C2003/2118, Transcript of Proceedings [2003] AIRCTrans 1743 (12 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2003/2118

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Morris McMahon & Co Pty Limited re
action against AMWU re alleged picketing
or interference with property at the
Company's premises at 34 Arncliffe Street,
Wolli Creek, New South Wales

SYDNEY

10.00 AM, MONDAY, 28 APRIL 2003

Continued from 23.4.03

PN148

HIS HONOUR: This matter was stood over from 24 April. Is there any change to appearances? Mr Gardener?

PN149

MR GARDENER: Your Honour, I believe that there were discussions in the Commission on Thursday afternoon and I am instructed that certain undertakings have been given in relation to the picket and related conduct. I have instructions however that such conduct has not ceased to the satisfaction of the applicant and I am instructed to press for the certificate this morning.

PN150

If have, if I may, an additional affidavit of William Geoffrey Winstanley that I would seek leave to file in court this morning. I have given a copy to Mr Morrison. This affidavit supplements the earlier affidavit which is before the Commission.

PN151

HIS HONOUR: This will be exhibit MM12.

EXHIBIT #MM12 AFFIDAVIT OF WILLIAM GEOFFREY WINSTANLEY

PN152

MR GARDENER: I ask that that affidavit be read.

PN153

HIS HONOUR: Yes, perhaps you might read it.

PN154

MR GARDENER: Yes, your Honour.

PN155

On 28 April 2003 I, William Geoffrey Winstanley, c/o 34 Arncliffe Street, Wolli Creek ...(reads)... Sworn at Sydney this 28th day of April, 2003.

PN156

Your Honour, this is tendered as evidence of ongoing conduct within the scope of Section 166A and such conduct I suppose variously could be described as trespass and nuisance and there is also hazards - - -

PN157

HIS HONOUR: Where is the boundary of the company's land? Some of that looks to be in the street doesn't it?

PN158

MR GARDENER: Your Honour, I am instructed it's up to the footpath. In the affidavit of Mr Richard McBurnie which is Exhibit N10, there is a site map of the boundary. Looking at the first photograph of GW1 it's clear that the footpath is shown which is free but everything from the footpath to the building is company property. The same with the following photographs GW1.

PN159

HIS HONOUR: Yes.

PN160

MR GARDENER: There is bits and pieces of furniture and rubbish. GW2 is on a carpark entrance way to the company premises and there's tables and chairs and as 44 gallon drum with holes in it and tarpaulins on the company's gates as well as some personal clothing and effects. The following photographs in GW2 show similar scenes from a different angle.

PN161

I will seek instructions.

PN162

GW3 is this demountable building. I am instructed that it is now placed on land outside the company's boundary and drawing power from another company site. I don't know whether that's with company's permission or not but it's right on the boundary. You can also see your Honour, the 44 gallon drum which is on company property.

PN163

HIS HONOUR: I'm not sure that GW3 is marked. Sorry, it's four pages of GW1.

PN164

MR GARDENER: Yes. GW4, again, is the carpark gate entrance way and although I am instructed the signs that are still there on the gates have merely been painted over but they remain on the gates. Those signs were shown in other affidavit evidence in some form of choice words. They haven't been removed and then the following photographs of GW4 show other signage as well as I think the union I am instructed have attempted to remove some of the graffiti placed on the roller shutter doors but is still visible in part as well as not being a great paint job.

PN165

Also I am instructed that that roller shutter door is still inoperative because of damage. It's badly damaged, your Honour, it is working; it's badly damaged and still needs repair. GW5 clearly shows items of rubbish dumped outside on the company's premises. Previously that had been in front of the gates, your Honour, but you can see that gate is an important entrance way to the fire brigade entrance. The following photographs show the rubbish from different angles, including I think the third photograph through the photograph behind the gates looking out.

PN166

GW6 is from a different angle. It shows rubbish that the company itself is trying to remove but it keeps collecting. The final photographs in GW7 are the accumulating domestic and industrial waste that can't be removed because it has big delivery and collection problems associatEd with the picket line. I seek to tender that, your Honour.

PN167

HIS HONOUR: That will be marked as Exhibit MM12.

EXHIBIT #MM12 PHOTOGRAPH OF ACCUMULATING DOMESTIC AND INDUSTRIAL WASTE ASSOCIATED WITH PICKET LINE

PN168

MR GARDENER: Your Honour, would you like me to address you on the certificate under section 166A?

PN169

HIS HONOUR: It's a matter for you, Mr Gardener.

PN170

MR GARDENER: I will, your Honour. On the last occasion I was before your Honour directions were issued, including the granting of some additional time for conferences which I believe have occurred. What's happened now, your Honour, is that the timing has extended the 72 hours at section 166A requires after which the Commission to issue a certificate. Your Honour, section 166A subsection 7 is an interesting subsection and perhaps one of those subsections your Honour identified as rather clumsily drafted. But on my understanding of that subsection, your Honour, it permits an applicant to reapply to the Commission for a certificate at a period when conduct is said to have stopped, but before the end of the 72 hours, but then to reapply if the conduct recommences or has not ceased and the 72 hours has elapsed.

PN171

My first submission, your Honour, is that the conduct has not ceased and is ongoing and has been ongoing since - - -

PN172

HIS HONOUR: Could you just assist me, Mr Gardener, by alluding with specific descriptions to the conduct when you're using it. It's such a blurred and indeterminate word made even less specific and if submission is going to be put that there is conduct that has ceased or not ceased then it is of the essence that you, at least, know what conduct you are alluding to.

PN173

MR GARDENER: Yes, if I might commence with some of the conduct that was before your Honour in affidavit evidence that I have tendered as exhibits and I'll point to each.

PN174

HIS HONOUR: Well I realise that, but the conduct on which you are relying ranges from abusive language from picketers through, it would appear, to failing to remove signs that have been blotted out on a picket site that seems now devoid of humankind over the long weekend. So if you're wanting me to issue certificates, then you'd better work out yourselves what conduct has ceased and what hasn't ceased or what it is you say is resumed because the certificate will have to be framed by reference to some regard to the legislation. Your original notification was cast with sufficient width to presumably embrace anything that was covered in the voluminous affidavits.

PN175

MR GARDENER: Yes, well, what I might do then, your Honour, is concentrate on the conduct that we submit is continuing and with reference to our application which I understand is exhibit 2, it may be, your Honour.

PN176

HIS HONOUR: Well, firstly, there is conduct in the nature of a strike action. I take it that's continuing.

PN177

MR GARDENER: Yes.

PN178

HIS HONOUR: Have you complained of that conduct? I'm not sure whether you have or you haven't.

PN179

MR GARDENER: Yes, in item A of the notification, your Honour, it's described as picketing which obstructs, hinders or interferes with the passage or person.

PN180

HIS HONOUR: No picketing is not strike action, Mr Gardener. 166A on my understanding of it, allows you to come forward to seek to institute a tort action against the taking of industrial action which may or may not be protected action, or which may be in fact protected action, and the Commission is obliged to give you a certificate even in relation to protected action. The protected action defence provided for in 166A(1) only arises in a rather convoluted way when the matter comes before a court so on its face and on the Commission's interpretation of section 166A it is open for an employer to notify an intention to bring an action in tort in relation to conduct that is protected action and in relation to which 166A says an action in tort does not lie. That is one reason why I made the suggestion that section 166A is a rather hybrid convoluted garbled and difficult to apply provision because it appears to take away protections that the Act gives and it puts the situation and puts the Commission in the position that in effect must issue a certificate even where it's as plain as a pikestaff the industrial action is probably protected action and should be covered by the defence provided for in 166A(1).

PN181

My question went to you. There is obviously industrial action continuing?

PN182

MR GARDENER: Yes.

PN183

HIS HONOUR: Is that included in the conduct of which you make complaint - - -

PN184

MR GARDENER: It is, your Honour.

PN185

HIS HONOUR: - - - because it has not ceased. If so, where was it in the notification?

PN186

MR GARDENER: Your Honour, it's item G on - - -

PN187

HIS HONOUR: Your response to me I think was there was picketing action continuing and I said that's not a response to the question. Item G in the notification, is it? Perhaps you could read that out.

PN188

MR GARDENER: Yes, and I'll address your Honour on item A in a moment. G seems to be the most relevant to your question as I understood it.

PN189

Standing in line or any other formation or on any roadway, driveway, lane, footpath, doorway, gateway, or any other entry or exit to or from the premises in the path of vehicular or pedestrian traffic approaching or leaving the premises.

PN190

The premises, your Honour, is a term that the applicant applies from the affidavit of Mr McBurney as the site - - -

PN191

HIS HONOUR: We are at cross purposes. Why is standing in line in a driveway near the premises engaging in industrial action?

PN192

MR GARDENER: Your Honour, I was going to address you on all of these. Items A to G are all forms of strike or industrial action that the applicant seeks to have certificate for. A strike can be more than just merely not working to direction and in accordance - in its simplest form it could be a reaction to a notification that the respondent has given for industrial action which was described as an indefinite - - -

PN193

HIS HONOUR: I must say I'm puzzled. Have you misunderstood my question. I asked you - you are familiar with the definition of industrial action, are you?

PN194

MR GARDENER: Yes.

PN195

HIS HONOUR: It's common ground, is it not, that these employees are out on strike, they haven't been locked out.

PN196

MR GARDENER: Yes.

PN197

HIS HONOUR: I was asking you whether you are relying on conduct constituted by the continuing notified industrial action, namely that they are out on strike as the conduct which you say has not ceased.

PN198

MR GARDENER: Yes.

PN199

HIS HONOUR: I understood you to say yes to that?

PN200

MR GARDENER: Yes.

PN201

HIS HONOUR: Then I asked you, where in the notice it is alleged. You then take me to G and say, well A to G as well is a form of strike. Well, frankly it's a nonsense to suggest that, Mr Gardener. Are we misunderstanding each other?

PN202

MR GARDENER: We may be, your Honour.

PN203

HIS HONOUR: A strike is a strike. These employees notified they were going out on strike on 22 January I think or 17 March, they have been on strike for six weeks. Either you want to go up with that in your armory when you go to the Supreme Court or you don't. If you do want to go up with it it's relatively simple. I don't think you've got an action in tort and I think it's a waste of time but at least go up on it but if you want to rely on it then it's a clear cut form of the conduct that is still continuing. If you don't want to rely on it let's forget about it and go back to the picket line.

PN204

MR GARDENER: Well, I do wish to rely on it.

PN205

HIS HONOUR: So you wish to rely on it notwithstanding, but it wasn't raised in the original conduct alleged but we can take down for the purposes of section 166A that you sought to have the Commission stop the conduct of which you complain and in relation to which you want to take an action in tort, namely the strike action that is being taken against the company because I think I can say that's certainly the conduct that the Commission was trying to stop along with the maintenance of a picket and an act of sense. It had some success in relation to the latter and due to the difficulty the company has in responding prior to close of business today it has had certainly no success in bringing to an end either the industrial action or the possibility of the eventual restoration of the picket.

PN206

But let us at least get it clear that you are trying to stop through use of 166A the strike action conduct too.

PN207

MR GARDENER: Yes.

PN208

HIS HONOUR: Right. I think it's common ground that that conduct has not ceased. So out of that exchange emerged that part of the conduct or an item of conduct to which you now give notice of intention to bring action in tort is the strike action that commenced I think it was on the morning of 17 March.

PN209

MR GARDENER: Yes, your Honour.

PN210

HIS HONOUR: Yes, I think it should be common ground that that conduct has not ceased.

PN211

MR GARDNER: Some of the difficulty we have with other items in the notice, your Honour, is that as of this morning - there has been a long weekend preceding this morning so there hasn't been the need to ferry employees to and from. But as the notice was before you on - - -

PN212

HIS HONOUR: You'd have an even greater difficulty, wouldn't you, to ferry them through the picket line when - and I don't know what level of communication there is between those who represent the company in the conference conciliation proceedings and those who instruct you but it was clear to me at least last Thursday afternoon that the company had from the union an undertaking that the picket line would be retracted to a passive role. So whatever was to happen today did not involve, as I understood it, at least until 6.00 pm or something this evening the act of maintenance of a picket.

PN213

MS BESWICK: Excuse me, your Honour?

PN214

HIS HONOUR: No, you are represented, Ms Beswick. I can see you but I'm not hearing you. If you wish to make an appearance then arrange for your solicitor to do it. You understand the point I'm making, Mr Gardner?

PN215

MR GARDNER: Yes.

PN216

HIS HONOUR: I don't know which way it cuts but for what it is worth the Commission's efforts and more, I think, particularly the parties had reached a situation where the active aspect of the picket was, to put it neutrally, at least suspended because of some progress that was hoped to be made in negotiations and the suspension was extended by effectively agreement and acquiescence from Mr Gordon, I think?

PN217

MR GARDNER: Yes.

PN218

HIS HONOUR: In consultation with Mr Burnham, is it, until 6.00 pm this afternoon. So I think if you had presented somebody to drive through the picket line then they would have been unencumbered in being able to do so if they could get through the shutter door that is not working or the various other provisions or pick their way around the junk.

PN219

MR GARDNER: There's no evidence of the union I'm aware of.

PN220

HIS HONOUR: Sorry?

PN221

MR GARDNER: I understand there was an undertaking given but - - -

PN222

HIS HONOUR: Your photos are testimony to it, aren't they?

PN223

MR GARDNER: Not at all.

PN224

HIS HONOUR: Surely this is not uncontroversial is it? Have you been instructed as to what went on on Thursday and what's happened since?

PN225

MR GARDNER: I have, your Honour, I had a detailed conference with Mr Stewart and the owners.

PN226

HIS HONOUR: Are you saying there's still an active picket line there?

PN227

MR GARDNER: Well - - -

PN228

HIS HONOUR: Where are the photos of it? It's not asserted to by Mr Winstanley is it?

PN229

MR GARDNER: It may be one's definition.

PN230

HIS HONOUR: Has he gone around the site and not found a body to take a photo of?

PN231

MR GARDNER: No, the photographs do show people camping on company property under a tent.

PN232

HIS HONOUR: So there are still people there are there?

PN233

MR GARDNER: Yes, there's still a picket there. It may be a term of industrial art to describe one as an active or passive picket but there's still a picket there and there's still people trespassing on company property.

PN234

HIS HONOUR: Let's just use common language. It's common ground then between you then is it - when I say common ground I thought the picket would have been maintained because I thought that was what was made clear on Friday afternoon in the sense that they would withdraw from active - I can't use a neutral word - obstruction to being on the sidelines but this exchange was provoked by your suggestion that you can't get evidence of continued active disruption today because you don't want to drive people through the picket lines. That to me conjured up the idea of people thumping the sides of the bus and calling each other scab and the bus having difficulty going through. Well, I thought the undertaking that was given removed that prospect at least until hostilities resumed between you if they do resume but in the meantime what was said. If you want to rely on the conduct then, I understand it at least, was to the effect that the remnants of the picket, if it could be put that way, would pass out literature I think to people who presented at the gate and asked them not to go in because the place was under an industrial campaign although it is still maintaining a picket line and I thought that was what would be done. However, I did get the impression from the photos that I didn't see a living soul but perhaps I didn't look at the pictures closely enough.

PN235

MR GARDNER: There certainly are people in those photographs, your Honour. I think the difficulty I have it appears to be suggested that we need to dissect conduct that hasn't been ongoing from conduct that is ongoing but if the applicant is to - - -

PN236

HIS HONOUR: You can come to that. I want to know whether you're dissecting or not what is the conduct that you want me to certify that is continuing conduct in relation to which you have an intention to bring an action in tort.

PN237

MR GARDNER: Your Honour, if I could have five minutes to update my instructions.

PN238

HIS HONOUR: I need that certification because after all, Mr Gardner, that is the conduct that the Act directs me to try to stop and I can't stop somebody lighting a fire that has since gone out. I can't stop someone calling a person a scab when that occasion has passed. Now, there needs to be a description obviously of the person who has called a scab once is likely to want to call them so again and that may be a course of conduct that one can attempt to stop.

PN239

The Commission has attempted to stop the maintenance of a picket line, it has, I would have thought, arguably had some success in stopping active aspects of the picket line that are closest to besetting, obstructing or impeding passageway to and from the site and active aspects of the picket line that are actively giving offence to those who might seek to enter or egress from the site. That much conduct has been stopped or at least - I can see a gentleman down the back shaking his head. If he wishes to come forward and give evidence? You've been silent thus far, sir, in conference and in hearing and if you wish to speak come through your counsel but don't seek to interrupt while the Commission is addressing the person who represents you. This proceeding has been troubled a great deal by the silence of the directors of the company on critical occasions and their refusal to deal with the parties at the other end of the bar table. I will not accept headshaking and intervention from the back of the court. If you wish to come forward?

PN240

MR X: Could we have an intermission or something?

PN241

HIS HONOUR: I think it would be a good idea because your conduct is vexing to the Commission. If you wish to lead evidence then do so but at present you are represented today through Mr Gardner, last week through Mr Gordon, a week or so before that through Mr Price and what I am seeking to do, as I have tried to make clear, is to have a clear picture of the conduct upon which you're relying that goes into a certificate. So you can understand it in perspective, Mr Gardner, you will probably get a certificate.

PN242

MR GARDNER: Yes, I understand.

PN243

HIS HONOUR: The certificate will specify the conduct that I think is occurring in relation to which you wish to bring an action in tort. The certificate will also specify as far as practicable aspects of other conduct that I cannot cease. The Act doesn't require me to try to stop the conduct of those who instruct you. There are aspects of that conduct to be tantamount to unfair bargaining practices and there are aspects of that conduct that I think are objectionable. I will certify that as part of the preamble to the certificate also so that if and when this matter gets before the court, if that's the purpose in which you want the certificate, then there will be, at least to the court, a perspective of how the proceedings have gone on before this, not so much today but how it is that the matter comes forward on a certificate from the Commission, if I can assist you.

PN244

It is clear that as at the close of business on Thursday and I think on Friday the position agreed was that there would be the remnant of a picket. There was some disagreement I thought as to how quickly it would be cleaned up in terms of removing rubbish and other items from the site. I don't think the company was given any consolation that would happen as quickly as it would like. In industrial common sense, even if the matter were to be wound up, if you were to reach agreement which seems probably pretty unlikely ordinary practice indicates that it will take a day or so, probably to the end of this week, before there were meetings. Those who have been on strike - I think it's for seven weeks isn't it now?

PN245

MR GARDNER: Yes.

PN246

HIS HONOUR: It would take time. There would be an orderly retreat, if one can call it that, from the site. Those are the practicalities of it and that's the probability that that action ,if it's complained of, will not cease within the time limit or even within the expired time limit. So if it is that you're relying solely on the presence of whoever owns the expired lounges and the other items then, okay, specify that as the conduct but you will need to specify it because that is the conduct that I must certify has not ceased and I won't be certifying something in legalese that makes it impossible to tell what it was until you work out later what it is that you want to sue upon. That has been I have to say also part of the problem in dealing with this matter over the weeks that it has been coming back before the Commission.

PN247

So you may also have an adjournment. Let me know when you're coming back but you should also, if the union wants to respond to the particulars that you're seeking, you might as well let them know so that if not to save time at least so as they know what case it is that they've got to meet. They are to some extent taken, I would have thought, by surprise but not much I would hope by the first item on which you rely, namely that there is continuing industrial action but I would certainly say for myself that the purpose of the conciliation, if conciliation it could be called, on Thursday was to get the parties to remove the cause of this entire conflict, namely to reach some measure of agreement which would, of course, have extended to the matters that are in issue in the bargaining period which involves negotiations perhaps between the negotiating parties, the AMWU and the company. I will adjourn for a time.

PN248

Perhaps, Mr Gardner, you might also instruct Ms Beswick and the gentleman whose name I do not know who I don't think has ever spoken but who nods his head in the background that I do not expect them to intervene in proceedings when there is a formal proceeding before the court.

PN249

MS BESWICK: I apologise to the court.

PN250

MR GARDNER: Yes, I will.

PN251

HIS HONOUR: If they wish to appear then that's another matter and you can sort that out after the adjournment also. The Commission will adjourn.

SHORT ADJOURNMENT [10.40am]

RESUMES [11.47am]

PN252

HIS HONOUR: Yes, Mr Gardner?

PN253

MR GARDNER: Your Honour, with the benefit of some time the parties have exchanged a number of propositions and the applicant now wishes to state that it will permit the respondent 48 hours in which time it is to use its best endeavours to have removed before 48 hours all property, persons and anything to do with the apparatus of the picket including any persons or property visibly adjacent or nearby the company premises to be removed totally.

PN254

MR MORRISON: I object, your Honour. That was nowhere what the AMWU agreed to or discussed and this is - - -

PN255

HIS HONOUR: Mr Morrison, be seated.

PN256

MR MORRISON: I am sorry, your Honour.

PN257

HIS HONOUR: I will hear you in due course. Mr Gardner should have an opportunity to put what it is he wants to say.

PN258

MR GARDNER: Your Honour, I am not asserting at all this has been agreed. This is what the applicant is placing on the record.

PN259

HIS HONOUR: Yes, exchanged a number of permissions, you are prepared to permit the respondent 48 hours in which time to remove all property and persons and - I'm sorry, something to do with the apparatus of the picket - anything to do with the apparatus of the picket. Sorry.

PN260

MR GARDNER: Yes, and that includes any persons or property visibly next to, adjacent or adjoining the company's property. That's put on the basis that the parties have further opportunity to try and resolve the substantive differences between them and that will allow too the representative of the Australian Industry Group who I understand has been continuing conferences in this Commission.

PN261

HIS HONOUR: I welcome that indication. Before I call on you, Mr Morrison, could I also set straight one point that I put to you, Mr Gardner, that had an element of error in it that I seek to retract. I think I taxed you in relation to the conduct upon which you relied and went specifically both to industrial action and to then the details by reference to the notification that was lodged on 22 April. I overlooked two points; one is that it is consistent with the employer's record up to this point until today when I pressed you on the point and you took instructions on it that it did not seek to take action against what it perceived - and I can't remember the words in which it was put - to be industrial action taken within the rights available under the Act. If that position has altered that, of course, is something that, as I have indicated, I consider may be open to you but I don't seek to put it in a way that ignores the position that has been fairly consistently adopted by the company. The second point and of more substance is that in the response to the direction that I made on 23 April you responded on 24 April to a direction that I think did call for the specification of the conduct and that specification at that stage was that the respondent and its members:

PN262

- must not use threat or intimidation -

PN263

and I won't spell out each of the dot points:

PN264

Must not apply duress to the applicant in connection with an AWA or ancillary document and must not knowingly make a false or misleading statement.

PN265

That response is put in the context of the application for orders under section 166A of the Act. I simply make clear that that specification of conduct at that time goes a step beyond what was in the application for the section 166A order and at least as a broad set of headings pertains to the affidavit material before the Commission. Within the next 48 hours in any event I would hope that a copy of the transcript for today can be made available and if this matter needs to come back on under the heading of section 166A then so far as the specification of conduct is concerned then perhaps that passage of the way in which the positions have been put might be taken into account.

PN266

MR GARDNER: I am also instructed just to make a submission in relation to comments that came from the Bench about the applicants good faith in bargaining before the Commission. I am instructed that the applicant has at all times approached this Commission with respect and with the intention of bargaining in good faith and negotiating in good faith at conferences. That's the extent of my response, and it will continue to do so.

PN267

HIS HONOUR: I think lest there be any confusion I don't know that I have volunteered an observation on the question of good faith. Perhaps it arises constructively. Mr Gardner, the point I have particularly in mind though when I foreshadowed that there may be some adverse reflection upon the conduct of negotiations was the difficulty that has been manifest since the hearings of this matter in January, March and April in securing the company's acquiescence in negotiating with the negotiating party to the bargaining period.

PN268

I have on a number of occasions expressed my understanding of the company's position in that respect which is, effectively, that it has preferred to deal with its own employees and has been at least obstructive or obtuse about entering into negotiations for purposes of a section 170LJ or certified agreement. It is that conduct in particular associated with, effectively, a unilateral cessation of working arrangement for four days that provoked, on my reading of it, industrial action or a decline in what had been good industrial relations at the site. I think I described it as an unfair bargaining practice.

PN269

MR GARDNER: Yes, you may have, your Honour, I may have used the wrong words.

PN270

HIS HONOUR: I don't know that I would characterise that as lack of good faith although perhaps that might be a construction that could be placed on it; I haven't gone that far in endeavouring to back into that area. In terms of any lack of respect for the Commission that's not a charge I would throw at the company or particularly at the two individuals who are concerned to simply seeking, in the context of which that discussion might have arisen, to make a point either tacitly or overtly in circumstances where there is a formal hearing before the Commission.

PN271

I would have to say to the extent that there was any lack of respect for the Commission then I can understand the somewhat intemperate character of the proceedings recently might have encouraged that view rather than discouraged it but there is, of necessity, in matters of this kind a demand that the Commission has constituted focus the parties attention in the best way it can upon a matter that is causing I think grievous harm to both the employer and to the employees who are on this picket line that's in issue in this matter.

PN272

If that explanation helps to cause people to understand then perhaps that is worth making but certainly I don't draw from anything that has happened any unjustifiable lack of respect for the Commission. Mr Morrison?

PN273

MR MORRISON: Yes, your Honour. Firstly I apologise for our earlier outburst. As you know it was unlike me.

PN274

HIS HONOUR: I'm used to them, Mr Morrison.

PN275

MR MORRISON: But not from me, your Honour, and hopefully it won't happen again.

PN276

HIS HONOUR: Not that I can remember.

PN277

MR MORRISON: No, your Honour. Firstly, I just have to put on, formally say that the commitments that the union gave on Thursday have been kept up to and including this morning when there was no blocking or no intimidation. No, in any way was there any carrying on that has been in the past with the vehicles and the buses and the trucks entering the site this morning, or their leaving the site.

PN278

With regard to Mr Gardner's, I believe, request that the 166A application be deferred for I think 48 hours or a period of that, we would see there are two issues. There is the 166A application and then there are the separate negotiations as far as trying to resolve the matter in dispute. We don't wish to link the two. If the company wishes to proceed with the 166A application then fine, let them proceed down that path. If they want to defer that application for 72 hours or 48 hours that's fine, they can do that, but we do not want this sort of Damocles heading over our head as far as negotiations go. We are expecting a response at close of business today and then we will then determine the union's position as regards to what is said to us this afternoon.

PN279

Nothing much more, your Honour. If the Commission pleases.

PN280

HIS HONOUR: I think the positions are noted. So far as suspension of further hearing of the 166A application then I would make clear that I welcome that outcome. It will allow some clarification of respective positions to be arrived at and it will avoid the determination of the issuance of the certificate to be made in circumstances where it is relatively unclear whether an enduring settlement might be able to be reached this week.

PN281

I don't understand there to be any prejudice to either party's position caused by voluntary suspension of the hearing. I indicate that should it be necessary, at least my understanding is I'm free on 1 May but if it sought to restore this matter to the list on 1 May then notification should be given as soon as practicable to me and to Mr Morrison. That's in relation to the 166A proceeding, otherwise I'll simply adjourn subject to what either of you have to say; I'll simply adjourn this proceeding without fixing a date I think but if it transpires that it's unlikely to need to resume then perhaps you might let us know that informally too so that 1 May can be freed entirely.

PN282

I won't at this stage seek a particular time for it on 1 May.

PN283

MR GARDENER: That's suitable for us, your Honour.

PN284

MR MORRISON: That is suitable, your Honour.

PN285

HIS HONOUR: I commend to the parties the desirability of making as much progress to resolve this matter as it can be. I don't think my exhortations are going to add anything to what you probably have already had feelers, the desirability of the end game of this dispute being brought on this week rather than deferred to other Tribunals and other activities. The Commission will adjourn.

ADJOURNED ACCORDINGLY [12.03pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MM12 AFFIDAVIT OF WILLIAM GEOFFREY WINSTANLEY PN152
EXHIBIT #MM12 PHOTOGRAPH OF ACCUMULATING DOMESTIC AND INDUSTRIAL WASTE ASSOCIATED WITH PICKET LINE PN168