C2002/4725, Transcript of Proceedings [2003] AIRCTrans 1711 (7 May 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N VT2239
A 7.5.03
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/4725

NATIONAL UNION OF WORKERS and OTHERS

and

PDS LOGISTICS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and working
conditions

MELBOURNE

10.02 AM, FRIDAY, 4 APRIL 2003

Continued from 13.3.03 in Adelaide

PN1086

MR T. LYONS: I appear for the National Union of Workers.

PN1087

MR R. PALAZZO: I appear for PDS Logistics.

PN1088

THE DEPUTY PRESIDENT: Thank you, just before you start, Mr Lyons. Mr Palazzo, I understand from my associate that these are not proceedings that you have much familiarity with, is that correct?

PN1089

MR PALAZZO: Yes.

PN1090

THE DEPUTY PRESIDENT: Yes. There is a limited degree only to which I am able to assist you, Mr Palazzo, but I will provide what assistance I can and by that I mean, procedural assistance, only. Mr Lyons will have the opportunity to put forward why it is that he seeks the order he seeks. You will have an opportunity to respond to that as well as an opportunity to cross-examine any witnesses that Mr Lyons might wish to call in the course of seeking the order that is the subject of the application.

PN1091

As I say, in the context of that, from a procedural point of view, I will provide what assistance I can but there is some obvious limits as to what I can do in respect of that.

PN1092

MR PALAZZO: Thank you, your Honour.

PN1093

MR LYONS: If the Commission pleases, in this matter, your Honour, we seek an order from the Commission pursuant to section 285G of the Act going to the union's right of entry with the employer, PDS Logistics. In doing so, we seek the making of an order which is in, substantially, the same form as that that was provided to the Commission and the parties under cover of a letter of the secretary of the union on 4 March. I do intend to table with your Honour a slightly amended form. It is not amended in any significant aspect but it does attempt to make clear the exact nature of the order that we seek.

PN1094

If I could also provide your Honour an outline of submissions that we have prepared in this matter and a bundle of authorities which go to that outline. Perhaps if I could start by doing that.

PN1095

THE DEPUTY PRESIDENT: Yes. This is the amended draft with this, is it, Mr - - -

PN1096

MR LYONS: Yes, there is an amended draft order, your Honour, an outline of submissions and a bundle of authorities.

PN1097

THE DEPUTY PRESIDENT: Yes, just for ease of reference, I might mark the draft order, Mr Lyons and I will mark it A1.

EXHIBIT #A1 DRAFT ORDER

PN1098

MR PALAZZO: Does your Honour propose to mark the outline of submissions as well?

PN1099

THE DEPUTY PRESIDENT: Not unless you particularly wanted me to, Mr Lyons.

PN1100

MR LYONS: No, no, that is fine. Your Honour, we have one - the union has filed a statement of one of the union's organisers, Mr Roberts, which I think your Honour should have and which was also served on the respondent earlier this week. After a very brief opening, I propose just to call Mr Roberts simply to swear his statement, unless my friend has any cross-examination for him. But, before I get to that, your Honour, I may just briefly outline what we say are the circumstances of this matter. As your Honour is aware the respondent is bound by the terms of the Storage Services General Roping-in No 1 Award 2003 which is an award made by the Commission as currently constituted.

PN1101

That award is obviously also binding on the National Union of Workers and we say the respondent carries on work to which the award applies at its premises at 215 Browns Road, Noble Park, Victoria and specifically, your Honour, the respondent operates a warehouse. Employees at that site are engaged in work both to which the award applies, and not as a result of that, but in addition to, they are eligible to be members of the National Union of Workers. We say that the evidence will demonstrate, your Honour, that a duly authorised employee of the National Union of Workers has sought to enter those premises to hold discussions with the employees, as is our legal right under 285C of the Act, on two occasions and the respondent has refused entry to that duly authorised employee.

PN1102

Moreover, your Honour, the respondent has indicated through its officer, Mr Black, that it intends to continue to refuse access to the National Union of Workers. The - in addition to that, your Honour, we have sought, specifically, in the form of the order, access to the employees in their lunch room. That is a matter which I would intend to address your Honour on, but it is simply a matter of making the consultation efficacious, that is, we go to where the employees are. Specifically, as your Honour will appreciate, the rights under 285C are limited to meal breaks, so we seek to go where the employees will be at the time we are allowed to be there. Before I go any further, your Honour, I might call Sam Roberts and have him swear his statement.

PN1103

THE DEPUTY PRESIDENT: Yes.

<SAMUEL FRANKLIN ROBERTS, SWORN [10.08am]

<EXAMINATION-IN-CHIEF BY MR LYONS

PN1104

MR LYONS: Your Honour, you will note that the statement of the witness that was filed was unsigned. I have the original signed copy for your Honour.

PN1105

Mr Roberts, have you made a statement in this matter before the Commission?---Yes.

PN1106

Is that statement - do you have that statement in front of you?---I do.

PN1107

Is that statement a true and correct statement?---It is.

PN1108

Your Honour, I seek to tender that and have it marked.

EXHIBIT #A2 WITNESS STATEMENT OF SAMUEL FRANKLIN ROBERTS

PN1109

MR LYONS: Your Honour, we rely on the written provisions of the statement and there is no examination-in-chief, if the Commission pleases.

PN1110

THE DEPUTY PRESIDENT: Yes, Mr Palazzo, it is open to you to cross-examine the witness on the contents of his statement.

<CROSS-EXAMINATION BY MR PALAZZO [10.10am]

PN1111

MR PALAZZO: Just one question I would like to ask about this statement and it refers to point 9 where it mentions that:

PN1112

John Black relied on the provision dealing with conscientious objection on religious grounds.

**** SAMUEL FRANKLIN ROBERTS XXN MR PALAZZO

PN1113

I am wondering whether there was a communication problem and whether he did in fact rely on that - on religious grounds as an objection. I can't really see how he would or could?---What I have said here is that he produced a print out from the internet of the Workplace Relations Act and he said that there was a section of it which said that, if he meets these criteria for having a religious exemption, then he does not have to let me on site. I asked him whether he did and he said that is a subjective matter so I am not letting you in.

PN1114

Did he mention the word, religion?---Sorry?

PN1115

Did he mention the word, religion, at all or did he refer to that part, Part 3, Part B, it looks like?---Yes, he did.

PN1116

Did he mention the word, religion?---Yes.

PN1117

Okay, that is all, your Honour, that is all.

PN1118

THE DEPUTY PRESIDENT: Thank you. Any re-examination, Mr Lyons?

PN1119

MR LYONS: No, your Honour.

PN1120

THE DEPUTY PRESIDENT: You can step down, thank you, Mr Roberts.

<THE WITNESS WITHDREW [10.12am]

PN1121

MR LYONS: Thank you, your Honour. Your Honour will see from the outline of submissions that we seek an order to be made in the form of A1. As I said in my opening, we do so requesting your Honour to exercise your powers under section 285G of the Act. The order itself goes to the union's rights under 285C. Your Honour will see at paragraph 5 of the outline, we go through, what we say, to be the facts and circumstances of the matter. We say, those facts are either established by the documents of the Commission, or by the evidence of Mr Roberts which is that there is - the union has a legal right to enter the premises and has been denied that right by the respondent.

PN1122

Very briefly, your Honour, I deal with the jurisdictional matters arising from the application. At paragraph 6 and following we deal with, what we say, are the jurisdictional requirements which were set out, quite succinctly, by his Honour, now Senior Deputy President Duncan, in CPSU v Telstra. We say there at the dot points in paragraph 6 that your Honour needs to be satisfied that there is a dispute arising under division 11A of Part IX of the Act. That we then bear an onus of convincing the Commission that, on the merits, an order should issue. And, finally, any order your Honour issue cannot exceed the limit specified by division 11A of Part IX.

PN1123

In terms of the jurisdiction going to the order that we specifically seek, we say, that it is well established that the Commission has power to order the specific location where the consultations envisaged by 285C can occur. And your Honour will see from the end note there that we refer to a number of authorities going to that point. There are a large number and we have extracted those which deal directly with the issue of access to a lunch room, but I think that that is beyond doubt, the Commission's jurisdiction extends that far. In terms of establishing your Honour's jurisdiction, at paragraph 8 we summarise the evidence that ought lead your Honour to find that a dispute exists.

PN1124

Principally, we say, that the facts clearly establish that a duly authorised officer or employee of the union is entitled to enter the premises of PDS Logistics. So much is clear from the award and from the nature of the work performed at the employer's enterprise. Secondly, it is also clear that the - from the evidence of Mr Roberts, that the employer has refused such access. So, prima facie, there is a dispute as to the operation of 285C. In addition to that the union has made a specific request for access to the lunch room which has also been denied.

PN1125

So, the subject matter of the dispute, we say, extends both to the issue of right of entry, per se, and the specific location of the consultations that we are entitled to make under 285C. We note, in terms of jurisdiction, that the award - sorry, the order we have drafted is specifically intended to ensure that the order does not exceed the powers under division 11A of Part IX and that is at paragraph 3 of the order. And, as your Honour will no doubt be aware, that is, I think, a fairly standard provision that is inserted at the end of orders of this nature.

PN1126

So, we say, that the evidence clearly establishes all the jurisdictional issues which your Honour would need to be satisfied of prior to issuing of an order. I don't think that any of those issues can be contested by the employer.

PN1127

THE DEPUTY PRESIDENT: Mr Lyons, what do you say is the nature of the work that is being carried on?

PN1128

MR LYONS: It is a warehouse, your Honour.

PN1129

THE DEPUTY PRESIDENT: Yes.

PN1130

MR LYONS: My understanding is they warehouse - there are warehouse workers there. The exact nature of the product, I understand from Mr Roberts, may include wine, but may go to other matters as well, but it is certainly a warehouse. Mr Roberts has been to the premises and if your Honour wished to ask questions about that I can recall Mr Roberts.

PN1131

THE DEPUTY PRESIDENT: No, that is sufficient at this point, thank you.

PN1132

MR LYONS: Yes, on a prima facie basis though, your Honour, obviously the existence of the award is some evidence of that.

PN1133

THE DEPUTY PRESIDENT: Yes, yes, yes.

PN1134

MR LYONS: So what we go to then, your Honour, is essentially to the discretionary matters, and as I said, we do bear the onus of convincing your Honour that an order should issue. At paragraph 11 and following we set out our principal reasons for that. The first, your Honour, is going to the conduct of the union. The union's conduct, we submit, in relation to this matter has been exemplary. Officers of the union have attended the premises and behaved in a proper and professional manner and have sought to, on each occasion they visited the premises, to seek, first, the officer in control of the premises, so there has been no entry via the back door, if you like, your Honour.

PN1135

We have been in through the front door and asking to see the manager. The duly authorised officer has dealt with this matter, as I say, in an entirely professional way and has sought the employer's consent for each of the actions that he has proposed to take. He has also given notice, proposed to come back at a later time and all of this matter is dealt with in Mr Roberts' statement. So, we say, that the union comes before the Commission in this matter with clean hands. We have attempted to exercise our legal rights and met with nothing but frustration.

PN1136

The second matter, we say, goes to your discretion is the converse of that and that is the conduct of the employer. We say, that properly characterised, the conduct of the employer revealed by Mr Roberts' statement, has been obstructionist; it has been an unreasonable refusal to recognise the legal rights of the National Union of Workers. Now, as your Honour may appreciate in this matter, is the employer may not like the fact that we have right of entry, but the law of the land provides that we do. It is not an optional matter, and given the circumstances that exist, the employer is obligated to allow the union, should it wish to exercise its rights, to do so.

PN1137

In this circumstance the conduct of the employer has been, as I say, obstructionist. On the evidence, it is, at least, open for your Honour to find that Mr Black has been unnecessarily argumentative with Mr Roberts, who, as I say, has attempted to conduct himself in a professional manner. And we say, in particular, that it is not conducive to good industrial relations for one party to simply seek to ignore its legal obligations under the Act. The final matter, sir, is that the - we do make some remarks about the nature of the legislative scheme provided for in part 11.

PN1138

Essentially, your Honour, we would characterise the legislative scheme in this way. The Act provides for right of entry under certain strictly limited circumstances, that is, it is not carte blanche for unions to go charging in anywhere where they have constitutional coverage. And there are a number of thresholds to meet in order to access the right of entry provisions. The union has done that and, we say, it is an obligation on the Commission to ensure that where there is a clear breach of the provisions of the right of entry scheme - and this I might say is whether it is by a union or an employer - for the Commission to act to ensure compliance.

PN1139

That is a power that the Parliament has specifically given the Commission under 185G, and in circumstances where there is a clear and continuing breach, the Commission has some obligation to act to preserve the integrity of the legislative scheme in relation to right of entry. This is particularly so, your Honour, where the refusal to deal - sorry, with the refusal to properly implement the requirements of 285C is so blatant and so on-going.

PN1140

THE DEPUTY PRESIDENT: Can I just ask you, Mr Lyons, has there been any attempt beyond the attempts by Mr Roberts to have any discussions with the employer about this circumstance?

PN1141

MR LYONS: Well, no there has not been, your Honour, with one exception. The union has not visited the premises again, and as you would appreciate, Mr Roberts has other obligations and can't simply be turning up to - - -

PN1142

THE DEPUTY PRESIDENT: Yes.

PN1143

MR LYONS: - - - PDS every second day in the hope that Mr Black might let him in. However, I do note that the letter of 5 March which forwarded the original draft order to the employer, did indicate that we did seek this order and invited the employer to contact an industrial officer of the union, Mr Thow, if they wished to discuss the matter. So, the union did make an invitation at that point for the employer to discuss the matter in the context of notifying these further proceedings. That is the extent of the consultation. Put simply, your Honour, I think we formed the view, given the report to Mr Roberts, that further consultation was unlikely to have a great deal of effect.

PN1144

THE DEPUTY PRESIDENT: Yes, well, perhaps that is something we should explore further within these proceedings, Mr - - -

PN1145

MR LYONS: Well, I was intending to say, at the conclusion of my remarks, that at an appropriate time the union has no objection to adjournment into conciliation.

PN1146

THE DEPUTY PRESIDENT: Yes.

PN1147

MR LYONS: Reserving the right, obviously, to come back on the record and press the application.

PN1148

THE DEPUTY PRESIDENT: Yes.

PN1149

MR LYONS: Very briefly, in relation to the location of discussions, your Honour, we extract at paragraph 14, some remarks of Commissioner Smith that have been approved by various other members of the Commission and note that, effectively, that really it is for the union to decide, subject to that decision being reasonable, the location of the consultations and what is effective consultation. And I think your Honour will be familiar with all those authorities.

PN1150

THE DEPUTY PRESIDENT: Yes.

PN1151

MR LYONS: As I say, we do seek access to the lunch room. We say that is a matter of common industrial practice, and should the Commission be minded to issue the order, it is appropriate, given the circumstances, that the order also go to the location of the consultation. And that is really just a matter of convenience for the employees, that if we are to see them, we can go to them rather than them come to us, which I think, is essentially the way that Commissioner Eames and others in the authorities I have extracted, deal with the matter.

PN1152

In relation to the form of order, your Honour, exhibit A1 is an amended draft order, and while the substance of the order is the same as that originally filed in that the operative paragraph 1 is the same, which is the substance of the Commission's orders about what the union is allowed to do and what PDS would be prohibited from doing in response, there are a couple of variations. The first is at paragraph - I am sorry, your Honour, at paragraph 1 there is one variation. The original draft order was described as preventing a properly authorised officer and I have added the words, "Or employee."

PN1153

Officer has a specific meaning within the context, both of the Act and the NUWs rules, it means an elected official. We do have employee officials who are not officers, who are also the holders of permits, so we have sought to extend the order to them. As Mr Roberts says in his statement, he is a duly authorised employee and I can provide the Commission with a copy of Mr Roberts' permit should that be required.

PN1154

THE DEPUTY PRESIDENT: Yes.

PN1155

MR LYONS: The variation of substance we made, your Honour, is to paragraph 2 and we did this mindful of the fact that in earlier proceedings for the creation of an award the employer was not respondent and we anticipated some potential reluctance on the part of the Commission to issue an order without the presence of an employer. They are here today, so some of that is resolved, but we would propose that the order be granted subject to either party being able to apply for a review of it and that would be on grounds of the applicant's or respondent's choosing. And that would be on the grounds that either the order was not being properly adhered to, or the conduct of the union was inappropriate or otherwise in breach of the Act, or in fact that the employer was in on-going breach of its obligations.

PN1156

So that, if you like, is a standing review clause which indicates to either of the parties they can come back before your Honour as a matter of right should the issuing - any order that issue be the subject of on-going disputation at the workplace. We have also picked this matter up, your Honour, in the operative date which appears at paragraph (b). We have expressed the order to operate from today and shall remain in force until further order of the Commission or for a period of six months. So the further order of the Commission, obviously, is to reflect the provision at paragraph 2 to allow for a review of the order on application.

PN1157

Other than that, we say, your Honour, that the order is unexceptional, and as I have referred in the outline, is of a similar form to that issued by other members of the Commission in equivalent proceedings.

[10.27am]

PN1158

So, we say in conclusion, your Honour, following things about the order the first is we say that it provides, while recognising the legal rights of the union, provides adequate protection for the employer should for example the union behave in a way which it is not - it believes is unacceptable or which is contrary to the provisions of the Act.

PN1159

In terms in the term of the order, the six months that we seek is to ensure that the order is - is efficacious. Obviously orders of a very short term may not have much of an effect - six months is enough time for the order to be implemented effectively but no long as to be unreasonable or place unreasonable obligations on the employer.

PN1160

Unless your Honour has any questions I would leave the matter there. As I said, we do have no objection to adjournment into conference, if your Honour pleases.

PN1161

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Lyons. Mr Palazzo. Mr Palazzo, subject to you making any submissions you wish to make in response to those submissions of Mr Lyons, do you have any objection to adjourning into conference for some discussion about this matter.

PN1162

MR PALAZZO: No, if you deem it necessary. I personally don't think it is necessary, no.

PN1163

THE DEPUTY PRESIDENT: You don't think it is necessary?

PN1164

MR PALAZZO: No.

PN1165

THE DEPUTY PRESIDENT: Well, the intention, Mr Palazzo, would be to see if there could be some settlement of the circumstances between the parties rather than a settlement imposed upon the parties by the Bench. That would be the intention of going into conference.

PN1166

MR PALAZZO: With the information I have before me I would prefer the Commission - your Honour, to make a settlement.

PN1167

THE DEPUTY PRESIDENT: All right. So what you are suggesting to me is that you see no purpose in - - -

PN1168

MR PALAZZO: Yes.

PN1169

THE DEPUTY PRESIDENT: - - - going into conference.

PN1170

MR PALAZZO: No, exactly.

PN1171

THE DEPUTY PRESIDENT: Thank you. Mr Palazzo, if you intend to put evidence before the Commission then I need to advise you that that evidence would hold more weight if it was done under oath. Now that is a matter for you, of course whether you wish to do that. If you did wish to go under oath to provide that evidence then you would be subjecting yourself in doing that to cross-examination by Mr Lyons.

PN1172

MR PALAZZO: Mm.

PN1173

THE DEPUTY PRESIDENT: But, if you chose to put your evidence simply from the bar table that evidence won't carry as much weight as evidence that is given under oath.

PN1174

MR PALAZZO: I am happy to give it under oath. Yes, I would rather give it under oath.

PN1175

THE DEPUTY PRESIDENT: Yes, all right. I will have you sworn in. Thank you.

PN1176

MR PALAZZO: Can I take my notes?

PN1177

THE DEPUTY PRESIDENT: Yes, you can.

<ROGER PALAZZO, SWORN [10.30am]

PN1178

THE DEPUTY PRESIDENT: You can actually be seated, Mr Palazzo. Yes, Mr Palazzo.

PN1179

MR PALAZZO: Okay. Thanks for bearing with me, your Honour.

PN1180

THE DEPUTY PRESIDENT: Sorry, but if we go forward, Mr Palazzo, what is your position with the employer?

PN1181

MR PALAZZO: Director of PDS Logistics.

PN1182

THE DEPUTY PRESIDENT: You are a director of the company?

PN1183

MR PALAZZO: Yes.

PN1184

THE DEPUTY PRESIDENT: Thank you.

PN1185

MR PALAZZO: Firstly, and the reason I am here is that John Black is on annual leave so he is unable to attend or be contacted. However, my first doubts are in - are as to the clarity of the communications between both Sam Roberts and John Black when Mr Roberts attended our premises - the premises of PDS Logistics.

PN1186

And the reason is that yes, we do rely on section 285C of the Workplace Act, or - but we don't rely on the religious grounds. Where - excuse me - we don't rely on the religious grounds at all and before I go ahead I would like to say that the conduct of the union and the employer as my learned friend went through in part 11 and 12 of their submission is subjective to both Sam Roberts and John Black. I believe only the two of them have had discussions - the two of them have only spoken together.

PN1187

Back to 285C - we only employ five people. Five employees in our warehouse and none of those - none of the employees are members of any organisation and in fact when quizzed or when asked not formally asked, but when spoken about - when spoken about with - sorry, when we speak to our employees about unions and registered organisations their thoughts are that there is no need for any representation of them on site.

PN1188

THE DEPUTY PRESIDENT: Mr Palazzo why do you say that's a relevant consideration for this Commission?

PN1189

MR PALAZZO: Which?

PN1190

THE DEPUTY PRESIDENT: You are putting to this Commission that your employees are not members of a union as I understand you, and that in your submission they are not seeking to be members of the union, and neither do they want to be members of a union, that's as I understand you. Is that correct?

PN1191

MR PALAZZO: Yes.

PN1192

THE DEPUTY PRESIDENT: Yes, well, I just wonder why you believe that to be a relevant matter for the consideration of this Commission, in respect of the application that is being made?

PN1193

MR PALAZZO: Okay. Because - well for - we talk about meeting in meal times. Our meal times vary between employees. Okay. Some take their lunch at 12, some at 12.30. They break so that we have always got the floor manned. You know, they do warehouse work, sometimes trucks come to pick things up and that. So the meal times are split. It does cause a disruption if they need to get all those employees together for a meeting and I am only really supporting the way I read this section 285C.

PN1194

THE DEPUTY PRESIDENT: Yes.

PN1195

MR PALAZZO: And the last - I mean the last say section 285C - 3(a) and 3(c) is what we rely on and also the fact that - - -

PN1196

THE DEPUTY PRESIDENT: Sorry, that was 285? You were relying on what?

PN1197

MR PALAZZO: 285C, part 3(a) and (c). We only have five employees working in the warehouse and none of the employees is a member of an organisation nor seeks to be and I mean finally we pay - we pay well above the award. Our employees are paid some 20 per cent above the roping-in award that we have had copies of - that is storage and I have forgotten what it is but - we pay well above award.

PN1198

All the conditions are met well and truly. As a conscientious employer we look after our employees. We don't have that many of them not to look after them. That's it actually. That's all I have to say.

PN1199

THE DEPUTY PRESIDENT: Yes, could you just take me again to what it is you say you are relying on in the Act, what particular section of the Act?

PN1200

MR PALAZZO: Okay. 285C.

PN1201

THE DEPUTY PRESIDENT: 285C, yes.

PN1202

MR PALAZZO: It says here paragraph 3 or part 3:

PN1203

The person may not enter premises if all of the following conditions are satisfied.

PN1204

MR LYONS: If the Commission pleases I note your Honour has the latest CCH copy. There was the amendment to this provision that was passed very late last year which doesn't appear and I think that's the provision to which he is referring. I do have an extract here with the amended 285C if your Honour pleases.

PN1205

THE DEPUTY PRESIDENT: Yes, that might be of assistance because it doesn't appear here.

PN1206

MR LYONS: It was a little noticed amendment I think we can say, your Honour.

PN1207

THE DEPUTY PRESIDENT: Yes. Yes. Now, Mr Palazzo you say that all of those conditions are satisfied?

PN1208

MR PALAZZO: Mm.

PN1209

THE DEPUTY PRESIDENT: So you say that there are no more than 20 employees at work on the premises because you have stated to me I think that there are five. That all of the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate in force under section 267 that has been endorsed by the Registrar. So you are the holder of such a certificate?

PN1210

MR PALAZZO: I don't quite understand the question.

PN1211

THE DEPUTY PRESIDENT: For your submission to stand up and if you are relying on 285C(3), Mr Palazzo, you must meet all of the conditions that are nominated in 285C(3), that is the condition (a), the condition (b) and the condition (c).

PN1212

If you meet all of those conditions then the person may not enter the premises. So it would seem that, from what you say to me, that you meet the condition at (a) in that there are no more than twenty employees. On the evidence that you have given you may meet the condition at (c), which is that none of the employees employed at the premises is a member of an organisation, that's your evidence.

PN1213

The other condition that you would need to meet, if you are relying on that provision of the Act, is that you are an employer who holds a certificate in force under section 267, that has been endorsed by the Registrar. What I am asking you is are you the holder of such a certificate?

PN1214

MR PALAZZO: I am not sure. I would have to confer with John Black.

PN1215

THE DEPUTY PRESIDENT: Yes. Are you aware that the company has ever made an application for a certificate as a conscientious objector?

PN1216

MR PALAZZO: I am not aware, no.

PN1217

THE DEPUTY PRESIDENT: No. Would you normally be aware of that, Mr Palazzo, as a director of the company?

PN1218

MR PALAZZO: No, not necessarily.

PN1219

THE DEPUTY PRESIDENT: Yes. Thank you. Yes, Mr Lyons.

<CROSS-EXAMINATION BY MR LYONS [10.39am]

PN1220

MR LYONS: Mr Palazzo, were you present at any of the discussions between John Black and Mr Roberts?

PN1221

MR PALAZZO: No, as I said, there was only the two of them, I think.

PN1222

MR LYONS: So you have no direct knowledge as to whether the version of events set out in Mr Roberts' statement is true, or not?

PN1223

MR PALAZZO: No, no.

PN1224

MR LYONS: Mr Palazzo, in relation to the matter you are - that his Honour just discussed with you which goes to a section 267 permit I put to you that the union has sought the advice of the Industrial Registrar about whether such a permit has been issued in respect of PDS Logistics, or Mr John Black, or anyone at the address of your operation and that the Industrial Registrar has advised first of all that only two such permits have been issued for the entirety of Australia, and secondly, that neither of those permits apply to the business of PDS Logistics, Mr John Black or anyone at the address operated by the employer. Are you in a position to concede that there in fact is no certificate issued by the Registrar that goes to that provision of the Act.

PN1225

MR PALAZZO: Am I in a position? No, I am not.

PN1226

MR LYONS: Yes, well, Mr Palazzo, do you understand that you have a legal obligation to allow the National Union of Workers on to your premises?

PN1227

MR PALAZZO: No.

PN1228

MR LYONS: All right. Do you have any intention of allowing officers of the National Union of Workers to enter your premises and have discussions with your employers?

**** ROGER PALAZZO XXN MR LYONS

PN1229

MR PALAZZO: Yes, if it was to benefit the employees at all. If you can show me some sort of benefit.

PN1230

MR LYONS: Mr Palazzo, that is not what I asked you. Do you have - are you intending to allow officials of the National Union of Workers to enter your premises and consult with your employees?

PN1231

MR PALAZZO: If you have valid reasons to.

PN1232

MR LYONS: Yes.

PN1233

THE DEPUTY PRESIDENT: What about if the union has a legal right to, Mr Palazzo?

PN1234

MR PALAZZO: I think we contest - I think we contest that.

PN1235

THE DEPUTY PRESIDENT: Well, you may well do that, but - and that is partly what you are doing here at least to some extent, but the question I asked you is if the union has a legal right to access your premises - - -

PN1236

MR PALAZZO: Mm.

PN1237

THE DEPUTY PRESIDENT: - - - would you be granting that access?

PN1238

MR PALAZZO: Well, we operate within the law.

PN1239

THE DEPUTY PRESIDENT: Yes. So am I to take that to mean that, yes, you would grant that access?

**** ROGER PALAZZO XXN MR LYONS

PN1240

MR PALAZZO: Yes.

PN1241

THE DEPUTY PRESIDENT: Thank you.

PN1242

MR LYONS: Just to pick up on what his Honour just asked you, Mr Palazzo, so can I take it from your comments that were the Commission to issue an order directing you to allow access to the employees, you would comply with that order?

PN1243

MR PALAZZO: We would have the order - we would have it assessed - assessed by legal people.

PN1244

MR LYONS: All right. I have nothing else, your Honour.

PN1245

THE DEPUTY PRESIDENT: Yes, thanks Mr Lyons. Is there anything further you want to put, Mr Palazzo?

PN1246

MR PALAZZO: Yes, well, I don't really understand why we are all here. We have - we have - you know, we are not a very large company. We are a small company in the greater scheme of things. We have five - five full time workers - two casuals. They work with us. They are all paid above the award and are happy in their work place. Why - why do we need to go on wasting - you know, there is more people here in this room that work for our company. Why do we need to go on wasting so many people's time over something that is - just seems irrelevant.

PN1247

THE DEPUTY PRESIDENT: Why does it seem irrelevant to you, Mr Palazzo, if there is a law that provides a right of access to the union and the union claims that that right of access is being denied to them and not being provided to them in accordance with that provision of the law and that you are claiming, from your company's point of view, that you don't believe there is a right such that we do have a dispute, do we not? About whether there is a right?

**** ROGER PALAZZO XXN MR LYONS

PN1248

MR PALAZZO: Yes.

PN1249

THE DEPUTY PRESIDENT: Yes. And there is a provision in the Act, again, to enable the Commission to become involved when such a dispute exists. They are provisions of the Federal Work Place Relations Act so I don't quite understand your submission that you don't understand why that is relevant. Relevant because it is the law of the land, Mr Palazzo, is it not?

PN1250

MR PALAZZO: Okay. Then, well, with what you have said, your Honour, I would seek an adjournment, for want of a better word, to seek further clarification from our point of view as to the law that applies to both us and this situation.

PN1251

THE DEPUTY PRESIDENT: You seek an adjournment for what purposes, again, Mr Palazzo?

PN1252

MR PALAZZO: To ensure that we do in fact - that we are in fact following the law and that we do understand our legal requirements.

PN1253

THE DEPUTY PRESIDENT: Mr Lyons, there is an application for an adjournment.

PN1254

MR LYONS: We oppose it, your Honour.

PN1255

THE DEPUTY PRESIDENT: Yes.

PN1256

MR LYONS: And I think there is a couple of things arising that I need to address you on. Perhaps if we can confirm that that is the conclusion of Mr Palazzo's - - -

**** ROGER PALAZZO XXN MR LYONS

PN1257

THE DEPUTY PRESIDENT: Yes. Is that as much as you wanted to put at this stage, Mr Palazzo?

PN1258

MR PALAZZO: Yes.

PN1259

THE DEPUTY PRESIDENT: Yes, you can step down now Mr Palazzo.

<THE WITNESS WITHDREW [10.45am]

PN1260

MR LYONS: If the Commission pleases, there is a couple of issues that I need to deal with, I think, your Honour. It is clear, we say, from Mr Palazzo's evidence that without some intervention by the Commission the NUWs legal rights, which we say we have established in the evidence of Mr Roberts, will not be observed. We also say that it is clear that the respondent's view of why they don't need to allow right of entry is based on a misconception of the provisions of subsection (3) of 285C of the Act.

PN1261

THE DEPUTY PRESIDENT: Yes, Mr Lyons, before you go too far into your submissions in response. What I have is an application for an adjournment before me. If you could address that in the first instance.

PN1262

MR LYONS: Okay. Certainly, your Honour. Well, we oppose the application for an adjournment on a couple of grounds, your Honour. The first is that, as I understand it, the ground that is advanced in favour of an adjournment is that the respondent will go and seek legal advice. Put simply that is the ground. Now the employer was given notice of these proceedings on Wednesday 5 March 2003 under cover of the order with a letter from the National Union of Workers explaining the nature of the proceedings.

PN1263

They received further information as to the nature of the proceedings when on Wednesday of this week Mr Robert's statement was served on them. Now the respondent, in our submission, has had ample time to go and seek any advice it wishes, whether from an employer organisation or more specific legal advice in relation to this application. They have chosen not to do so and it, in our submission, prejudices the union which has dealt with this matter in an entirely proper way for the matter to go off to another time.

PN1264

Now it is not the union's fault, nor I might add the Commission's, that the employer presumably didn't take this matter seriously when it first received it and didn't go and seek the advice which it could have at the time. We say it is quite clear, even for a lay person, that the letter of 5 March indicates that there were to be proceedings in this Commission. That there was an order to be issued and that there were some legal issues involved in those proceedings. It would have been perfectly prudent and, we say, usual for someone without a direct knowledge of the provisions of the Act to seek advice at that point, whether from the employer's normal legal advisers or from some other place.

PN1265

We also note that the form of the order that we proposed to have issued would allow, should the legal advice provided to the respondent indicate that we are wrong on one of the points that we have raised with your Honour, for them to come back and seek a review of the order. But what, your Honour, has on its face is a direct breach of 285C. An indication of ongoing conduct which will be in breach of that provision and a respondent which has simply not done what it probably should have done in the first place which is go and seek some advice.

PN1266

Now we say that is not sufficient reason for these proceedings to adjourn, specifically when the union has tailored the order we seek to provide an opportunity for review. The matter before your Honour, if your Honour is convinced that there is jurisdiction and that on a discretionary basis the order ought issue, we say the issue of the adjournment really shouldn't arise. The respondent can come back if it gets different advice but in the mean time the Commission should act to protect the scheme of the Act.

PN1267

THE DEPUTY PRESIDENT: Yes.

PN1268

MR LYONS: If the Commission pleases.

PN1269

THE DEPUTY PRESIDENT: Thank you. Mr Palazzo, my understanding is that yesterday, I believe yesterday morning, there was a contact with my associate from someone purporting to be Mr Black, I assume it was Mr Black, regarding this application. All right, well there certainly was contact from somebody from, or claiming to be from your organisation, with regard to this application. Was that you, Mr Palazzo?

PN1270

MR PALAZZO: No, and there is - - -

PN1271

THE DEPUTY PRESIDENT: Are you aware who it was?

PN1272

MR PALAZZO: No, but there is a good chance - because I was contacted also. One of the problems with this - - -

PN1273

THE DEPUTY PRESIDENT: Contacted by whom, Mr Palazzo?

PN1274

MR PALAZZO: By my father actually, Mr Palazzo senior.

PN1275

THE DEPUTY PRESIDENT: So you think it may have been your father?

PN1276

MR PALAZZO: I would say he would be - in the absence - one of the problems is John Black has been on leave.

PN1277

THE DEPUTY PRESIDENT: Yes.

PN1278

MR PALAZZO: And he actually comes back next week.

PN1279

THE DEPUTY PRESIDENT: Yes.

PN1280

MR PALAZZO: So I think from - - -

PN1281

THE DEPUTY PRESIDENT: Well, if it was Mr Palazzo senior that contacted my associate, then one of the things that was raised in that conversation, as I understand it by my associate, was the possibility that your organisation may wish to seek an adjournment and if you were to make an application in writing then I would consider that application for an adjournment. That was my understanding of what took place in that conversation. No such application for an adjournment was received. Are you aware of anything to do with that conversation at all, Mr Palazzo?

PN1282

MR PALAZZO: Yes. My understanding is slightly different and - - -

PN1283

THE DEPUTY PRESIDENT: Could you please stand while you address the Commission, please.

PN1284

MR PALAZZO: Sorry. My understanding is slightly different in that I was basically told; go down tomorrow to the Industrial Relations Commission. If you are there personally there is more weight given to anything we have to say, rather than a written submission. But I didn't address the adjournment.

PN1285

THE DEPUTY PRESIDENT: Yes. So there was nothing raised as far as you are aware about the adjournment?

PN1286

MR PALAZZO: No.

PN1287

THE DEPUTY PRESIDENT: All right. Is there anything further you wish to say in respect of the application for adjournment?

PN1288

MR PALAZZO: No, your Honour, saving that John Black hasn't been here for the previous - he has been on annual leave, so - back to early, he has been away since early March so he may not have seen the first - the order to appear before you.

PN1289

THE DEPUTY PRESIDENT: Mr Palazzo, I have had the opportunity to hear what you have got to say in respect of that and what Mr Lyons has to say. I don't propose to grant the adjournment at this stage. I think there has been an ample opportunity for the company to have sought the appropriate advice and if it thought it necessary even to seek an adjournment of this matter, the company has chosen not to do that and so up until this point in time I have not had the opportunity to consider whether an adjournment would be in the interests of the application. At this stage I don't believe it would be and therefore I don't propose to grant it. Thank you. Mr Lyons.

PN1290

MR LYONS: Thank you, your Honour. I think I started to address, your Honour, on the 285C(3) point. As I said, we believe that the respondent's view that it is exempted from the provisions of 285C is based on a misconception of, at least in the initial phases, of the proper construction of section 3. As, your Honour, correctly point out, it requires that all of the conditions in A, B and C - the paragraphs thereunder are met. It is our submission that the respondent does not meet the provisions of paragraph B so the issue of A and C don't arise.

PN1291

The union, as I think I foreshadowed in my questioning of Mr Palazzo, made some enquiries of the industrial registrar in relation to the issuing of certificates under section 267. We were advised, and their is a specific officer that certainly deals with these matters in the office of the registrar, that there had been two permits issued. Neither of them are to Mr Black, PDS, or to any other person residing or associated with or at the registered office at the facility at PDS Logistics. As I think I indicated to, your Honour, this provision is, as it appears in 285C, is quite new.

PN1292

I was advised by the registrar that it essentially operates - or those persons who have expressed an interest in the operation of that provision are members of a religious group called the Exclusive Brethren and both the two permits that are issued are to persons who are members of that organisation. The advice from the registrar is also, sir, that the process to get a section 267 certificate is extremely laborious and requires each of the employees of the respondent employer to sign a statutory declaration indicating that they are not a member of an organisation and do not object to the issuing of the certificate.

PN1293

So that is the administrative process, sir, now Mr Palazzo said he didn't know whether there was a certificate. I think it is clear, your Honour, based on the advice from the registrar which, your Honour, can check independently, obviously, that had there been some application going to section 267, everybody in the work place would have had some knowledge of that because it requires - the registrar is requiring the execution of written statements by each and every employee who is employed at the work place. So we say section 267 simply does not apply. There are no matters arising under that to which your Honour should be concerned.

[10.55am]

PN1294

The other matters raised by Mr Palazzo's evidence we say, while they may be of concern to him, are not relevant we say to your Honour's determination and specifically they went to his allegation, although there is no evidence of this, that nobody there is interested in the union. That is simply not a relevant consideration as I think your Honour will concede and see from the published authorities. And he did raise the issue of disruption. I am not sure whether that is from a misunderstanding about what can actually occur under 285C but we note that it is not a power to, for instance, go into a premises and call a mass meeting and disrupt the employer's workplace.

PN1295

It is a power to go into the workplace and see the employees on their own time. So I don't know whether that allays any fears Mr Palazzo has but there is not sense in which the operation of the employer can be closed down or shut for a period of time as a result of the operation of the order that we seek. So we say that nothing that has been raised should persuade your Honour that an order ought issue. In fact, what has been put by Mr Palazzo we say should convince your Honour that without some intervention from the Commission, the ongoing refusal to honour the provisions of 285C will continue and we say the order should issue in the form of A1. If the Commission pleases.

PN1296

THE DEPUTY PRESIDENT: Yes, thank you. Yes, I am satisfied that there is an award in respect of PDS Logistics applying to the work that is being carried on within that organisation. I am further satisfied that there is a dispute under the relevant division of the Act which is division 11A of part 10. I am satisfied further as to the merits for the issue of the order sought and I am further satisfied that the order does not exceed the limits of the relevant division of the Act.

PN1297

On that basis, it is my view that the order should issue in the form of exhibit A1 and the order will issue and will operate from today's date and will remain in force until a further order of this Commission or for a period of six months. Now, I note that it has been raised within the submissions of the union, but I reiterate it, that the order provides leave for the parties to seek a review on application to this Commission.

PN1298

Mr Palazzo, your concerns regarding the legal obligations of the company and your wish to seek some advice in respect of those - after you have done that, you are enabled by this order, if you wish, to seek leave for review but in the meantime the order will remain in force. I think that disposes of the matter. If either of the parties wish to seek reasons for this decision under the relevant sections of the Act it is open for them to do so. The matter is adjourned.

ADJOURNED INDEFINITELY [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT ORDER PN1098
SAMUEL FRANKLIN ROBERTS, SWORN PN1104
EXAMINATION-IN-CHIEF BY MR LYONS PN1104
EXHIBIT #A2 WITNESS STATEMENT OF SAMUEL FRANKLIN ROBERTS PN1109
CROSS-EXAMINATION BY MR PALAZZO PN1111
WITNESS WITHDREW PN1121
ROGER PALAZZO, SWORN PN1178
CROSS-EXAMINATION BY MR LYONS PN1220
WITNESS WITHDREW PN1260