C2002/1264, Transcript of Proceedings [2002] AIRCTrans 909 (21 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N VT02868
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2002/1264

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Mermaid Labour Management Pty Limited and
Automotive, Food, Metals, Engineering, Printing
and Kindred Industries Union - Tasmanian Branch
and Others for an order to stop or prevent
industrial action

MELBOURNE

2.50 PM, WEDNESDAY, 6 MARCH 2002

PN1

MR B. LAWRENCE: I seek leave to appear on behalf of Mermaid Labour and Management Pty Limited.

PN2

MR M. ADDISON: First of all, I apologise for my late arrival, your Honour. Secondly, I appear on behalf of the Australian Manufacturing Workers Union together with MR G. WARREN and I oppose leave.

PN3

MS Z. ANGUS: I appear on behalf of the Australian Workers Union together with MR T. LEE and I would also indicate our opposition to the appearance of counsel.

PN4

MR P. MOONEY: I appear on behalf of the CEPU Electrical and we also oppose counsel.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, why should counsel be given leave?

PN6

MR LAWRENCE: If your Honour pleases, the application for leave to appear is based on both section 42(3)(b) and subsection (3)(c). Before I go to those matters, there are just a few matters that I want to briefly address in order to put the matters in context. As your Honour would probably know from the material, this section 127 arises out of some industrial action threatened industrial action in relation to work on a pipeline-laying project across the Bass Strait. The company that I appear for is the employer of labour on that project and a certified agreement has been entered into by that company and the three unions who are here before you today.

PN7

There are approximately 170 construction crew employees who are represented by one or other of the three unions; that is not the total workforce, of course, because there is also a crew on the vessel who are members of the MUA. There is a certified agreement in relation to the MUA aspect of the operation. The project is, as I said before, a pipeline project across Bass Strait. It is a gas pipeline project. The total construction costs are approximately $400 million. Obviously, it is a matter of national importance and it is very important for the Tasmanian economy.

PN8

The actual pipe-laying work across the strait will take approximately 140 days and at this stage the project is almost halfway through. That is, it is approaching the mid-point. The particular action concerns complaints and action by the three in respect of matters that are covered by the certified agreement. The matter, as you would know, your Honour, was listed before Deputy President Leary. I presumed that there was transcript of that matter, that listing, although I haven't seen it, but some matters were put by way of outline to her Honour. As a result of that, her Honour directed the company to write to each of the unions and ask a question, and the company did write to the unions and ask the question - - -

PN9

MS ANGUS: I am sorry to interrupt, your Honour. I am just a little concerned that, in fact, counsel might be presenting the substance of the case rather than speaking to why it is that there is a need for counsel to be present in the first place.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you are saying, Ms Angus. Mr Lawrence, you will, no doubt, take notice of that.

PN11

MR LAWRENCE: Yes. I won't go to the substance of the case. I will go to the kernel of it but I won't finesse it any more than I have to in order to indicate to your Honour just what the basis of the application is. As a result of that, a letter was written to the three unions and the following words were included:

PN12

The Commission requests that you clearly identify the scope of work your application is directed towards, ie, the current Tasmania Pipeline Project, or some other project in the future.

PN13

Now, that was a critical matter, as I am instructed, before her Honour because this shop, The Lorelay, the pipe-laying vessel, is expected to or may undertake two other tasks in Bass Strait before it leaves Australian waters; that is, two other projects apart from the pipeline, the gas pipeline to Tasmania. One is a proposed pipeline for Esso off the Gippsland coast and the other is a project known as the OMB Project, again off the Victorian coast. My instructions are that some 80 per cent of the total work that The Lorelay will be doing - the ship will be doing - will be comprised of the current pipeline work, that is the Tasmanian gas pipeline.

PN14

A certified agreement is also the subject of an application to correct an ambiguity and/or uncertainty which was before her Honour but obviously is not listed today.

PN15

THE SENIOR DEPUTY PRESIDENT: I haven't been allocated that file. The only file that I have is the section 127 application.

PN16

MR LAWRENCE: Yes. Well, without going into it any more than I have to, it is an application by the company to vary the certified agreement in order to make it clear that the certified agreement covers the two other projects; that is, the two non-gas pipeline projects. Now, that is why, as I understand it, her Honour asked for clarification by the unions as to what their bargaining period notice was in respect of, in respect of the gas pipeline to Tasmania, which, of course, is subject to a certified agreement, or those other matters, which I might say - - -

PN17

THE SENIOR DEPUTY PRESIDENT: I am just asking you this. There is transcript of the proceedings that were before Deputy President Leary. Did this direction emanate from the conference that then followed; are you aware? It doesn't appear, as I recall, to have taken place in formal proceedings. I may be wrong; I may have missed it in the transcript.

PN18

MR LAWRENCE: Yes. I can get instructions on that, your Honour - and this is a standard form of letter sent to the three unions:

PN19

The matter was adjourned and I was requested by the Commission to seek clarification from you in respect to the notice to initiate a bargaining period.

PN20

Then it goes on, "The Commission requests you". Now, perhaps I could get instructions on that specific question you ask.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, you can in due course but where does this all lead to representation?

PN22

MR LAWRENCE: What we say is this, that the unions haven't responded in writing but the unions have responded in discussions with representatives of the company to the effect that it concerns the current certified agreement and the gas pipeline; that is, the Tasmanian gas pipeline project. That is the current work. Therefore, what we have is disputation and proposed disputation about a matter which is covered by a certified agreement and we say that that is not permitted and it is contrary to section 170MN.

PN23

The only basis upon which that could be contested, if that advice is correct - and we would ask for the unions to answer that question to the Commission today - but the only basis upon which the unions could seek to avoid liability would be if they were to run some argument of a kind that hasn't been foreshadowed yet to the effect that notwithstanding the terms of section 170MN they would be entitled to engage in industrial action in order to reopen that or vary the certified agreement. My instructions are that one of the union representatives said that it was in respect to the current agreement and they wanted to bust it wide open. So that is - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Well, you want to be able to demonstrate, do you, that there is industrial action or threatened industrial action.

PN25

MR LAWRENCE: Yes, threatened industrial action and that we anticipate that there will be or there may be some technical legal defences in relation to that. So that is a matter that is particularly relevant to section 42(3)(b). In relation to section 42(3)(c) there are a few considerations. One is that the two officials of the company, two directors, Mr de Franck and Mr Ponga, are not people who have dealt with section 127 applications before. They don't have particular expertise in relation to these matters. They obviously have some experience in industrial relations generally but section 127 applications - and these sorts of proceedings are very different to - or raise very considerations in terms of skill and knowledge to those which ordinarily arise.

PN26

Secondly, there is no organisation, industrial organisation which can represent them. Mr Ponga, who is the director and general manager, may, in fact - or would be expected to be a witness because he would be the company's witness. So he would not have the normal ability to represent. The third - or fourth matter to be taken into account is that this is a case where, as your Honour has seen, there are three opponents of the applicant and it is significant that there are three opponents. It would not be suitable in these circumstances for a person who has not been exposed to these matters to come into a situation where three advocates are ranged against them.

PN27

Finally in relation to this subparagraph, your Honour, it has to be kept in mind that this is a very important project and the economic impact and the costs of disruptions are significant and can be expected to be significant. That is a matter which, in my submission, can be taken into account in regard to the question of whether or not there could be adequate representation because the subsection refers to whether or not, leaving out some words, "the party can only be adequately represented by counsel".

PN28

Now, that test, in my submission, has to take into account all of the sort of factors that I have put forward to the Commission in support of this application for leave to appear. Perhaps I should just add one thing, that subsection (c) would also admit to the consideration of those technical legal issues which I referred to in relation to paragraph (b). They are the matters that I wish to put on behalf of the application for leave to appear in this matter, if your Honour pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN30

MR ADDISON: Your Honour, maybe if I start with the question of subsection (c). It is my submission - and I understand Mr Lawrence to be relying on (b) and (c), and it is my submission that Mr Lawrence has not satisfied the requirements of (b) and (c). Specifically, Mr Lawrence addresses the question of alternative representation, and this company is a member of a registered organisation registered with this Commission, and that is the Australian Mines and Metals Association, which do have representation rights in front of the Commission.

PN31

Secondly, he relies on the fact that Mr Ponga is not schooled in these matters. Your Honour, this very application, when it came on in Hobart last week, Mr Ponga was indeed the representative of the company that sought to represent the company. One can only treat that submission in terms of not being able with some scepticism given the fact that he was the person who turned up to represent the company and indeed in the question of three opponents ranged against the applicant, well, the same was true in Hobart last week also, your Honour, and Mr Ponga was comfortable enough to appear as a representative of the company with the full knowledge that the application was brought against the CEPU, the AMWU and the AWU in exactly the same way as it is today.

PN32

So, your Honour, we say in terms of subsection (c) that clearly the company has demonstrated its ability and it is a member of an employer association in any event and could well be represented. With regard to subsection (b), your Honour, Mr Lawrence has put forward a proposition that because this job, if you like, is in the national interest, I guess is what he was saying, and is important to the Tasmanian economy, he ought to be allowed to intervene. Well, with respect, your Honour, I don't believe that that is the nature of subsection (b) of section 42. It needs to relate to the application, having regard to the subject matter of the proceedings, and these proceedings are a 127.

PN33

Your Honour, it doesn't matter, in my submission, whether the job that is associated with the 127 proceeding is worth two bob or $2 billion. The subject matter of the proceedings are the seeking of an order pursuant to section 127 and Mr Lawrence would need to demonstrate that there is something special in terms of that to qualify or to fall under subsection (b) of section 42, in my submission. I just want to touch on a few things that were said and I really don't want to go to a merits issue but I was in contact with the AMWU representative who represented the AMWU in Hobart in front of Deputy President Leary prior to the hearing and had some discussions with Mr Cooper, who was representing the AMWU.

PN34

I then had further talks with Mr Cooper after the proceedings at about 7 o'clock that evening. Mr Cooper told me what had occurred and there was no mention of this direction or so-called direction subject to the letter that was written to the unions. Mr Warren was in Hobart yesterday and had discussions with Mr Cooper and it was put to Mr Cooper was such a direction ever issued and the answer from Mr Cooper is no. We are very concerned with regard to the allegation that is raised by Mr Lawrence that the unions are somehow in breach of some direction of Deputy President Leary because to the best of our knowledge none was ever issued.

PN35

THE SENIOR DEPUTY PRESIDENT: Well, I don't think it was suggested that a direction at any stage was issued in those terms and, secondly, I don't think it was ever suggested, insofar as it might be said to have been issued, that it was issued to the or against the unions.

PN36

MR ADDISON: That is the way it is couched in the letter, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, is it? My understanding was it was put that the company had been directed to ascertain or to write a letter. It may be different but I understood that was the way it was put; that was all.

PN38

MR ADDISON: The letter reads, your Honour, "The Commission requests", etcetera, etcetera. Now, that is somewhat different from the company has been asked by the Commission to find out. It is a clear proposition that the Commission as then constituted, which was Deputy President Leary, has asked us to do certain things. Our inquiries lead us to the view that that was never the Commission's request. So we just want that on the record clearly. Mr Lawrence makes at least a partial allegation that we are not complying with Commission requests. I want it clearly on the record that that is not the case.

PN39

Your Honour, also in terms of that issue, whilst I just want it on the record for clarity, in my submission with regard to this application it makes no difference anyway. Mr Lawrence's submission was that that was linked to the section 170MD(6) application, in any event, and would have absolutely no bearing on the matter in front of the Commission today, which is the 127 application. So in terms of its application to today's matters, we say it is completely irrelevant. In terms of subsection (b), your Honour, we would say that this is the same as any other section 127 that comes before the Commission. Companies regularly come here and are represented by the AIG or Mines and Metals or whoever and prosecute 127s.

PN40

There is no requirement under the Act that counsel be present to prosecute a 127. The Act makes it clear that it has to be special. We say there is nothing special about this particular application. It is a run of the mill 127 application, absolutely nothing special. The Act then says as a failsafe, well, if you are not a member of an association, if the Commission agrees, then you can be represented by counsel. In my submission, that is what it means. It doesn't say you can just rock up here and have automatic entry. We say there is no justification under subsection (b) or (c) and that leave should be not granted. If Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Angus.

PN42

MS ANGUS: Mr Addison is right, your Honour. There are no special circumstances in these proceedings. We know increasingly that 127 applications are becoming routine in the Commission and that there is no automatic right for either party to have counsel appear on their behalf. This is particularly the case in relation to this matter for the following reasons: The key jurisdictional precondition that has got to be made out for a 127 order before any discretion of the Commission is exercised is whether or not there is industrial action happening or if it is threatened. In this case there is no industrial action.

PN43

Straight up front we can tell you there is no industrial action nor is there any threat of industrial action. So the question of whether or not that jurisdictional precondition is made is essentially one of fact. There is no complicated legal argument that we are going to put to you about why there is no industrial action happening. There is no complex legal precedents that need to be run here. It is a matter of fact whether or not those jurisdictional preconditions have been made out, and they haven't been; that is whether or not that argument can be run is not a matter that requires complex legal argument. So, for that first reason, there is no special circumstances in this matter.

PN44

Secondly - and actually, just on that line, I support Mr Addison's comment. We have received nothing from the Commission other than a letter from the company requesting information to clarify an agreement. We are not in the habit of disobeying Commission directions and it is certainly not our view that such a direction has been issued. I just make that point for the record. In terms of - given absence of agreement about the presence of counsel, given our argument that, in fact, there are no special circumstances because the very nature, the foundation, of the application, the application itself is without foundation because there is no industrial action and that is a matter of fact; that is not a matter of law, your Honour.

PN45

Thirdly, there is ample evidence that, in fact, the company itself can adequately represent itself in this application. As has been pointed out by Mr Addison, Mr Ponga ran the arguments in the Hobart Commission. He prepared and signed the application and outlined the grounds for the application and is well-experienced in industrial relations. Likewise, Mr de Franck and himself did the preparatory industrial relations work for the King Steel Project, which is a major construction project that ultimately didn't proceed in Western Australia to the tune of $3 billion, roughly, of planned capital.

PN46

These are highly experienced industrial relations people and, as has also been pointed out, they are also members of the Australian Mines and Metals, which played an active role in negotiating the agreement that they struck with the Tasmanian branch. For those reasons, that is that the team itself is experienced, that they are a member of an industrial association which operates in this Commission and could have been used to run their argument, and also for the fact that there are no special circumstances, given the key question that this application will turn on, ie, whether or not there is industrial action, is a matter of fact, not a matter of complex law - for those reasons we would argue also that there should not be leave granted for the appearance of counsel.

PN47

THE SENIOR DEPUTY PRESIDENT: Mr Mooney.

PN48

MR MOONEY: Yes, your Honour. I won't be as long as the others and I will just support the submission both of the AMWU and the AWU. If the Commission pleases.

PN49

THE SENIOR DEPUTY PRESIDENT: Mr Lawrence.

[3.18pm]

PN50

MR LAWRENCE: Taking the points in turn, your Honour. My instructions are that Mermaid Labour and Management Proprietary Limited is not a member of Australian Mines and Metals. There is a company known as Mermaid Marine which is associated with the company which is a member of Australian Mines and Metals. Australian Mines and Metals, I am instructed, was not involved in the negotiations for a certified agreement in Tasmania and in my submission it is just not relevant to the consideration of these matters that this company is a member, as it is alleged, of Australian Mines and Metals. That doesn't enter into the matter but, more importantly, as I have indicated, this company is not - on my instructions - this company is not a member of Australian Mines and Metals.

PN51

The second matter concerns the request that is referred to. The passage that I have read out in the letter, standard letter, your Honour, is "The Commission request that you clearly identify", etcetera. And my instructions are that this matter arose out of discussions that were not on the transcript and my instructions are that her Honour asked the Tasmanian union officials to go back to their Victorian counterparts to inquire of these matters and the Tasmanian union officials said that they weren't prepared to do that. And it was as a result of that that the request was made by the company in those terms.

PN52

But in any event, whether it be a Commission request or not, your Honour, it is a legitimate question to ask when there is a threat of industrial action and there has been industrial action to find out on what basis that has occurred and is threatened. And your Honour may have seen from the file that there are three notices initiating industrial action - sorry, giving notice of a bargaining period and two of them are in terms that do not claim that it is in respect of the then current work. One does not address that particular question.

PN53

So there was an issue there and it is a legitimate question to ask, both in the context of proceedings within the Commission and independently of that, and the evidence will be given in due course to the effect that prior to the matter coming before her Honour there was agitation in respect of the industrial action taking place and subsequently, as I said before, it was said on behalf of at least two of the unions that it was in respect of the then current - that is the pipeline work. So it is a legitimate question.

PN54

Mr Addison said: Well, that matter is irrelevant to the section 127 because it was raised in respect of the section 170MD(6), and he said that I had put that to the Commission earlier today. Well, I don't think I did. I certainly didn't intend to. My point was quite the opposite that the question was being asked in order to find out on what basis they were taking, or for what purpose the unions were taking industrial action, and certainly in that respect had nothing to do with section 170MD(6).

PN55

The fourth point is a matter that arises out of Ms Angus submissions and she said to the Commission: Well, these matters, these section 127 matters are becoming routine. In my submission that really proves the point here. They are routine for certain people, they are routine for industrial officers who regularly come here, they are routine for the people who are appearing for the unions in this matter, but they are not routine for the people who come along like the representatives of my client.

PN56

It is not relevant that Mr Ponga was in the Commission in Hobart. It is clear that this is a matter which he has no experience and expertise in and it is routine for the people who are opposed and that is a circumstance which can be taken into account. The second point arising out of the submissions of Ms Angus is this. She said: Well, we don't even get to these questions of law because there is no threat of industrial action. There isn't a threat of industrial action, she said. Now, I don't know if that is a common position of all of the unions but if it is a common position I will precede it - unless I am interrupted and told it is not - I will proceed on the basis that it is a common position of all of the unions that there is no threat of industrial action.

PN57

Well, if there is no threat of industrial action, then if they give an undertaking to that effect to the Commission that there is no threat of industrial action, then the matter doesn't have to proceed to determination today. Because as far as my client is concerned there is a threat of industrial action and if it is wrong in that, then it doesn't need substantial evidence and debate in a formal proceeding before Commission, it can be resolved at least for the time being on the basis that the union say there is no threat of industrial action.

PN58

We will hold them to their word. We will abide by it. We will act in accordance with that. And if they want to change their mind, if they want to engage in industrial action, well, they can give the company notice and then we can proceed on the basis that industrial action is threatened. And on that basis the Commission can then deal with any questions that might arise including any argument that the unions might put forward that because of some technical aspect the terms of section 170MN do not apply. Now, they are the only matters I wish to say in reply, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. In relation to the application for leave insofar as it is pursued under section 42, subsection (3)(b), I am of the view that this is one of those borderline cases where it is distinctly possible that questions of law and fact could well be intermingled and for that reason I am prepared to allow leave to be granted to Mr Lawrence to appear on behalf of the applicant in this matter. It therefore doesn't require me to make a decision in relation to the application made under subsection (3)(c) but I would indicate that on the basis of what has been put to me I would not have been satisfied that the applicant in this proceeding could not have been adequately represented other than by counsel, solicitor or agent. But as I have decided to grant leave under paragraph (b) I don't need to take that matter any further.

PN60

MR LAWRENCE: If your Honour pleases.

PN61

THE SENIOR DEPUTY PRESIDENT: Mr Lawrence.

PN62

MR LAWRENCE: Your Honour, there is the threshold issue that I referred to just a moment ago in reply.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, I indicated that bit to you at the outset too that I assumed that you would be seeking to establish that there was some industrial action threatened or pending. Are you saying that if the unions are prepared - I know you put it on the basis of an undertaking to indicate to me that there is no action taking place or threatened, that you don't perceive the need to pursue the section 127 application at this point in time.

PN64

MR LAWRENCE: It loses the urgency, your Honour. The - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Well, does it lose its urgency or does it lose its jurisdictional basis?

PN66

MR LAWRENCE: Well, it is, I suppose, a nice point, your Honour. Obviously - - -

PN67

THE SENIOR DEPUTY PRESIDENT: I would have to be satisfied there is an action happening, threatened, impending or probable before I can proceed to make any order and that would be the case, wouldn't it?

PN68

MR LAWRENCE: Yes. Your Honour, the position is this, if I could just briefly - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Before you do. Can I ask you, there appears on the file a letter from your client company together with what is described as a renewed application under section 127. It appears to be what might also be argued to be an amended application. Was that provided to the unions? It appears to have been sent the day after the proceedings before Deputy President Leary.

PN70

MR LAWRENCE: I am just instructed that it hasn't been forwarded to the unions. It went to the Commission. It is just - and I have got spare copies - I have at least one copy.

PN71

THE SENIOR DEPUTY PRESIDENT: We can deal with that in due course but - - -

PN72

MR LAWRENCE: As I am instructed, your Honour, the unions had complained about the formal adequacy of the first matter and this one followed - well, it followed to the Commission. I have only got one spare copy which I have passed to the other end of the Bar table, your Honour, but the covering letter is dated 28 February. It is to Deputy President Leary, and the document is described as the renewed application under section 127(2), and the comment is:

PN73

We believe the application is more explicit and appropriate in the circumstances.

PN74

And there are some changes to the orders which are sought, and there are a few extra grounds added, your Honour. Paragraphs 9, 10 and 11 are added, but as I understand it this was at least in part the product of some discussion in the Commission. Whether it was foreshadowed in the Commission or not, I don't know.

PN75

THE SENIOR DEPUTY PRESIDENT: What do you say is the industrial action that is either occurring, threatened, impending or probable?

PN76

MR LAWRENCE: Stop-work meetings, your Honour. Now, if I just say this as far as the past action is concerned, there were - - -

PN77

THE SENIOR DEPUTY PRESIDENT: There is no mention of stop-work meetings, is there, in the grounds?

PN78

MR LAWRENCE: That is correct, your Honour. It is obviously a document drafted by a person who doesn't deal with these as routine matters. I am instructed that on 12, 14 and 15 February, there were stop-work meetings that were two and a half hours each. I am also instructed that last week there were two other stop-work meetings. The two stop-work meetings that occurred last week occurred during poor weather, and it was down-time because of weather, but that was not the case with the earlier stop-work meetings.

PN79

Mr Ponga was involved in discussions with delegates and union members during that week which included 12, 14 and 15 February, which concern the claims that were being pressed by the unions representing the construction crew, and demands were being made in relation to the mechanics' rate of pay, the casual loading, and the cost of air transport from the capital city nearest to the worker's home. Now, those three matters are clearly matters which are encompassed by either specific provisions of the agreement - the certified agreement - or are excluded by the no-extra-claims provision.

PN80

My instructions are there are no special circumstances by way of a reservation of some matters which would lead to a similar conclusion to that that was concluded in the M-West case. So what was agitated from that week starting 12 February were issues that were clearly at odds with the terms of the certified agreement, and my instructions are that they were the matters that were the subject of those meetings last week, and other discussions involving Mr Ponga.

PN81

My instructions are that, although no advice has been received at this stage about a specific proposal to stop work or to engage in some other industrial action, Mr Ponga has been advised that the unions will pursue industrial action as and when required. So the threat is there. It is not simply a mere attempt to reopen the discussions - a request to reopen - but it is an attempt to impose pressure on the Company to reopen the certified agreement and to bring about some variation to it.

PN82

Now, that is on one side, that is on the Company's view of the matters. We have got put forward on behalf of the unions today - on behalf of one union and apparently supported by the others - that there is no threat of industrial action. Now, in my submission, what can happen here in those circumstances is this, that the Commission ask the unions the question similar to that which was set out in those letters, that is: are you seeking to reopen or re-agitate a matter that is in the certified agreement in so far as it concerns the Tasmanian pipeline project, or are you trying to negotiate some other matter? That is the first question.

PN83

And the second question is: are you threatening to take any industrial action, or do you propose to take any industrial action in respect of one or more of those matters? If the answer to the second question is: no, we don't intend to take any industrial action, then we would ask the Commission to express a view about the desirability, or in particular the undesirability of taking industrial action, or threatening industrial action, in respect of matters which are covered by a certified agreement that is within its nominal term.

PN84

Now, we would ask the Commission to take that third step because this is a matter where the views expressed by the Commission can be useful in resolving industrial disputation or the threat of industrial disputation, or removing a grievance, and it would be appropriate in these circumstances. The fourth matter which I would raise with the Commission is that, if the unions are prepared to give an undertaking that they won't engage in industrial action in relation to the matters that are covered by the certified agreement in so far as the pipeline is concerned, which I interpolate are all the terms and conditions of employment, then the matter could be adjourned to a date to be fixed and we would not need to, in those circumstances, press the argument that we say is available, that there has been a threat of industrial disputation.

PN85

Now, there may be some question about whether the union should be required to give an undertaking, and perhaps the unions would baulk at that, but if they are at least prepared to indicate that they will notify the Company of any change in their position, then that would be a sufficient way of providing the Company with the notice that it should seek further access to the Commission, or alternatively seek the good offices of the Commission in order to resolve the matter. I don't think I can put any more at this stage, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN87

MR ADDISON: Yes, thanks, your Honour. Your Honour, it is obvious this job is happening in Bass Strait because it is quite clearly a fishing expedition as far as Mr Lawrence is concerned. Your Honour, Mr Lawrence comes here, Mr Lawrence has had a document served on the unions which he now says is not the correct document. Mr Lawrence comes with a new document that nobody has seen. Mr Lawrence then relies on what he says are activities which have occurred which are not within the documentation at all. I certainly have no instructions with regard to those allegations that Mr Lawrence raises.

PN88

Mr Lawrence then goes on to talk about the M-West decision. I can tell your Honour, I am intimately familiar with the M-West decision, given the fact that I went through it from the beginning stages of the 127 to the decision of her Honour, Kenny J, with regard to it, and I know what the rules within that decision are, and I have discussed that with my comrades at this end of the Bar table, as you would expect, your Honour.

PN89

Mr Lawrence seeks an undertaking from the unions. Well, your Honour, I can tell you this: there is no industrial action happening. There is a bargaining period lodged. We seek to have discussions with the Company with regard to certain matters. We will have those discussions. We will respect the Act, and we will respect the processes of the Act in the course of those discussions and whatever else happens afterwards. We do not intend to take unprotected or illegitimate industrial action.

PN90

The only catalyst for action that currently exists is the Company's refusal to allow reasonable access to our members. The unions have made reasonable requests and given 24 hours notice for access to the workers. The Company has refused to do that. The union has sought to either go offshore and talk to the people or bring the people onshore to talk to the unions. The Company have refused to do that. Now, to put our bona fides on the table, your Honour, we haven't taken industrial action over that. Indeed, we have lodged the section 99 application in this Commission and asked the Commission to assist us to deal with the matter.

PN91

Now, I think that is a demonstration of our bona fides. Your Honour, that is as far as I am prepared to go with regard to that matter, but I would put this: this matter cannot proceed today on the basis of procedural fairness. If Mr Lawrence wishes to proceed with this application, it is incumbent upon him to properly present the unions with the case that the unions are going to have to make. He hasn't done that. He comes here with a scattergun of allegations this afternoon, and then says he intends to run if we don't give him an undertaking.

PN92

Your Honour, if Mr Lawrence wishes to pursue this application, the AMWU would seek that the matter be adjourned immediately, that Mr Lawrence file a proper application, that Mr Lawrence file the true grounds on which his application is made, that Mr Lawrence gives us witness statements of the witnesses he intends to call with regard to proving that industrial action is either happening, threatened, impending or probable, and I don't think that is an unreasonable proposition for me to put forward, your Honour. So, your Honour, that is my submission with regard to the issues Mr Lawrence raises.

PN93

THE SENIOR DEPUTY PRESIDENT: Mr Addison, do I understand that you are saying on behalf of the AMWU, there is no industrial action taking place, there is at this point in time no industrial action threatened, impending or probable?

PN94

MR ADDISON: That is correct, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Ms Angus.

[3.45pm]

PN96

MS ANGUS: Likewise, your Honour, on behalf of the AWU I can inform the Commission that at this point in time also there is no industrial action happening, threatened, probable or pending, and for that reason the whole basis of the 127 application is without foundation. There is no jurisdiction, and it should lapse immediately. It is an alarmist application. The basis for the Company's argument, quite simply, is that we have sent notices to the Company initiating a bargaining period.

PN97

Their argument, presumably, is that that constitutes the threat of industrial action, and therefore that all conceivable or hypothetical, possible industrial action that may or may not occur pursuant to that bargaining notice, or indeed not pursuant to that bargaining notice, should be banned by this Commission. That is essentially the nature of their application. Even in its revised form - as I have had a chance to briefly scan now - in its revised form it is an attempt to ban all conceivable industrial action that could occur.

PN98

Now, we know in terms of past decisions of this Commission that that is not the purpose of a 127 application. It is not to ban the whole field of potential conceivable industrial action. 127 orders, where they are appropriate, are about addressing precise, clearly defined industrial action with very confined parameters. That is not the application that they are pursuing here, and it is not consistent with previous decisions of this Commission.

PN99

Likewise, in terms of the bargaining notice that we have lodged, we have done so strictly in accordance with the Act, in accordance with 170MR. We have initiated a bargaining period, we are the initiating party, we are seeking to reach an agreement with the Company. We have spelt out in our bargaining notice that we are seeking to reach an agreement with the Company in relation to that part of the business that is not covered by an enterprise agreement. That is our position.

PN100

The particulars identified at 170LJ have been itemised, and there has been no question, I think it is probably fair to say, that there is anything defective about those bargaining notices. The Company's essential argument really is that the serving of such notices constitutes some sort of declaration of war on behalf of the Company, and that therefore is a threat of industrial action, and any conceivable industrial action that may be taken should be banned by this Commission.

PN101

That is, quite simply from our perspective, without merit. It is contrary to the whole schema of the Act, which is that parties, as long as they follow certain procedural steps, and are granted certain sort of statutory rights, are in a position to negotiate outcomes directly between those parties. In terms of the application that is before you, there is quite simply no basis for that application.

PN102

The jurisdiction has not been attracted and, your Honour, quite frankly I think the Company - and Mr Lawrence on behalf of the Company - is struggling to identify or to point to instances of what they say is industrial action in order to attract jurisdiction of this Commission. They have referred to two stop-work meetings. Given that none of this was actually outlined in the application that has been served on the union, I am running on whispered instructions at this stage, but I do want to repeat them to you, your Honour.

PN103

Last Wednesday and Thursday at 1 am on a change of shift, one of our officials had discussions with members as the change of shift was occurring. The boat was anchored, it was inclement weather, it was heavily raining and the boat could just not move. So there was no disruption of work, there was no industrial action, and it has actually been pointed out in fact the reason why people weren't actually getting on the boat and the next shift wasn't commencing work was nothing to do with our discussions with members, it was simply the nature of inclement weather and an inability to start work.

PN104

I am really not in a position to say anything about the 12th, 14th and 15th that has been referred to, or asserted, from the other end of the table. I understand from limited knowledge that in fact there were some short meetings conducted, without the knowledge of our union, directly between employees with management present to deal with some industrial, human resource management issues directly. Whether or not they constituted industrial action, given that management was present at those meetings, is another question.

PN105

None of this is subject to evidence that has been brought, and on that basis, your Honour, our view, given that the AWUs position is that there is no industrial action, there is no threat to take industrial action, any sort of negotiations that we now wish to pursue with the Company will be done in strict accordance with the terms of the Act. For all those reasons, your Honour, this application is quite simply without basis, without jurisdiction, and should not be pursued, it should lapse. If it please the Commission.

PN106

THE SENIOR DEPUTY PRESIDENT: Mr Mooney.

PN107

MR MOONEY: Your Honour, in relation to CEPU members, there is no industrial action happening or is threatened, or impending or probable. If the CEPU has issued a bargaining period with Mermaid Labour and Management, it is seeking discussions with that Company in relation to an agreement to cover our members, and if we are to take any industrial action it will be in strict accordance with the Act.

PN108

In relation to the application made by the applicant today, we say it should lapse, and you should throw it out today because there are quite clearly no grounds to prove that this union has any action happening, threatened, impending or probable. I will leave you with that, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, what is your position now?

PN110

MR LAWRENCE: Just a couple of points, your Honour. First of all, as far as the case on behalf of the Company is concerned, it is not the mere sending of the bargaining notices. That was obviously the stimulus for concern, but it was the industrial action that I referred to earlier that lay at the base of the Company's actions in making a section 127 application. That is all I think I need to say about that, save to perhaps add this, that I do accept that those particular matters are not referred to in the grounds of the application. But as I said before, the people who instruct me from the Company don't deal with these matters as a matter of routine.

PN111

I think the Company might be comforted to some extent by the fact that what has been put on behalf of the AWU is that the notice that was served is not in respect of the current work, and that particular matter wasn't adverted to, that is the terms of the notice wasn't adverted to by the other two representatives, but as I understand it they were saying substantially the same thing, that is that the unions are not pursuing industrial action, there is no threatened etcetera industrial action.

PN112

In the circumstances, your Honour, those steps that I referred to before would be appropriate. I know my friend, Mr Addison, said that I was demanding an undertaking, or I was wanting the unions to give an undertaking. I didn't put an absolute position, but I indicated that they may have some reluctance to give undertaking. But there are other ways of dealing with the matter, so that if the issues are agitated, the issues that we fear will be agitated are agitated, and there is pending industrial action, then we think it would be appropriate for the unions to notify of a change in the positions that they have adopted in the Commission today.

PN113

Finally, your Honour, this is not a matter where there is a basis for dismissing the claim today. That was the position put on behalf of the AWU, or in substance put of the AWU. Mr Addison put a different position, that is that the matter should be adjourned in order that notice be given or a document be served and some other steps be taken. In my submission, that would be inappropriate to do that, and the most that the Commission ought to countenance today would be adjournment of this matter to a date to be fixed, that is an adjournment without any directions at this stage.

PN114

If it becomes necessary or desirable for directions to be given, then they could be given. And it also follows from what I said that it would be my submission that it is inappropriate for the matters to be summarily dismissed today. Your Honour, just two other things. One is that I haven't made an application to formally amend the section 127 application in accordance with that further document that was handed to you. I don't make that application at this stage because it may be unnecessary, but also I would like the opportunity of giving some further thought to it, and if the matter is to proceed any further it might be better to have an amended application in a different form.

PN115

The second additional matter I wanted to refer to is that application under section 127MD(6) that is not listed before your Honour, that was a matter of course before her Honour, and the Company is wishing to pursue that, and whether or not that gets caught up in, or whether or not it would be appropriate to have that caught up with any further section 127 application would be a matter to be considered at a later stage. We may make an application at a later stage for it to come on before your Honour in connection with a section 127. But I simply raise that and say no more about it. Would your Honour pardon me for just a moment? I am just reminded about the right-of-entry dispute. Now, Mr Addison - - -

PN116

THE SENIOR DEPUTY PRESIDENT: Well, that hasn't been called on yet.

PN117

MR LAWRENCE: That is right. Mr Addison referred to it, and he was foreshadowing something to be called on later in the day, I suppose. I don't say anything about that because I have obviously been granted leave to appear in the 127 matter, so I - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Well, it is something that can be addressed when the matter is called on in any event.

PN119

MR LAWRENCE: Yes. But they are all the matters I would like to put to the Commission. If the Commission pleases.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, on the basis of what has been put to me today in relation to the application that is presently before me, I would indicate that I don't see any grounds for pursuing the hearing of the matter today. Might I just say this, however, that if parties to an agreement seek to - to use Mr Lawrence's term - re-agitate matters that are covered by an agreement, on its face I do not see anything which prevents that from occurring to the extent that matters can be raised and discussed.

PN121

In so far as it might involve the taking of some form of industrial action, that might indeed be another matter. There is in this agreement, as I apprehend it, a disputes settling procedure, and indeed it is a procedure that enables issues to be resolved in a particular way, and "issues" is actually defined as including: "questions, grievances, complaints, disputes or difficulties". So there is a procedure which could be followed if there are issues as defined.

PN122

In relation to the matter though that is strictly before me now, I take note that each of the unions concerned has indicated to me that there is no industrial action happening, nor is there any threatened, impending or probable. I also take into account the fact that what is purported to be a renewed application, and which I probably would have been prepared to treat as an amended application, had not been provided to the union parties, and indeed there are grounds now said to support the application which were not disclosed in that application.

PN123

Whilst I am not of the view that procedural fairness necessarily requires in a section 127 application the provision of a detailed outline of the case in support of the application, or detailed outlines of evidence being provided to respondents some time before the hearing, it does appear to me that in these circumstances this was one of those situations where the application, or at least the opportunity to the unions to respond to the application, would have needed to be dealt with on another day.

PN124

I am not inclined to dismiss the application. I will however adjourn it to a date to be fixed. I would indicate to the applicant that, should it seek to have the matter relisted, it should do so by lodging and serving an application seeking the specific terms of the order that it wishes to obtain, and setting out in some detail the grounds on which it would seek to rely.

PN125

I would anticipate that that would be served upon the proposed respondent unions prior to any hearing, and I would also suggest that some attention be given to the appropriate description of the respondent unions, because I have some grave doubts as to whether a branch can be a respondent to such an order. In passing, some attention might be given too to the clause of the agreement that refers to the parties in that respect.

PN126

In any event, as I indicated, I intend to adjourn the matter to a date to be fixed. If the applicant does seek to have the matter relisted, it will be relisted at the Commission's earliest convenience, if I can use that as a term not meant to be disrespectful to the parties. The matter is adjourned on that basis.

ADJOURNED INDEFINITELY [4.05pm]