C2003/3722, Transcript of Proceedings [2003] AIRCTrans 2156 (6 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C 2003/3722

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Stramit Corporation Limited for
an order to stop or prevent industrial action

SYDNEY

2.26 PM, TUESDAY, 20 MAY 2003

PN1

HIS HONOUR: This is matter C3722 of 2003. It is an application lodged on 19 May this year for an order under section 127 to stop or prevent industrial action. The applicant is Stramit Corporation Limited, the respondent notified in particular is the AMWU. Could I have appearances please?

PN2

MR D. HARGRAVES: If it please the commission, I appear in these proceedings on behalf of the Australian Industry Group and on behalf of the applicant company, Stramit Corporation Limited.

PN3

MR I. MORRISON: Your Honour, if it please the commission I appear on behalf of the Australian Manufacturing Workers Union. With me today is MR BRAD STEWART the national official for the union with regard to Stramit Corporation.

PN4

HIS HONOUR: This is your application, Mr Hargraves?

PN5

MR HARGRAVES: Thank you, your Honour. Your Honour, this is an application under section 127 of the Workplace Relations Act. My submissions this afternoon I was proposing to put in two components. The first to provide your Honour with a background to events that have occurred in the industrial dispute leading up this situation and the current application. And to support the submissions that I put in that regard I was proposing to call a witness, in the form of Mr O'Driscoll, from the company. And the second part of my submissions would be specifically addressing you in relation to section 127 in our application and why the commission should make the order in the terms sought.

PN6

I might commence by giving the commission some background, as I have indicated, as to what has occurred in these proceedings. Your Honour, the company's business is cold rolled forming of metal products for the building industry. Its product is used extensively in the residential sector, the commercial sector and retail sectors. Most of the company's product is made to order and delivery is within 24 hours to 48 hours from the placement of the order.

PN7

The company has some 22 sites around the country and not all of those are subject to the current dispute. But just to give an indication, in New South Wales the company has sites at Wetherill Park, Newcastle, Coffs Harbour, Orange and Queanbeyan. In the northern region it has sites at Crestmead, Darwin, Cairns, Townsville, Maryborough, Mackay and Rockhampton. And in the southern region it has sites at Bayswater, Kilsyth, Mulgrave, Preston, Albury, Bendigo, Adelaide, Hobart. And in the western region it has sites at Perth and Bunbury.

PN8

At each of those sites - well not each of those sites, there are a range of industrial instruments that apply in relation to those 22 sites, your Honour. At some sites there are certified agreements, at other sites there are not. And those sites where there are no certified agreements in place either have non-registered agreements or they apply the terms of the Metal and Engineering and Associated Industries Award. And, I am told, that in some cases some of the conditions that might flow from one site are observed at another site. So, the point overall, your Honour, is that there are a range of industrial instruments that apply across the sites.

PN9

There are a number of certified agreements which have recently expired, which are the subject of the current industry campaign being conducted by the AMWU. There is the Newcastle site agreement which expired on 31 January of this year. There is a Wetherill Park agreement which expired on 31 March of this year. We have another agreement at Kilsyth in Victoria which similar expired on 31 March this year. Bayswater in Victoria expired on 31 March this year. Smithfield in New South Wales expired on 31 March this year. There is another agreement in Western Australia which expired on 31 December 2002. Your Honour, at the two other sites in Victoria - Mulgrave and Preston sites - there are no certified agreements at present, as I am instructed, on those sites. But there are unregistered agreements, both of which expired on 31 March 2003.

PN10

HIS HONOUR: With whom are those agreements negotiated?

PN11

MR HARGRAVES: Those agreements, all of the above agreements were negotiated with the AMWU.

PN12

HIS HONOUR: Including the unregistered agreements?

PN13

MR HARGRAVES: I'm sorry, I withdraw that, your Honour. Your Honour, I am instructed at Mulgrave and Preston the unregistered agreements are agreements with the employees. The agreements at Wetherill Park is with the AMWU. Similarly, at Newcastle. Similarly at Bayswater, Kilsyth. And the one in Western Australia is with the AMWU as well.

PN14

The history has been, your Honour, that at all of these sites negotiations have been conducted at the enterprise level. The company's expectation was that the agreements that were coming up for renewal would continue to be negotiated at the enterprise level. As they have been in the past through the well established consultative forums that are in place at each site. In March this year, the company was advised by the AMWU that it wanted a national agreement. Or, in the alternative, State-wide agreements covering all sites. The company rejected that approach from the AMWU.

PN15

In late March the company, faced with the threat of industrial action, agreed to have discussions with the AMWU at a so-called National level. The first of those discussions occurred on 3 April this year. The AMWU purported at that meeting to represent the following sites, Bayswater, Kilsyth, Mulgrave, Preston, Wetherill Park, Smithfield and Newcastle.

PN16

The AMWU in those discussions were represented by Mr Stewart, who I understand is a national project officer with the union and there were also a state organiser, Mr Mulgary and there were from time to time a number of delegates from different sites and the company was represented by Mr Robinson and also myself. Whilst I mention that there was an attendance at those meetings by some delegates, there was no physical representation at that meeting from Wetherill Park, Smithfield, Newcastle or Western Australia.

PN17

The AMWU at that meeting on 3 April, indicated that it wanted to negotiate six items, your Honour, to be included in the local EBAs for those sites, and the company was told that those six items were as follows:

PN18

NEST, which is the acronym for National Employee Security Trust. Common expiry dates. Delegates rites and training. Contract and casual labour. Wages. Maternity and paternity leave.

PN19

At that meeting the company indicated that it was committed to negotiations continuing at the enterprise level. Those local negotiations at some sites had been underway for quite some time. The company further indicated it's concern about the running of the parallel negotiations at the so-called national level and running those negotiations in parallel with discussions at the various sites.

PN20

In the company's view this particular approach that was being pursued by the AMWU was cumbersome to say the least and in our view not workable and the company put that to the AMWU and again indicated its preference to having negotiations at the site level. The company maintains that position, your Honour.

PN21

The company indicated that it was only prepared to continue discussions at that level on the basis - - -

PN22

HIS HONOUR: At what level - at site level?

PN23

MR HARGRAVES: Sorry, your Honour, discussions had commenced at this national level and the company indicated its reluctant preparedness to continue those discussions, but only on the basis that there be no industrial action.

PN24

There were two further meetings at that national level, your Honour, and they were on 14 April and also on 28 May. By this stage, your Honour, the Bayswater site had indicated that it was no longer participating in those discussions and only delegates from the Kilsyth, Preston and Mulgrave sites attended the meetings.

PN25

HIS HONOUR: How did the Bayswater site indicate that it be represented?

PN26

MR HARGRAVES: The Bayswater site had a delegate at the first meeting. At the second meeting Mr Robinson specifically asked where the representation from Bayswater was and it was confirmed that Bayswater were no longer participating in those discussions. The Bayswater site had indicated some dissatisfaction as we understand it, with the local organiser, Mr Mulgary, and had also indicated it wanted to have separate discussions with the company, so those discussions have been taking place over the course of the last week, your Honour and at this point in time those discussions are well advanced. There has been no industrial action at all at the Bayswater site.

PN27

HIS HONOUR: What form of agreement is in contemplation or is there no form of agreement in contemplation?

PN28

MR HARGRAVES: I guess that is still a little bit up in the air. The company's intention would be for it's part, that that would be a 170LJ agreement with the AMWU as being a party. That is the company's intention in respect of that agreement.

PN29

Just to give your Honour some indication as to the size of the sites that we are talking about - the Bayswater site has some 90 factory employees. Kilsyth, 47. Mulgrave, 29. Preston, 22. Smithfield, 10. Wetherill Park, 72, and Newcastle, 32. Western Australia, 56. I indicated earlier, your Honour that the Western Australian site was also included reportedly as being part of the national negotiations, and at that site negotiations had been under way for some time, since January.

PN30

I might just address your Honour in respect of the situation in Western Australia. This has an enterprise bargaining agreement registered under the Western Australian Industrial Relations Act 1979, and the employees at that site are covered by the Western Australian Metal Trades General Award. The company was notified at that site that industrial action in the form of strike action was to commence at 6.00 o'clock on 16 May.

PN31

Senior Commissioner Beach of the Western Australian Commission on 15 May in response to an application by the company issued orders in relation to that site. I can tender a copy of those orders, your Honour.

PN32

HIS HONOUR: AIG 1.

EXHIBIT #AIG1 COPY OF ORDERS

PN33

MR HARGRAVES: Your Honour, the orders are contained at page 2 of that document at about three quarters of the way down the page and effectively the orders were that:

PN34

Amtel Limited trading as Stramit Gordon Products schedule discussions with the Automotive Metals Engineering Printing and Kindred Industries Union of Workers, Western Australian branch ...(reads)... the Commission, at a time to be fixed on Wednesday, 21 May 2003.

PN35

It's my understanding that those orders are being complied with and that the strike action planned for 16 May did not occur and that there are discussions going on between the parties at that site and that there is a report back due in the Commission tomorrow. It is apparent that that matter will remain before the Western Australian Commission for further negotiation and if the parties still remain apart, then for conciliation. So in summary, the Western Australian matter is ongoing at the enterprise level and is excluded from any national negotiations.

PN36

Your Honour, if I could turn to the current industrial action? The AMWU issued notices of protected action under section 170MO to the various sites. If I could tender a copy of those documents.

PN37

HIS HONOUR: Yes, I will mark those as a collective exhibit AIG2. They are notices of intended industrial action given on May 12 in each instance to the Manager of Stramit Corporation Limited in relation to Smithfield, Nelson Bay, Cardiff, New South Wales and Newcastle. Wetherill Park, New South Wales. There seems to be another one here for Smithfield, New South Wales. And there is also a notification of authorisation to engage in industrial action. And I think there is a notice in relation to Kilsyth.

EXHIBIT #AIG2 NOTICES OF INTENDED INDUSTRIAL ACTION DATED 12/05/03

PN38

HIS HONOUR: Are they all in identical terms? That the time to commence, 6.00am Kilsyth and Mulgrave.

PN39

MR HARGRAVES: No, they are not in identical terms, your Honour.

PN40

HIS HONOUR: I see, no. There is Kilsyth, Mulgrave and Preston at 6.00am. Mulgrave at 5.00am. Kilsyth and Preston at 7.00am on Friday 16 May. For a period of 24 hours in each of those cases. And a 24 hour stoppage plus overtime throughout the entire plant. Yes.

PN41

MR HARGRAVES: That is correct, your Honour.

PN42

HIS HONOUR: I have marked those AIG2. Did you want me to separate them?

PN43

MR HARGRAVES: No I think as a collective is fine, your Honour. Your Honour, if I could draw your attention to the notice, firstly, in relation to the - which is about the fifth page in the bundle marked AIG2. Which is the document, a letter from the AMWU addressed to John O'Driscoll at Stramit Industries and signed by Steve Dargable, Assistant State Secretary of the AMWU. This is the notice, your Honour, under section 170MO in relation to the sites at Mulgrave, Kilsyth and Preston.

PN44

Your Honour, the witness evidence that I intended to produce later in these proceedings will indicate in fact that contrary to the information contained in this notice that the industrial action commenced at those three sites at 2.00pm on Thursday, 15 May. Clearly the notice, as it was served upon the company, was not complied with. The industrial action occurred prior to the time contained in the notice under section 170MO(5). This particular notice also contains no reference to overtime bans or any other form of bans.

PN45

In relation tot he notices for Wetherill Park, Smithfield and Newcastle. If I might deal with those collectively because they are all in very similar terms? Those notices in our submission do not indicate when the rolling stoppages which is the third dot point in clause 2 in terms of the industrial action. There is no indication within the notice as to when the rolling stoppages across all production sections, maintenance sections, all store sections including receiving, spare parts, tooling and dispatch - there is no indication within the notice as to when that action would actually commence.

PN46

Your Honour, I don't at this stage in my submission wish to take you to the relevant case law. I will do that a little bit later. But I did want to indicate prime facie where we see the deficiencies in the company's notices. However, what we will be saying, your Honour, is that the case law does support the principle contained within section 170MO(5) and that is that the employer is entitled to receive specific detail about the form of the industrial action and when it will occur. In our submission, your Honour, that in this case has not been achieved.

PN47

Your Honour, we also refer to section 170MP which requires in subsection (1) that negotiations must precede action by organisations of employs. At the sites of Kilsyth, Preston, Mulgrave and Smithfield there have been no meetings of the consultative committees to discuss the content of their enterprise agreements. There have been many attempts, which we will demonstrate in the evidence a little bit later, of the company attempting to establish those meetings; but for a range of reasons they did not proceed.

PN48

Your Honour, it is of course the case that those sites have been purported to be represented in the so-called national discussions in relation to the six issues. But those discussions have not attempted to cover any of the local issues that would be relevant and that would normally be discussed in each one of those agreements. And it was a very clear understanding in the course of the national discussions that local issues that would be applying at each State would not be discussed. So it is our submission, your Honour, that in relation to those sites there has been absolutely no discussions in relation to the broad range of issues that one would normally expect to see in an enterprise agreements. It is our view therefore, your Honour, which will be supported by

PN49

- - -

PN50

HIS HONOUR: I'll just go through those again, in relation to Bayswater, that's one of the Victorian sites, what is the current agreement there?

PN51

MR HARGRAVES: They have an LJ agreement that expired on 31 March, your Honour, and the parties there at a site level have been in negotiations.

PN52

HIS HONOUR: I see, that's the one that's withdrawn, I picked the wrong one. Mulgrave?

PN53

MR HARGRAVES: Mulgrave?

PN54

HIS HONOUR: Yes, take me through Mulgrave, Preston and Kilsyth. Is that the third Victorian one? What form of agreement?

PN55

MR HARGRAVES: Yes. The company is proposing that at each of those sites there would be a section 170LJ agreement.

PN56

HIS HONOUR: Is there a 170LJ agreement there at present?

PN57

MR HARGRAVES: At Kilsyth there is, your Honour, which has expired. And at Mulgrave and Preston, there is not currently an agreement at those sites.

PN58

HIS HONOUR: Yes, and in relation to the New South Wales sites in Wetherill Park, Newcastle and Smithfield. They all have LJs do they?

PN59

MR HARGRAVES: Wetherill Park has an LJ agreement. Newcastle has an LJ agreement and yes, so does Smithfield.

PN60

HIS HONOUR: Has the company as yet at national or at site level proposed the form of the LJ agreement it would support in detailed content?

PN61

MR HARGRAVES: Yes, my instructions are that there has not been a document that has been put in its final form, but there certainly have been documents that have set the agenda for the discussions and those discussions are at various stages towards reaching final agreement, your Honour. Some of them are very close to finalisation and others would still have a way to go.

PN62

HIS HONOUR: Yes.

PN63

MR HARGRAVES: Your Honour, since the application was filed, there has been in fact a deterioration in the industrial situation. At the sites of Kilsyth, Preston and Mulgrave, picketing, which in the company's submission is unlawful picketing, commenced yesterday morning. This picket is unusual inasmuch as at each of the three sites for much of the day there was only one person on the picket. However, the effect of that picket is that no vehicles - perhaps with the odd exception - have been permitted to leave or enter any of the three premises. That extends to even courier vans as I am told. The evidence will indicate that all forms of vehicles are being declined entry to the site or not being permitted to leave the site.

PN64

In response to that action I advised Mr Stewart of the AMWU that such picketing action was unlawful in our view and requested that such action cease or the company would be initiating further legal proceedings. The company forwarded through it's representative, correspondence to Mr Stewart earlier today, stating that unless such action ceased and confirmation was received by 12.00 o'clock midday today, that such action had ceased, then those proceedings would be initiated later today.

PN65

I am further instructed, your Honour, that the numbers on each of the pickets on the sites grew considerably during the latter stages of yesterday. The police have been called on numerous occasions because of the scuffles that have developed between picketers and truck drivers trying to enter the premises. The company is in possession of statements from drivers alleging the Transport Workers Union of Australia, has advised drivers not to cross picket lines. An organiser of the TWU has been seen on the picket line.

PN66

The issue of the unlawful picket will now be the subject of separate proceedings, your Honour. The existence of the pickets, which we say in this instance are unlawful, have had a significant impact on the operations of the business. The nature of the product produced is such that it essentially rolls off the line, is picked and packed, and is dispatched to the clients almost immediately. If product is not being delivered, then the lines are not being cleared, causing a back-log leading to their being no manufacturing. So effectively the facility grinds to a total halt very quickly.

PN67

The company at those three sites, yesterday essentially ran out of work around about the middle of the day. Alternate work for some employees was found, but that work quickly evaporated.

PN68

HIS HONOUR: Have any employees been stood down?

PN69

MR HARGRAVES: Yes, they have, your Honour.

PN70

HIS HONOUR: Have they been locked out?

PN71

MR HARGRAVES: They have not been locked out. They have been stood down - or some employees have been stood down at those sites. That commenced yesterday at the commencement of the afternoon shift, and there would have been employees that have been again stood down today. They have been stood down in accordance with clause 4.6 of the Metal Engineering and Associated Industries Award.

PN72

As of this morning, my instructions are that there was some minimal work available and employees were approached to perform that work. That work was work such as line marking and cleaning etcetera. The employees were told that some work was available and the company proposed that there would be a roster available so that everybody would get an equal share of the work available.

PN73

The employees have indicated their refusal to perform such work and therefore it is the company's view that such employees are on strike and such strike action in our submission is not protected industrial action.

PN74

HIS HONOUR: It is becoming rather labyrinthine is it not? They have been stood down, you have put them out the door, then you are prepared to let them back in to perform some duty when they refuse that you are declaring them to be on unprotected strike action.

PN75

MR HARGRAVES: Well, I guess this is a difficult situation that has been caused through, in our submission, no fault of the company. It is a difficult situation. The unlawful picketing, of course, led to there being minimal work available. When there was no work available it was a case of that there were significant numbers of people sitting around at those sites. Of course on full pay with nothing to do and with no immediate or even short-term end in sight to that situation. So, it was with some reluctance that the company decided to stand the employees down.

PN76

The company then when it did have limited work available decided that it would be appropriate to offer that work. I guess the difficult for the company was that there was not sufficient work there to justify bringing all of the employees - offering all of that work to employees. And they tried to implement some system that would ensure an equal distribution of that work. We still say, your Honour, that as difficult as that situation may be the fact that the work was offered, the employees declined to undertake it.

PN77

Your Honour, a short time ago - not long prior to these proceedings - we were advised that the Preston site is now on strike action indefinitely. We are also informed that employees of a transport contractor are now on the picket line and also those people are turning away trucks. And not permitting those trucks from entering - or leaving for that matter - the company premises.

PN78

In summary, your Honour, the situation as it stands is this. And I appreciate that it is changing somewhat quickly. But just to summarise in fairly brief terms the situation in respect of the different sites. Western Australia, local negotiations are occurring on all issues with the assistance of the Western Australian Commission. Bayswater, local negotiations have been proceeding over the course of the last four days and those discussions are well advanced. Wetherill Park, Smithfield and Newcastle are working today, as normal with no picketing. There are local negotiations occurring on Thursday at Wetherill Park. Today, in fact, at Newcastle and at Smithfield there have been no discussions planned at this stage. We are now further in receipt of advice today that a 24-hour stoppage for this Friday has been advised to the company and notices issued today under section 170MO. At Kilsyth, Mulgrave, Preston, unlawful picketing action - - -

PN79

HIS HONOUR: Sorry, in relation to which sites is that?

PN80

MR HARGRAVES: Sorry, your Honour. Kilsyth, Mulgrave, Preston, unlawful picketing action is occurring and it will continue to be the case that some stand downs will be necessary at those sites. As I indicated a moment ago the latest update is that Preston is on strike indefinitely, as we understand it. The remaining 14 sites it is business as usual.

PN81

HIS HONOUR: I think among those perhaps I should mention that I am aware in relation to Orange, Coffs Harbour and Queanbeyan there are section 170LK agreements that were before the commission and in print 930187, in particular, I certified LK agreements with somewhat fuller reasons than usual. In which I gave the - I had noted there was a failure to comply I thought with sections 170LK(2) and (4). It transpired that contrary to the assertion declared by Mr Robinson no written notice, conforming, was issued to employees.

PN82

It was later alleged that there had been verbal notice. But I am conscious that there are LK agreements negotiated very recently for those sites and certified with some common content between each of the three agreements I certified. You are familiar with that are you Mr Hargraves?

PN83

MR HARGRAVES: Yes. I had not involvement with those agreements. But, yes, I am aware that there are three LK agreements as you have indicated, your Honour.

PN84

HIS HONOUR: Yes, well there are at least three. I don't know if any others have come through.

PN85

MR HARGRAVES: Not to my knowledge, your Honour. Your Honour, it is clear now that further industrial action is planned. And the company will need to determine how it responds to such action. The current industrial situation is a result of the AMWU industry campaign, known as "Campaign 2003", of which Stramit has been identified as a target. The company recognises the rights of the employees to participate in protected industrial action. The current action, we say, is not protected. The AMWU, in our submission, is required to operate within the confines of the law which in this instance it has failed to do.

PN86

Your Honour, I am not sure how you would like to proceed at this stage. I was planning to call Mr O'Driscoll from the company to give evidence; predominantly about the current situation in Victoria. And later to proceed to make submissions in relation to the orders that the company seeks. However, I am in your hands, your Honour. If you would prefer to hear from the union at this stage before I call Mr O'Driscoll I am happy to proceed down that track if you wish.

PN87

HIS HONOUR: I don't know that this is a matter in relation to which I want to exercise any intervening capacity. There is an application that seeks a binding outcome. It is not an exercise in conciliation. Did you wish to say anything, Mr Morrison, at this stage?

PN88

MR MORRISON: The only thing I would like to say on behalf of the union is that obviously matters have been raised which we see as not connected to the 127 application that we have been advised of. Matters before which I claim is news to us. So, with regard to being able to mount an adequate argument on those matters we would obviously need to seek some advice on that situation. If you see it appropriate some adjournment, if required, to argue those matters would be necessary.

PN89

However, with regard to the 127 application that we understand is before the commission. We would be quite happy to proceed on that point. And that is the application we have prepared arguments for. And so I don't intend at this moment to make any detailed submission. I would rather this matter proceed as it was set out in the application that has been forwarded to the union. On that basis, as regard to any 166A application or any arguments that are more proper in another hearing, then that's the appropriate place for them. I don't see their relevance before us here today.

PN90

HIS HONOUR: Yes, well the point you are making is that the application concerns Wetherill Park, Kilsyth, Newcastle, Creeks Metal Industries - what's that - a certified agreement?

PN91

MR MORRISON: That's a certified agreement, your Honour.

PN92

MR HARGRAVES: Your Honour, I would just clarify that. Creeks Metal is a company that Stramit acquired and there are two agreements I think - one at Bayswater and one at Smithfield, that exist under that name, but essentially they are part of the Stramit business.

PN93

HIS HONOUR: I see, well perhaps you just continue. I note the broad position put by Mr Morrison. I don't quite understand it in the context of the application, but perhaps that will become clearer.

PN94

MR HARGRAVES: Your Honour, if I could call Mr O'Driscoll to give evidence in these proceedings?

<WILLIAM JOHN O'DRISCOLL, SWORN [3.18pm]

<EXAMINATION-IN-CHIEF BY MR HARGRAVES

PN95

MR HARGRAVES: Mr O'Driscoll, can you please state what your role is with Stramit Corporation?---Yes, I was employed by Stramit in Victoria and commenced work with them on 29 January this year, specifically in relation to management of industrial relations in the southern region.

PN96

Prior to taking that position, what other position have you held?---Prior to that, for the last seven years I worked as a consultant running my own business. Prior to that, I was Human Resource Manager for ALCOA Point Henry smelter in Geelong. Prior to that I had two positions, one with ACI Fibreglass and one with Nissan Motor Company as personnel managers. Prior to that I was National Industrial officer for the then Storeman and Packers Union.

PN97

Have you been involved in local negotiations conducted at any of the Stramit sites with a view to reaching an enterprise agreement?---Yes.

PN98

Can you elaborate on them?---Yes, certainly. I guess it maybe needs to be put in context. Having joined the company I noted that there was a requirement under the EBAs to commence negotiations - in one case, I think in the Kilsyth agreement, it may have been three months prior to expiration. In the case of Bayswater, discussions were supposed to have started last October. I inquired as to what discussions or negotiations may have taken place. It appeared that there hadn't been any discussions, although I was informed that the shop stewards representing all four Melbourne metropolitan companies, that is Kilsyth, Preston, Mulgrave and Bayswater, had submitted a log of claims. So on that basis I suggested that we needed to initiate some form of discussion. On 19 February I met with the shop stewards representing the four sites and Mr Mulgary from the AWMU. Primarily the meeting was set up to discuss a proposal that the company had announced of wanting to move the business to a single site to be located at Dandenong. But at the end of that meeting I asked for a timetable to be set to establish negotiations for new certified agreements. I was informed that before that could happen it was necessary to respond in writing to the log of claims that had been served. On 27 February I believe we provided the shop stewards with a written answer to those logs of claims and asked if we could then set up an agenda to enter into negotiations. The shop stewards informed me that they were not able to negotiate, that there was a

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

range of national issues that needed to be negotiated at a national level, before any local negotiations could take place. As a result of that, on the same day, I sent an email to the organiser, Mr Mulgary, and attached to that the written response to the claims and again asked the question as to whether or not we could set an agenda. I received no response that email, so I think it was on 4 March I sent another email again requesting that an agenda be set up to commence negotiations and had no response. I believe I may have sent another email either one or two days later again, which would have been 5 or 6 March and again received no response. We then established via the shop stewards an agenda for dealing with the issue of relocating the business and Mr Mulgary attended those discussions and we attempted at the first discussion on relocation to raise that issue the negotiation of the agreements, and we were then informed that there would be no negotiation of local agreements until such time as relocation was resolved. So on that basis we then proceeded over a period of weeks to involve ourselves in discussions about relocating the business. Eventually those discussions broke down. They resulted in mass meetings of our employees effectively voting that they did not want to move to a new location. The end result of that for that reason and for a number of commercial reasons, the question of relocating the business was cancelled, although it is still an issue that the business has to address over the next 12 months to 2 years. As a result of the cancellation of that, we again attempted to commence some form of local negotiations to no avail. However, there were some discussions taking place at a national level, as we understood it, between national offices of the AMWU and a corporate representative - Mr Robinson of our corporate office. A fortnight ago. Thursday week ago to be precise, if I remember correctly, a meeting at that level was held which we were told resulted in an agreement that national issues be put on the back-burner for the time being and that local sites be told to accelerate negotiations. As a result of that we immediately spoke to our shop stewards. We set up meetings with the Bayswater people and their union organiser who is a Mr Wiznuski. Mr Wiznuski had come into the Bayswater location as a new representatives of the employees, as a result of Mr Mulgary's departure where he had an altercation with those employees and they voted him - they had a mass meeting and voted that he was not to return to their site. So Mr Wiznuski became involved for Bayswater. We established a meeting time with him. I also made the same invitation to Mr Mulgary who represented Preston, Kilsyth and Mulgrave plants. There was then an issue came about by the fact that although they had the same intentions in terms of wanting to negotiate new agreements I couldn't get the parties to agree to sit down in the same room. So, as a result of that, the proposed meeting became a Bayswater meeting. We had further

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

discussions with Mr Mulgary and set up an agenda, which was supposed to commence this Thursday, to start negotiations with him. The Bayswater negotiations that were established initially for a two hour meeting at the request of the employees were changed to two, eight hour meetings. Effectively where we locked ourselves in some rooms to negotiate until we could get matters resolved. To date the discussions at Bayswater have been positive. They have progressed. There were three meetings as of yesterday. There was another meeting today and I believe if we keep pursuing those negotiations we may in fact have a resolution to the log of claims and proposed new EBA in a short period of time. In relation to the negotiations for the other three sites, as I said, they were planned to commence this week. However, Monday, a week ago we received the notifications for a 24 hour strike commencing at the starting times of each of those three plants; which was 5.00am, 6.00am and 7.00am.

PN99

On what date was that?---That was last Friday that stoppage was scheduled for. However, last Thursday as employees finished the day-shift and employees came in to work the afternoon-shift the day-shift people formed picket lines on the gate and started preventing customers and trucks - - -

PN100

If I could just stop you there, Mr O'Driscoll, I will come to that in just a moment. Can you just go back a little bit. When did the strike action commence at Kilsyth, Mulgrave and Preston?---At Kilsyth it was timed to commence at 5.00am on the Friday. At Preston I believe it was 7.00am and at Mulgrave it was 6.00am.

PN101

And when did the strike action actually commence?---The action started the day before. As the day-shift finished work they immediately set up pickets on all three plants; preventing goods in and goods out. But with the various afternoon shifts continuing to work. The reason, I believe, for this was basically to get the effect of a two to three day stoppage or strike by preventing our deliveries going out the next day, or the next morning, as they normally would. The net result of that was that by Friday night we had factories with fully-laden trucks ready to leave. We had the floors filled with finished products or finished orders that would normally have gone out in 48 hours time. So we had an environment where the plant effectively was chock-a-block at the time that the strikes were supposed to have started. The picket line remained - - -

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

PN102

HIS HONOUR: What do you say? The day-shift did its work on Thursday and at the completion of its work formed a picket line and didn't resume at, what, 5.00am the next morning?---No. That is correct, they did not resume at 5.00am the next morning. That was the time that they were supposed to go on strike.

PN103

So they commenced the strike at the time but in the meantime they had commenced picketing action?---Yes. And what that did was effectively prevent all the product that had been produced on the Thursday from actually being removed from the plant and delivered to the customer.

PN104

Is there an afternoon-shift?---Yes.

PN105

And a night-shift?---Yes.

PN106

I see?---The picket line remained in force at all three plants throughout the Friday, throughout the Saturday and throughout the Sunday. On the Monday morning when employees would have normally returned to work what occurred was that the day-shift employees returned to work and the afternoon-shift continued to picket the site. That left us in a predicament because we had a plant that was quite congested. Full of finished product. We had trucks loaded with product which was supposed to go to customers and we just could not continue to produce. It was at that stage - and this was yesterday - that stand downs were considered. And, in considering stand downs, we asked the site managers of each of those three locations to establish what useful work could be carried out. And that work was identified. It included things like painting lines, re-marking the plants, carrying out some minor maintenance on the equipment. And, where able, cleaning the plant. Meetings were then conducted with all those employees who were still at work and the position we were in was explained to them. We pointed out that whilst we were about to start standing employees down at their next shift thee was some useful work that could be carried out and proposed that a roster be formed to share that equally amongst all employees. From our perspective that appeared to be going to work okay. And some people did work last night. Some people

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

returned to work this morning. I believe six people at Kilsyth returned to work this morning. Six people at Preston returned to work. Requests were made of employees - several employees, to come into work at Mulgrave this morning, but they refused and maintained their picket line. At morning tea time this morning Preston employees left the premises and attended a meeting with an AMWU union official outside on the picket line and came back and informed management that there had been a vote not to continue working, and at this point in time there are pickets on all of the three locations. The police have had to intervene on one occasion at Bayswater where - sorry, at Mulgrave where employees were sitting in front of trucks and police have been involved at the Kilsyth plant on at least two occasions that I am aware of in the last 24 hours. On one occasion the picketers had placed lengths of timber across our driveways and we had a number of customers with small utilities and vans lined up trying to get in and apparently there was a bit of a scuffle, or altercation, between some of them and the picketers which is why the police were involved and again, this morning, our major supplier of steel attempted to make a delivery and again police had to be involved to get that truck safely into the plant. Several other trucks have arrived but have been forced away.

PN107

How many in total of the three sites out of the four since yesterday morning, how many trucks would you estimate have been turned away - either turned away from entering the premises or from leaving the premises at the three sites?---All transport out has been effectively stopped. The transport companies drivers will not cross the picket line and those people - I don't know, there are 40 or 50 drivers involved with that one company, servicing our distribution and those people would do at least two trips to the plant a day so there's potentially a hundred trips. On top of that we have a customer pick up area where they come and pick their own product up and those people would easily be in the 50 to 100 per day at each plant.

PN108

So what is, as you understand it, what is actually preventing those drivers from driving their trucks into the company premises?---At the moment if they come to the driveway they are faced with a picket line. In some cases there have been obstacles placed there. But certainly employees have sat down in front of the trucks. On top of that, as of today, the Transport Workers Union has started to take an active part in the picket lines as well and is advising drivers that the union will not accept them crossing that line as well.

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

PN109

Just coming back to something that you said - just to summarise. Is it the case that at the Kilsyth, Mulgrave and Preston sites, that there have been no discussions at all in relation to a proposed enterprise agreement at those sites?---That's correct.

PN110

And in terms of Smithfield in New South Wales?---I don't know. Sorry, I only represent Victoria.

PN111

HIS HONOUR: Why do you say there have been no discussions? Have you made no attempt yourself to have discussions?---Yes, we have.

PN112

And what are those discussions - what attempts have you made?---We have made a range of attempts going back to February - I am sorry, I have not got my list, but I think it was 19 February we commenced attempting to establish discussions by talking to the organiser and to the shop stewards - - -

PN113

MR HARGRAVES: I am sorry, your Honour, the witness has prepared a list just to jog his memory of those dates.

PN114

HIS HONOUR: I don't see it can help, Mr Hargraves, this is oral evidence coming without any advance notice to me or to anyone else. If there is a list or something that is coherent you are testing the capacity of the Commission absorb when you have multiple sites and evidence being given in this manner.

PN115

MR HARGRAVES: Yes, I understand that, your Honour.

PN116

HIS HONOUR: And particularly where you lead evidence with direct leading questions of the kind that you just have.

PN117

MR HARGRAVES: Well, I can be more specific in relation to the - - -

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

PN118

HIS HONOUR: I am not asking you to be more specific, I am asking the witness to be specific. It is not you who is giving the evidence.

PN119

THE WITNESS: Your Honour, as I mentioned earlier, we have sent numerous emails to the organiser. We have had numerous discussions with the organiser and on all occasions up until a fortnight ago - - -

PN120

HIS HONOUR: The organiser being Mr Mulgary?---Mr Mulgary, and specifically in relation to Preston, Kilsyth and Mulgrave, which he represents, since February there has always been an obstacle or another matter that needs to be addressed before those discussions could take place. That change a fortnight ago when it was agreed nationally that locally certified agreements should be negotiated and, in fact, accelerated. However, we got as far as setting an agenda with Mulgary. When Mr Mulgary and some of our employees commenced picketing our plants last Thursday outside of the notified times that they intended to take action, I approached Mr Mulgary and indicated to him that given this action were were certainly not prepared to negotiate with a gun at our head, and until such time as there was no industrial action we were not prepared to continue with, or commence, those negotiations. We were prepared to discuss the reinstatement of them when the industrial action ceased. I should also add that on two occasions yesterday, in an attempt to bring about an end to the discussions, the southern region manager for Stramit in my presence contacted Mr Mulgary on several occasions and indicated that he was prepared to open his diary and set up meetings immediately, if Mr Mulgary would also lift the picket line. The answer he got was that it wasn't simply a question of local negotiations and that there was a matter of national negotiations and unless national negotiations were also set up, he was not prepared to lift the picket lines. On the third occasion yesterday, Mr Mulgary contacted the southern region manager and said that he had an alternative proposition and that was that he would lift the pickets if Mr Mulgary was put in charge of all negotiations for all four of our sites and that also was rejected by us and the specific reason for that is that our employees have already indicated that they won't accept Mr Mulgary involving himself - our Bayswater employees have indicated they won't accept Mr Mulgary involving himself in their certified agreement.

**** WILLIAM JOHN O'DRISCOLL XN MR HARGRAVES

PN121

MR HARGRAVES: Mr O'Driscoll, may I ask you what you detect now as being the major impediments to being able to reach an agreement at Kilsyth, Mulgrave and Preston?---The major impediments in my view are firstly the concept of national negotiations. I find it extremely difficult to comprehend that whilst local management should be sitting down with their employees developing a new certified agreement, that someone else remote is negotiating issues which will then be potentially be imposed on the agreement. I think that's an issue that needs to be resolved or reconciled one way or another. There is another difficulty and that is that we have 115 employees who are members of the AMWU employed at our Bayswater plant, and we have 75 other employees employed at Preston, Kilsyth and Mulgrave. Of those, 20 are not members of the union. Mr Mulgary has told us in no unequivocal manner, that he intends to negotiate one agreement for all four locations. Mr Wisnysky of the AMWU who represents the Bayswater plant has told us that he intends to negotiate one agreement to cover all four locations. I think that that predicament also needs to be resolved. I don't see how you can negotiate separate the same agreement and that it has application to all four locations.

PN122

I have no further questions of the witness, your Honour.

PN123

HIS HONOUR: Yes. Mr Morrison?

<CROSS-EXAMINATION BY MR MORRISON [3.49pm]

PN124

MR MORRISON: Thank you, your Honour. Just for clarity, you are unable to contribute anything here today regarding the Wetherill Park, Smithfield or Cardiff which is the Newcastle situation?---That's correct.

PN125

Which of the three sites, do you represent, Preston, Kilsyth or Mulgrave?---I represent the southern region which incorporates all four of those plants.

PN126

So you are negotiating collectively for all four?---I am facilitating those negotiations with the local management.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN127

I also note that in your past you were an NUW official?---No, I was an official of the Federated Storeman and Packers Union.

PN128

Sorry, I realise the distinction?---Yes.

PN129

So you are aware that the union determines who represents the union at negotiations?---It depends - I mean I would have thought that you would have had to define what the union is first.

PN130

Exactly, so they are the membership?---Precisely.

PN131

That would be represented at the various sites by whom the members determine and the state secretary then allocates?---That's correct.

PN132

So the issue of the various organisers is a bit of red herring, wouldn't you agree?---No.

PN133

Why do you say that?---Well, because I can't get those parties to sit in the same room.

PN134

You also claim that a fortnight ago it was determined that local agreements should progress?---Yes.

PN135

However, for reasons you can't - or perhaps you can supply - those negotiations didn't occur?---Negotiations occurred with our Bayswater people. Negotiations or an agenda for the negotiations for Preston, Kilsyth and Mulgrave was established. When the industrial action started last Thursday, we advised the organiser that we would not continue with those negotiations whilst industrial action was being taken.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN136

So prior to Thursday at 2.00 o'clock, you say, negotiations - - -?---Were planned.

PN137

Even in the very conceptual stage, you had got as far as preparing an agenda?---Yes, the agreeing of dates for meetings.

PN138

This industrial action, you say, occurred on Thursday afternoon?---Yes.

PN139

Who took the industrial action?---The day shift employees and the union organiser.

PN140

So they walked off the job and set up a picket line?---Yes.

PN141

So who was working in the factory?---The afternoon shift employees.

PN142

So that they actually weren't working, they had concluded their work?---That's right.

PN143

So these were off duty?---Yes.

PN144

So they weren't on strike?---No.

PN145

They weren't taking industrial action?---They were taking industrial action against us as far as the picket lines were concerned.

PN146

But they weren't withdrawing their labour?---I think that is a semantic position. The answer is yes, they had not withdrawn their labour at that point in time, they had finished work.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN147

They had finished work?---Yes.

PN148

So in their own time they were standing in front of the company premises?---With a union official.

PN149

With a union official, and that union official doesn't work for Stramit, does he?---No.

PN150

How do they physically stop the contractors vehicles going in and out of the premises?---Well, I guess in the first instance, standing in front of them, is one means. In most cases then, there is a confrontation with the driver and the end result of that is that they have turned the trucks around.

PN151

I am informed, because I have no first hand knowledge that that is not the case. I put it to you that one union official approaches the driver, informs the driver of the situation and the driver chooses to turn around and leave?---Well, I am not in a position to agree or disagree with you, other than to say I've seen different and every instance is on video. So if I am challenged over that, I will produce video to demonstrate that that was not always the case.

PN152

But you do agree that it is not in a sense, industrial action, it is a picket made up of people not on duty?---Well I can't think of a reason why people who were employed by that company would prevent trucks entering or leaving that company, if they weren't taking industrial action against the company.

PN153

Moving on to one further point. The workers were stood down, you said earlier?---That's correct.

PN154

When were they stood down?---As it turns out the effect of the stand downs was at the start of work today.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN155

And what was the process or standing them down?---There were meetings conducted yesterday, a letter was given to the employees explaining the circumstances that prevented the company from continuing to operate. It was indicated that there was some work that could be found. However, it didn't provide useful work for everybody, so on that basis, the local managers in discussions with the employees, established rosters to attempt to share that work around in an even handed manner.

PN156

When was this determined?---Yesterday.

PN157

When were the stand down letter handed to the employees?---Yesterday.

PN158

At what time?---Approximately 1.00 o'clock. I would have verify that, but I attended one of the meetings at 1.00 pm.

PN159

And do you recall what the actual wording of the letter was? To the best of your ability?---Well, it was a letter of explanation and also of some reaction and disappointment from our southern region manager. It then said that as a consequence of what has occurred there is limited, I believe, or words to the effect that said, our ability to provide useful work was limited, it couldn't be provided for all employees, and as a result the company would be initiating stand downs from the next shifts.

PN160

And what was the workers' reaction to receiving those letters?---We had some discussion with them. I attended at the Kilsyth plant in the canteen there. There was some discussion. I think it is probably fair to say that the meeting deteriorated to some debate about industrial relations between the shop steward and the southern region manager. But I would also say in relation to the stand downs there was an element of inevitability amongst the workforce. What you need to understand at Kilsyth is that in total there are 32 employees there. Twenty of them do not belong to the union; 12 of them do. The union had a mass meeting of their union members who were at work at the time. Six voted to go on strike to support the notifications of the union; three voted against. The end result was six stayed at work and six went on strike and picketed the plant as of Thursday. So, there is a general disillusionment amongst the majority of those employees.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN161

Mr O'Driscoll, I am talking about stand downs yesterday?---That's right and I am telling you that the majority of employees there - - -

PN162

Well, I don't need to be told. I just need you to tell me. With the stand downs that you handed out at 1 o'clock yesterday?---Yes.

PN163

When was the date of effect of that letter?---The letter was dated yesterday, obviously. It its effect was from the start of the next shifts.

PN164

Which for those workers was this morning?---In most cases, yes.

PN165

And what did the letter instruct them to do?---It informed them that we were standing down employees without pay and that there were, however, some jobs that could continue to be done and a roster was being established to spread that limited amount of work even handedly amongst the majority of them.

PN166

So the majority of them but some clearly missed out even with that roster?---Well, if the picket lines had been lifted this morning no-one would have missed out because they would have all been back at work. If the picket lines are lifted tomorrow then a large proportion of them would miss out but they would all be back at work. And it would be very much dependant upon how long the plant is effectively closed.

PN167

Yes, but some would miss out totally, wouldn't they?---Maybe. I can't guarantee that. The - - -

PN168

If you can't guarantee it, Mr O'Driscoll, how would the workers know?---I would have thought it stood to reason that this environment only existed while the plant was unable to operate.

**** WILLIAM JOHN O'DRISCOLL XXN MR MORRISON

PN169

So you stood them down as punishment for the picket?---No, we stood them down because there was no useful work left for them to do.

PN170

I will leave it there. Thank you.

PN171

HIS HONOUR: Mr Hargraves?

PN172

MR HARGRAVES: No further questions, your Honour.

PN173

HIS HONOUR: Thank you, Mr O'Driscoll.

<THE WITNESS WITHDREW [4.00pm]

PN174

MR HARGRAVES: Your Honour, I wonder if I might seek the commission's indulgence to have a short adjournment to allow me to get some further instructions in relation to a couple of issues and to also have some dialogue with the union? If the commission sees fit.

PN175

HIS HONOUR: I think that would be a very good idea, Mr Hargraves. The commission will adjourn for whatever time you need. I don't know that I want to say anything more on the record but I think you should both appreciate that you have got a fair tin of worms. The commission will adjourn.

SHORT ADJOURNMENT [4.02pm]

RESUMES [5.11pm]

PN176

HIS HONOUR: I asked the parties to resume possibly before they were fully intending to but before I say anything is there any joint report or outcome that you have reached?

PN177

MR MORRISON: Yes, your Honour. Whether it is a report as such, but just for clarity's sake the union would just like to say that the issue as we see it involves two situations. There are matters being negotiated at the local level. And then there are matters that are being negotiated at the national level for consistencies sake. The union has six, if you like, fundamental issues that we need the consistency across the Australian organisation. The situation is that while the local negotiations occur they themselves - those local negotiations - don't touch on the six if you like, for lack of a better word, national issues because they are the items that are being handled by Mr Stewart and others to ensure that consistency exists. And I think that is one of the main reasons why we are in the industrial situation that we are. Because the company and the union have been unable, thus far, to really progress those six issues.

PN178

I suppose, to break the impasse, a way is needed for negotiations to occur on those six issues, from the union's point of view. And that while those negotiations on those six national issues are occurring the other regional or local negotiations can occur simultaneously.

PN179

HIS HONOUR: Well, you haven't reached a way to break that impasse, I take it.

PN180

MR MORRISON: No, I am sure that Mr Hargraves would like to contribute on that, but we have put up an offer to have negotiations on those issues, on all those issues, and that has not been - - -

PN181

HIS HONOUR: What I had in mind to say is this. I don't want to cut-off Mr Hargraves but at this point it is that in relation to the 127 which is the only matter before me, and to the extent that it is the matter before me, it inhibits me dealing with anything other than that application in proper form. The reason I called the parties back - and you may sit down, Mr Morrison - so as I am addressing you jointly, was that I considered having regard to the time and the way in which the matter has been unfolding, that I and the parties were being placed in an awkward position.

PN182

The application goes to multiple sites and it goes to certain negotiations which you have indicated, Mr Morrison, and the evidence and submissions confirm, that seems to be conducted in various and rather confusing set of ways. You've got the core issues, and I still don't entirely know who is negotiating them and with whom, and I am still not entirely sure who is here today who might negotiate about them. You then also have Victorian issues at the four sites and not to put too fine a point on it, Mr O'Driscoll's evidence is highlighting both company positions by inference in relation to who is a member union and who isn't. Who is the union organiser running one site and who isn't, and problems between perhaps the union itself and nobody so far as I am aware is from Victoria, unless Mr Stewart is.

PN183

So if the 127 is to come to grips with whatever is happening at Kilsyth, Preston and Mulgrave, it's going to have to either go on in Victoria or the people from Victoria are going to have to be brought here. If I am to address issues about the core negotiating at national level, and in effect an argument that there isn't an attempt to genuinely try to reach agreement, then I would need the people who are responsible for the national matters to be here. So far, I seem to have a relatively incoherent indication of who is negotiating what and with whom and for what purpose.

PN184

It's a problem for the union and needs to be addressed. You are facing a section 127 application. I would probably say to you, Mr Hargraves, that if you want a 170MW application, then you should apply for it. Where it is a straight forward matter with a 127 and it's simply a matter of the MO notices not being given, then I have tended rather peremptorily to brush aside the 127 application and say well get down and make your negotiations work sensibly. But here, rolled under the 127 cover is the question of whether they should be negotiating with Stramit nationally. That's complicated by the fact that Stramit already is before the Commission demonstrating that it does have a national position which it wants to play through at least to it's LK positions.

PN185

In the LK agreements you've got AWA ennoblement. You've got a number of other provisions that obviously reflect a national position. It would be somewhat hypocritical of the Commission to turn a blind eye to the fact that there is a national Stramit position, that it probably wants on - if not every site - on quite a few, but then be overly alert to the fact that the union wants to get something nationally out of Stramit. And you end up having a contest on that issue and I would be saying pretty bluntly, it probably comes down more to 170MW and reaches the 170MP if it is said you are trying to organise an agreement or industrial action without trying to reach agreement - and I won't go through the various grounds. I am sure that people at both ends of the bar table are familiar with them.

PN186

What I was going to do was simply this. To say the matter can be resumed before me in Sydney here tomorrow. In which case it will be being dealt with via a national matter and I would expect whoever has the national responsibility or is going to take it on behalf of the negotiating party which for these purposes is Stramit Corporation and the AMWU - not Mr Mulgary or whoever else is in the light or even Mr Stewart. It is the union that is the negotiating party and if you are trying to negotiate with Stramit, as a single entity, then you need to present a single face and make clear that there is that coordination across the line. You might not survive with that under 170MW, but if that is what you are trying then you are going to have to make a solid effort about it.

PN187

The alternative is, if this matter is really about ironing out the games that are being played on different sites in Victoria, then I will in effect, so far as it is within my power, treat the matter as part heard only before me in terms of opening submissions and refer it to SDP Acton who can bring it on in Melbourne where some of the people who are the players can be summonsed along or brought along relatively and directly. I am not in a position where I can readily go to Victoria myself in the meantime, and in any event SDP Acton is available, I hope, on relatively short notice and you can bring in whatever of the characters with a view to I suppose either pursuing the section 127 or if you take the hint that if you can't get this matter back on the road, let's have the fully fledged presentation about whether or not the bargaining period should be suspended, so you can get down to brass tors about who is negotiating with whom, about what and in what time frame.

PN188

That might be a complex matter, but as you have said, there are whatever number of sites, whatever number of past agreements, a mix of approaches that Stramit itself has encouraged, and you are dealing with a national union. But from both ends of the bar table, I have to say, as I said, when I adjourned, this is a bit of a tin of worms. I have to either as panel leader or as presiding member on this bench, address the applications that are put before me. By the sound of it, there is some sorting out that needs to be done, because I don't know that you can continue to have running simultaneous but uncoordinated negotiations at both national and site level. You need to have pretty clear ideas and very clearly telegraphed ideas to the other side from the union part, if you are persisting with getting national matters up.

PN189

It might be that you've got tentatively an agreement that you are going dead on various sites, and you really want to apply pressure on some other areas, but if that's the approach that you've got, that also needs to be telegraphed. So far I don't see that, it just seems to be straggling along with individual organisers calling shots at site level and I'm getting a bit slower on the uptake, but as I hear a quickly read list of different sites and different statues, it is pretty hard to absorb evidence is about and harder to see what is the coherence in the way in which these negotiations are being conducted.

PN190

I have been associated with the Full Bench in relation to MEA and the regional daily newspapers - I think 11 Queensland ones expressed tentatively some views about a bargaining period being instituted against a single company. I don't know whether in this instance you instituted separate bargaining periods against Stramit across all it's sites, or you've got one, but if you have multiple, then that partly dictates the way in which you should be organising those negotiations. But I do think there needs to be some sorting out relatively rapidly. Are you in a position to indicate whether you would prefer the matter to come back on at 10.15 tomorrow morning? Or should I refer it to Victoria?

PN191

MR MORRISON: I have just been advised that Mr Stewart is unavailable and Mr Stewart would be necessary to be present at any hearing, whether it was in New South Wales or in Victoria. He is available in Victoria - he is from Victoria. So, it might be appropriate to refer the matter to that jurisdiction.

PN192

HIS HONOUR: Mr Hargraves?

PN193

MR HARGRAVES: Your Honour, we take on board your comments. During the break I think there was some discussion which at least crystallises where we are at. And that is that there is a major difference between the parties as indicated by, Mr Morrison and also reflected by yourself, about the process that should be adopted for the negotiation of the various agreements. At some point in time the parties are going to come back to negotiate. But we say as a precursor to that the process that needs to be sorted out for that to occur needs to be done sooner rather than later.

PN194

I think there may have been agreement between the parties that conciliation with a member of the commission may be helpful, as I think you have suggested, to getting to that position. We will obviously have to consider our position in relation to all of the issues that you have raised. We have indicated that we would be prepared to participate in that conciliation process. But that would be subject to what the union says in relation to the picketing action that is currently taking place in Victoria.

PN195

Mr Morrison, I will allow him to speak for himself in relation to this, has indicated to me that he is not in a position to comment one way or the other in relation to the issues that I have raised today on the subject of the picketing, which we say is unlawful. That is an issue, as I understand it, that he is waiting to get further instructions on.

PN196

In terms of how we proceed with the matter, the company is available to proceed in Sydney tomorrow. I understand Mr Stewart is not available so I think it may be best that this matter be continued to be heard in Melbourne, I think, with all things being considered.

PN197

HIS HONOUR: Well, is that something that can be done with consent, Mr Hargraves? Let me put it this way. I don't want to express a determinative view but as far as a section 127 order going to picketing action as industrial action it is at the outer edge. There are views that suggest that pickets aren't industrial action. Personally I don't share them. I think I am in the minority view within the commission. It was the majority view in the court at one stage, I am not sure where it is now. There seems to be a view that picketing isn't industrial action and I am more or less bound by that view. It might be unlawful action but it is not within the definition of industrial action, according to some. So, you are pushing uphill to get the 127 order simply to stop that. Your recourse probably is in the court.

PN198

MR HARGRAVES: We understand that, your Honour.

PN199

HIS HONOUR: To the extent that there has been a recourse to that sort of action, prematurely, or directed to wrong ends, then it goes more into the 170MW area than the 127. I am not encouraging you to do that but that is why I have made the observations that I have. And the sense that I had that I was not - I don't want to sound disrespectful - faced on the AMWUs part with those who represented the entire spectrum of the sites that you are dealing with or raising in the application was one that led me to say, well either have a national level representation or deal with whatever is happening in Victoria. But let us not be halfway between one or the other. That was the way I have perceived it.

PN200

So, I am not denying the opportunity for the full 127 to be run, but I am basically saying, well it should be conducted and carried through before the member in Melbourne, who might be available, so as that you can at least get down fairly quickly to getting instructions about whatever is under 127. And if it then goes over to 170MW well much the same will apply because most of the heat looks as though it is coming out of Victoria so far.

PN201

I am in a cleft stick. I have started hearing the matter. I don't want to be seen to be abandoning the ship. But I have already taken the steps to find out if SDP Acton would be available at some stage and if she is then you could anticipate that it would be brought on either tomorrow or the next day, I would think.

PN202

MR HARGRAVES: That would be too for the hearing of our application?

PN203

HIS HONOUR: The hearing of what remains of the 127 or whatever other applications you might have I think, let me put it that way. But I would suggest, if I could advise this, that if you are bringing applications then there be some written material so that it is possible to follow it - or something other than oral evidence - as it comes across the counter. It is a relatively complex set of sites and permutations of notifications, negotiations and whatever.

PN204

MR HARGRAVES: Yes, your Honour. We concur that the matter should proceed in Melbourne in respect of continuing on the proceedings in respect of the current 127 application.

PN205

HIS HONOUR: Very well, thank you for that.

PN206

MR HARGRAVES: I should, just for clarification, just indicate that we weren't pursuing the issue in this current application regarding the picketing. We hear the commission's views in relation to that but that would be the subject of a separate application.

PN207

HIS HONOUR: Yes, I hadn't noticed. Well I heard what was said on that. That you were taking legal advice or the company was. The evidence seemed to be fairly focused on it and I hadn't checked what the 127 order said for that purpose.

PN208

MR HARGRAVES: Yes. It would seem as though when the proceedings resume in Melbourne in the course of tomorrow or the next day that given what I said earlier which was that if there was the opportunity for conciliation that may assist the parties.

PN209

HIS HONOUR: I will confer with SDP Acton and make that suggestion as well. That there be at least some opportunity for conciliation in the course of it and that that be as soon as practicable. Probably 2.15pm tomorrow.

PN210

MR HARGRAVES: Yes, your Honour.

PN211

HIS HONOUR: Is that a taboo time?

PN212

MR MORRISON: It is just that Mr Stewart will not be in Melbourne until Thursday. Even though he is unavailable tomorrow at 10.15am, he won't be in Melbourne until Thursday. So, if the hearing does proceed in Victoria and Mr Stewart's attendance is necessary from the union's point of view he won't be available till Thursday. It is as simple as that.

PN213

HIS HONOUR: Well I think the hearing has got to proceed. If Mr Stewart can't be available then that is your problem. The application that is made is one that the company is entitled to have heard. I am certainly not seeking to avoid that. They are bleeding at present in circumstances where they say they shouldn't be and the commission has an obligation to hear them.

PN214

I think I will just have to leave the matter there and you can sort it out as best you can. But I have made clear that if you are running a national set of discussions about these matters then you have to look nation. If you don't 170MW will be there pretty quickly. Commissioner Hoffman's view was that if you think you are negotiating at national level and you should be negotiating at local level then he granted 127 orders. A Full Bench didn't knock them over but it did say there is some doubt about this, that there is something to be assessed.

PN215

You can certainly take it from me, indelibly, that if you want to negotiate nationally with Stramit before or as part of local negotiations then you will need to have the people available to do it once you have entered into industrial action phases. They shouldn't be wondering where you are going to turn up and what it is you want to talk to them about. I know they are not. They know what you want to talk to them about but the pressure should be on Stramit to talk with someone. They have come here seeking relief against industrial action. It might be some shield against that relief being granted if Stramit can be put onto the spot as to what its answer is in relation to the key issues. If you haven't got anybody able to talk to them on behalf of the negotiating party, the AMWU, then inferences can be drawn from that.

PN216

I will adjourn the matter to be continued before SDP Acton as soon as practicable in Melbourne. And I do urge the parties to confer with a view to seeing whether you can get lines of communication and negotiation including some areas where you are not going to be resolving further negotiations by litigation as soon as practicable. You need to sort it out I think. The commission will adjourn.

ADJOURNED ACCORDINGLY [5.36pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG1 COPY OF ORDERS PN33
EXHIBIT #AIG2 NOTICES OF INTENDED INDUSTRIAL ACTION DATED 12/05/03 PN38
WILLIAM JOHN O'DRISCOLL, SWORN PN95
EXAMINATION-IN-CHIEF BY MR HARGRAVES PN95
CROSS-EXAMINATION BY MR MORRISON PN124
WITNESS WITHDREW PN174