C2003/1723, Transcript of Proceedings [2003] AIRCTrans 1555 (28 April 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10328
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2003/1723

RESTRICTIONS IN TORT

Notice under section 166A of the Act by
Simsmetal Limited re action against The
Australian Workers' Union and Another
concerning industrial action at Simsmetal
Limited sites in Brooklyn, Broadmeadows,
Noble Park and North Geelong

MELBOURNE

8.48 AM, THURSDAY, 10 APRIL 2003

PN1

MR N. OGILVIE: I seek leave to appear on behalf of the notifier in this matter, Simsmetal Limited.

PN2

MS Z. ANGUS: I appear on behalf of the Australian Workers' Union and with me is MR J. MASTRANDONAKIS, and I would be keen to hear the grounds for counsel appearing.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Ogilvie, why should I grant you leave to appear?

PN4

MR OGILVIE: Your Honour, leave to appear is sought pursuant to section 42, paragraph 3(b) of the Act. Your Honour, it is submitted that the circumstances of this case are special circumstances in which leave ought to be granted - provided to the applicants for legal representation to appear. The issue of certificates under section 166A have been the subject of decision of a Full Bench of the technical application of the requirements under the Act and, most importantly, this matter is, in a sense, a precursor to action being taken by the notifier in the Supreme Court.

PN5

We don't see any prejudice and it is submitted there is no prejudice to the applicant in my appearing or legal representation being granted in these circumstances. The AWU has been on notice at least since the notice was filed that Freehills acted for the notifier in this case, which was Monday morning, and it can't be said that there was not enough time to brief legal counsel to represent the Australian Workers' Union in that case.

PN6

We also say that the position of the Commission in this matter, really, is to attempt to conciliate and try and stop the conduct within the 72-hour period. In the event that conciliation is necessary I won't be participating in that process, merely in putting the company's position in relation to the technical aspects of section 166A only and, if necessary, leading evidence of the relevant conduct identified in the notice. If the Commission pleases.

PN7

THE SENIOR DEPUTY PRESIDENT: Ms Angus.

PN8

MS ANGUS: Your Honour, the application is - the point was made that it is a technical part of the Act. The application before you is technical in the extreme. At its most simple the argument that has been put in the application itself is that because of a typographical error, the omission of the word "Proprietary", the notices that have been served by the AWU are faulty and therefore the conduct - the industrial action is not protected and therefore it can be subject to proceedings in court. That is, in our view, in a sense that is precisely the fabrication of a special circumstance in order to legitimise the presence of lawyers in these proceedings.

PN9

166A applications, despite the fact that they are the big guns of the Act, are in fact quite simple. There has got to be some threshold question of whether there is conduct about which there can be an action in tort and then if that can't be conciliated - if the end of the conduct can't be conciliated within a 72-hour period, then a certificate must be issued. The question of whether or not there is conduct is something that the AIG, an organisation that the company is a member of, could quite simply run. That is a fairly straightforward argument that can be presented to the Commission.

PN10

The fine technicalities of whether or not conduct is or isn't tortious is a matter that lawyers can wrangle about in a different jurisdiction. There is a straightforward threshold question that can be dealt with by, I would argue, the Australian Industry Group and then an obligation on the Commission to conciliate, all of which can be done without the involvement of lawyers. And in our submission the appearance of lawyers has, itself, served to overly turn this matter into a technical nonsense game of the fine points of the name of a company. So, in our submission, there aren't special circumstances which would warrant the involvement of counsel.

PN11

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Ogilvie.

PN12

MR OGILVIE: The only thing I would add, your Honour, is I am not sure - it is just to make it quite clear. The primary ground, and I think it has almost been pointed out, the primary ground on which the notifier relies in relation to conduct is the picketing conduct that is occurring on what was the four sites and now at the primary site in Brooklyn. Whether or not the other conduct specified in the notice, that is, the industrial action, the strike action as such, falls within the realms of protected action or not protected action, is not really a matter for this Commission to determine and it is not a matter that I will be attempting to argue in this Commission.

PN13

I suppose that, in a sense, assists Ms Angus' arguments but we say it is important for the company that the other aspects of section 166A of the requirements of the certificate to be issued to be properly put on behalf of the company and the specifics of the conduct at least to be identified at an early stage - part of these proceedings. The only other point, Commissioner, is that - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Your Honour.

PN15

MR OGILVIE: Sorry, your Honour. I apologise, your Honour. The only other point, your Honour, is that if this process is - my client is really concerned about the time that has elapsed since the notice has been filed, which is 9.30 - which is almost 10 o'clock on Monday morning. My client doesn't want to get into a dispute about representation or non-representation, they are really looking for the conduct to be stopped. If that means conciliation that won't be a process I will be participating in. The only assistance that we will be providing is ensuring that the proceedings progress speedily and that my client is properly represented in relation to the technical aspects of the case. If the matter is to proceed into conciliation I won't be participating in that part of the proceedings.

PN16

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Yes, Mr Ogilvie.

PN17

MR OGILVIE: Your Honour, this is an application pursuant to subsection 166A, subsection (3), which is written notice has been given to the Commission of the intention of the notifier to bring action in tort in respect of conduct to which subsection 166A(1) applies. That is, conduct in contemplation or, further, to a claim that is the subject of an industrial dispute. The application is brought in respect of conduct that has been taken at - at this stage primarily the notifier's Brooklyn site. The conduct which we say is being taken is set out in the notice that was filed with the Commission, however, given the time frame, that notification was filed shortly before 10 am on Monday, 7 April, and obviously conduct has continued - we say conduct has continued since that time.

PN18

We have prepared a witness statement of Mr Gary Dowling who is the Victorian Operations Manager for Simsmetal which sets out and particularises what we say is the conduct. We would hope that it is not necessary to rely upon this statement, that the Commission would be aware of the circumstances. Primarily, what the notifier says is that the picketing conduct is occurring and it continues to occur at the Brooklyn site. If that is denied by the AWU and the other parties named in the notice we intend to call Mr Dowling to give evidence as to that conduct and the continuation of that conduct.

PN19

I understand my friend has only - I have only just provided Ms Angus with the statement this morning because it was only just finalised this morning. So if time is needed to go through that, I appreciate that. If I could just hand up the statement at this stage. The conduct which the notifier says is continuing and is seeking the Commission's assistance in stopping is that relevant conduct which is identified at paragraphs 26 onwards of that statement, your Honour.

PN20

In summary, the notifier operates four sites within Victoria. Those four sites are - the primary site being at Brooklyn where the majority of employees are employed and three other yard sites at Broadmeadows, Noble Park and North Geelong. An ongoing picket has been in place at the Brooklyn site since the morning of 1 April 2003. That picket has been in place on a 24-hour basis and remains in place this morning. There have been other rolling pickets being implemented by employees of Simsmetal who are members of the AWU who are engaged at the Brooklyn site together with officers of the AWU at Brooklyn and at the other three sites, but my instructions are that the pickets at Broadmeadows, Noble Park and Geelong have been lifted.

PN21

My client's primary concern is the ongoing picket that is occurring at the Brooklyn site. In summary, that picket has prevented the entry to an access of all vehicles to that site since 1 April. The conduct being physical obstruction of trucks coming in and intimidation and harassment of drivers who are attempting to enter the site. The statement of Mr Dowling identifies some specific examples of that conduct and then goes on, your Honour, relevantly, at paragraph 62 to indicate the impact of that picket on my client's business.

PN22

You will see at paragraph 66 Mr Dowling describes supply agreements that the notifier has with customers for the supply and purchase of aluminium scrap and at paragraph 64 identifies the picketing at Simsmetal sites, the effect of the stoppage on operations, and that is not the effect of the strike but the effect of the picket itself is costing the company around $60,000 in lost operational revenue per day. The secondary grounds of conduct which the notifier relies on, but not primarily, is there is an issue as to the validity of the notices that were filed and served on my client in relation to protected action being taken at all four sites.

PN23

THE SENIOR DEPUTY PRESIDENT: It is not suggested, is it, that you didn't know that it was being served on?

PN24

MR OGILVIE: I beg your pardon, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: It is not suggested that the company didn't know that it was being served on?

PN26

MR OGILVIE: No, your Honour, but there is at least - we would submit there is at least a question of whether the correct entity had been served and the scope of the certificates that have been served, and such that it would have made it at least difficult to our client to properly anticipate the nature of the action that would take place, given that it has four sites, not just the Brooklyn site which is the primary site. We understand, your Honour, that has, sort of, become the secondary issue because the conduct has taken place and the company has been able to properly respond to that conduct since that time. But, primarily, we are relying on the picketing conduct that has occurred since 1 April at all four sites and at the Brooklyn site.

PN27

Just briefly, your Honour, it is submitted on behalf of the notifier that the Commission is entitled to act upon information provided to it orally and in writing. There is no obligation on the Commission to hear evidence or determine complex legal issues, for example, whether the union is an organisation, whether the organisation has committed a tort, as these are matters for the court to determine in later proceedings. Primarily, speedy conciliation is the essence of the Commission's powers under section 166A and the Commission must immediately issue a certificate if the Commission has not stopped the conduct by the end of the 72 hours after the notice was given.

PN28

The notice was served at approximately 9.30 am on the national office in Victoria of the Australian Workers' Union. In fact the registered national office is at 685 Spencer Street and we served it at 75 Chetwynd Street in North Melbourne which we understood the national office has been relocated to during renovations. And the notice and statements regarding a knowledge of service of the notice was filed with the Commission, according to the Commission's stamp, shortly before 10 o'clock, am, on Monday, 7 April.

PN29

We say that the 72-hour period in which the Commission must attempt to stop the conduct will expire shortly before 10 o'clock this morning. In those circumstances we seek the Commission's assistance at least in conciliation at this stage to try and stop the conduct and if that is unsuccessful, by 10 o'clock, am, at the latest the Commission issue a certificate in accordance with the Act.

PN30

The only other point, your Honour, that I would like to make is that there is no jurisdictional requirement for the Commission to be satisfied as to the existence of conduct prima facie capable of founding action in tort. If there is a manifest intention to bring action in tort in relation to conduct related to industrial dispute and if such conduct does apparently relate to an industrial dispute and might plausibly be the subject of tort action it is not necessary for the Commission to establish even the specifics of the conduct or to make an assessment of the probability of the conduct being actionable.

PN31

We say in those circumstances the Commission has been aware of the circumstances of this case because the matters were before your Honour last Friday under a section 99 notification that was filed by the company. Unfortunately, that section 99 notification was unable to resolve the matters in dispute and the picket remained in place. My clients, then, had further discussions with the representatives from the Australian Workers' Union in order to try to resolve the matter after that dispute notification. Those attempts to resolve the matter were unsuccessful and was left with no other choice but to proceed with the issuing of the notice in an attempt to get the pickets which are causing significant damage to its business. If your Honour pleases.

PN32

THE SENIOR DEPUTY PRESIDENT: Ms Angus.

PN33

MS ANGUS: Your Honour, Mr Ogilvie is correct in the sense that you are not under an obligation to form a judgment about whether or not the union has committed a tort but there is a threshold question that the Commission must be satisfied that there is some conduct in place that an action could be brought in tort. And all you have at this stage is an unsworn statement that we say, very clearly, is contested throughout and it is brought on a flimsy basis in the sense that Mr Dowling was in fact not present around the premises and would not have actually witnessed a number of events that have been suggested.

PN34

But, your Honour, it is not sufficient for the company to say there is a picket and to simply assert that there is a picket and therefore there is - and the words that we use were - "this physical obstruction, intimidation and harassment". That is simply not the case, your Honour. And we would welcome the opportunity to bring evidence to you to establish that that has not been the case. There is not the sort of conduct that the company has alluded to. And I can say, quite clearly, on behalf of the AWU that we are not inducing persons to perform their contracts of employment. We are not conspiring by unlawful means to injure. We are not interfering with the contracts between the notifier and the clients. And we are not interfering with the business of the notifier by unlawful means.

PN35

In our view there is no such conduct in place that attracts an action in tort. So our primary position is that there is no jurisdictional basis for the claim to begin with. Having said that, Mr Ogilvie has pointed out that the Commission is under an obligation and it appears as though the company is open to the possibility of conciliating. And without prejudicing our primary position that there is no conduct we - there is clearly a dispute between the parties and we do have protected industrial action. And we wouldn't be averse to an attempt to conciliate a resolution to that dispute.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, we will adjourn into conciliation.

SHORT ADJOURNMENT [9.06am]

RESUMED [2.57pm]

PN37

MR OGILVIE: Your Honour, I call Gary Dowling, to give evidence.

<GARY JOHN DOWLING, SWORN [2.57pm]

<EXAMINATION-IN-CHIEF BY MR OGILVIE

PN38

MR OGILVIE: Mr Dowling, for the purposes of the transcript, can you please repeat your full name and address?---Gary John Dowling of 44-60 Bulla Road, Brooklyn.

PN39

And have you prepared a witness statement for the purposes of these proceedings?---Yes.

PN40

Have you got a copy of that witness statement in front of you?---Yes.

PN41

Have you had a chance to read through the witness statement?---Yes.

PN42

Is it true and correct?---Yes.

PN43

I seek to tender that witness statement, your Honour.

EXHIBIT #O1 STATEMENT OF G.J. DOWLING

PN44

MR OGILVIE: Can you explain to her Honour what the nature of Simsmetal business is, please, Mr Dowling?---Scrap metal recycling. We purchase scrap metal and process it into a form where it can be sold to steel mills and non-ferrous foundries.

PN45

And what is your position with Simsmetal?---Operations Manager, Victoria.

PN46

And what does that role involve?---Pretty much day to day operation of the business. I do not buy the scrap but once we have bought the stuff, it is my job to get it in there, processed, set up and delivered to wherever it is being sold to.

**** GARY JOHN DOWLING XN MR OGILVIE

PN47

And where are you physically located?---At Brooklyn.

PN48

Can you describe what goes on at the Brooklyn site of Simsmetal, in general terms?---In general terms, we have about 1000 tonnes of steel a day

PN49

come into the yard. We process every day, and about 1000 tonnes a day of steel go out of the yard. And on average, around 100 to 120 tonnes a day of non-ferrous material, copper, brass, aluminium, come into the yard, and over the course of the month, go out of the yard.

PN50

How does that steel and non-ferrous material come into the yard?---Generally in semi-tippers, trucks. The vast bulk of it is semi-tippers and trucks.

PN51

And how does it leave the yard?---Again, the vast bulk of it in semi-tippers and trucks.

PN52

And can you describe to her Honour the set up of the Brooklyn yard? Where in physical terms, do the trucks come into it?---The trucks all went via the front gate, the weighbridge.

PN53

Is there another gate to the yard?---There is.

PN54

Do trucks use that gate to come in and out of the yard?---No.

PN55

What has been occurring at the Brooklyn site, from your observations, since 1 April 2003?---The site has been picketed.

PN56

And when you mean picketed, what is actually happening?---They are refusing to let trucks through the gate.

**** GARY JOHN DOWLING XN MR OGILVIE

PN57

Who is refusing to let trucks through the gate?---The employees.

PN58

And when you say, they are refusing, what are the employees actually doing?---They have placed barriers across the driveway, and when trucks have tried to enter they have said, no, you can't come in, we are picketing the gate.

PN59

What sort of barriers have they placed across the driveway?---At this stage, witches hats. There is a 44 gallon drum with a fire in it, and they place themselves across there.

PN60

How many employees have been involved in that picket approximately?---The vast bulk of the guys that are on strike.

PN61

Which is how many?---Roughly 60, I think.

PN62

Have there been any other people involved in that picket, apart from employees?---Only the union officials.

PN63

When you say the union officials, who are they?---The only ones I can name that I know by name, are Jimmy Mastrandonakis and I have seen Bill Shorten down there. And at least two or three others, but I don't know their names.

PN64

And what is their involvement in the picket been?---I guess the same as the rest of the blokes.

PN65

Which is what?---Stopping trucks from entering our site.

PN66

Are your employees working at the moment?---No.

**** GARY JOHN DOWLING XN MR OGILVIE

PN67

What is the effect of that picket on the business?---It is stopping all scrap coming in to our main operation. It has cost us customers. There has been a number of customers that haven't been able to hang off on bringing scrap in. We have made our best efforts to divert scrap metal and hold our customers off, but there is some that just couldn't wait, and they have taken their business elsewhere. I guess the bottom line is, it is costing us close to $60,000 a day.

PN68

What has been happening - what has happened at other sites, apart from Brooklyn, what has happened at the other sites?---There have been pickets on and off at our other three sites. There has also been peaceful picketing at our other sites. At some points, they have stopped trucks. At other points they have allowed trucks to pass through.

PN69

What do you mean by peaceful picketing?---Well, peaceful picketing is when all they do is stand there and protest and tell people they don't really want them to come in, but they don't stop them altogether. They allow them to pass through.

PN70

And your understanding is, is that what has been - if we go back to Brooklyn, is that peaceful picketing been occurring at Brooklyn?---No.

PN71

So what - have the pickets - did you say - are they still in place at the other sites?---As of today, I do not believe they are. I think they may be at Broadmeadows today.

PN72

Have you been to the Brooklyn site today?---Yes.

PN73

And what did you see at the Brooklyn site today?---The picket is still on.

PN74

And how many people would there be?---As of this morning, there were roughly eight people. Nearly all of the employees were there this afternoon for a mass meeting.

**** GARY JOHN DOWLING XN MR OGILVIE

PN75

Have there been any vehicles - been able to enter the Brooklyn site since 1 April?---Yes, employees and a couple of our smaller customers have come through.

PN76

And could you estimate how many vehicles haven't been able to come through?---The equivalent of about 1000 tonnes a day, of material. I think our average intake since the 1 April on a per day basis, into the Brooklyn yard is not - might be about 3 tonne a day, 1 tonne a day. Next to nothing.

PN77

When you talked about what was happening at the other sites, did you see that picketing occurring at the other sites?---No, I haven't been to the other sites.

PN78

So on what basis have you given evidence that that - there has been picketing at - - -?---On the reports of the respective yard managers.

PN79

And who do those yard managers report to?---Me.

PN80

Can we just quickly go through with her Honour, who are those yard managers?---Ray Cremona runs our Noble Park yard. Bob Nunn runs our Broadmeadows yard. And Peter Baker runs our Geelong yard.

PN81

No further questions, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Ms Angus.

<CROSS-EXAMINATION BY MS ANGUS [3.24pm]

PN83

MS ANGUS: Mr Dowling, are you authorised to receive and send correspondence on behalf of Simsmetal?---I believe that I am.

**** GARY JOHN DOWLING XXN MS ANGUS

PN84

Can I hand you a document? Do you know what that document is, Mr Dowling?---Notice of initiation of bargaining period.

PN85

And have you seen this document before?---Yes.

PN86

Where did you see it?---On the date that it was sent, which is in my statement.

PN87

So you have received this document?---Yes.

PN88

On behalf of Simsmetal? On behalf of the company you work for?---Yes.

PN89

And can you tell me in your own terms what you think this document means?---Precisely what it says.

PN90

Well, can you perhaps explain more fully, because that is perhaps a technical term? What do you think the AWU was doing when it served you this document?---As It says at the top, notice of initiation of bargaining period.

PN91

In relation to who? In relation to - - -?---Well, of that I was actually unsure of at the time, because we had already entered into negotiations and the log of claims on here bore no resemblance whatsoever to the log of claims that have been presented to us by our employees and by the union.

PN92

So you are - - -?---Up to that point in the negotiations.

PN93

So you were concerned about the log of claims, the terms included in this agreement?---I had no concern with this whatsoever when it turned up.

**** GARY JOHN DOWLING XXN MS ANGUS

PN94

You recognise this document?---Yes.

PN95

Right, okay. And can I just point you to on the first page, number 2 down there? When you were sent this document, who did you think this document related to?---The employees at - our current EBA.

PN96

Right. Can I pass you - can I file that?

PN97

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 INITIATION OF BARGAINING PERIOD

PN98

MS ANGUS: Can I hand you another document, Mr Dowling? Can you tell us if you have seen that document before?---Yes, I have.

PN99

What is that document?---As it states, Notice of Intended Industrial Action.

PN100

So can you tell me in your own words, what you understood that document to mean?---Again, I can only reiterate the header, notice of intended industrial action.

PN101

So shall I give you some words then? Does this indicate in your mind that the Union is about to commence industrial action? It is providing you with notice or its intention to take industrial action?---The Union was providing with notice that my employees were going to take industrial action or planned to.

PN102

Right, okay?---Yes, I took it that way.

**** GARY JOHN DOWLING XXN MS ANGUS

PN103

And that is clear to you?---Yes.

PN104

Can I hand you one final document. Actually before I do, can I just ask you, Mr Dowling, if after receiving this document, which I will, while I am on my feet, your Honour, I will tender that one was well.

PN105

THE SENIOR DEPUTY PRESIDENT: This one is double-sided.

PN106

MS ANGUS: Yes.

PN107

THE SENIOR DEPUTY PRESIDENT: Is it meant to be two pages?

PN108

MS ANGUS: It is double-sided. You received both of those? You recognise both of those documents?---I am not sure about the second one, on the back.

PN109

THE SENIOR DEPUTY PRESIDENT: Which one is headed what?---Notice of the giving of authorisation to engage in industrial action. I might actually have to go and check my own records to check if I actually received that.

PN110

MS ANGUS: Well, I can make submissions on that matter, your Honour. It is - there is no - it is not a requirement that that document is actually serve on him anyway. It was in fact served on him, and I can provide evidence to the Commission of that. But that is neither here nor there in terms of these proceedings.

PN111

Do you recall having a phone conversation after receiving the first of those two pages? That is the notice of intention to take industrial action, with the organiser at the site, Mr Mastrandonakis about that industrial action, about that notice?---I don't know. Again, I will have to check through my witness statement.

**** GARY JOHN DOWLING XXN MS ANGUS

PN112

All right, that is neither here nor there.

EXHIBIT #A2 NOTICE OF INTENDED INDUSTRIAL ACTION AND REVERSE SIDE BEING NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION

PN113

MS ANGUS: And finally, Mr Dowling, do you recognise that last one?---Yes, I remember getting this one.

PN114

That is the final letter, I think?---?---I don't - okay, that is a copy of the fax transmittal form from your end.

PN115

There is proof that you got it, but there is not dispute, is there, that you received - - -?---This one, no.

PN116

Right, okay. So you have received all three of those letters?---The only one I am not entirely sure of was the second page of the second document.

PN117

All right, in which case I will remove - my question doesn't relate to that document?---Okay.

PN118

Is it the case that you received the initiation of bargaining period?---Yes.

PN119

Is it the case that you received the notice of intention to take industrial action?---Yes.

PN120

And is it the case that you received a letter clarifying the terms in both of those prior two documents?---Yes.

**** GARY JOHN DOWLING XXN MS ANGUS

PN121

That is correct. So do you consider, on behalf of Simsmetal that you have been notified of our desire to reach an agreement with you and our desire to take industrial action against you?---Yes.

PN122

Thank you. I will tender that last one too.

EXHIBIT #A3 LETTER TO MR DOWLING DATED 04/04/2003 FROM AWU

PN123

MS ANGUS: Mr Dowling, the evidence you have given in your witness statement is that there is no picket line at Broadmeadows?---There has been a picket line at Broadmeadows on and off.

PN124

Well, can I read you your statement and I would remind you that you are under oath?---Mm.

PN125

This is a sworn statement. Your statement is on page 8 and the final paragraph there, paragraph 50:

PN126

The picket at Broadmeadows has now been lifted.

PN127

?---Yes, that is what it says.

PN128

Right. So you are not thinking of changing your statement at this stage, are you?---No, I am not. I would - - -

PN129

All right, and the evidence that you have provided in your statement, Mr Dowling, is that there is no picket at Noble Park?---At this stage I believe there is not.

**** GARY JOHN DOWLING XXN MS ANGUS

PN130

Thank you, and it is also your evidence that there is no picket at the Geelong site?---At this time, no.

PN131

Correct. It is also your evidence that in terms of - and I am not sure how you pronounce it, is it Calleja Transport?---Mm.

PN132

Calleja Transport, there is no picket at Calleja Transport?---As far as I am aware, no.

PN133

So your evidence that you have provided to the Commission is that at four of those sites as far as you are aware at this point in time there is no picket line, correct?---Yes.

PN134

Thank you. But you have pointed to a number of other incidents at the Broadmeadows site?---Mm.

PN135

Now there is a couple of incidents you refer to. Those incidents relate to, in your statement, from 1 to 7 April, correct?---Sorry, the 1st to the 7th - - -

PN136

The evidence that you have given on page 5 onwards deals with what you say is certain conduct from 1 April to 7 April?---Mm.

PN137

Now you are obviously concerned about this conduct you are talking about?---Go on.

PN138

Go on? You are concern is that people are obstructing - - -?---Preventing vehicles from entering our sites.

PN139

When you say preventing what do you mean by preventing?---Nothing allowed onto our site.

**** GARY JOHN DOWLING XXN MS ANGUS

PN140

All right. Let us be a little more systematic here. You have given evidence that you have taken video - you have videoed the conduct; you have videoed a picket line?---Mm.

PN141

And the evidence that you have given is that you have seen trucks driving up and trucks driving away?---Mm.

PN142

And why do reach the conclusion that constitutes preventing?---From the video evidence alone, no. We have evidence though from a driver who clearly stated that he wanted to come onto the site.

PN143

Well, hang on, no, you are jumping here, aren't you?---The picket would not allow him onto the site.

PN144

You are jumping here, Mr Dowling, I would like you to answer my questions. In terms of the videos that you have filmed what have you seen on those videos?---Trucks being stopped, spending some time out on the road and then having to leave.

PN145

So is this fair to say, you have seen employees, union officials, talking to trucks?---Yes.

PN146

And then the trucks turning away?---With no - - -

PN147

Is that a fair summary of what you have seen?---With our driveway clearly blocked so there is no ability for that bloke to turn into our yard at all.

PN148

Well, hang on, this is a different point. So you are saying you have seen physical prevention, physical obstruction?---Yes.

**** GARY JOHN DOWLING XXN MS ANGUS

PN149

When did you see that?---Nearly all day every day.

PN150

Well, that is not the evidence you have given, Mr Dowling. You have made - the evidence you have given, and we need to be careful about this, right, this is a sworn testimony, the evidence you have given is that on 1 April, and the words I think you used are that the picketers refused to move?---What page?

PN151

On page 8 of your statement?---Item?

PN152

Let us see, on page 8 of your statement - it is the Brooklyn site that I am talking about, Mr Dowling?---So we are at page 5 now, are we?

PN153

So on page 5 you said that on 1 April it was actually preventing vehicles?---Mm.

PN154

What do you mean by - you mean physical preventing?---Mm.

PN155

So you were concerned about physical preventing on 1 April?---Yes.

PN156

Yes, okay, and you said that in the video evidence that there was people talking to trucks and trucks turning away?---Mm.

PN157

So what is that? Is that that they persuaded people to turn away?---Might not have persuaded them. I am under the impression that they are telling them, no, you cannot come onto this site. We are talking about scrap metal dealers here. These aren't the sort of blokes that really care about the picket.

PN158

But is this fair to say that it is something that they are saying to these people? That is your concern, they are saying something that is resulting in them turning away?---Mm.

**** GARY JOHN DOWLING XXN MS ANGUS

PN159

Okay. So something that is being said and you are also concerned that - you have raised some concerns about on 1 April some physical obstructions?---Yes.

PN160

Right. So is that the extent of your concern in terms of the Brooklyn site? Physical obstruction and some form of persuasion or telling them that they can't go in?---Not allowing them onto our site.

PN161

Now is that the extent of it?---Yes.

PN162

Physical obstruction and telling them they can't go in. That is the conduct you are concerned about?---I am concerned with not getting vehicles onto my site.

PN163

Yes, but you are not answering my question, Mr Dowling. In terms of what people are doing, in terms of what the picketers you say are doing, that is interfering with your business - - -?---Yes.

PN164

- - - you are saying that it is physical obstruction on the 1st in your statement?---Mm.

PN165

And persuading or instructing people not to go in?---Persuasion there is nothing I can do about. Instructing that they can't go in I have a problem with.

PN166

Okay. So I will narrow it down. So instructing and physical obstruction?---Mm.

PN167

That is the conduct you are concerned about?---Yes, I guess so.

PN168

Right. Is there anything else because now is the opportunity to raise it?---Not that I am aware of at this time.

**** GARY JOHN DOWLING XXN MS ANGUS

PN169

Okay, fine. All right, so - - -?---I guess apart from also threatening people.

PN170

Oh, yes, now that is no good, is it?---No, it is not very nice.

PN171

So threatening people - so it is threatening people, it is instructing people to turn away and it is physical obstruction?---Yes.

[3.19pm]

PN172

Now you have been in the Commission pretty much all day today, Mr Dowling, correct?---Yes, off and on.

PN173

Have you received any complaints of this conduct, instructions, the physical obstruction or the threatening - - -?---Not today.

PN174

No, okay. I have no further questions, thank you.

PN175

THE SENIOR DEPUTY PRESIDENT: Mr Ogilvie.

<RE-EXAMINATION BY MR OGILVIE [3.20pm]

PN176

MR OGILVIE: Just for clarity, Mr Dowling, you were asked some questions about the physical obstruction at the site and you say in your witness statement - can I just take you to paragraph 5 - don't go to your witness statement - that physical obstruction has been in place since when?---The first day.

PN177

And was it in place the second day?---Yes.

PN178

And was it in place the third day?---Yes.

**** GARY JOHN DOWLING RXN MR OGILVIE

PN179

And is it still in place today?---Yes.

PN180

How do you know it is still in place today?---Well, they are still standing at the front driveway; the 44-gallon drum with the fire in it is still there and the witches hats are still there.

PN181

You were also asked some questions, I think, of documents that have been marked A1, A2 and A3?---Mm.

PN182

Can I just get you to look at, firstly, A1 and the first - - -?---Notice of initiation of bargaining period.

PN183

That is right, and where it says (a) - see the name of the company in bold, Simsmetal Pty Ltd?---Mm.

PN184

Who is Simsmetal Pty Ltd?---They don't exist.

PN185

Who employs your employees?---I believe Simsmetal Limited.

PN186

And to the best of your knowledge who is the party to your current enterprise agreement? Who is the employer party to the enterprise agreement?---Simsmetal Limited.

PN187

Can you look at document A3 as well? When did you receive that document?---I couldn't give you an exact date. I believe it was after the first hearing in this Commission regarding this matter.

PN188

Okay. Was that before or after the industrial action started?---After.

**** GARY JOHN DOWLING RXN MR OGILVIE

PN189

[3.22pm]

PN190

There is just one matter, your Honour, that I forgot to put to the applicant in evidence-in-chief.

PN191

Can you have a look at this document, please, Mr Dowling. Can you describe what that document is, please, Mr Dowling?---That was a statement from Doolans regarding the truck that was turned away, that is discussed in items 37 and 38 and pages 5 and 6.

PN192

When you say it is a statement from Doolans, do you know how this document was created? How did it come about?---We asked them for it.

PN193

You asked them for it?---Mm.

PN194

Who did you ask for it?---The transport company asked the driver to make a statement as to exactly what happened.

PN195

And when did you receive that document?---Today.

PN196

I seek to tender that document, your Honour.

EXHIBIT #02 DOCUMENT DATED 10 APRIL 2003 FROM DOOLANS HEAVY HAULAGE

PN197

MR OGILVIE: No further questions, your Honour.

**** GARY JOHN DOWLING RXN MR OGILVIE

PN198

THE SENIOR DEPUTY PRESIDENT: Ms Angus.

PN199

MS ANGUS: I don't have any questions about this document, your Honour, but there was a question raised that was beyond the latitude in reply, because it related to physical access today that had not been raised in the opening. And I understand that Mr Ogilvie does not object.

<FURTHER CROSS-EXAMINATION BY MS ANGUS [3.24pm]

PN200

MS ANGUS: Can I just ask you one question, Mr Dowling. Have you seen any trucks go in, physically enter the site?---I have seen vehicles enter the site, yes.

PN201

A truck? It is correct to say that some trucks have gone in?---Yes.

PN202

THE SENIOR DEPUTY PRESIDENT: Anything, Mr Ogilvie?

<FURTHER RE-EXAMINATION BY MR OGILVIE [3.25pm]

PN203

MR OGILVIE: Directly in relation to that, when the trucks have gone in, what has happened?---The ones that arrived, that I actually spoke to, was fairly upset, because he had been threatened with being got back at when they came back to work.

PN204

In terms of the - - -?---The only reason that he forced his way through was because he had no other way of getting those vehicles off his truck.

PN205

But in terms of the physical - the picket line, what actually happened to the physical picket line when that truck went in?---He drove through.

**** GARY JOHN DOWLING FRXN MR OGILVIE

PN206

How did he drive through?---At the time he managed - they weren't actually stopping everything, and he managed to drive into the actual driveway, between our actual picket and weighbridge, and was approached by the people once he was in our driveway. On the second occasion that he came in, he came in via our out-gate.

PN207

No further questions.

PN208

THE SENIOR DEPUTY PRESIDENT: You are excused.

<THE WITNESS WITHDREW [3.26pm]

PN209

THE SENIOR DEPUTY PRESIDENT: Mr Ogilvie.

PN210

MR OGILVIE: I just propose to make some brief submissions on that evidence, your Honour. The notifier submits that the appropriate procedure to be followed by your Honour in exercising the Commission's jurisdiction in this matter is that confirmed by the Full Bench in CEPU v Transfield Obayashi Joint Venture, and the reference to that is (1999) 94 IR No 1. I will hand up a copy. Your Honour, in particular, if I could just take you to page 9, at the top of page 9. The full bench in that matter said:

PN211

The substance of the Commission's duty under section 166A is to conciliate and to attempt to stop the conduct that may be the subject of the notified intention to commence action in tort.

PN212

And the next paragraph:

PN213

In Re Automotive Food Metals Engineering Printing and Kindred Industries Union -

PN214

and the reference is there -

PN215

...a full bench said that in exercising jurisdiction under section 166A the Commission was required only to identify conduct capable of being subject to a notice under section 166A, capable of being the subject of conciliation proceedings, capable of being the subject of attempts by the Commission to stop the conduct, and that might reasonably -

PN216

and I will come back to "might reasonably"-

PN217

be the subject of a declared intention to bring an action in tort.

PN218

The next paragraph:

PN219

It is not the Commission's function under section 166a to embark on an inquiry into the foundation of the notified intention to commence a tort action in relation to particular conduct.

PN220

As I explained in earlier submissions this morning, your Honour, the relevant conduct my client relies on is the conduct that is described in paragraphs 8 to 34 of the notice filed with the Commission on the Monday - - -

PN221

THE SENIOR DEPUTY PRESIDENT: Of the notice, is it?

PN222

MR OGILVIE: The notice of intention. Yes, the notice filed with the Commission that was filed on 7 April - the written notice of intention to take action in tort. And together with the conduct described in Mr Dowling's oral evidence today, and highlighting paragraphs 26 through to 61 of his witness statement.

PN223

THE SENIOR DEPUTY PRESIDENT: 26 through to 61?

PN224

MR OGILVIE: 26 through to 61 of his witness statement, your Honour. The - I understand to be the notices filed on 7 April, and the notifier's position is the conduct has continued since that date. So there are matters raised in the evidence of Mr Dowling that go beyond 7 April when the notice was actually filed. The notice was prepared on the Friday, immediately following proceedings before your Honour. So it didn't take into account events that occurred on the 7th, and up until today's date.

PN225

THE SENIOR DEPUTY PRESIDENT: The conduct is picketing conduct, is it not?

PN226

MR OGILVIE: There are two heads to conduct, we say, your Honour. Primarily the conduct is the picketing conduct, and in particular the picketing conduct at the Brooklyn site. The notice when it was filed identified picketing conduct at all four sites, but it was conceived that the picketing conduct is only, as far as the evidence is, is occurring at the Brooklyn site. So it is the picketing conduct that is occurring at the Brooklyn site, which we say is ongoing, and has not stopped within the 72 hour period.

PN227

More generally, and as a secondary head, my client relies on the withdrawal of labour; the striking of the employees that has occurred at each of the four sites since 1 April, as conduct for the purposes of section 166A. In relation to the first head of conduct, your Honour, the notifier submits that it is open to the Commission to identify that the conduct described by Mr Dowling in his evidence did occur and continues to occur, and is conduct that might reasonably be the subject of a declared intention to bring action in tort.

PN228

In this regard we rely on the decision of the full bench in Re AMWU, or Re AFME-PKIU, the reference being (1997) 72 IR at 27. I will just hand up a copy of that decision as well, your Honour.

PN229

THE SENIOR DEPUTY PRESIDENT: Yes.

PN230

MR OGILVIE: I just refer you to page 32 of that decision. The full bench says:

PN231

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)... in its purview to attempt to stop.

PN232

At the top of the next page, the Commission refers to submissions made by Mr Watson on behalf of the employer in that matter, and that were made before Commissioner Tolley at first instance. It says:

PN233

Mr Watson's submission to Commissioner Tolley suggested that it is only necessary to identify that there is conduct capable of being the subject of a notice, capable of being the subject of conciliation proceedings, and capable of being subject to attempts by the Commission to stop the conduct.

PN234

And the full bench says:

PN235

We would add to that list of requirements only that the conduct needs to be of a character that might reasonably be the subject of a declared intention to bring an action in tort.

PN236

On the basis of that decision, your Honour, the notifier submits that your Honour can be satisfied that these requirements have been met. We submit that the conduct that has been described by Mr Dowling is conduct that might reasonably be subject to declared action to bring an action in tort. And quite clearly what Mr Dowling's evidence is, is that it might reasonably be the subject of an action in tort.

PN237

It has not been directly challenged on behalf of the AWU, but we anticipate that the challenge would say that - I think their submissions were that the conduct does not involve - doesn't meet the threshold point, was what I think my fried said this morning. We say it is not necessary for the Commission to conduct an assessment of the possibility of the conduct being actionable. However, even if that were a requirement under 166A, we say that the evidence given by Mr Dowling shows at least an arguable case that that conduct is actionable.

PN238

Just as an example, and to provide some context, your Honour, there is one further decision which I would like to refer to. It is a decision of the New South Wales Supreme Court, Bryson J, Barlow Weld Coatings v LHMU. If I can take your Honour to page 112 of that decision. At the bottom, about half-way through the very last paragraph at 16, it says:

PN239

Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use. But for persons to assemble outside a workplace and make known to others, including people going to and leaving the workplace, the fact that there is an industrial dispute ...(reads}... with interfered with passage.

PN240

The reason why I make reference to that decision, your Honour - and then it goes on to talk about the evidence, the particular evidence in that case. We say it is not necessary for the Commission to form a view on whether this conduct is or is not able to satisfy the requirements for an action in tort. What the test is, is whether it might reasonably be actionable in tort. We say quite clearly the evidence Mr Dowling has given is conduct that might reasonably be actionable in tort.

[3.35pm]

PN241

We have no evidence from the Australian Workers Union to contest the evidence being put forward by Mr Dowling about their conduct. Mr Dowling was quite clear of at least the physical obstruction; there is threatening, there is vehicles being - approaches, being approached by employees and organisers spoken to, and those vehicles are not entering the site. Mr Dowling's evidence also was that conduct has not stopped and that conduct continues. On this basis, we ask that your Honour issue a certificate pursuant to paragraph (c) of subsection 166A(1) that the Commission has not stopped the conduct by the end of the 72 hours after the notice was given under subsection 166A(3) in respect of the conduct.

PN242

Just briefly, your Honour, in relation to what I said was the second head of that conduct, in addition to the picketing, the notice filed by my client also identifies the strike by some of its employees as relevant conduct for the purposes of the certificate. It is submitted on behalf of the notifier that the conduct is not denied by the Australian Workers Union and the conduct might reasonably be the subject of a declared action to bring - a declared intention to bring action in tort.

PN243

There will obviously be asserted that this action is protected action and pursuant to the - and provided immunity under the Act. However, it is submitted on behalf of the notifier that the appropriate forum to test the validity or otherwise of that action is not the Commission, it is the court's. The existence of a valid bargaining period and the effect of any immunity is a matter for the court. If your Honour pleases.

PN244

THE SENIOR DEPUTY PRESIDENT: So you say it is: I haven't stopped the picketing conduct at the Brooklyn site, or the strike conduct of employees covered by the - what is it the agreement?

PN245

MR OGILVIE: The Simsmetal Limited Production Certified Agreement 2001.

PN246

THE SENIOR DEPUTY PRESIDENT: Are they the ones who are taking strike action?

PN247

MR OGILVIE: Yes, your Honour.

PN248

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Angus.

PN249

MS ANGUS: Your Honour, I want to deal with those matters in reverse order and deal with the issue. First of all, the application excludes protected industrial action within its own terms, as it rightly should because there is a statutory entitlement to take given certain - you know, given procedural steps to take protected industrial action. To the extent that the company is arguing that the strike is not protected industrial action because of what they say is defective notices, I want to raise a couple of points.

PN250

It is very clear in section 170MI of the Act and section 170MO of the Act, they are the provisions that deal with initiating a bargaining period and then the notices of an intention to take industrial action; that in both of those cases there is a requirement to provide written notice to the other party. So in the context of initiating a bargaining period, it is the initiating party must provide written notice to the other negotiating party of its desire to reach an agreement. And in the context of protected industrial action, it is that a negotiating party, either one, must provide written notice of its intention to take industrial action.

PN251

That needs to be understood in the context of the part of the Act which is that parties have to in the to-ing and fro-ing of industrial relations provide proper notice of their intentions to each other to reach an agreement in order to be afforded certain statutory rights. I want to hand up, if I may, some definitions of notice to argue that that requirement which in the case of 170MO notices is a mandatory requirement: the mandatory requirement to provide written notice, three working days written notice to the employer to argue that in fact that requirement has been met in this case.

PN252

The definitions that I have handed up, your Honour - there are three definitions, the first of which is an ordinary definition of notice which is that - is information or directions posted on the noticeboard or more significantly the second definition which is formal intimation of something or instructions to do something, announcement by a party. That is the ordinary definition. The legal definition, and I have included there, your Honour, two definitions: one is the Black's Legal Dictionary and the other is the Osborn's Concise Law Dictionary.

PN253

Osborn's describes notice as knowledge or cognisance and Black's Legal Dictionary defines notice as:

PN254

Notice in its legal sense is information concerning a fact actually communicated to a person by an authorised person or actually derived from him from a proper source is regarded in law as actual when the person sought to be affected by it knows thereby the existence of a particular fact in question.

PN255

And the other relevant part of the definition is further down and that is:

PN256

A person has notice of a fact if he knows the fact, has reason to know it or should know it or has been given notification of it.

PN257

In our - - -

PN258

THE SENIOR DEPUTY PRESIDENT: I will mark the Osborn's definition as A4 and the Black's Legal Dictionary definition as A5.

EXHIBIT #A4 OSBORN'S DEFINITION

EXHIBIT #A5 BLACK'S LEGAL DICTIONARY DEFINITION

PN259

MS ANGUS: So if I can paraphrase, in its ordinary sense to provide someone with notice is, according to the Osborn's definition, to be informed, instructed or to know. They are the key words to come out of the ordinary definition of notice and in its legal, more convoluted definition, if you like, it is to be cognisant or to know in fact of a situation. Now, clearly in this instance, by Mr Dowling's own concession, the information of both the union's desire to reach an agreement and the union's intention to take protected industrial action was known to him in fact and therefore in its legal sense of notice and also in its ordinary sense in that he knew about it.

PN260

He has conceded that himself, that is the evidence he has given, and it is also on the basis of the documentation themselves that we filed with your Honour which make it clear that it was addressed to the proper address, it was the correct fax, that Mr Dowling himself is the person authorised to receive such information on behalf of the company and for all those reasons, in both an ordinary and a legal sense, the company was put on notice of the union's intentions. To the extent of having argued all of that, your Honour, that the company is still prepared to run the argument that it wasn't properly notified, all of those typographical - the typographical errors that it has referred to were in fact corrected anyway in the final document filed on 4 April which make it precisely clear both the type of employees about whom we are seeking to reach an agreement and also the precise employer with whom we wish to reach an agreement.

PN261

So they are our submissions in terms of the strike being properly authorised, properly notified and therefore protected. And to the extent that that hasn't persuaded your Honour we would make an application pursuant to section 111(1)(q) which is a right under the Act anyway that the Commission can correct, amend or waiver any error, defect or irregularity whether in substance or form of documentation. So we have argued that they were properly notified in both an industrial - in both an ordinary and a legal sense and to the extent that that is not the case that was clarified anyway in ample notice on 4 April and to the extent that that is not the case then we make application now to correct any defect in our paperwork to ensure that the proprietary that the company argue was omitted - well, which was omitted in a typographical error, does not constitute a fatal flaw in our notices and that they were properly notified.

[3.45pm]

PN262

And it seems that Mr Ogilvie anyway has no longer advanced his argument that the notices don't adequately define the types of employees so for the sake of brevity I won't make submissions in respect of that because he hasn't advanced that but I will turn then to the issue of the conduct itself that is of concern to the company and the subject of these proceedings. Mr Dowling's evidence, which is the entire basis for the application that has been brought before you, is that - it is contested but his evidence is that he says that the conduct, as he understands it, is threatening, instructing the people to go away and physical obstruction.

PN263

He has identified three types of conduct which he believes are of concern and which would be the basis of their application for an action in tort. He has been very clear in his evidence in two respects. Firstly, he said that there is no conduct at the four sites that he has identified, for - at Broadmeadows, Noble Park, Geelong and the transport site. There is no conduct, from the company's own evidence, at those sites. He has also said quite plainly on transcript that these - the conduct that he has identified, he says was in evidence, is not happening today. That is his words.

PN264

So on the basis of the evidence that you have before you at best, your Honour, you could come to the conclusion at best that there may have been some conduct about which an action could be brought in tort but there is no evidence that there is conduct today. There is no evidence that there is conduct and has not been conduct for some extended period of time at four of the five sites to which the application refers and there is no evidence of, by his own admission, that the conduct that he has identified is occurring today.

PN265

To the extent that the Commission remains concerned that there is any conduct continuing then the AWU makes the following undertaking and that is that officials, members or employees of the AWU - in relation to the Brooklyn site, no employees or official member or employee of the union will prevent access or egress from the site and will not speak to any driver of a vehicle about the dispute. Further, that no employees will congregate at Broadmeadows, Noble Park, Geelong or Calleja Transport site.

PN266

So our position is quite plain. There is a basic threshold question that the Commission has got to be satisfied that there is conduct; there has got to be some conduct that the lawyers could race and take off to the Federal Court and bring an action in tort and we know that in the case of no conduct, we know from the Transfield decision that has been referred to, that if there is no conduct then there is no grounds for - there is no jurisdictional basis for a 166A certificate to issue. We know also, on the basis of decisions that Mr Ogilvie has provided, that picketing per se is not tortious.

PN267

That it is certain types of conduct - it is not the hanging around outside a gate that is tortious - it is certain types of conduct about which you could bring an action in tort and they have been identified very plainly for the Commission. They are threatening people, instructing people to go away and physical obstruction. Now there is no evidence before you as of today that those three types of identified conduct are continuing. In addition to that we undertake not to engage in any of those conducts and we say quite plainly that the nature of our undertaking, which is broad - we have undertaken not even to speak to people about the dispute as they go in - that that - - -

PN268

THE SENIOR DEPUTY PRESIDENT: Can you go through your undertaking again?

PN269

MS ANGUS: Yes.

PN270

THE SENIOR DEPUTY PRESIDENT: You had better go through it slowly.

PN271

MS ANGUS: Okay. And it is not in the same order that I first of all presented it, but that no employees will congregate at the following sites: Broadmeadows, Noble Park, Geelong and - - -

PN272

THE SENIOR DEPUTY PRESIDENT: No employees will congregate at Broadmeadows, Noble Park and Geelong - - -

PN273

MS ANGUS: At Broadmeadows, Noble Park and the North Geelong sites and that in relation to the Brooklyn site no employees and no official member or employee of the union will prevent access or egress or - or nor will speak to the driver of any vehicle about the dispute. Now there are, in our submissions, two overwhelming arguments why the Commission is no longer in a position to grant a certificate. Firstly, the evidence before you is that there is no conduct occurring today at any of the sites.

PN274

Secondly, we give an undertaking that the conduct that has been identified by the company that they consider would be the grounds for an action in tort we will not engage in. Now the case law on this is plainly that if there is no conduct then there is no jurisdictional basis to issue a certificate. That has been established by the Transfield decision. There is also, your Honour, as - perhaps as a guide a useful decision, the Feltex Australia decision, in which Deputy President Hamilton was confronted with the issue of a picket.

PN275

In the end he issued a certificate on the second round but on the first time didn't because he wasn't satisfied that people congregating around outside constituted conduct and that it required - there was, in that decision, and I am happy to hand up that decision if that is useful, but in that decision it was in, if you like, the second hearing where there was actual evidence put that congregating outside in fact did constitute conduct. So it is not an automatic - just because people are standing around outside it doesn't automatically mean that the conduct is conduct about which you can bring an action in tort.

PN276

So they are our submissions, your Honour. We have protected industrial action in place and we say that because the company by their own admission was properly notified. Secondly, there is no conduct as of today about which the company could bring an action in tort. I mean, we have submissions to make, you know, failing this in the Federal Court about the conduct at all prior to today but we narrow our submissions in terms of today. There is no conduct about which a company could bring an action in tort and to the extent even that the Commission has any concerns remaining then we argue that that has been addressed in our undertakings.

PN277

For that reason, your Honour, it would not be appropriate to issue a certificate.

PN278

THE SENIOR DEPUTY PRESIDENT: So you say that to the extent there is strike action it is protected strike action and can't reasonably be the subject of an action in tort?

PN279

MS ANGUS: That is correct; that is correct, because it is not a tort if it is a statutory entitlement.

PN280

THE SENIOR DEPUTY PRESIDENT: And, secondly, you say that with respect to the picketing action amongst other things you give an undertaking that there will be no picketing action at Broadmeadows, Noble Park and North Geelong sites of Simsmetal and with respect to Brooklyn that no employee of Simsmetal and no official member or employee of the union, AWU, will prevent access or egress or speak to a driver of any vehicle about the dispute.

PN281

MS ANGUS: Correct. And can I finally indicate to everyone that prior to the commencement of the proceedings this afternoon the AWU filed in the Registry an application for a compulsory conference which we bring to your attention. It has been filed. It is C matter 1866 of 2003. It will be forwarded in due course, your Honour. We have taken advantage of the opportunity to conciliate pursuant to the 166A application about the conduct and over the course of that conciliation period and within the 72 hour period the conduct, to the extent that it did occur and we are not making submissions in relation to that, but the conduct as identified has ceased and we would also call upon the Commission to convene a compulsory conference so that not only has the issue of the conduct or otherwise been addressed but the dispute underlying that could also be addressed in the form of a compulsory conference.

PN282

We could gather those people who actually have the authority to bargain to the table and they are our submissions.

PN283

THE SENIOR DEPUTY PRESIDENT: I can indicate to the parties that during the course of these proceedings I have received the file in respect of the application for a compulsory conference. Mr Ogilvie.

PN284

MR OGILVIE: Your Honour, I would just like to make some final submissions in relation to the issue of the conduct. We would submit that my friend has mischaracterised Mr Dowling's evidence today. Mr Dowling's witness statement was prepared and filed at 8.30 this morning - prepared and provided to the Commission at 8.30 this morning. It obviously didn't take into account any matters that would deal with events that have occurred over the course of today. However, his oral evidence did. To the extent that he was able to Mr Dowling's oral evidence was that the physical obstruction and the picketing remained in place at the Brooklyn site.

PN285

He returned to the Brooklyn site between the proceedings. He was at the Brooklyn site today and saw the physical obstruction and the picketing in place. We say there was evidence of conduct continuing beyond the 72 hour period and just to clarify, the submissions this morning were that the notice of intention to take action in tort was filed with the Commission shortly before 10 am on Monday, 7 April. On my calculations the 72 hour period would then expire shortly before 10 am this morning.

PN286

We say that properly characterised Mr Dowling's evidence was that that conduct continued and had not stopped during that 72 hour period. In those circumstances that the certificate must issue. Not only do we have Mr Dowling's evidence, we have no evidence from the AWU that the conduct had stopped or no evidence about the nature of the conduct at all in these proceedings. It was quite clearly open to the AWU to bring that evidence. The relevant organisers are here and representatives of the employees are here. They weren't called on to give evidence.

[3.57pm]

PN287

We say there is no evidence the conduct has stopped and there was evidence the conducted had continued. In relation to the undertaking the company is obviously pleased with that type of undertaking and - if that means that it is able to properly operate its business. We were unaware that such an undertaking would be given or was even being contemplated until it was put forward to your Honour in proceedings this afternoon but in a sense that is too late. Quite clearly the test that the Commission - the requirements of section 166A, as they are properly characterised, is did the conduct stop within the 72 hour period.

PN288

The answer to that quite clearly is, no, the conduct did not stop within the 72 hour period therefore a certificate must be issued and we say the requirements of section 166A in that regard are mandatory if the Commission is satisfied that conduct, the relevant conduct is something that might reasonably be subject for an action in tort. That is clarified in the decision, the Transfield decision which my friend referred to.

PN289

THE SENIOR DEPUTY PRESIDENT: So if I came to the view that sufficient notice of intention to take strike action had been given I would have to come to a view, wouldn't I, that an action in tort couldn't reasonably be taken in respect of that strike action?

PN290

MR OGILVIE: We would say that it is not a matter for - we would say the proper test your Honour should apply is that is there conduct which might reasonably be open for an action in tort - we say the strike action is conduct which might reasonably be open for an action in tort. Whether or not that conduct falls within the immunity that is provided by the Act under section 170MT is a matter for the Court to determine, not a matter for the Commission to determine. If our client is - if our client intends to pursue, or does intend to pursue tort action in relation to that conduct then that would be a matter that we will need to convince the Court of.

PN291

We would say that - just addressing one point that was raised by Ms Angus - the principles of notice are quite clear and the principles of notice are not the general normal principles of notice that apply in this circumstance but that the idea of notice in accordance with the Workplace Relations Act and in particular in accordance with section 170MO. The decisions are quite clear. The object of notice is to provide the employer with sufficient detail of any industrial action that is taking place to adequately respond to that industrial action.

PN292

The decisions are also clear that clarifying that notice in subsequent correspondence or seeking to amend that correspondence at a later date is not sufficient to remedy the defects in the notice. Those notices need to be re-issued in order to be adequate notice in relation to section 170MO. That is all we really wish to press on that issue. What we say is quite clearly that conduct, in particular the picketing conduct, was not stopped by the efforts of the Commission within the 72 hour period and that the requirements of the Act are mandatory and the certificate must be issued. If your Honour pleases.

PN293

THE SENIOR DEPUTY PRESIDENT: Could I raise with the parties the application for a compulsory conference which has been allocated to me. The application seeks that Mr Darren McGree, the Deputy General Manager Australasia, come to that compulsory conference. Is Mr McGree the man that was in the plane this morning?

PN294

MR MACHELL: Yes, your Honour.

PN295

THE SENIOR DEPUTY PRESIDENT: Is he the only person you would seek - I mean, apart from anybody else who might be here?

PN296

MS ANGUS: Your Honour, there is quite a lot of latitude under section 119 for the Commission to basically determine who it is that is the person best authorised, the highest - in fact, I will just find the words from the Act:

PN297

In determining the person to whom directions are to be given the member of the Commission shall have regard to the persons having the highest degree of authority to negotiate.

PN298

We are under the impression that - and we are simply under this impression because it is Mr McGree who appears to be at the end of a series of phone calls that often amount to obstacles to resolving and reaching agreement - so we have called for his attendance. We are open to any suggestions about who in fact may be higher in their degree of authority and therefore more able to speedily resolve the dispute.

PN299

THE SENIOR DEPUTY PRESIDENT: Let me tell you I intend to call a compulsory conference so who do you say from your side should be there?

PN300

MR OGILVIE: In relation to your question, your Honour, yes, that is adequate. Mr McGree is the appropriate person.

PN301

THE SENIOR DEPUTY PRESIDENT: Right, and do you have any views about who should be there from the union?

PN302

MR OGILVIE: Your Honour, there is no views from the company about it.

PN303

THE SENIOR DEPUTY PRESIDENT: Anybody you want me to summons from your side?

PN304

MS ANGUS: You don't need to summons him but we are happy to bring along some new blood in the form of our assistant secretary.

PN305

THE SENIOR DEPUTY PRESIDENT: Right. I will adjourn briefly but while I do so can the parties check out the availability of Mr McGree and the assistant secretary on Monday.

PN306

MR MASTRANDONAKIS: Any time, your Honour.

PN307

THE SENIOR DEPUTY PRESIDENT: Yes. During the day. I will adjourn briefly.

SHORT ADJOURNMENT [4.06pm]

RESUMED [4.59pm]

PN308

THE SENIOR DEPUTY PRESIDENT: Can you enlighten me on the availability of Mr McGree?

PN309

MR PELS: Your Honour, Wednesday - he is in a conference at Noosa at the moment and Wednesday is the earliest time he is available. I suppose we, just for the record - also for the record, Mr McGree has indicated that he is not the ultimate authority here, that Mr Machell is quite capable of negotiating an outcome but if he is asked to come down on the Wednesday we don't believe the outcome would be any different to what Mr Machell would be negotiating.

PN310

THE SENIOR DEPUTY PRESIDENT: Right. Is - Mr Melham, is it?

PN311

MR MASTRANDONAKIS: Your Honour, Mr Melham is available pretty much any time at the moment.

PN312

THE SENIOR DEPUTY PRESIDENT: What does the union say about Mr McGree's availability until next Wednesday?

PN313

MS ANGUS: Well, we would press, given that I assume that the Commission, it is convenient for the Commission to convene a conference on the Monday, we would press that the direction should be issued to require parties to attend for a compulsory conference on the Monday. That would be our view. It is an important matter. We think there is not all that much outstanding; there is not all that much difference between the parties and that that can be resolved and that we should be required to attend at a time convenient to the Commission.

PN314

THE SENIOR DEPUTY PRESIDENT: Mr Pels, you say he is not available until Wednesday. What is the problem?

PN315

MR PELS: Yes. There has been a high level planning and national - international conference on planning and strategy sessions which will go for some time and he can't guarantee being here Monday, that is all. He is not sure when it will finish.

PN316

THE SENIOR DEPUTY PRESIDENT: When does it start?

PN317

MR PELS: I have got no idea.

PN318

THE SENIOR DEPUTY PRESIDENT: All right. I can indicate that I will issue a certificate under section 166A(6) in respect of picketing conduct by the AWU and its members employed by Simsmetal at the Brooklyn site of Simsmetal who are covered by the classifications specified in the Metal Engineering and Associated Industries Award 1998 and strike action by AWU members employed by Simsmetal Limited at the Brooklyn site of Simsmetal Limited who are covered by the classifications specified in the award and who are taking such action in furtherance of claims the subject of industrial dispute between the AWU and the Simsmetal Limited as I haven't been able to stop such conduct within 72 hours of notice being given by Simsmetal Limited under section 166A(3) in respect of that conduct.

PN319

The certificate is so limited having regard to the form of the notice under section 166A made by Simsmetal Limited and those in respect of whom in that notice it intended to take action in tort. Copies of that certificate will be available from my Associate at the conclusion of these proceedings. In respect of the compulsory conference I will issue a notice calling a compulsory conference on Monday, 14 April 2003 and as part of that notice Mr Darren McGree of Simsmetal and Mr Melham of the AWU will be directed to attend.

PN320

The conference will be held at 10 am here at the Commission, Melbourne. I will now adjourn until that date.

ADJOURNED UNTIL MONDAY, 14 APRIL 2003 [5.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

GARY JOHN DOWLING, SWORN PN38
EXAMINATION-IN-CHIEF BY MR OGILVIE PN38
EXHIBIT #O1 STATEMENT OF G.J. DOWLING PN44
CROSS-EXAMINATION BY MS ANGUS PN83
EXHIBIT #A1 INITIATION OF BARGAINING PERIOD PN98
EXHIBIT #A2 NOTICE OF INTENDED INDUSTRIAL ACTION AND REVERSE SIDE BEING NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION PN113
EXHIBIT #A3 LETTER TO MR DOWLING DATED 04/04/2003 FROM AWU PN123
RE-EXAMINATION BY MR OGILVIE PN176
EXHIBIT #02 DOCUMENT DATED 10 APRIL 2003 FROM DOOLANS HEAVY HAULAGE PN197
FURTHER CROSS-EXAMINATION BY MS ANGUS PN200
FURTHER RE-EXAMINATION BY MR OGILVIE PN203
WITNESS WITHDREW PN209
EXHIBIT #A4 OSBORN'S DEFINITION PN259
EXHIBIT #A5 BLACK'S LEGAL DICTIONARY DEFINITION PN259