C2002/5420, Transcript of Proceedings [2002] AIRCTrans 4825 (3 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT776
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2002/5420
C2002/5544

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Amcor Packaging (Australia) Pty Limited for
an order to stop or prevent industrial action
re bans that have been imposed in support of a
claim for a closure agreement at the Amcor food
can production site in Dandenong

RESTRICTION ON CERTAIN ACTIONS IN TORT

Notice under section 166A of the Act by
Amcor Packaging (Australia) Pty Limited re action
against Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union concerning
alleged bans and withdrawal of labour arising from
a demand that the company pay higher redundancy
payments

MELBOURNE

10.05 AM, MONDAY, 18 NOVEMBER 2002

PN1

DR G. SMITH: I seek leave to appear for Amcor Packaging Australia Pty Limited, which trades as Amcor Food Cans, and I seek leave to appear in both matters.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MR P. GIBBONS, and the stewards and members from the site. I oppose leave.

PN3

THE SENIOR DEPUTY PRESIDENT: Dr Smith, why should I grant you leave?

PN4

DR SMITH: Your Honour, this is a serious matter. We have had a strike at Amcor's Dandenong 3 Piece plant for about a week. We have filed both section 166A and 127 applications. We anticipate that both applications will raise complex legal issues, including potentially issues arising under the Emwest decision, and issues around the Kilpatrick Green decision in the Federal Court, so we will be anticipated addressing a number of key Federal Court decisions. There are issues of interpreting the certified agreement and its interaction with those relevant decisions that I have referred to.

PN5

So we say based on subsections 42(3)(b) and (c) of the Act, there are special circumstances having regard to the subject matter and the consequences of the industrial action that we face, which make it desirable that the company be legally represented in these proceedings.

PN6

MR ADDISON: Thanks, your Honour. Your Honour, we say there are no special circumstances with regard to these matters. You have heard this submission 20 times from me, your Honour, so I don't think I will repeat it. But you understand that we say there is no special circumstances relating to 127. The principles are well known, etcetera. With regard to 166A, there is a requirement for conciliation. I note that the company lodged its 166A application Friday afternoon, so there has been little chance for conciliation with regard to the matters.

PN7

We say the appropriate course of action would be to go into conference with regard to these matters and see if we can resolve the matters. With regard to subsection C, well, the company is a member of the AIG, the company could well have chosen to bring in AIG. We say subsection C is completely irrelevant, you should ignore that. And with regard to the matter of special circumstances, there are none, and we say leave should be denied. If the Commission pleases.

PN8

THE SENIOR DEPUTY PRESIDENT: Anything in reply, Dr Smith?

PN9

DR SMITH: No, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Dr Smith.

PN11

DR SMITH: Thank you, your Honour. We propose to go into conference fairly quickly. It is appropriate though, I suggest, that I briefly outline the circumstances that bring us here. There are two applications before the Commission. Firstly, an application under section 127, for orders to stop industrial action, which we say is industrial action being organised by the AMWU. An AMWU organiser, Mr Gibbons, who is present at the bar table, and the AMWU members employed by Amcor at its Dandenong site.

PN12

Secondly, we have provided written notice under section 166A of the Act, stating that Amcor intends to bring an action in tort against the AMWU and Mr Gibbons. We seek that both matters be joined, which I think is appropriate in any event, and I doubt that Mr Addison will oppose that. The applications relate to industrial action in the form of a strike and bans that are in place at Amcor's Dandenong plant in relation to food can operations. It is commonly called 3 piece because the food cans have three pieces. There is the round cylinder and the two ends. Next door to it there is a factory called 2 piece, which makes the beverage cans, which have two pieces, like the Coke cans, the cylinder and just one top. So we call it 3 piece. I think everybody here knows it as 3 piece.

PN13

So the industrial action at 3 piece is being taken in support of increased or enhanced payments for employees who have been made redundant when the 3 piece operations at Dandenong cease. Amcor recently announced and engaged in consultation with the union and employees, but it announced that it intends to close the food can division plant at Dandenong effectively on 7 February next year. Unfortunately and regrettably a number of employees who work there will be made redundant when that occurs.

PN14

The union have made a claim for what they call a closure payment, and it is in three components. The closure payment claimed is significantly in excess of the redundancy provisions in the relevant certified agreement. They are claiming a $10,000 severance payment, an increased pay of sick leave. Currently the certified agreement provides for a pay out of 85 per cent of accrued sick leave; their claim is for 100 per cent pay out. And they are also claiming an increased severance payment from three and a half weeks per year of service to five weeks per year of service.

PN15

Now, there have been, since the announcement of the expected closure on 28 October, there have been extensive discussions between the parties about the union claim and related matters. But it is our position, or my observation that the union position has not changed in that time, and the demand is still the same. The details of the matters are set out in the affidavit of Graham Ginns, which was filed and served with the Commission. I don't know if your Honour has had an opportunity to read that.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, I have.

PN17

DR SMITH: It pretty comprehensively explains what the matters are all about. Now, in support of the claim, your Honour will be aware, having read the affidavit, that the union initially imposed bans, initially a ban on contractors and on removal of equipment from the site, and that ban commenced on Sunday, 10 November, then last Monday, 11 November, at approximately 9 am, all of the employees ceased work, and since that time whenever a contractor has been on site, which has been most of the time, the employees have refused to work and have sat in the canteen at the plant.

PN18

The employees have been directed by the company to work. They have been told that they are regarded as being on strike whilst they sit in the canteen, but they have refused to work. Just to update you in terms of the affidavit material, there has been no work performed over the weekend, and no work being performed today.

PN19

MR GIBBONS: Yes, there is.

PN20

DR SMITH: There is work being performed today?

PN21

MR GIBBONS: Today at 7 o'clock.

PN22

DR SMITH: Okay, I am sorry. I hadn't had a chance to update on that.

PN23

THE SENIOR DEPUTY PRESIDENT: Would there normally be work over the weekend?

PN24

DR SMITH: There could well have been work, overtime work over the weekend. There is a current certified agreement in place, which your Honour will have had a chance to look at. It has a nominal expiry date of 31 March, and it deals with the issue of redundancy. The industrial action, in our submission, is clearly not protected action. No steps have been taken to bring it within the purview of the protected action provisions of the Act, and it is continuing, at least in the sense that the ban, or the refusal to work when contractors are present, remains in place.

PN25

Now, as a result of the industrial action, nearly three million cans have not been produced in the last week, and this has resulted in loss for Amcor, and if the industrial action continues will adversely impact on Amcor's ability to supply its customers, and also the bans are having the effect of preventing the removal of equipment from the Dandenong plant to the Kyabram plant, where the operations are intended to be expanded. Kyabram is up near Shepparton, as I understand it.

PN26

So we say that - and we will be in a position later if conciliation is unable to resolve the matters between the parties - there is a basis upon which orders can be granted under section 127, and a certificate issued under section 166A. But before we go into any evidence or make any further submissions, I propose that we go into conference. Thank you.

PN27

THE SENIOR DEPUTY PRESIDENT: Is there anything you want to say, Mr Addison?

PN28

MR ADDISON: Yes, thanks, your Honour. Your Honour, I don't intend to make any great submissions with regard to any of the matters, short of simply responding to what Dr Smith has put. First of all, can I indicate that no affidavit material ha been received by the AMWU. I am not in possession of any affidavit. I did go through all of my stuff this morning, and no affidavit was there. Mr Gibbons similarly has not seen any affidavit material. So should it come to formal proceedings, well, we would be seeking some time to look at the affidavit material and get some instructions first, and potentially respond. While it may have been filed, it certainly has not been served, your Honour.

PN29

With regard to the particular issues that have been gone to, it is my instruction that there are, in fact, two dates for people to be retrenched.

PN30

THE SENIOR DEPUTY PRESIDENT: Sorry, two dates?

PN31

MR ADDISON: Two dates, yes. The first date is 20 December of this year, and the second date is 2 February next year - sorry, 7 February next year. So with regard to the matter of work, and your specific question, your Honour, my instruction is that people were asked to work overtime on Thursday by the company, and the company for its part cancelled that overtime on Friday, at 1 pm on Friday. I don't know why they did that, but my instruction is that that is what occurred, so there would not have been work over the weekend in any event, as the company itself had cancelled that work.

PN32

I have got nothing further. I think it is appropriate that we do go into conference and have some discussion, and I would ask Dr Smith if I could get a copy of his affidavit too. If the Commission pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: Dr Smith?

PN34

DR SMITH: Your Honour, we filed and served the affidavit material on Friday morning on the AMWU offices, with a copy for Mr Gibbons and a copy for the AMWU.

PN35

THE SENIOR DEPUTY PRESIDENT: How was it served, Dr Smith?

PN36

DR SMITH: One of my clerks went down and personally served the affidavits at the AMWU office.

PN37

MR ADDISON: I haven't got it, your Honour. It is possible.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, quite. You might actually check out your office arrangements, I think, because this isn't the first time I have heard that something hasn't been received at the AMWU offices.

PN39

MR ADDISON: I have been checking out my office arrangements for about five years, your Honour, and it is still not right.

PN40

THE SENIOR DEPUTY PRESIDENT: Well, you might just check them again, because it may not matter in these proceedings, but in future proceedings it may put you at a disadvantage.

PN41

MR ADDISON: I appreciate that, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

RESUMED [10.18am]

RESUMED [2.25pm]

PN43

THE SENIOR DEPUTY PRESIDENT: Dr Smith?

PN44

DR SMITH: Thank you, your Honour. In the proceedings on the record earlier this morning I outlined the background to this matter, and I indicated that if necessary we would be calling evidence. I just want to make it clear that the evidence that we will be calling in this proceeding, which is currently in respect of the section 166, we will also be relying on in the section 127 application which is also currently before the Commission. Bearing that in mind, I call Graham Ginns.

PN45

THE SENIOR DEPUTY PRESIDENT: You are not proceeding with the section 127 today?

PN46

DR SMITH: Not today.

<HARRY GRAHAM GINNS, SWORN [2.26pm]

<EXAMINATION-IN-CHIEF BY DR SMITH

PN47

DR SMITH: If you could state your full name and address to the Commission please?---Harry Graham Ginns, working at 100 South Gippsland Highway in Dandenong.

PN48

What position do you hold?---Operations manager.

PN49

Have you sworn an affidavit in these proceedings?---Yes.

PN50

Is that an affidavit dated 14 November?---Yes.

PN51

Have you got a copy of it before you?---No, I haven't. I have put it in my case.

PN52

I just ask you to look at it and tell me whether that is the affidavit that you swore in these proceedings on 14 November?---Yes, it is.

PN53

Are its contents true and correct?---They are to the best of my ability.

PN54

If I could just ask you to update the Commission on what has occurred at the Amcor 3 piece plant in terms of industrial action since you swore that affidavit last Thursday?---Yes. Your Honour, we had further industrial action take place on the Friday, where there is a levelling up of the shifts in the terms of hours, and we had the afternoon shift started work at approximately half past five, a quarter to six, and did their five hours to level out the shift. And that was due to the contractors being off site, we had no electrical contractor on site, and the two staff contractors had also finished work at that time. We then had the night shift start on Sunday at 11 o'clock pm, 11 o'clock on Sunday, which is the first day of their shift - there is not an overtime shift - and they worked until approximately 4 o'clock, I believe, but they did their five hours. And then when I came into the plant this morning at 7 o'clock there was no one on site. So I came into the plant with all the lights turned out basically. And then at 7 o'clock the A shift, which is now this week the day shift, came in. They were

**** HARRY GRAHAM GINNS XN DR SMITH

two people down, that is what I understand, because Milo is part of that shift and is here now, the shop steward, and the team leaders at that time when I had left to come here, that was about a quarter past seven, wasn't on site at that time. But they started the lines up and they were making cans. And when I put a phone call through to Stuart Mills, my production manager, at about 10 to nine, he said that the line ran for approximately an hour before it shut down again. That is as far as I know at the moment.

PN55

And so far as you are aware, the bans on working with contractors is still in place?---Yes, it is still in place.

PN56

Thank you. No further questions, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Do you want him to swear to the affidavit and have it marked?

PN58

DR SMITH: Yes, I do.

PN59

THE SENIOR DEPUTY PRESIDENT: Is it true and correct, Mr Ginns, the affidavit?---Yes.

EXHIBIT #S1 AFFIDAVIT OF GRAHAM GINNS

PN60

THE SENIOR DEPUTY PRESIDENT: Can I just clarify something with you, Mr Ginns. It is Amcor Packaging (Australia) Pty Limited; is it trading as Amcor Food Cans, or trading as Food Cans Australasia?---Trading as Amcor Food Cans Australasia.

PN61

Right. So it is trading as Amcor Food Cans Australasia. Thank you. Mr Addison?

<CROSS-EXAMINATION BY MR ADDISON [2.30pm]

**** HARRY GRAHAM GINNS XXN MR ADDISON

PN62

MR ADDISON: Mr Ginns, I have had a brief opportunity to have a look at your affidavit, and there seems to be six references to Mr Gibbons in that affidavit. They are at paragraph 43, paragraph 51, paragraph 54 and paragraph 62; do you agree with that?---From what I can remember, yes, at the moment.

PN63

Yes. Now, could I take you to paragraph 54. Is paragraph 54 true and correct?---Yes.

PN64

So it is true and correct that Mr Gibbons said that the members were dissatisfied with the company's proposed closure agreement?---Yes.

PN65

And that Mr Gibbons said the parties needed to come closer together?---Yes.

PN66

Can I ask if, to your knowledge, Mr Gibbons has directed the members to take any industrial action?---I haven't been present at the meetings he has had with the employees, but as far as I am aware from some of the gestures that have been made at the communication meetings, I would suggest that he has. And that is only my suggestion.

PN67

If I told you that the AMWU rules would not allow Mr Gibbons to direct any member to do anything, what would you say to that?---I don't know what the AMWU rules are, I am sorry.

PN68

Okay. And you have never heard Mr Gibbons direct anybody to take industrial action, have you?---No.

PN69

Sorry?---No.

PN70

No. Now, are you aware of any authorisation from the AMWU with regard to any industrial action that may or may not be happening?---No, I have seen nothing from the AMWU giving any authorisation at all, no.

**** HARRY GRAHAM GINNS XXN MR ADDISON

PN71

Is there any notices, etcetera, signed by Mr Gibbons, giving authorisation?---No.

PN72

No?---Well, not that I have seen.

PN73

Mr Gibbons attends the site on a fairly regular basis, doesn't he?---He has since we have had this action going on, yes.

PN74

And prior to that he attended the site from time to time?---Not really. Not unless there was something actually going on. I know that when 2 piece were going through part of their EBA, whatever it was, I know Peter was across there, because he represents both sites of the sites.

PN75

And do you know what the arrangements are for Peter coming on the site?---What do you mean? Sorry, I am a bit lost.

PN76

Is there any procedure that Peter needs to follow when he comes on site?---He signs the log book in at the reception, and I have noticed he also signs it out before he has actually finished.

PN77

So he is required to sign on and off the site, is he?---Yes.

PN78

And he does sign on and off the site?---He does, yes. It is part of the OH&S committee that we run, yes.

PN79

And that was true when the 2 piece issues were on, he did that?---I don't know about on our site. He might have a book on the other site, I am not sure.

PN80

But it is quite a normal requirement to sign on and off?---Yes.

**** HARRY GRAHAM GINNS XXN MR ADDISON

PN81

And Peter continues to sign on and off, doesn't he?---Yes.

PN82

Now, in terms of any stop work meetings that have gone on, there have been some stop work meetings, haven't there, over the last little period?---No, we haven't had stop work meetings per se. What has happened is that when the employees have stopped running machinery because a contractor would be on site, the guys have sat in the canteen, and then they have waited for Peter Gibbons to come in, they have called him to come in.

PN83

So the people have stopped work of their own volition and gone into the canteen?---Well, they stopped work because of the contractor bans, and then gone and sat in the canteen, yes.

PN84

Okay. And do you know how the contractor ban was put in place, or what you say is a contractor ban, do you know how that was put in place?---The contractor ban, well, it was stated at a meeting we had on Friday, the 8th, I think it was, Friday, the 8th, we had a meeting, and Peter informed us, with two shop stewards, that there would be contractor bans put in place as of Sunday, 3 pm, after everybody had worked their overtime for the weekend, so from 3 pm onwards on that Sunday there would be contractor bans put in place.

PN85

And who was at that meeting on the Friday?---Peter, Milo, Margaret and myself, Richard Stedman and Boris Lava, and Louise Norrish.

PN86

Sorry, let me take you back a step. That might be my fault, I might have misled you there. Who was at the meeting that made the decision that you say exists, that there be contractor bans?---I have no idea. I presume it was discussed by the members and by Peter Gibbons.

PN87

And you weren't at the meeting?---No.

**** HARRY GRAHAM GINNS XXN MR ADDISON

PN88

So you couldn't say whose idea it was to put contractor bans on, could you?---No.

PN89

And you have no idea of whether Peter Gibbons spoke for or against any such proposal, have you?---No, because I wasn't at the meeting.

PN90

No, that is right. I have nothing further, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: Dr Smith?

<RE-EXAMINATION BY DR SMITH [2.39pm]

PN92

DR SMITH: Mr Ginns, is it your view that Mr Gibbons has orchestrated or controlled the industrial action at the plant?

PN93

MR ADDISON: I object to that. This is a matter of evidence, it is also a matter of the witness' knowledge. That is entire speculation that Dr Smith asks the witness to come up with. The witness has already given evidence that he hasn't been at any of the meetings, the witness has already given evidence that he doesn't know what was said at the meetings. It is an absolutely leading proposition that Dr Smith puts. This is re-examination, not evidence-in-chief, and he is not allowed to lead, and we also say it is grossly unfair that he puts a question to the witness that requires speculation.

PN94

THE SENIOR DEPUTY PRESIDENT: Dr Smith, can you rephrase it so it is less leading.

PN95

DR SMITH: Mr Ginns, based on your discussions with Mr Gibbons, and your observations of what has occurred at the plant in the last week, have you formed an opinion about the role played by Mr Gibbons in the industrial action?

**** HARRY GRAHAM GINNS RXN DR SMITH

PN96

MR ADDISON: The same objection, your Honour, same objection. It is pure speculation. This is not evidence. It is pure speculation that Dr Smith requires. It is an unfair question, it is highly prejudicial to my side of the argument, and we say it shouldn't be allowed.

PN97

DR SMITH: With respect, your Honour, it is a proper question, it is not leading, and it is a question that arises directly from cross-examination.

PN98

THE SENIOR DEPUTY PRESIDENT: I understand that. I have no difficulty with the thrust of the question, leading I think it may be. It can be covered more directly by, what do you think has been Mr Gibbons' role?

PN99

DR SMITH: Yes, I am happy to put that. I thought that was the essence of the question. I am happy to ask that.

PN100

What do you think Mr Gibbons' role has been at the plant in the last week?---Mr Gibbons' role at the plant, again, in my opinion, has been there to represent the members as organiser for the site, and in my opinion he is one voice, and on occasions when Margaret has wanted to say something he says just leave it. And so, again, in my opinion, I believe that is orchestrated, because he is controlling all that is being said.

PN101

If I can take you to paragraph 113 of your affidavit, if you can read that. It says:

PN102

During the meeting Stedman asked Gibbons whether the bans would be lifted. Gibbons replied, no.

PN103

To your knowledge did Mr Gibbons ask any members, any of the members as to whether he had - I will rephrase that. To your knowledge did Mr Gibbons speak to any members before he gave that answer?---Well, not at that meeting we had on the 14th, no, not as far as I am aware.

**** HARRY GRAHAM GINNS RXN DR SMITH

PN104

If I can take you to paragraph 26 of the affidavit, I will just let you read that. Did that meeting with Mr Gibbons occur at the plant?---Yes.

PN105

If I can take you to paragraph 36, I will just let you read that. Did that meeting occur at the plant?---Yes, it did.

PN106

If I can take you to paragraph 40. Was Mr Gibbons at that meeting?---Yes.

PN107

And that occurred at the plant?---Yes.

PN108

And I take you to you paragraph 52; this is a meeting on 6 November?---Yes.

PN109

Did Mr Gibbons attend that meeting?---Yes, he did.

PN110

And that was at the plant?---Yes.

PN111

If I can go to paragraph 59, again, was Mr Gibbons at that meeting?---Yes, he was.

PN112

And that meeting occurred at the plant?---Yes.

PN113

And if I can go to paragraph 109, again you swear in your affidavit that Mr Gibbons was present at that meeting?---Yes.

PN114

That is correct?---Yes.

PN115

And that occurred at the plant?---Yes.

**** HARRY GRAHAM GINNS RXN DR SMITH

PN116

He has been there a lot, hasn't he?---Yes.

PN117

Yes. And is it true to say that the majority of communications with the union have occurred, that you have been involved in, have occurred through Mr Gibbons?---Yes.

PN118

And in each case he has been representing the members at the plant?---Yes.

PN119

No further questions.

PN120

THE SENIOR DEPUTY PRESIDENT: You are excused.

<THE WITNESS WITHDREW [2.44pm]

PN121

THE SENIOR DEPUTY PRESIDENT: Is that your only witness, Dr Smith?

PN122

DR SMITH: No, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: Do you have another witness?

PN124

DR SMITH: No.

PN125

THE SENIOR DEPUTY PRESIDENT: No. Do you have any witnesses, Mr Addison?

PN126

MR ADDISON: Your Honour, I find myself in a difficult position. I attempted to cross-examine on this affidavit. As you know, I indicated this morning that I didn't have a copy of it, and a copy was given to me. I have had nothing but the briefest of purviews of the affidavit. I would seek an adjournment of the matter to get some instructions with regard to the matter, and consider the position of whether I call Mr Gibbons to give evidence on this matter as well. If you grant me that application, then more than likely I would put Mr Gibbons in. If you don't grant me that application, then I am not going to put anybody in without properly going through this material. So I seek an adjournment of the matter, your Honour.

PN127

DR SMITH: Your Honour, I oppose any adjournment. We filed and served the affidavit material on Friday morning, and the union, for whatever reason, they haven't read it, that is their fault. They have had all weekend to be prepared. The matter is urgent. We have gone past the 72 hours time frame within which the Commission is required to act. In my submission the Commission ought not to grant any adjournment.

PN128

THE SENIOR DEPUTY PRESIDENT: How long an adjournment do you seek, Mr Addison?

PN129

MR ADDISON: Probably until tomorrow, your Honour. And I say that seriously.

PN130

THE SENIOR DEPUTY PRESIDENT: I am not prepared to grant an adjournment until tomorrow.

PN131

MR ADDISON: In that case I have no witness evidence. I will rely on submissions.

PN132

THE SENIOR DEPUTY PRESIDENT: I am content - if you let me finish, Mr Addison - I am content to grant you an adjournment for three quarters of an hour.

PN133

MR ADDISON: Can I take an instruction on that? Thanks for that, your Honour. Your Honour, we don't believe we can go through the volume of material in that time. We will rely on submission. If the Commission pleases.

PN134

DR SMITH: Thank you, your Honour. On Friday, 15 November 2002, at approximately 12.46 pm, according to the Commission's stamp, Amcor provided written notice under section 166A of the Workplace Relations Act, stating that it intends to bring an action in tort against the AMWU and a named organiser, Mr Gibbons. The application has been properly served and filed in accordance with the rules. Section 166A of the Act provides that before a person can bring an action in tort against a union or an officer of a union in relation to conduct in furtherance of a claim, the subject of an industrial dispute, the Commission must certify that it has done one of the things mentioned in section 166A, subsection 6.

PN135

Broadly speaking, they include, it can issue a certificate immediately, or it can wait for the full 72 hours, as per paragraph C. We rely on paragraph C; the 72 hours has passed. That is, a certificate should issue if the Commission has not stopped the conduct by the end of the 72 hours after the notice was given. Now, we say in this case the conduct is essentially the ban on working with contractors at the plant, and there is ample evidence of that ban not only being in existence, but being given effect to, and that ban has, in fact, been in place continuously through the 72 hour period.

PN136

Section 166A deals with tortious conduct rather than actual industrial action itself. And so we say notwithstanding that on Sunday night and then briefly this morning employees did some work, the conduct that we complain of has been continuous through the relevant 72 hour period. The general principles relating to the issue of a certificate under section 166A, have been very succinctly summarised in a decision by Commissioner Hingley, which I will hand up, in, I will call it the Amcor Packaging case. It is another Amcor case, it is re Amcor Containers Packaging Closure System Certified Agreement 1998, print S0489.

PN137

What the Commissioner said in that case is that the approach the Commission should adopt is reflected in passages from two decisions, the Wettinger Homes decision, and the Mobil decision. I will read those out from the judgment. This is an extract from the Wettinger Homes decision:

PN138

In our view, Bryant DP was entitled, with respect to the notice under section 166A, to act on the information provided to him in writing and orally in the proceedings he conducted ...(reads)...to which the notice related while he was exercising conciliation powers, or -

PN139

And this is the relevant one here:

PN140

- his Honour had not stopped the conduct by the end of the 72 hours after the notice was given, his Honour was required to immediately certify in writing to that effect ...(reads)... a matter for the Court before which any proceedings for a remedy are brought.

PN141

Then from Mobil Oil, Commissioner Hingley quotes the following extract:

PN142

For much the same reasons as were given in the decision of the Full Bench in Wettinger Homes, we do not consider that it is necessary for us to decide or even to form a view about the question of whether the conduct described above might be sufficient to found an action in tort by one of the persons giving notice under section 166A ...(reads)... conduct needs to be of a character that might reasonably be the subject of a declared intention to bring an action in tort.

PN143

His Honour then says, in paragraph 6 - Commissioner. I won't want to elevate Commissioner Hingley yet:

PN144

It is not therefore necessary for the Commission to make a finding as to whether the conduct is tortious, or the alleged involvement of the individuals named is tortious ...(reads)... the Commission is not required to make a finding that the conduct or involvement of the individuals is tortious.

PN145

And then he went on to find that he was satisfied that an action in tort as intended is plausible. So, your Honour, it is a very low threshold in terms of the evidence and the material that has to be placed before the Commission in order for a certificate to issue. It is not necessary for the Commission to be satisfied in this case that the conduct of the AMWU and its organisers would ultimately result in a successful proceeding in tort against them. Amcor does not need to demonstrate to the Commission in any great detail what the conduct is, or what is or is not tortious. That is a matter ultimately for a Court.

PN146

It is sufficient that the conduct is occurring in contemplation or furtherance of claims that are the subject of an industrial dispute, that the conduct is of a character that might reasonably be the subject of a declared intention to bring an action in tort, and that the Commission is satisfied that subsection 6 of 166A is satisfied, that is, that the 72 hours has passed. Now, from the evidence, the Commission, in our submission, should be satisfied that the conduct of Mr Peter Gibbons and the AMWU is conduct of the kind falling within section 166A.

PN147

The conduct consists of Peter Gibbons and the AMWU encouraging, organising and/or engaging in a continuing strike, and in being a party to the continuance of a ban on working with contractors. These actions have been organised by the AMWU and its officers, in particular by Peter Gibbons. Peter Gibbons has actively engaged in convening meetings of employees, he has been at the meetings, he has led negotiations with Amcor not just in relation to the meetings themselves, but over the continuance of the bans. In, in particular, point to paragraph 113 of the affidavit of Mr Ginns.

PN148

Now, we anticipate that the AMWU will argue that the relevant conduct for the purposes of section 166A has not been engaged in by the AMWU or Mr Gibbons on the basis of assertions that the union was not organising the industrial action. In our submission there is sufficient evidence before the Commission, having regard to the Mobil case and the Wettinger Homes case, for the Commission to be satisfied that there is a plausible case. The Commission doesn't need to make any findings over and above that.

PN149

In any event, we say that there is, in fact, sufficient evidence for the Commission to be satisfied that Mr Gibbons has been engaged in the conduct of organising the industrial action, as that term is defined in the Workplace Relations Act. And I will come back in a minute to the extended definition of conduct, which is section 4, subsection 8, as it is raised particularly in the Emwest decision.

PN150

But just to go back through the evidence. Mr Gibbons was responsible for leading negotiations with Amcor about the closure of the plant, putting forward to Amcor the position of employees in relation to the claims for additional payments. I have referred in re-examination to paragraphs 26, 36, 40, 52, 59 and 109 of the affidavit. Mr Gibbons has attended the Dandenong plant and conducted several meetings with employees regarding a proposed closure package, including on 1 November, and I refer to paragraph 50 of the affidavit, again, 8 November, and I refer to paragraph 67 of the affidavit, and then again on 13 November, and I refer to paragraph 101 of the affidavit.

PN151

Mr Gibbons called and conducted the meeting held on 8 November at 3 pm, which resulted in the imposition of the bans. Certainly if it is not clear that he called it, he was there and present at the meeting. That is not being denied. And Mr Gibbons was the person who advised Amcor about the imposition of the bans following that meeting, and that is paragraph 68. On the morning of 11 November, when employees stopped work, they went into the canteen to wait for Mr Gibbons. That is the evidence at paragraph 89.

PN152

It is our submission that the Commission is entitled to draw inferences from that kind of conduct. Why were they waiting for Mr Gibbons in the canteen? They were waiting for further direction; maybe not direction, but guidance. There is no other reason why they would sit there and wait. They were seeking advice. At the meeting with Amcor on 14 November, Mr Gibbons told Amcor representatives that the bans would not be lifted, without the need to go and consult with employees about whether they wanted to continue the bans or not.

PN153

He was clearly involved in organising the industrial action at Amcor's plant. It is our submission that the AMWUs involvement in organising industrial action amounted to conduct within the meaning of section 166A. And the authorities and legislation established that the organisation or facilitation of industrial action by a union or union organiser amounts to tortious conduct by the union. It is either the inducement of breaches of contract, that being their contracts of employment, or interference with contractual relations, and it is also conduct within the meaning of the Act.

PN154

Your Honour may have looked at subsection 8 of section 4 previously, but it extends the definition of conduct, which is the term used in section 166A, to include - it says:

PN155

In this Act a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

PN156

In Kilpatrick Green v CEPU, Ryan J held that:

PN157

An organisation of employees which, through its officers or employees, counsels, procures or organises the taking of industrial action by employees whose employment is subject to a certified agreement, is at least indirectly a party to or concerned in that industrial action.

PN158

And this approach has now been adopted in a decision, a final decision rather than an interlocutory decision by Kenny J in the Emwest decision. I will hand up a copy of the Emwest decision. The particular paragraph that is relevant is paragraph 34 of the decision, where her Honour looks at what is meant by the expression, concerned in, in the context of subsection 8 of section 4. And in the second last sentence of that paragraph, just above paragraph 35, she cites York v Lucas, where they say that:

PN159

A party to a contravention of the Trade Practices Act refers to a person who is aware of the elements of the contravention and who participates in or assents to the contravention.

PN160

Now, in our submission that is what Mr Gibbons has done. He knew that the certified agreement had not passed its nominal expiry date, and if he didn't, he should have known. He participated in or assented to the ongoing industrial action at the plant, and therefore has engaged in conduct within the meaning of the Act. In any event, we say your Honour doesn't need to go that far, you don't need to make a final ruling on this issue in the context of section 166.

PN161

We say that there are torts being committed. The AMWU and its officials have intentionally induced members of the AMWU employed by Amcor to breach their contracts of employment by engaging in unprotected strike action. This amounts to the tort of inducing breach of contract. And there is also interference with Amcor's business by unlawful means. The unlawful means is the tort of inducing breach of contract and also breaches of section 170MN of the Act.

PN162

There is a current certified agreement in place. The demands that are the subject, or the demands which have given rise to the industrial action relate to a claim for an increased severance payment. Severance payments are matters dealt with expressly in the certified agreement. If your Honour refers to the certified agreement, which is the first exhibit to the affidavit, clause 13 deals with redundancy and specifies that where redundancies are necessary, the provisions of the Metals Packaging Redundancy Agreement shall apply. The Metals Packaging Redundancy Agreement is incorporated by reference into this agreement, and that agreement is not a certified agreement. It is set out in exhibit 2 to the affidavit.

PN163

Furthermore, there is no evidence whatsoever that the industrial action that is continuing is protected action. There has been no effort to serve any notices, initiation of a bargaining period, or intention to take industrial action. So we say all of the ingredients both in a jurisdictional and evidentiary sense required for the Commission to issue a certificate, are before the Commission, and the Commission should issue a certificate. I have a draft which I could hand up, which I have given earlier to Mr Addison. That is in the usual terms, so we would ask that the Commission issue a certificate in those terms. Thank you.

EXHIBIT #S2 DRAFT CERTIFICATE

PN164

THE SENIOR DEPUTY PRESIDENT: You have got in there, Amcor Packaging (Australia) Pty Limited, trading as Amcor Food Cans. Should it be Amcor Food Cans Australasia?

PN165

DR SMITH: I think it should, your Honour.

PN166

THE SENIOR DEPUTY PRESIDENT: And is that Australasia in brackets or out of brackets?

PN167

DR SMITH: I think if we just put Australasia.

PN168

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Addison?

PN169

MR ADDISON: Thanks, your Honour. Your Honour, I agree with Dr Smith, that the evidentiary bar is low in these matters, however, there is an evidentiary bar, in my submission, and Dr Smith has referred to the Mobil decision. There was a Full Bench following that Mobil decision in Transfield Obayashi, a Full Bench of Vice President Ross, Senior Deputy President Watson and Commission Frawley, and that is print R3884. I apologise for not having copies. In that Full Bench the question in Mobil was refined, if you like, and the Full Bench said:

PN170

In exercising its jurisdiction under 166A, the Commission was required only to identify conduct; 1) capable of being subject to a notice under 166A; 2) capable of being subject to conciliation proceedings; 3) capable of being subject to attempts by the Commission to stop the conduct; and 4) that might reasonably be the subject of a declared intention to bring an action in tort.

PN171

Now, your Honour, I first of all go to the question of a breach of section 170MN, which my friend referred to. That is not an action in tort. That should simply be put aside.

PN172

THE SENIOR DEPUTY PRESIDENT: Which is this, sorry?

PN173

MR ADDISON: Sorry?

PN174

THE SENIOR DEPUTY PRESIDENT: Which are you saying is not an action in tort?

PN175

MR ADDISON: A breach of section 170MN. It is a statutory breach, and as I understood it - - -

PN176

DR SMITH: No. If I can clarify?

PN177

MR ADDISON: I am happy for you to clarify.

PN178

DR SMITH: Your Honour, a tort of interference with contractual relations by unlawful means has two elements. One is, there must be interference with contractual relations, and it must be by some unlawful means, and that unlawful means can and commonly is constituted by an independent breach of a statute. Though what I am saying is, the unlawful means - - -

PN179

MR ADDISON: I understand where you are going now. Your Honour, we say the words in section 166A mean, coupled with the four principles that I have just referred you to in Transfield Obayashi, which are distilled out of Mobil, mean that the conduct complained of must be conduct which is reasonably capable of being tortious. It is capable of being the subject of a declared intention for bringing action in tort. It can't be just any old conduct. It can't be, we say, conduct which has been acceptable and accepted for a long, long period of time.

PN180

We say it is incumbent on the applicants who seek the issue of a section 166A certificate to demonstrate, albeit the evidentiary bar is low, but there is still a requirement, we say, for applicants to demonstrate by way of evidence that there is some conduct which is outside of the norm, which is outside of what has been accepted, that could reasonably be subject to that declared intention to take an action in tort. Your Honour, the evidence we have in front of us is the affidavit and the oral evidence of Mr Ginns to back up that affidavit.

PN181

There is no evidence, not one skerrick of evidence against the AMWU as an organisation in either the affidavit or in the oral evidence which has been adduced this afternoon. We say the evidence against Mr Gibbons is so thin as to be an absolute joke. The evidence in the affidavit simply is that Mr Gibbons has done what he has always done, whether there was industrial unrest or industrial peace. Mr Gibbons has represented his members. The evidence of Mr Ginns, very, very clear evidence, when I cross-examined him with regard to that matter, was, no, he has done what he always did, he represented his members, he has told us certain things.

PN182

In terms of the torts that are alleged in the application, those torts go to interference with contracts, a conspiracy, nuisance, etcetera. I asked some deliberate questions with regard to the question of nuisance. Mr Gibbons has acted in no different way to the way he has always acted on the site. Mr Gibbons was required in the past to sign the book on and sign the book off; he did that. Mr Gibbons today signs the book on and signs the book off.

PN183

There is no question, on the evidence, there is no way that the Commission could draw the inference that Dr Smith wants you to draw. That is, there is a reasonably held intention to bring an action in nuisance. There is just evidentiary base for it at all. With regard to conspiracy, which is alleged in the grounds, there is not one skerrick of evidence with regard to conspiracy, not one skerrick, your Honour. Yet Dr Smith would have you believe that there is a reasonably founded argument about bringing an action in tort. We say it is not sustainable, your Honour.

PN184

With regard to directing and procuring, no evidence, none whatsoever. The only evidence is that Mr Gibbons has acted as he normally would as a union official. No evidence at all against the organisation. We say on those grounds the Commission should not issue a 166A certificate. We say that the conduct must be something out of the ordinary and must be capable at least of a reasonable intention to bring an action. They are my submissions, your Honour.

PN185

THE SENIOR DEPUTY PRESIDENT: Dr Smith?

PN186

DR SMITH: Your Honour, just very briefly. The evidence of Mr Ginns is that he formed the view that Mr Gibbons had orchestrated and controlled the members in relation to the industrial action at the plant. Paragraph 113 of the affidavit also very clearly indicates that Mr Gibbons had independent authority regarding the continuance of the industrial action. He didn't need to go back and ask the members. He just said no, the bans won't be lifted.

PN187

Conspiracy is obviously a legal concept, but conspiracy can occur simply by a union official at a meeting with members, conspiring with the members to injure the employer through the imposition of the unlawful industrial action. So there is a sort of a reasonable basis upon which the Commission could form the view that there is evidence to support that. I didn't quite understand what Mr Addison was saying, suggesting that somehow or other Mr Gibbons was on a frolic of his own. But clearly an official acts for and on behalf of the organisation which it is an official of, and I understand that is what Mr Gibbons was doing, and therefore the union is equally a party to the actions of Mr Gibbons where he acts as an official of the union. Those are my submissions. We say the certificate should issue.

PN188

THE SENIOR DEPUTY PRESIDENT: In this matter I am satisfied I should issue the section 166A certificate sought by the applicant in this matter, in terms generally set out in exhibit S2, and that will be issued in due course. With respect to the 127 matter, I will list that at 1 o'clock on Thursday, 21 November 2002, here in Melbourne. I will now adjourn until that date.

ADJOURNED UNTIL THURSDAY, 21 NOVEMBER 2002 [3.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

HARRY GRAHAM GINNS, SWORN PN47
EXAMINATION-IN-CHIEF BY DR SMITH PN47
EXHIBIT #S1 AFFIDAVIT OF GRAHAM GINNS PN60
CROSS-EXAMINATION BY MR ADDISON PN62
RE-EXAMINATION BY DR SMITH PN92
WITNESS WITHDREW PN121
EXHIBIT #S2 DRAFT CERTIFICATE PN164