C2002/856, Transcript of Proceedings [2002] AIRCTrans 514 (19 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N VT02345
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/856

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by National Fleet Network for an order to
stop or prevent industrial action

MELBOURNE

12.33 PM, MONDAY, 4 FEBRUARY 2002

PN1

MR I. HARMER: I appear on behalf of National Fleet Network. With me today is MR C. GILDERSLEEVE, the Human Resources Manager for National Fleet Network.

PN2

MR M. SOLLY: I am from the Australian Manufacturing Workers Union and with me is MR J. HAYES, the shop steward for the company.

PN3

THE COMMISSIONER: Yes, Mr Harmer.

PN4

MR HARMER: Commissioner, just at the outset I do intend to call witness evidence today. Behind me is Mr Greg Shaw who submitted a witness statement as part of the 127 application. Just putting the Commission on notice that he is in the court but I do intend to call him fairly early in the proceedings as I make my way through the section 127 application. Unless you had any objections to him sitting for the initial part I request that he just be called upon when needed.

PN5

THE COMMISSIONER: Mr Solly, do you have any objection to him remaining in the court?

PN6

MR SOLLY: No.

PN7

MR HARMER: Thank you, Commissioner. Commissioner, this is an application by National Fleet Network Proprietary Limited seeking an order pursuant to subsection 127(2) of the Workplace Relations Act. The order is sought to stop current threatened and probable industrial action which is being applied by employees of the applicant who are members of the AMWU. The applicant is a provider of mechanical maintenance services to the Portland Aluminium Smelter. The site is approximately 630 employees employed by Portland Smelter Services and at least 100 contract employees employed by various contractors in Portland.

PN8

The applicant to this notification employs six employees at its workshop at Cellana Court, Portland, and for its on-site operation at the Portland Aluminium Smelter. Commissioner, the applicant has in place a certified agreement with the AMWU that is party to this dispute. We come before the Commission today due to unlawful industrial action which is, we say, very much ongoing. The action is defined as strike action which commenced Wednesday, 30 January 2002, and is, we say, still ongoing. There has been some recent developments, Commissioner, and I will let Mr Shaw address those in evidence.

PN9

Needless to say employees, I believe, have returned to work this morning but it is our submission that the action is still very much threatened, probable and impending given the nature of dispute. Having said that it is our submission that the industrial action that had been taken and is still in our view threatened is clearly a breach of section 170MN of the Workplace Relations Act 1996. We also say that the unions have breached grievance dispute settlement procedures of the respective enterprise agreement. I wish to submit to you a copy of the certified agreement, Commissioner.

PN10

THE COMMISSIONER: I won't mark it.

PN11

MR HARMER: As you will see, Commissioner, this certified agreement, titled The Brambles Equipment (Portland) Agreement 2000, was actually certified by you, Commissioner, on 18 December 2000. Just to bring you up to speed the transmission of employment provisions of the Act have been invoked with respect to National Fleet Network now being bound by the terms and conditions of that said enterprise agreement through the transmission provisions of the Act but it certainly is the certified agreement that regulates terms and conditions for the employees at the particular workshop and for on-site operations.

PN12

Commissioner, this application is an extremely serious matter having already disrupted the smelter and of course the operations of the applicant. I do intend to provide background information to the Commission regarding the matter however I do believe it would be worthwhile at this time to introduce witness testimony. The application did contain, Commissioner, a witness statement by Greg Shaw who is the accounts manager of National Fleet Network. I shall call upon Mr Shaw to give direct witness evidence to the matter in dispute and certainly clarify the current status of industrial action.

PN13

THE COMMISSIONER: Just before you do that I will hear from Mr Solly in a preliminary way.

PN14

MR SOLLY: Thank you, Commissioner. In relation to this issue there have been a number of discussions had with the site management, you might call it that, between the shop steward and Mr Shaw. Essentially I became involved just before Australia Day. I spoke with a Mr Connolly and basically he gave me a commitment he would get back to me within an hour or so in relation to a response. There was no response forthcoming that day and there hasn't been one since. So, basically, we have tried to sit down and have some discussions with the company about these issues and basically they haven't even returned our call, Commissioner.

PN15

THE COMMISSIONER: My concern is in respect of the enterprise agreement and clause 18 and clause 23. Clause 23 says:

PN16

The company and the unions agree that they will not for the duration of this agreement pursue any extra claims in relation to any matters except where consistent with the agreement.

PN17

And clause 18 is the disputes settlement procedure. Do you say that that has been followed?

PN18

MR SOLLY: Well, clearly, firstly, we say it is not an extra claim, Commissioner. And in relation to clause 18, as I just explained a moment ago, I have tried to speak with upper management in relation to these issues and basically haven't returned my call.

PN19

THE COMMISSIONER: I see, yes. Call your witness, Mr Harmer.

PN20

MR HARMER: Yes, I will call Mr Greg Shaw.

<GREGORY JOHN SHAW, SWORN [12.40pm]

<EXAMINATION-IN-CHIEF BY MR HARMER

PN21

THE COMMISSIONER: Thank you. You understand the significance of the oath do you?---Yes.

PN22

MR HARMER: Mr Shaw, could you provide me your name and address for the record, please?---Gregory Shaw, Robertson's Road, Bolwarra, Portland.

PN23

And your position and role with National Fleet Network?---Account manager.

PN24

Mr Shaw, I will show you a copy of a witness statement numbering two pages and dated 4 February. Would you be able to just look through that for me, please, Mr Shaw. Can you confirm for the Commission that that is in fact your statement?---Yes.

EXHIBIT #NF1 WITNESS STATEMENT OF GREGORY JOHN SHAW

PN25

MR HARMER: And Mr Shaw can you confirm for the Commission that its contents are both true and correct?---Yes, the contents are true and correct.

PN26

Mr Shaw, do you have a view as to whether there will be further industrial action on site?---I believe they have gone back to work today because of the Commission hearing but the dispute definitely hasn't been settled so I think there is still a real case of some other bans or limitations would be put on.

PN27

Mr Shaw, can you explain to the Commission the process which has led the parties to the Commission today?---Yes. I believe there was an original request in December some time for some clarification on payments for public holidays and it has been - I was on holidays for a 4-week period. On the Friday leading up to the long weekend I was approached about the payments for the Monday. I consequently had a lot of phone calls and followed up again on the Tuesday after the long weekend and informed the unions that there wouldn't be any change in what had been the base award.

**** GREGORY JOHN SHAW XN MR HARMER

PN28

Thank you, Mr Shaw. Can you also explain for the Commission the contract National Fleet Network has with Portland Aluminium?---National Fleet supplies all the mobile equipment for Portland Aluminium. That is including doing maintenance on all our own equipment and maintenance on all Portland Aluminium's own equipment that moves their aluminium ingots and their carbon blocks around which they own the machinery. In total there is 60-odd pieces of equipment of ours and there is probably about 12 or 14 of their own.

PN29

And, Mr Shaw, have you had any discussions with the smelter regarding the industrial action?---I have had several discussions with Portland Aluminium. Their main concern was to keep the critical pieces of the plant rolling along and be kept in a running position because it may affect their production schedules and production of the plant.

PN30

Do you feel that is quite a serious situation?---From Portland Aluminium's eyes, yes, it would be.

PN31

Mr Shaw, if the smelter were to experience, you say, production problems, can you explain the implications for National Fleet Network?---Production problems if they had no sets. Would mean they would have to drop the tap stand which means that their tonnage would have to drop and in turn would affect their tonnage production for the days. If they couldn't move the metal because of the haulers, or broken down and we weren't there to fix them they would have crucibles starting to freeze up which then they wouldn't be able to pour them so they would be still the same again, lost tonnage and lost revenue.

PN32

THE COMMISSIONER: How often would they have breakdowns? Any of the equipment I mean, you know, that - - -?---On the critical items fairly regularly because of the hours they are doing. The machinery roughly would do about 90 hours a week and they have only got to blow one tyre and that physically puts the machine out. So we wouldn't bee able to go in and we would have trades people wouldn't be able to go and change a tyre just to get it back on the road again which may be a half-hour job.

**** GREGORY JOHN SHAW XN MR HARMER

PN33

MR HARMER: Mr Shaw, do you believe that there is the threat of potential further industrial action on site?---Like I reiterated before, yes, I suppose it hasn't been resolved so the likelihood of industrial action or the threat is still there.

PN34

I have no further questions, Commissioner.

PN35

THE COMMISSIONER: Mr Solly.

<CROSS-EXAMINATION BY MR SOLLY [12.45pm]

PN36

MR SOLLY: Yes, thank you, Commissioner.

PN37

Mr Shaw, in relation to some discussions we had with yourself and the shop steward in relation to a claim about public holidays. When did that first take place?---On the Friday.

PN38

Approximately?---Late Friday afternoon before the long weekend.

PN39

I meant, like, first instance, first scenario, first time?---First time in - what, asking for payment?

PN40

Basically talking about the clarification of the issue?---Saturday morning.

PN41

What, before Christmas?---No, I was - - -

PN42

Was it first raised?---I was on holidays from December 7 through to January 9. First major discussion with John would have been on the Saturday just - just recently gone. We sat down and had some discussion to clarify points, what he was exactly looking for and some other - John put some other suggestions up on how we may be able to resolve the issue.

**** GREGORY JOHN SHAW XXN MR SOLLY

PN43

Do you believe that the disputes resolution procedure has been followed by the company?---Yes.

PN44

Why do you say that?---There was no - we say there was no cool-off period. There wasn't a three - 3-week or a 4-week negotiation period. I think we sat down and had - I think myself and John have had one meeting over it. Yes.

PN45

Okay. Well, you may not be aware but there was some discussion with a Mr Grant Connolly who was more of a senior type person, yourself in the company before Christmas but, okay. Well - no, no further questions.

PN46

THE COMMISSIONER: Thank you. I don't think that leaves you anything to re-examine on, Mr Harmer.

PN47

MR HARMER: No, I have no further questions.

PN48

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

<THE WITNESS WITHDREW [12.47pm]

PN49

MR HARMER: Commissioner, the order we sought to cease in current threatened industrial action and action which we say is threatened due to the circumstances that have been put in evidence to the Commission just now by Mr Shaw. Employees effectively commenced unlawful industrial action on Wednesday, 30 November, and remained on strike through to the commencement of day work today. It is our submission that a return to work this morning has been a reaction to the company notifying the Commission of a 127 application and seriously pursuing that application before the Commission.

PN50

Having said that we say that witness evidence now has been introduced that does put without a doubt that unlawful industrial action has taken place and we say that Mr Shaw has also in his evidence suggested that industrial action is still very much threatened and probable given that there is no resolution to this particular dispute at this point in time. The company has now lost three days due to unlawful action and we say with the intention that it will probably lose a lot more unless the Commission is in a position to issue orders in this particular dispute.

PN51

THE COMMISSIONER: Why do you say three days?

PN52

MR HARMER: Well, the company lost Wednesday, Thursday, Friday and as - - -

PN53

THE COMMISSIONER: It has lost more than that though, hasn't it?

PN54

MR HARMER: It has lost more than that because employees were obviously unable or didn't work any call-outs, I believe, over the weekend period.

PN55

MR ..........: Shift was rostered on the Saturday, Sunday.

PN56

MR HARMER: Shift was rostered on. So our submissions have been that industrial action did commence on Wednesday the 30th and was ongoing through to this morning, even though there may have been some work over weekend, as just clarified. Having said that, Commissioner, it is our submission that the action that has been taken and is still very much threatened is, in fact, not protected action within the definition of the Workplace Relations Act 1996. We say that the union is unable to lodge a matter as protected industrial action due to the fact that a certified agreement does currently exist and is in place at that particular establishment.

PN57

It is our submission that the industrial action already taken and threatened is clearly a breach of 170MN of the Act as it relates to industrial action where it must not be taken until after the nominal expiry date of a certified agreement or award. That does bring me to the jurisdictional issues raised in our application in the terms of the order that we seek. In relation to section 127 there are three elements that need to be satisfied in order for the Commission to exercise its power under that section. Firstly, it needs to be shown that industrial action is happening or is threatened, impending or probable and industrial action is defined within section 4 of the Act.

PN58

I know you to be well-versed within that section of the legislation, Commissioner, so I won't bother reading it into transcript. We say, Commissioner, that the action being taken is clearly industrial action within the meaning of paragraph (d) of section 4 of the Act, secondly, that the industrial action must relate to either an industrial dispute or the negotiation or proposed negotiation of a certified agreement or work that is regulated by an award or certified agreement. The order we seek, Commissioner, relates to work covered by the Metals, Engineering and Associated Industries Award 1998 and the company does have in place a certified agreement which is underpinned by that said award.

PN59

Thirdly, the section does require any application to be made by either party to the industrial dispute, if any, a person who is directly affected or is likely to be directly affected by the industrial action or by an organisation of which a person who is directly affected or likely to be directly affected is a member. Clearly, in this matter, Commissioner, the applicant has made the application and is clearly a party directly affected by the industrial action. Having said that, Commissioner, I will progress onto the substantive argument regarding the company's 127 application.

PN60

Section 127 of the Workplace Relations Act provides relief for a party when industrial action is happening or is threatened, impending or probable. It is under this section that we do seek relief. The exercise by the Commission of its powers to issue an order under section 127 is discretionary not mandatory. Subsection 127(1) provides that the Commission may, by order, give directions that the industrial action stop or not occur. That takes me to the substantive provisions of the Full Bench in Coal and Allied v AMWU. I will just read that short paragraph into transcript:

PN61

A direction under section 127(1) is not expressed by the statute to be automatic upon jurisdiction being established. Title, condition, discretion is illustrated by section 170LT(1). The discretion under section 127(1) is manifestly at large.

PN62

Commissioner, we say in exercising its discretion in this matter the Commission should be aware the industrial action is not protected action within the meaning of section 170ML of the Act. It is our submission that the class of industrial action into which the industrial action fits is illegitimate. This is the term used by the Full Bench in Coal and Allied and was referred to in length within that decision. Again, I don't propose to read the slabs of text into transcript; needless to say that I am happy to submit them in due course if needed.

PN63

Commissioner, there are a number of issues for this Commissioner to consider in granting such an order. One is that the action is not protected and, in our view, is a breach of 170MN. The action is illegitimate and deserving of a direction causing it to be unlawful. The considerations we say are as follows. Clearly, the action is unprotected action within the meaning of the Act and clearly, the action is also a breach of 170MN of the Act as it relates to a certified agreement. The AMWU has clearly breached its obligations, we say, in failing to follow the avoidance of industrial dispute procedures as outlined within the certified agreement.

PN64

As you are well aware, Commissioner, the clause does provide for work to continue as normal when parties are following this procedure. We say the industrial action is designed to bring industrial pressure onto the applicant in order to force the applicant to pay a higher penalty rate to employees whilst working on public holidays. This, we say, is clearly an additional claim and we believe breaches the undertakings of the certified agreement, in particular, the undertakings of the no extra claims commitment given under the certified agreement.

PN65

We also submit that the AMWUs conduct in this dispute demonstrates the likelihood that it will incite, encourage further industrial action to occur at this site. This is not the first time this union in recent times has taken unlawful industrial action against National Fleet Network. This is also now leads me to a number of other considerations which I believe are very pertinent to the matter at hand. National Fleet Network has had cause to lodge the 127 application or a 127 application against the AMWU on 12 November 2001. This was in response to unlawful industrial action being taken by employees who are members of the AMWU. Parties to that dispute did also include Kepple Prince Engineering.

PN66

We were able to satisfy Commissioner Foggo, who did issue a section 127 order against the AMWU on 9 November 2000. The particular issue that is in dispute today, though, has been before you a number of times, Commissioner. Most recently, it was before you on 20 December 2001, where Kepple Prince Engineering had again been subjected to threatened industrial action over this very same issue being dealt with today. In that matter you respectfully issued directions in accordance with section 111LT, consistent with the terms of a draft section 127 order that was put to you on that day.

PN67

The obvious differences between the matter in December and this matter before you today is that employees have engaged in unlawful industrial action since Wednesday, with the prospect of that action being very ongoing. Commissioner, this union blatantly disregards directions and orders of the Commission in respect to matters in Portland. As recently as November last year the AMWU ignored directions and recommendations issued by Commissioner Foggo. The AMWU has also, in the past, breached its commitments on this issue, commitments given before you in the matter of Kepple Prince Engineering v AMWU, listed in May of last year.

PN68

We say that a decision not to issue the order sought would be a signal to this union that it can act with complete disregard in ignoring the requirements of the Workplace Relations Act. It would also continue to subject National Fleet Network to a campaign of unlawful industrial action, the type of which this section of the Act seeks to address. One final consideration relates to the ongoing effect the action is having at the Portland Aluminium smelter. Mr Shaw has instructed the AMWU that the ongoing disputation may bring about serious consequences for the smelter. He gave direct evidence to that effect.

PN69

The smelter, as I indicated earlier, employs approximately 630 employees with a further 100 employees engaged under contract arrangements. We have a situation here where six employees have engaged in unlawful industrial action which effectively puts at risk some 730 employees who are engaged by the principal contractors and, of course, the principal provider, being Portland Aluminium. The company is, of course, also at risk of having its contract reviewed at the smelter, due to the unlawful action. All these parties are effectively held to ransom by six employees who engage in unlawful action, which has a consequence of putting the production of aluminium at risk, hence affecting a number of employees.

PN70

Commissioner, I have suggested on countless occasions that if the AMWU is of the view that a breach of the agreement or award has occurred in regard to public holidays or penalty rates, then let that organisation pursue that matter before an appropriate court or, in fact, before this Commission. In response to these suggestions, the union completely disregards these options and continues to pursue unlawful industrial action to pressure contractors, in particular, National Fleet Network, but I don't need to remind you, Commissioner, that the next contractor that will be pressured will, in fact, be Kepple Prince Engineering and, no doubt, if the matter is unresolved, I will most likely be bringing orders back before you again on behalf of further contractors that will be subjected to these claims.

[1.00pm]

PN71

Having said that, Commissioner, we feel that the contractors within the Portland district are being subjected to a campaign, we say, being led by a renegade official of the AMWU, and we submit that that action cannot continue, nor should it be condoned to allow employees to seek additional claims, as has occurred in this matter.

PN72

Accordingly, we say that there are clear grounds for the Commission exercising this discretion to this issue and to the order sought. Turning to the terms of the order we seek as set out in the application, I might just submit to you a slightly revised order. Commissioner, I did have a copy of those respective orders and transcripts, and various other matters. Did you require me to submit those for the record?

PN73

THE COMMISSIONER: Yes, please.

PN74

MR HARMER: The first one I will submit is transcript from a hearing before you on 14 May, when Mr Dargavel gave certain commitments in respect of this issue.

PN75

THE COMMISSIONER: I am not going to mark that.

PN76

MR HARMER: The second document relates to recommendations and directions by Commissioner Foggo, including - basically, I haven't bothered to include 127 order.

PN77

THE COMMISSIONER: That is another Commission document. I am not going to mark it.

PN78

MR HARMER: And, of course, the final submission.

PN79

THE COMMISSIONER: No.

PN80

MR HARMER: A final matter I just wanted to put up to you Commission, was, of course, the directions issued by you on 20 December in respect to this matter.

PN81

THE COMMISSIONER: Thank you.

PN82

MR HARMER: Commissioner, I might just now turn to the terms of the order.

PN83

THE COMMISSIONER: I will mark that.

EXHIBIT #NF 2 TERMS OF ORDER

PN84

MR HARMER: Commissioner, the order is binding upon the AMWU and its respective officers. A direction that industrial action must immediately cease. The order states that employees must refrain from engaging in industrial action in the form of any strike or any restriction, ban, or other limitation on performance of work. The order goes on to provide that employees make themselves available for work and perform work as the company may reasonably require.

PN85

With regard to the union, the order requires the AMWU to take any and all steps necessary and available under their rules to ensure that all employees defined comply with the order. We do seek that the order take effect from today's date and remain in force for a period of six months.

PN86

Commissioner, we have sought a six month order really as a sign that this matter cannot continue to haunt the applicant, and also to allow it to go about its business without threat or intimidation. The actual issue now has effectively been before the Commission since may of last year, when Mr Solly initially raised this claim against Kepple Prince Engineering. Kepple Prince Engineering have had cause to bring the matter before the Commission on two occasions under section 127, the most recent being, of course, 20 December of last year.

PN87

This company is now subjected to exactly the same claim Kepple Prince Engineering was subjected to, and hence it now needs to seek the protection of section 127 with respect to unlawful industrial action. Hence, we have sought a six month order as a sign to this union that it cannot continue to engage in this unlawful industrial action against - particularly against National Fleet Network, but more also a signal they cannot then target the next contractor in Portland. And hence me being up here again running exactly the same submission.

PN88

Just in conclusion, Commissioner. A witness statement was put to you earlier that clearly identified industrial action that was taking place. That industrial action was not questioned at all. Hence, it must stand to be accurate as a reflection of the action that has taken place by employees of National Fleet Network. Having said that, we believe that the Commission should exercise its discretion in this matter, and grant the order as we have applied for. If the Commission pleases.

PN89

THE COMMISSIONER: Thank you. Mr Solly.

PN90

MR SOLLY: Thank you, Commissioner. Firstly, we say that what we are pursuing here is not an extra claim. We have been seeking to have some discussions with the company for a long period of time. Initially it was before Christmas when the shop steward spoke to a Mr Grant Connolly in relation to these issues.

PN91

Further to that, I became involved on the Friday prior to Australia Day holiday, with the commitment given to me that, yes, we will get back to you within the hour. As such, there was no return call to either myself of the shop steward. And it is purely out of frustration, Commissioner, that this has taken place.

PN92

We say that the company has not actually abided by the dispute resolution procedure. It talks about a number of points about senior management, etcetera; consulting and meeting officials if need be. Clearly we got to that point, Commissioner, and there was no commitments given.

PN93

Mr Harmer says that this is exactly the same as the Kepple Prince issue. Well, firstly, I would just like to point out that through consultation we had come up with an agreed position with Kepple Prince. It is not exactly the same scenario, because there is more complications with this matter, because there is shift work worked with National Fleet Network, whereas it wasn't with Kepple Prince.

PN94

So clearly there is a lot of things that we needed to discuss with the company, and we just hadn't had even a response to say we can sit down and talk about it.

PN95

THE COMMISSIONER: Do you say that this is a matter that is about a breach of an agreement or an award?

PN96

MR SOLLY: I say it is actually about the interpretation, Commissioner, of the award: because effectively what happens is if it gets - if the public hire gets paid one way, then effectively another part of the award isn't paid.

PN97

THE COMMISSIONER: Well, if that is the case, why isn't that breach pursued in the correct jurisdiction?

PN98

MR SOLLY: We have tried speaking with the company in relation to the matter, Commissioner.

PN99

THE COMMISSIONER: No, why don't you take it to a court?

PN100

MR SOLLY: Well - - -

PN101

THE COMMISSIONER: I mean, that is a legal process to right the matter that is alleged. Taking illegitimate industrial action is not a legal approach to the matter.

PN102

MR SOLLY: No, but clearly the action has only taken place with the frustration with the company - - -

PN103

THE COMMISSIONER: What about the direction that this Commission gave you and your members and your union on 21 December? Why wasn't tha complied with?

PN104

MR SOLLY: Sorry?

PN105

THE COMMISSIONER: The direction of the Commission in respect to Kepple Prince, was that complied with?

PN106

MR SOLLY: Yes, it was, Commissioner.

PN107

THE COMMISSIONER: I see. Right. So now it is said there is a return to work this morning, is that right?

PN108

MR SOLLY: That is right, Commissioner.

PN109

THE COMMISSIONER: What does that mean?

PN110

MR SOLLY: Well, as a show of good faith, the guys - we had a meeting this morning before the commencement of normal work. We had all sorts of discussions, and as a show of good faith the guys said, well, we will return back to work. But at the end of the day, the problem still exists, when the company does not want to sit down and talk about it.

PN111

THE COMMISSIONER: But what does the return to work mean? Does it mean that there will be no further restrictions? Or is Mr Harmer correct, that there is impending and threatened industrial action?

PN112

MR SOLLY: Well, at the end of the day, Commissioner, I don't make those decisions. But there is always a possibility, I suppose.

PN113

THE COMMISSIONER: Then why shouldn't the Commission issue the order sought?

PN114

MR SOLLY: Well, the Commission shouldn't order it, because basically the company has not abided by the dispute resolution procedure to try and talk through the issue.

PN115

THE COMMISSIONER: Is there anything further?

PN116

MR SOLLY: No, Commissioner.

PN117

THE COMMISSIONER: Mr Harmer.

PN118

MR HARMER: Just two points. The company has rejected the proposition that has been put forward by Mr Solly. So when he says that the company is in breach of its dispute settlement procedure, the proposition - the additional claim has been rejected.

PN119

MR SOLLY: When?

PN120

MR HARMER: So, it is my submission that Mr Shaw has rejected the claim, and I am happy to go on the record now, Commissioner, and say this claim has been rejected. Effectively Mr Solly says, as a show of good faith they returned to work. Commissioner, they are not legally allowed to be out of work currently. They have a contractual obligation and an EBA obligation to obtain ongoing work.

PN121

Now, the second point that I just want to raise is Mr Solly says that the matter is not an extra claim, that is, an interpretation of the award, I must pick up on the point you have raised with Mr Solly, and that is - and I have raised these points with him a number of times - if he has a genuine claim let him pursue that claim instead of subjecting these companies to unlawful industrial action. Now, the fact, Commissioner, that he has not pursued the claim would imply to me that somewhere along the line Mr Solly, or people who are instructing Mr Solly, do not feel that the claim is a legitimate claim.

PN122

Now, if it was a legitimate claim Mr Solly would be able to pursue it, and if granted, yes, the company would be obliged to comply. And we seeking exactly the same response from the Commission today. We saying to the Commission order a 127 to make them comply with their obligations under their certified agreement. And the same can be said if Mr Solly wants to go and get an order that the company comply with the award. The company would be obliged to comply with the award.

PN123

And the point that I have raised with Mr Solly is that that decision, if granted, would have significant implications on industry. And that might be the frustrations Mr Solly has in pursuing this claim is because of its wider implications. If the Commission pleases.

PN124

THE COMMISSIONER: Is there anything further you wanted to put, Mr Solly.

PN125

MR SOLLY: Just one small thing, Commissioner. There was no response from the company until Friday, until last Friday. And we believe it was because the industrial action the company bothered to do anything about it, or give us a response about it.

PN126

THE COMMISSIONER: If I were to convene this hearing into a conference, would you have an objection to that?

PN127

MR SOLLY: No, Commissioner.

PN128

THE COMMISSIONER: Would you, Mr Harmer?

PN129

MR HARMER: No objections, Commissioner.

PN130

THE COMMISSIONER: I know that the proceedings have - I have heard the proceedings and the witness evidence, but I just wonder if there is any value in an off record conference at this stage.

PN131

MR HARMER: I am happy to entertain that.

PN132

THE COMMISSIONER: We will do that, thank you.

SHORT ADJOURNMENT [1.12pm]

RESUMED [1.24pm]

PN133

THE COMMISSIONER: I thank the parties for their cooperation in conducting a conference in the hope of finding some resolution to the matter, but it appears that there is no progress that can be made in that direction. Mr Harmer, was there anything further you wanted to put to the Commission?

PN134

MR HARMER: No, no further points, sir.

PN135

THE COMMISSIONER: Mr Solly, was there anything further you wished to put?

PN136

MR SOLLY: No, Commissioner.

PN137

THE COMMISSIONER: Am I correct in saying that you can give this Commission no undertakings whatever about probable or impending industrial action?

PN138

MR SOLLY: The only thing I can do, Commissioner, if we had - had commitment the company sit and have some discussions, then I could recommend to the members that we don't have any more industrial action.

PN139

THE COMMISSIONER: That would only be a recommendation, is that what you are saying?

PN140

MR SOLLY: Well, I could tell them but at the end of the day they can also tell me.

PN141

THE COMMISSIONER: I reserve my decision and advise the parties at the earliest possible opportunity. Thank you.

ADJOURNED INDEFINITELY [1.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

GREGORY JOHN SHAW, SWORN PN21
EXAMINATION-IN-CHIEF BY MR HARMER PN21
EXHIBIT #NF1 WITNESS STATEMENT OF GREGORY JOHN SHAW PN25
CROSS-EXAMINATION BY MR SOLLY PN36
WITNESS WITHDREW PN49
EXHIBIT #NF 2 TERMS OF ORDER PN84