correct.

PN99

Given that your employees are, number 1, not being obstructed from entering work, are happy with the agreement that is in place, is it possible that they are engaging in industrial action for some other activity other than this site wide agreement?---All that I - the only information I can give you is that our personnel - the guys that have spoken to me told me that they had been requested by employees from other companies to support the picket line. The discussions that I've had with them and we - they actually requested that they not vote at the meetings because they were happy with the - the agreement that they had with the company.

PN100

Right. Now, to your knowledge, have they voted at the meetings?---I believe the first time they voted at any meeting was this morning on a position of returning to work with an overtime ban, is the first time they've voted at a meeting.

PN101

Okay. Have safety issues been raised with you with respect to the Worsley site?---Not directly with me, no.

PN102

Are you aware that there is some safety issues with the Worsley site?---I - in discussion I've had with the employees, they informed me that there were some issues raised due to a power failure that was experienced at Worsley last week.

PN103

Right. So there is some safety concerns then?---Not by my contractors directly - by my employees directly, sorry.

**** AARON BARNES XXN MR EDMONDS

PN104

Okay. Now with respect to your employees - sorry, I withdraw that. You say in your application today that your company has got a contract to provide civil maintenance and refractory services. Is that correct?---That's correct.

PN105

To the best of your knowledge, do you know if the AMWU, if that is an area covered by the AMWU?---I don't know.

PN106

Are any of your workers members of the AMWU, to the best of your knowledge?---No.

PN107

Are any of your members - - -

PN108

THE COMMISSIONER: That was a double-headed question. You are saying no, they are not members, is that what you are saying?---Not that I'm aware of.

PN109

Not that you are aware of.

PN110

MR EDMONDS: Yes, sorry, sir. Are you aware of any of your workers being members of another union?---Yes I am.

PN111

Which union are they members of?---CFMEU.

PN112

Now, you also said that present at the meetings, to the best of your knowledge, was Shaun Currie and also Jim Murphy?---Correct.

PN113

Can you clarify who Jim Murphy is?---I believe Jim Murphy is an organiser with the CFMEU or a rep or whatever they - whatever they style themselves as. I'm not sure.

**** AARON BARNES XXN MR EDMONDS

PN114

A representative of the CFMEU?---Yes, yes.

PN115

Is the AMWU a party to the agreement in question, the agreement number 5612 of 2001 that covers the work site?---Sorry, I don't - sorry?

PN116

THE COMMISSIONER: That is the Devaugh Maintenance and Modification Agreement.

PN117

MR EDMONDS: Yes, sir. That is correct, sir?---Sorry, the - - -

PN118

The respondent today, the Australian Manufacturing Workers Union, are they a party to this agreement?---I don't know.

PN119

Well, I will put it to you that they are not actually a respondent to this agreement at all.

PN120

MR BORLASE: Sir, that is made clear in the application.

PN121

THE COMMISSIONER: Yes, that is pretty clear. It is a 170LK agreement, which is between Devaugh's and its employees.

PN122

MR BORLASE: Sir, that is admitted at item 6 of the application.

PN123

MR EDMONDS: Yes, sir. Sorry, sir, it is admitted.

PN124

So is it possible that the meetings with respect to industrial action are in actual fact being run by the CFMEU?---I don't know the answer to that.

**** AARON BARNES XXN MR EDMONDS

PN125

Okay. Is it possible that your workers are striking for issues other than an attempt to get a site wide agreement in place. Is it possible they're striking due to safety issues?---I don't believe so.

PN126

I have got no further questions for this witness.

PN127

THE COMMISSIONER: All right. Do you wish to re-examine, Mr?

<RE-EXAMINATION BY MR BORLASE [12.40pm]

PN128

MR BORLASE: Just on one point. If I can take you back to the morning - or yesterday morning, Mr Barnes?---Yes.

PN129

Could you tell me whether, in your view, your employees failing to cross the picket line was as a result of requests of people that were on the picket line?---I believe so.

PN130

Thank you. No further questions.

PN131

THE COMMISSIONER: You can step down now?---Thank you.

PN132

Thanks, Mr Barnes.

<THE WITNESS WITHDREW [12.41pm]

PN133

MR BORLASE: Thank you, sir. The submissions I have to make are relatively brief in respect of the matter. Sir, in terms of the Act pursuant to section 127, there are obviously a discretionary matter that you have in terms of whether you issue an order of this nature. From the perspective of the Act, 127(1)(c), this is clearly work which is regulated by an award or a certified agreement, the certified agreement being AG2001/5619, the Devaugh Pty Limited Maintenance and Modification Agreement 2001. The application is made by an organisation or a person who is directly affected, is likely to be directly affected by the industrial action and that is Devaugh Pty Limited.

PN134

They are clearly being affected from the evidence that you have heard in terms of their employees not attending to work, on the evidence, because of requests that they do not cross the picket line. You have heard further that the consequences of this are quite considerable to the company in terms of costing somewhere in the vicinity of $20,000 a day, which means that given that this action has been occurring for the last 3 days, that is the cost of some $60,000 to the applicant company in terms of this particular matter.

PN135

You have also had evidence before you that a campaign is being actively run by the Australian Manufacturing Workers Union in pursuit of a site wide agreement and evidence of that has been a number of meetings which have been called and referred to in exhibits B1 and exhibit B2 under that union's letterhead. Sir, I take the points that you raised with respect of the nature of the evidence which was before you, but in the particular circumstances, we would seek that the Commission does give that some weight when taken in conjunction with that other evidence which is before you in terms of exhibits B1, B2 and B3.

PN136

Further I think, sir, that reasonable credence can be given to that evidence that has been provided to you by - the evidence provided by Mr Barnes to the effect that the employees in terms of the discussions that he has had with them are not interested in pursuing industrial action for claims which are further and above that which is contained in their agreement, in fact, the evidence being that they are satisfied with the agreement. Effectively, the evidence that the company relies on is that they have been told by their employees that the reasons of their failing to attend to work is because they have been requested not to cross the picket line, which is a picket line witnessed by Mr Barnes, having people with AMWU flags present, that is in support and pursuit of the claims which have been outlined in exhibits B1 through to B3.

PN137

Sir, whilst we appreciate that the effects of a section 127 order are significant in terms of those that it is imposed upon, we say that the actions which are in place down at the Worsley site, quite clearly a campaign orchestrated by the respondent union, are having a significant effect on the applicant company. As I indicated, the cost of that thus far being in the order of $60,000 and increasing by some $20,000 each day that the action continues. That is obviously a significant effect which must be taken into account against the rights of the respondent union in this particular matter.

PN138

For those reasons, sir, we would respectfully request that the Commission provide the order in the terms sought. The order which is being sought is not one which we say is overly onerous at all. It is simply one where that union, in the terms of the campaign which they are pursuing, do not put in place or encourage bans on members of its union or employees of Devaugh Pty Limited from attending or performing work, or from the respondent union directing, procuring, advising or authorising their members or employees of Devaugh Pty Limited to stop performing work or to attend work.

PN139

It is not one which we say is overly difficult to be complied with on the part of the respondent union and one which we say does not interfere with whatever legitimate rights that they may have in terms of any other action that they might be pursuing, whether it be by way of protected industrial action against any of the other companies that might be on site that they are pursuing an agreement with. May it please the Commission, that concludes our submissions.

PN140

THE COMMISSIONER: Right, thanks. Mr Edmonds?

PN141

MR EDMONDS: Yes, sir, thank you, sir. We do have one potential witness, sir, but I wonder if I can make some submissions first?

PN142

THE COMMISSIONER: Yes, go on.

PN143

MR EDMONDS: In an effort to perhaps save a bit of time. In our submission, sir, this application is ill-founded and should be struck out. The application has been brought against the AMWU, sir. The evidence in front of the Commission, sir, is that no one is being prevented from entering their work, that no one is being prevented from crossing the alleged picket line. I would characterise it more as a protest line rather than a picket line, sir. No one has been prevented from crossing that line, sir. Further, the evidence in front of the Commission is that to the best of their knowledge, the company is aware that no members - that none of its employees are members of the respondent, that indeed its employees are members of the CFMEU, sir.

PN144

There was evidence that indeed an official of the CFMEU has been present on the protest line, has been present at the meetings in question. In the circumstances, sir, we would submit that the appropriate respondent in these circumstances would indeed be the CFMEU. We do not have the capacity to take instructions from these workers at Devaugh. They're not members of ours and we don't have the capacity to instruct them or direct them to undertake any particular activities. We don't have any members in that company. We are not a respondent or we are not a party to the agreement in question.

PN145

Furthermore, the scope of work being carried out by the company, the applicant company in these circumstances, is not work that falls within the scope of the AMWU's coverage, sir. If these orders were made, sir, there would be nothing we could do in order to bring them about in order to actually put them into effect, sir. We can't direct the employees of the applicant company, if they are not our members, sir. We can't encourage them to return to work. Whether they choose to cross the protest line is really a question for them, sir, and in the circumstances, if an order is going to be made which binds their activities, sir, then they're entitled to be here.

PN146

They are entitled to be heard. They are entitled to have the application served upon them and to actually respond to the details of that application, sir. In short, sir, I would submit that procedural fairness would apply in these circumstances, sir. And, indeed, the application should have been served upon the CFMEU. And, indeed, this application should be struck out and re-brought against the CFMEU and their members at the applicant company, to give them an opportunity to respond to the allegations that have been put in front of the Commission today, sir. Now, I don't know if you want me to call Mr Currie, sir, or whether you - - -

PN147

THE COMMISSIONER: It is up to you, Mr Edmonds.

PN148

MR EDMONDS: Okay, sir. In those circumstances I would like to call Mr Currie.

<SHAUN CURRIE, SWORN [12.52pm]

<EXAMINATION-IN-CHIEF BY MR EDMONDS

PN149

MR EDMONDS: Thank you, Mr Currie. To the best of your knowledge, are the areas of work that are carried out by the applicant today, the applicant company, are they covered by the Australian Manufacturing Workers Union?---No. To the best of my knowledge, no. They have traditionally had civil maintenance work that we don't cover.

PN150

And who covers that particular area of work?---I believe it is a combination of the AWU, Australian Workers Union, and the CFMEU.

PN151

To the best of your knowledge, do you have any coverage of the members that are currently employed by the applicant at the Worsley site?---Not currently. We have had. To the best of my knowledge, over the 2 years I have been in the South-West, four people have identified themselves at various times as employees of the company.

PN152

Okay. But the employees of the applicant company as of today is there any coverage of those members?---No, there is nobody that has identified themselves as a member of our union.

PN153

Now, I wonder if you can tell me about the alleged picket line. Is it stopping people from entering work?---No. From the moment it went on, it has been a protest line. We haven't impeded anybody travelling to or going onto the site. We have asked people - some vehicles have stopped. Others haven't. At all stages we have never actually stood in front of vehicles or locked up traffic or anything like that. So, allowing people to go through. The protest line is some 4 kilometres from the mine site on an intersection. It is a high speed area so it is a bit hard to sort of stop traffic anyway.

PN154

Sure. And - - -

**** SHAUN CURRIE XN MR EDMONDS

PN155

THE COMMISSIONER: Do you say it is 4 kilometres from the mine site?---Yes, some 4 or 5 kilometres, Commissioner. We simply stand on the side of the road, put the hand out. If vehicles stop, that is their prerogative to do so. Most people stop. But we haven't impeded anybody going inside. In actual fact, all the clients workforce, that is, Worsley workforce, have all gone to work. Nobody has not - remained away from work.

PN156

MR EDMONDS: Okay. Now, to the best of your knowledge, have the other contractors on the site also been impeded?---No. There has been a couple of other contractors that have gone to work over the previous two days.

PN157

Right, okay. Now, have you attended the meetings in question?---Yes, I have attended all meetings.

PN158

Okay. Can you tell me the issues that have been raised by the workers as to why they are not attending work at the moment?---There is two main issues. One is the log of claims with regard to their contract of employment. And the other one is safety issues that arose over an incident on last Thursday night where the power station shut down and there was numerous accidents and incidences occurred on the site over that period. It was at night time. Emergency lighting didn't come on. So, people were fumbling around in the dark. There was some people showered with caustic. Other people - a person fell down stairs. There was general confusion about evacuation orders and things like that. So, a safety issue arose at this meeting on Monday.

PN159

Okay. And so that is part of the basis for people not attending work. Is that correct?---Yes, that is correct. That is actually probably become the primary issue in the eyes of the workers.

PN160

Okay. Now, is that a significant issue for all contractors on site?---The - - -

PN161

MR BORLASE: Hearsay, sir.

**** SHAUN CURRIE XN MR EDMONDS

PN162

THE WITNESS: The members present are the meeting have raised it. I couldn't identify which contractor or contractors - - -

PN163

MR EDMONDS: Sorry, sorry. I will rephrase the question. Do you have knowledge of that particular work site?---To a limited degree, yes.

PN164

Okay. Would the safety issues that have been raised with you have an effect on the total workforce on that site?---Yes.

PN165

Okay. Now, has the union actually told anybody not to attend work?---We have not told them. We have requested people not to attend work.

PN166

You haven't procured, advised or directed people not to attend work?---No. The - I have a - any vehicles that have pulled up and where I have been speaking to people, I have used a common phrase. I have told them we cannot prevent them going to work. It is their choice as to whether or not they want to turn away from the picket line, joint the picket line or go to work.

PN167

Okay. I have got no further questions of this witness.

PN168

THE COMMISSIONER: Right, thanks. Mr Borlase?

PN169

MR BORLASE: Okay.

<CROSS-EXAMINATION BY MR BORLASE [12.57pm]

PN170

MR BORLASE: In terms of the location of the picket line, Mr Currie, it is true that past that point there is no other way of getting into that Worsley site, is there?---No, that is not correct. There is actually two other means of getting onto the site. That is the main access road.

**** SHAUN CURRIE XXN MR BORLASE

PN171

That is the main access road. Okay. Thank you. Now, those other companies that have gone to work, can you tell the Commission who they are?---Yes. Collex and Catalano's Road Haulage Division. There has been Catalano members involved in the dispute but Road Haulage have gone through, yes.

PN172

Okay. So, in terms of you waiving traffic down, you have requested people or your evidence was that you requested people not to attend work. That is correct, isn't it?---Yes, that is correct.

PN173

Okay. You have indicated that Devaugh employees are not - to the best of your knowledge, not members of your union. That is correct, isn't it?---Yes, that is correct.

PN174

Okay. So, in that case you wouldn't - given that they are not members of your union, then you wouldn't mind if they attended work and so it wouldn't be any great imposition on you in terms of the orders that have been sought not to ask them to attend - not to attend work?---I am neither - I can't judge on the orders. I can only judge on what I did on the ground at the particular time and all the rest of it. I have not prevented anybody - - -

PN175

No, no, I beg your pardon. I think you misunderstood the question. It was a bit convoluted maybe. Given that those people, you say, are not within the constitutional coverage of your union, then they are not a part of your claim. Would that be correct?---That is not correct because the - that claim is a joint union claim. It carries our letterhead this time, that was the covering letter, with the document. The actual document, the draft log of claims, if you note, after the index, names - no unions or no awards. It is all contractors for that matter. It is generic. Yes, like, I would refer you to the B3 document on page 2 of the actual claim. The application and scope of the agreement in the draft does not name contractors and it does not name unions or awards through that opening page. Pardon me. While I have steered this draft agreement, if you like, it is quite deliberately designed that way, that it covers - at this stage four unions are proposed to be joined to that agreement.

**** SHAUN CURRIE XXN MR BORLASE

PN176

Okay. So, in that case, you are actively seeking employees of Devaugh not to attend work?---Sorry, the question - - -

PN177

The question - you have indicated that this is a claim which goes across all of the contractors. So, effectively, your activities are designed to have Devaugh employees not attend work. That is correct, isn't it?---Yes. I haven't actively sought anybody not to attend work. I have asked and requested at - - -

PN178

Okay. You ran the meetings that have been conducted?---Yes.

PN179

And those meetings made a resolution to engage in strike action. That is correct, isn't it?---That is right.

PN180

Yes?---That came from the floor, yes.

PN181

Yes. And as a part of that, those meetings determined to set up a picket line. That is correct, isn't it?---Yes, the employees determined to set up picket lines - protest lines, yes.

PN182

Under your guidance in terms of how to run a picket line and as a strategy?---No, not as part of a strategy. I indicated that - I gave an outline as to how to run those lines in a safety sense. Because of where the picket was. Was that I did give indication as to what I expected people to do and don't do with regards to that protest picket line.

PN183

Okay. And, as I said, part of the purpose of that picket line would be, from your perspective, to encourage or incite other people not to cross the picket line. That is an objective, isn't it?---I would use the word, yes, encourage. Not incite. But, yes, we requested of people not to cross.

**** SHAUN CURRIE XXN MR BORLASE

PN184

Okay. And included in those people would be employees of Devaugh Pty Ltd?---I only - for the last three days I only ever had one approach from Devaugh's. I certainly never stopped any Devaugh's vehicles. By virtue of the fact I just wasn't there, present.

PN185

But it is part of the general principle, employees of Devaugh, it would be within your objective to have them not attend to work to make your picket line effective. That is correct, isn't it?---Yes, that is correct. But, again, their choice to stop. Whether or not they stop at that line.

PN186

Yes, but that is the whole purpose of your exercise, isn't it, to have them stop?---Yes.

PN187

Yes?---And they made the choice to stop.

PN188

Yes. Okay. Did you also instruct the picket line that they would actually need more people on the picket line to make it more effective?---Yes, I did.

PN189

Yes. And, again, that being designed to have a greater presence to encourage people to stop and not cross the picket line?---No. The reason I encouraged more people to be active on the protest line was that it was only a small group of people present. It wasn't fair that a small group carry the burden for the bulk. That the bulk of the workforce take off and never be seen for the entire duration of it. I must point out that a vast bulk of the time people were on the line, they are nowhere near the roadway in question. They are some 20 metres away from the roadway, sitting beside a camp fire talking. So - - -

PN190

But it is clearly marked with AMW flags and signs and things of that nature, isn't it?---Yes, there was - as of the Monday, there was AMWU flags, some Eureka flags, and a sign up at the front of the picket indicating that they were approaching a picket line.

**** SHAUN CURRIE XXN MR BORLASE

PN191

Okay. Now, in terms of the orders that have been sought, it would not be difficult for your union to comply with it because you could simply say that Devaugh employees are entitled to go to work. That is correct, isn't it?---Our union, we have - - -

PN192

THE COMMISSIONER: You are going beyond what you are seeking. You are now seeking that they become pro-active. You want to restrain them from doing certain things. Now, you want to turn your order into a mandatory order.

PN193

MR BORLASE: No, no. It was a question which comes back to how onerous the actual order actually is, sir.

PN194

THE WITNESS: Could I have the question again, please.

PN195

MR BORLASE: Certainly. The question was in terms of your union, it would not be a difficult exercise to simply say that Devaugh employees are all right to cross the picket line. That is within your power as an official of the union, to be able to say that, is it not?---I would - - -

PN196

MR EDMONDS: Sir, in the circumstances, the witness's evidence to this extent has been unchallenged that everyone is entitled to return to work.

PN197

THE COMMISSIONER: Yes.

PN198

MR EDMONDS: I mean, it is a question which assumes facts which aren't actually in evidence.

PN199

MR BORLASE: Okay. It would be within your powers as a union official and a representative of the AMWU not to request Devaugh employees that they not cross the picket line?---Sorry, I am still having trouble - - -

**** SHAUN CURRIE XXN MR BORLASE

PN200

THE COMMISSIONER: Not to request - - -

PN201

MR BORLASE: Simply not to stop Devaugh employees and put the questions to them that you have requesting that they not attend work.

PN202

THE COMMISSIONER: But he hasn't given evidence that he has put that question to Devaugh's. His evidence clearly was that he has only spoken to one Devaugh worker since he has been on the line.

PN203

MR BORLASE: Sir, the - - -

PN204

THE WITNESS: Can I maybe clarify that, Commissioner, if I may? The one time I spoke to Devaugh's workers, there were three of them. Nobody was on the road at the time. It was late evening of Monday evening. They pulled up in a vehicle - - -

PN205

MR BORLASE: Sir, this isn't relevant to the question though, sir. The question - and the evidence - - -

PN206

THE COMMISSIONER: Your question is are you still beating your wife. You are accusing him of doing something which he doesn't admit to doing.

PN207

MR BORLASE: No, I am not saying that, sir. What I am asking is that is it within his power as a union official simply should Devaugh employees approach the picket line not to pose those questions to them and not to - because his evidence has been that they have requested people not to attend work. Now, my question is simply one that it is obviously within his power as an official of the union not to have those questions posed to employees of Devaugh's and in terms of the members of the AMWU, have them not pose those types of questions to Devaugh's employees in terms of the request that they not cross the picket line?---In terms of that, the answer is no, and I can't

**** SHAUN CURRIE XXN MR BORLASE

give that undertaking. I don't know who Devaugh's employees are. There is some 200 people - contractors down there. They don't all wear Devaugh's shirts just because they are employed with Devaugh's. It is a - you know, they wear shirts of former employers, so on and so forth. I don't know who is who and that includes union membership. I do not actively seek or ask each and every individual who is a member of the union.

PN208

Okay. In terms of - if Devaugh employees were identifiable, that would be within your power though, wouldn't it?---No. I cannot - - -

PN209

You as an individual. You as an individual?---Me as an individual. But I can't answer that on behalf of the union. No, I don't have that power within the union.

PN210

The union could give that instruction to your members as well though, couldn't it?---Well, I mean, yes, I suppose they could.

PN211

Thank you. Sir, no further questions.

PN212

THE COMMISSIONER: All right. Thanks. Mr Edmonds?

PN213

MR EDMONDS: Yes, thank you, sir.

<RE-EXAMINATION BY MR EDMONDS [1.08pm]

PN214

MR EDMONDS: If I could just clarify. You spoke of four unions. Could you actually advise the Commission who those unions are?---Yes. They are the Australian Workers Union; the Construction, Forest, Mining and Energy Union; and the Communications, Electrical and Plumbing Union; and ourselves, the Australian Manufacturing Workers Union.

PN215

Now, to the best of your knowledge, are there actually people from those unions engaged in the protest line?---

**** SHAUN CURRIE RXN MR EDMONDS

PN216

MR BORLASE: Sir, these are not issues which arose in cross-examination. This is leading fresh evidence.

PN217

MR EDMONDS: Well, it is evidence, sir, I guess, about who is actually present on the picket line, sir. It was put in cross-examination - that the picket line was - - -

PN218

THE COMMISSIONER: It is relevant to who is stopping and who is advising and so on. I will allow it.

PN219

MR EDMONDS: Certainly, sir. So, are there people from those four unions on the protest line?---Yes, there are.

PN220

And are they engaging in the same activities as members of the AMWU?---Yes, they are.

PN221

Now, it was put by my friend in cross-examination that you could instruct the AMW members to take certain action. Have you instructed them to strike today?---No, I haven't.

PN222

What did you instruct the members to do or advise the members to do rather?---I gave a recommendation at the meeting for a return to work.

PN223

When did you give that recommendation?---At this morning's meeting at 7 am.

PN224

What did they say this morning?---They rejected that recommendation and put up their own motion to continue their action.

PN225

Okay. Thank you, sir.

**** SHAUN CURRIE RXN MR EDMONDS

PN226

THE COMMISSIONER: What, indefinitely, is it?---No, for 24 hours. Sorry, Commissioner.

PN227

MR EDMONDS: Sorry, if we can just clarify, the industrial action finishes?---There is another report back meeting at 7 am tomorrow morning.

PN228

Okay. Thank you, sir. I have no further questions.

PN229

THE COMMISSIONER: All right. You can step down, thanks.

<THE WITNESS WITHDREW [1.10pm]

PN230

THE COMMISSIONER: Yes?

PN231

MR EDMONDS: Sir, in the circumstances, sir, I will just bring you back to my opening comments. Sir, in the circumstances, we would submit that the AMWU is the wrong party to have been brought in these circumstances. The employees of the applicant are members of a different union. A different union has been participating in stop work meetings. The union has been participating in the picket line in question, sir. With all due respect to the applicant, sir, they have targeted us for reasons unknown to ourselves.

PN232

THE COMMISSIONER: Frightened of Joe McDonald perhaps.

PN233

MR EDMONDS: Maybe that is it, sir. In the circumstances, sir, the opportunity has to exist for the employees of the applicant to properly respond to the application. We are not in a position to take instructions from them. We are not in a position to discuss the issues with them. Sir, we are not their representatives. We are the representatives of our members. Procedural fairness would presumably allow the opportunity for that particular union to respond to an order restricting its members from taking industrial action.

PN234

In the circumstances, sir, due to the participation of four unions and their trade union members on the site, sir, the order would more or less be unworkable and it would be impractical for the AMWU to be ordered to take steps with respect to some other union's union members. We don't have coverage of these people, sir, in the circumstances. There is nothing we can do with them or for them, sir. So, in those circumstances, sir, I would ask that this matter be struck out.

PN235

THE COMMISSIONER: Right, thanks, Mr Edmonds. Mr Borlase?

PN236

MR BORLASE: Thank you. Just a couple of points in respect of that, sir. In terms of the reasons for the application being made directly against the AMWU, is that in terms of the information that was available to the company in terms of the evidence which was quite clear, it seemed very clear to them that the union which was running this campaign, which was involved in this campaign, was the AMWU. Probably in a sense, thank my friend for bringing to our attention that there are a range of other unions that are involved in this as well. And that may be the lead to also make similar applications against those unions well, now that we are aware that they too are possibly engaging in such action.

PN237

The point about procedural fairness in respect of those other unions and also the employees, is one which we say is of no relevance. The order doesn't apply to those other unions. It doesn't apply to the employees of the company. It is simply an order against the AMWU that it not conduct activities and it not - - -

PN238

THE COMMISSIONER: For the purpose of what you are seeking, it is a most worthless order, isn't it? Because tomorrow you can have the AWU, the CFMEU or the CEPU stopping people on the road.

PN239

MR BORLASE: That is a possibility sir, but it is also a possibility that once these proceedings finish, now we are aware of that information, that a further application will be filed before this Commission seeking orders in similar terms against those unions as well, if that is in fact the case. And so from that perspective, if we are successful in an order of this nature which has been admitted by Mr Currie as one which is in - within his power and in the power of union to be able to comply with, then it is a worthwhile order and it is one which I imagine I may well receive instructions to make against those other unions post haste. So, from that perspective, they are quite worthwhile.

PN240

And as I have already pointed out and has been admitted by Mr Currie, one which is within the power of union to be able to quite simply comply with. So, with respect to my friend's submissions, the issue of procedural fairness to employees is one that is simply not of relevance, given that the order does not relate to those people. May it please the Commission.

PN241

THE COMMISSIONER: All right, thanks. Section 127 places an obligation on the Commission to hear and determine applications as quickly as practicable. Having heard the parties and the evidence before me, the weight of the evidence before me would not incline me to believe that the action described as industrial action in the proposed order is occurring and to that end I dismiss the application and I will give the reasons in writing in due course.

ADJOURNED INDEFINITELY [1.16pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

AARON BARNES, SWORN PN24
EXAMINATION-IN-CHIEF BY MR BORLASE PN24
EXHIBIT #B1 DOCUMENT HEADED: ATTENTION ALL WORSLEY CONTRACTORS PN81
EXHIBIT #B2 DOCUMENT HEADED: COMPULSORY STOP WORK MEETING PN81
EXHIBIT #B3 LETTER DATED 08/10/2002 FROM THE AMWU TO DEVAUGH BUILDERS PN89
CROSS-EXAMINATION BY MR EDMONDS PN94
RE-EXAMINATION BY MR BORLASE PN128
WITNESS WITHDREW PN133
SHAUN CURRIE, SWORN PN149
EXAMINATION-IN-CHIEF BY MR EDMONDS PN149
CROSS-EXAMINATION BY MR BORLASE PN170
RE-EXAMINATION BY MR EDMONDS PN214
WITNESS WITHDREW PN230