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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 2969
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
C2003/2621
RESTRICTIONS IN TORT
Notice under section 166A of the Act by
TAD Industrial Pty Ltd re action against
Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia and
Another re industrial action at the
Smorgon Steel Group Limited Mill Site in
Laverton, Victoria
MELBOURNE
10.48 AM, FRIDAY, 30 MAY 2003
PN1
MR P. WILKINS: I seek leave to appear on behalf of the applicant.
PN2
MR G. BORENSTEIN: I appear on behalf of the respondents, the CEPU, Mr Mighell and Mr Glover.
PN3
THE DEPUTY PRESIDENT: Thank you. Any opposition to leave?
PN4
MR BORENSTEIN: No, your Honour.
PN5
THE DEPUTY PRESIDENT: Leave is granted. Mr Wilkins, it is your application.
PN6
MR WILKINS: Thank you, your Honour. The applicant intends to commence proceedings in tort against each of the respondents, and the applicant has provided a written notice of that intention to the Commission, in accordance with section 166A(3). The applicant will ask that subject to any matters that will be raised today that will otherwise influence the role the Commission might play, that the Commission will today issue a certificate under section 166A(6)(a), that is, that the Commission not wait for 72 hours, that the Commission issue a certificate forthwith.
PN7
The industrial action organised and engaged in by the respondents at the Smorgon Steel site at Dohertys Road, Laverton North, has been continuing since 21 February 2003. Despite the various discussions between the applicant and the union and its members, the parties have been unable to resolve the issues that remain between them. The various attempts by the Commission to conciliate the dispute have proved unsuccessful. The conduct which is outlined in the notification provided by the applicant in today's proceedings is to a large extent very similar to the conduct that was before the Commission on previous occasions.
PN8
The applicant will put before the Commission today evidentiary material to establish that the conduct described in the notification is occurring, that the conduct might plausibly be the subject of an action in tort against the respondents identified in the notification, and that the conduct and related conduct has already been the subject of unsuccessful conciliation before the Commission, and the Commission was unable to stop that conduct.
PN9
The applicant's witnesses are available for this morning's purposes. We would seek, your Honour, that one of the witnesses, Mr Thomas, if at all possible, be able to provide his evidence earlier on. I previously raised with his Honour in conference the fact that Mr Gianatti, who is one of the witnesses in the proceedings, is at the bar table. His evidence is simply that he obtained a copy of some documents from the Commission Registry, and my friend has indicated he has no objection to Mr Gianatti remaining at the bar table while the other witnesses are giving their evidence.
PN10
Just by way of opening I will indicate that I would ask that the Commission, as a matter of procedure and evidence, consider giving a direction that the evidence which was given in the prior proceedings in matter 2003/1057, which was the 166 application by Smorgon Steel, a number of the statements that were provided in that proceeding and the evidence that was given and tested in that proceeding is the exhibits to the statement of Mr Gianatti which we are seeking to put before the Commission today.
PN11
I would put to your Honour that it would be open to the Commission to simply make a direction to the effect that that evidence will be admitted for the course of this proceeding, which in essence would avoid the need for Mr Gianatti to give evidence at all. In the alternative I would ask to put that evidence in through Mr Gianatti. If it please the Commission, they are my opening comments.
PN12
THE DEPUTY PRESIDENT: What section are you asking for that direction to be given under?
PN13
MR WILKINS: Just under general powers under section 110, your Honour. The Commission is not bound by the rules of evidence. The Commission may avail itself of factual issues in such manner as it considers appropriate, and I would submit that this is a circumstance that where, given that the evidence was before the Commission previously, that the respondent in this proceedings was given an opportunity to test that evidence in the prior proceeding, that it would be open to the Commission to allow that evidence. Obviously there would be a question of weight, but it would be within the Commission's powers to give a direction to that effect, your Honour.
PN14
THE DEPUTY PRESIDENT: What was that matter?
PN15
MR WILKINS: Your Honour - - -
PN16
MR BORENSTEIN: Sorry, your Honour, can I just interrupt? We weren't given an opportunity to test all the material in those statements that are attached to that affidavit, just to correct my friend.
PN17
MR WILKINS: Certainly. My submission stands. If your Honour decides not to issue that, or provide that direction today, that I would simply seek to put that evidence in through the statement which is the statement of Mr Gianatti, as an alternative course.
PN18
THE DEPUTY PRESIDENT: Is there any opposition to that direction?
PN19
MR BORENSTEIN: Your Honour, we say that, firstly - - -
PN20
THE DEPUTY PRESIDENT: Well, yes or no, first of all/
PN21
MR BORENSTEIN: I think we have an objection to it.
PN22
THE DEPUTY PRESIDENT: You do?
PN23
MR BORENSTEIN: Yes.
PN24
THE DEPUTY PRESIDENT: All right.
PN25
MR BORENSTEIN: On the basis that they are relying on statements in respect of other proceedings, and the people aren't here to affirm them. I don't think the person who swears to them has any idea whether they are true or not, or whether they were made properly or not.
PN26
THE DEPUTY PRESIDENT: The relevant people are here today, aren't they, Mr Wilkins?
PN27
MR WILKINS: No, your Honour. The evidence that I am referring to are the exhibits to a statement which your Honour currently doesn't have. I can provide your Honour with a copy if that would assist.
PN28
THE DEPUTY PRESIDENT: Why don't you provide me with all the material that you are asking me to direct be admitted. Can you do that now?
PN29
MR WILKINS: Yes, your Honour.
PN30
THE DEPUTY PRESIDENT: And provide a copy to Mr Borenstein too.
PN31
MR BORENSTEIN: I have a copy, your Honour.
PN32
THE DEPUTY PRESIDENT: Mr Borenstein says he has a copy. All right. So I have in front of me a document headed witness statement of Christopher Paul Gianatti. In fact, I have two copies of it, I think. Attached to that is a statement of Evan Bain, dated 25 - is it 25 February?
PN33
MR WILKINS: There are three statements - sorry, there are a total of five statements. There are three statements by Mr Evan Bain, Manager Human Resources of Smorgon Group. The first is dated 25 February 2003. There is a supplementary statement by Evan Bain.
PN34
THE DEPUTY PRESIDENT: And a further supplementary statement?
PN35
MR WILKINS: Yes. The second is dated the 25th again, and the third, the second supplementary, is dated the 26th of the 2nd. Then there are the statements of Wayne Pearce, dated 25 February, and of Bernard Rubenstein, dated 25 February. And my submission, your Honour, is that that material was put before the Commission in substantially similar proceedings to this, and that the respondents were given an opportunity to test that evidence at the time, relating to the same dispute, relating to the same factual matters that are asserted in those statements as we seek to rely on today.
PN36
THE DEPUTY PRESIDENT: What is the C number of the previous matter?
PN37
MR WILKINS: C number 2003/1057.
PN38
THE DEPUTY PRESIDENT: Mr Borenstein I think said that in that case, at those proceedings his client wasn't given the opportunity to test that evidence. Do you have the transcript, which will tell us either way?
PN39
MR WILKINS: I have the transcript of the proceedings before your Honour on 2 May.
PN40
THE DEPUTY PRESIDENT: And what does that show on that issue?
PN41
MR WILKINS: That suggests that the evidence was put before the Commission in a manner in which it could have been tested. My friend will presumably correct me if I am wrong. I wasn't present in those proceedings, but from reading the transcript it would appear that the respondents had an opportunity to test that evidence if they chose to during the course of, I think it was two or three separate proceedings. Presumably when the evidence was first tendered there was an opportunity to test that evidence, your Honour.
PN42
MR BORENSTEIN: They never arose, your Honour. If your Honour might recall - - -
PN43
THE DEPUTY PRESIDENT: Could you provide me with a transcript please?
PN44
MR WILKINS: Yes, your Honour. Your Honour, we don't have the transcript of every single proceeding in that case number. We have the - - -
PN45
THE DEPUTY PRESIDENT: I think there was very little transcript.
PN46
MR WILKINS: The transcript we have is substantial transcript from the proceedings of 2 May.
PN47
MR BORENSTEIN: That is correct, your Honour. There was a lot of mostly conference, there wasn't really much hearing in respect of - and I think the final result was in front of your Honour, which occurred a long time after the evidence was presented, and at that hearing the respondent just relied on the evidence. There was no opportunity for us to test it, the respondent just relied upon it, and there was no opportunity. The witnesses, Bernard Rubenstein and the like were not in attendance on the day that the order was made.
PN48
THE DEPUTY PRESIDENT: Do you have the transcript in front of you, Mr Borenstein? Could you show me the relevant page which shows that you didn't have the opportunity to test it?
PN49
MR BORENSTEIN: I am not sure if it was - - -
PN50
THE DEPUTY PRESIDENT: From my quick look at the transcript I am not able to find any attempt by you to test the evidence, Mr Borenstein.
PN51
MR BORENSTEIN: Yes. I am not sure off the top of my head whether it was made. As your Honour might recall, I was instructing on that day.
PN52
THE DEPUTY PRESIDENT: I do recall.
PN53
MR BORENSTEIN: I don't think it was pushed. The other side didn't seek to present its - - -
PN54
THE DEPUTY PRESIDENT: As far as I can see, Mr Borenstein - - -
PN55
MR BORENSTEIN: Yes, the other side didn't seek to present its witnesses, in the same way that there wasn't a full hearing. We have got these witness statements, that is enough for your Honour to act, and the witnesses certainly weren't at the hearing then and there was no attempt to call them at that hearing.
PN56
THE DEPUTY PRESIDENT: Well, I can't see any contest from you on that issue, and that that being the case, if that is, in fact, the case, if there was no contest, then I am not sure there is any substance in your point, with respect.
PN57
MR BORENSTEIN: Without going through it word for word, your Honour, I can't say whether we did contest it or not. I simply can't recall. In the time available I haven't been able to go through it.
PN58
THE DEPUTY PRESIDENT: Yes. In any event, I relied on that evidence on that occasion, and after hearing what you had to say in relation to that evidence, Mr Borenstein. And it is the case, is it, Mr Wilkins, that some or all of those witnesses are not present here today; is that the case?
PN59
MR WILKINS: Yes, your Honour, none of those three witnesses, Mr Bain and Mr Pearce and Mr Rubenstein, none of those three witnesses are here today.
PN60
THE DEPUTY PRESIDENT: Right. Thank you for that. Do you have anything else to say, Mr Borenstein, before I deal with this issue?
PN61
MR BORENSTEIN: No excuse has been provided for these witnesses not being in attendance. They have got people from those companies here, yet selectively they haven't brought the ones which probably swear the statements that make the most effect. Weird for us that they selectively pick the witnesses that they think - or they are obviously trying to protect these witnesses for some reason, because they have provided no reason why they are not here, and why people from their companies are here in their place.
PN62
MR WILKINS: Your Honour, if I might make a couple of comments in response. The applicant is certainly not trying to protect those witnesses in any way, shape or form. It is our position that it was not necessary in order for the Commission to exercise its powers as we seek today, for those witnesses to be present. You will see, for example, one of the witnesses that was referred to is Mr Bernard Rubenstein, who is the Managing Director of IES Australia. Today one of the witnesses we will put before you is another person from that company who is an executive assistant, because it was considered to be less interruption to that business for that person to be present.
PN63
Arguably we didn't need to have any of these witnesses. It was within the Commission's powers to rely on material that was simply handed from the bar table, but we sought to put sufficient material before the Commission, that the Commission would be comfortable in exercising any discretion or exercising its powers as we seek today, your Honour.
PN64
THE DEPUTY PRESIDENT: Thank you very much. What I propose to do is this. First of all I will admit the evidence as sought by the applicant, secondly, the CEPU is free to make any submissions it wishes to make on the weight or otherwise that should be given to that material, thirdly, of course, the CEPU can make any procedural submissions it wishes to make in relation to hearing the evidence, and after hearing those submissions I will make a determination. Thank you. Please continue, Mr Wilkins. First of all, I suppose I should mark that material.
EXHIBIT #W1 BUNDLE OF MATERIAL HEADED WITNESS STATEMENT OF CHRISTOPHER GIANATTI
PN65
THE DEPUTY PRESIDENT: Please proceed, Mr Wilkins.
PN66
MR WILKINS: Yes, your Honour. On that basis, whilst the statement of Mr Gianatti is before you, I would not seek to put Mr Gianatti on the stand, given that that evidence is now before the Commission. So that leaves us with the remaining three witnesses. If it please the Commission, I would move at this stage to call my first witness.
PN67
THE DEPUTY PRESIDENT: All right, please do.
PN68
PN69
MR WILKINS: Mr Thomas, can you please state your full name and address for the Commission?---Andrew Thomas, number 3 Riverbank Drive, Maribyrnong. My title at Smorgon Steel is Electrical Superintendent of the rolling mills.
PN70
And the address you have given in your statement is your work address, is that correct?---No, sorry. My work address is 105-123 Dohertys Road, Laverton North.
PN71
Thanks, Mr Thomas. Mr Thomas, you provided a witness statement which is in these proceedings, which you signed on 29 May 2003; is that correct?---That is correct.
PN72
And do you have a copy of that statement with you today?---No, I don't.
PN73
Can you please confirm that document being handed to you is the statement that you swore on 29 May - sorry, not that you swore, that you signed?---Yes, it is.
PN74
It is. Thank you.
PN75
THE DEPUTY PRESIDENT: Are you tendering that?
PN76
MR WILKINS: Yes, I tender that statement to the Commission.
PN77
**** ANDREW THOMAS XN MR WILKINS
PN78
MR WILKINS: Thank you, your Honour. I have no further questions of Mr Thomas.
PN79
THE DEPUTY PRESIDENT: Mr Borenstein?
PN80
MR BORENSTEIN: No questions, your Honour.
PN81
THE DEPUTY PRESIDENT: I will just read the statement, if I could. Just bear with me. All right, I think that is it the from this witness.
PN82
PN83
THE DEPUTY PRESIDENT: Mr Wilkins?
PN84
PN85
MR WILKINS: Ms Pardo, can you please state your name and address for the Commission?---My name is Petronilla Pardo, and work address is 87 Elm Park Drive, Hoppers Crossing.
PN86
Thank you. And did you provide a statement in these proceedings?---Yes, I did.
PN87
Do you have a copy of that statement with you?---Yes, I do.
PN88
PN89
MR WILKINS: Thank you. I have no further questions.
PN90
THE DEPUTY PRESIDENT: Mr Borenstein?
PN91
MR BORENSTEIN: Do you want to read - I will let you read the statement first, your Honour?
PN92
PN93
MR BORENSTEIN: What is your position at IES?---I am Executive Assistant there.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN94
Okay. What hours do you work at IES?---Generally nine to five, it may differ.
PN95
Everyday, or just Monday to Friday?---Everyday.
PN96
Everyday. On Saturdays and Sundays as well?---No.
PN97
Just Monday to Friday?---Yes.
PN98
Where is the office of IES that you work?---I work in Caulfield.
PN99
Sorry?---I work in Caulfield.
PN100
Okay. Is that Bernard Rubenstein's home, or is that - - -?---Yes, it is.
PN101
That is his home. What does your position involve at IES?---It involves everything from invoicing, ordering, telephone answering, whatever is required.
PN102
So it is basically Bernie's home phone that is the office phone; is that correct?---Well, that is a business phone, yes.
PN103
Does he have a separate line for business?---Yes.
PN104
Okay. Are you ever present at Bernie's home on the weekends?---When I need to work, yes.
PN105
Okay. So you sometimes work on weekends?---Yes, sometimes, yes.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN106
Okay. When do you work on weekends?---When I am required, when work loads demand.
PN107
MR WILKINS: Can I just object there, your Honour, as to the line of questioning.
PN108
MR BORENSTEIN: If you are going to object, the witness can leave.
PN109
MR WILKINS: I am just wondering where it was going.
PN110
MR BORENSTEIN: Where it is going? Well, I am cross-examining, I have a pretty - there is a number of - - -
PN111
THE DEPUTY PRESIDENT: No. I rely on you to be relevant, Mr Borenstein. I just emphasise relevancy is an important thing.
PN112
MR BORENSTEIN: It is. Well, in cross-examination you have a wide ranging ability.
PN113
THE DEPUTY PRESIDENT: I will certainly give you that latitude at this stage, Mr Borenstein.
PN114
MR BORENSTEIN: If my friend has an objection, I would prefer the witness to leave, if he wishes to object, while the objection is being made.
PN115
THE DEPUTY PRESIDENT: Yes, all right.
PN116
MR WILKINS: Yes, I will uphold that objection, your Honour.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN117
THE DEPUTY PRESIDENT: I beg your pardon?
PN118
MR WILKINS: I will uphold the objection. I think my friend is saying that if I am pressing the objection he would like the witness to leave the stand. Is that correct?
PN119
MR BORENSTEIN: That is correct. Well, while you are actually communicating what your objection is, the witness shouldn't hear what your objection is.
PN120
THE DEPUTY PRESIDENT: All right. You wish to press that objection, Mr Wilkins?
PN121
MR WILKINS: I will allow a further question, but I would reserve the right to object before the question is answered, to determine where the line of questioning is going, your Honour.
PN122
THE DEPUTY PRESIDENT: All right. But I just remind you there is a broad latitude given in relation to cross-examination.
PN123
MR WILKINS: Yes, your Honour, subject to relevance.
PN124
THE DEPUTY PRESIDENT: Thank you very much.
PN125
MR BORENSTEIN: I am happy for my friend to make submissions at the end that certain evidence isn't relevant to your Honour, in final submissions; that makes things speedier.
PN126
THE DEPUTY PRESIDENT: Thank you, Mr Borenstein. Please ask the question you wish to ask.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN127
MR BORENSTEIN: Thank you. I will try and remember where I was.
PN128
Okay. So you do work some weekends when required by Mr Rubenstein?---Yes.
PN129
So Mr Rubenstein works weekends when required as well?---I don't know what his movements are if I am not there. I can't answer that for him.
PN130
But when you are there, Mr Rubenstein - obviously there must be something going on if you are required to attend?---Yes. It is just purely clerical work.
PN131
So you are not aware of whether his employees are working on weekends or not?---Only when I see them on the time sheets.
PN132
Okay. What is your impression of - is it regular work that the employees do on the weekend on the time sheets?---No.
PN133
So you don't believe - so it is your opinion that they don't work on weekends?---They don't work on weekends unless work demands it, just like me.
PN134
Yes. And you are saying it doesn't happen regularly?---Not to my knowledge, no.
PN135
If I told you that there are employees at Smorgons that are on call every weekend, and work every weekend, what would you say to that?---It is difficult for me to answer that.
PN136
So you wouldn't know?---Because it is different people working different times, it is impossible to make a general statement.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN137
But on the average there would be at least one - it might not be the same employee, but there would be at least an employee working on the weekends nearly every weekend?---Well, once again, it depends on work loads. I can't generalise on that.
PN138
You don't know?---No. I can't say to you, yes, every weekend there is someone on call, because it depends on work loads.
PN139
Well, there are employees who work every weekend at the Smorgon site, I put that to you, and you say you don't know, or is that possible?---If work loads demand, they would be working.
PN140
Well, are there employees who are on call every weekend at Smorgons?---That, I don't know.
PN141
MR WILKINS: Your Honour, I don't seek to object, I just seek to ask that my friend clarify employees, of who. Is he referring to employees of IES, or any employee?
PN142
MR BORENSTEIN: Employees of IES Australia Pty Limited, the employer of the witness.
PN143
MR WILKINS: Thank you.
PN144
MR BORENSTEIN: Well, I put to you that there are employees on call every weekend at the Smorgon site. Do you agree or disagree, or you might not know; you don't know?---I don't know. I can't - I could say yes, if there is work loads there will be someone working, so - - -
PN145
Well, you don't know, you don't know the basis; is that correct, in that you don't know if that happens or not?---No, not to that point, no.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN146
That is all right, that is fine. Do you receive communications from Smorgons to IES?---Yes.
PN147
You do?---Yes.
PN148
Have you received any communications from Smorgons regarding the negotiation of an agreement?---No, I haven't.
PN149
Do you read the correspondence that comes in?---Yes.
PN150
So you read the whole letter, not just who it is to?---Yes.
PN151
And are you saying that there has been no correspondence passing between IES and Smorgons that relates to the negotiation of an agreement?---I am saying I haven't seen it.
PN152
You haven't seen it. Okay. And you are saying that you have read every piece of correspondence that has come in while you are there?---If it has come by my hands, yes.
PN153
So you are saying that you can't recall it, or you haven't seen it? Are you saying you are positive that while you were there no correspondence from Smorgons regarding negotiation of an agreement has come in?---I certainly cannot recall it, no.
PN154
You can't recall it?---It may have come in when I am not there.
PN155
That is fine. After 28 April 2003 - sorry, after 28 May 2003, have you sent any correspondence to the employees requiring them to return to work, have you personally?---Requiring them to return to work? Not that I recall, no.
**** PETRONILLA PARDO XXN MR BORENSTEIN
PN156
No further questions, your Honour.
PN157
THE DEPUTY PRESIDENT: Mr Wilkins?
PN158
PN159
MR WILKINS: Ms Pardo, my friend put to you some questions about whether you work weekends and whether IES work weekends at Smorgon Steel's operations. You said that you generally review the time sheets of the IES employees working at Smorgon Steel?---Yes.
PN160
Yes. Always generally you review the time sheets?---Always.
PN161
Can you tell me about how - - -
PN162
MR BORENSTEIN: I object, your Honour. Can I just object. He seems to be leading the witness quite extensively, in telling her what she should say.
PN163
THE DEPUTY PRESIDENT: All right, thank you for that. I am sure - - -
PN164
MR WILKINS: I will rephrase the question.
PN165
THE DEPUTY PRESIDENT: If you could start again, Mr Wilkins, in a non leading way. Thank you for that.
PN166
MR WILKINS: Ms Pardo, can you tell me how - tell me about the process for reviewing time sheets at IES, and your involvement in that process?---I receive all of the time sheets, and from those time sheets I actually do the invoicing.
**** PETRONILLA PARDO RXN MS WILKINS
PN167
THE DEPUTY PRESIDENT: Sorry, I missed that last statement?---I review all the time sheets, and from the time sheets I actually prepare the invoicing for the company.
PN168
MR WILKINS: On the basis of the time sheet reviews that you do, can you outline to me whether it is normal for all IES employees to work seven days a week?---No, it is not normal. It is not a requirement. If there is work to be done, and someone doesn't wish to work on the weekend, then someone else is employed to do it. That is my understanding.
PN169
Thank you.
PN170
PN171
THE DEPUTY PRESIDENT: Right, Mr Wilkins, who is next? Is that it?
PN172
PN173
MR WILKINS: Mr Daffy, can you please state your name and address for the Commission?---Thomas Charles Daffy. My work address is 435 Greave Parade, Altona.
PN174
Thank you, Mr Daffy. Have you provided a statement for the purposes of these proceedings?---I have.
PN175
Do you have a copy of that statement with you?---I do.
PN176
PN177
MR WILKINS: Mr Daffy, do you have any corrections you would wish to make to that statement?---Yes, I do. Page 4, paragraph 15, when I confirmed some names in a telephone conversation there was a misunderstanding. Mr Sud Harmen and Mr Wiji Award Hannah are, in fact, the same person, and the correct name is Sud Harmen Wiji Award Hannah.
PN178
THE DEPUTY PRESIDENT: Sorry, could you take me through that again please?---Four from the bottom, do you see Mr Sud Harmen?
PN179
I see?---And then on the bottom one, Wiji Award Hannah?
PN180
Yes?---I took these names in a telephone conversation in a fairly noisy environment. Those two are, in fact, the same person. The correct name is Sud Harmen Wiji Award Hannah.
**** THOMAS CHARLES DAFFY XN MR WILKINS
PN181
Thank you?---And there is a further IES employee by the name of Robert Ready.
PN182
Robert?---Ready.
PN183
MR WILKINS: Thank you, Mr Daffy.
PN184
THE DEPUTY PRESIDENT: Mr Wilkins, are you going to ask the witness if the witness statement is true and correct?
PN185
MR WILKINS: Yes, your Honour.
PN186
Mr Daffy, is this witness statement a true and accurate statement?---With those changes, yes.
PN187
Thank you, Mr Daffy.
PN188
THE DEPUTY PRESIDENT: Thank you very much. Mr Borenstein?
PN189
PN190
MR BORENSTEIN: Can you just give me a brief outline of the duties that you perform at TAD?---My duties over most of this period up to now have been as Acting Branch Manager. Those are wide ranging duties in the running of that branch, in providing services to clients, one of whom is TAD, so it is to supervise the provision and organisation of labour for the Smorgon Steel site.
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN191
What is the Altona Heavy Industrial Branch, what does that do?---It provides essentially trades qualified people within the corporate structure. We have light industrial, heavy industrial. That is most trades, but not exclusively.
PN192
Are you part of TAD, or are you a different company? What is the relationship?---TAD is part of the ADECCO group.
PN193
Who is your employer?---ADECCO.
PN194
ADECCO Pty Limited, or something like that?---Yes.
PN195
Not sure?---I think it is - I would have to look at the contract. I think it is ADECCO Pty Limited.
PN196
I am sure my friend can help you with the legalities of that. Okay. Have you had much involvement at Smorgon Steel?---Yes, extensive.
PN197
Extensive. Have you been part of the negotiations with the CEPU?---Which negotiations are you talking about?
PN198
Between TAD and the CEPU?---No, not directly.
PN199
You haven't. Indirectly?---I haven't been part of the negotiations.
PN200
You don't know what is going on in the negotiations?---I get advice from our industrial relations people.
PN201
Who is that?---Robert Barbour.
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN202
Do you have any contact with people at Smorgons in your role?---I certainly do.
PN203
Who are they?---Within the management of Smorgons itself?
PN204
Yes?---Most of the departmental supervisors in the various areas.
PN205
How many of them are there?---It is probably about eight or 10 people all up I would see regular.
PN206
What are their names?---You are testing me now. Andrew Thomas, Matt van der Ess, Tony Byrne, Charlie Borg - who are some of the other guys - Bill O'Meara, Gary Colhoun, Colin Gannon, Kim Deglidas.
PN207
Have any of those persons ever mentioned anything to you about negotiations going on?---In what sense? Have they referred to them?
PN208
Yes, have they ever referred to them?---Yes.
PN209
They have. Do they ask you how they are going on, or what do they refer to?---Well, I constantly see the people out the front on their way to and from work, and they have asked me what has happened at times.
PN210
Have you ever had a conversation with Evan Bain?---Yes.
PN211
You have. Have you ever had a conversation with him about the negotiations of the agreement?---Not the negotiations of the agreement, no.
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN212
About the agreement?---No.
PN213
Have you ever spoken to anyone at Smorgon's about a 36 hour week?---No.
PN214
Are you sure about that?---Am I sure about it? Yes.
PN215
So you have never had a discussion with one of the departmental supervisors about the issue of a 36 hour week?---Not specifically a 36 hour week, no.
PN216
Now, you spoke to Mr Rubenstein; is that correct?---Yes, I have spoken to Mr Rubenstein.
PN217
And for the purposes of drafting this statement I suppose that you did contact him to ask him how many employees he had?---I did.
PN218
Did you ask him too whether you would be a witness for this proceedings?---Whether he would be a witness?
PN219
Yes?---No, I didn't ask him that. I simply made a phone call to confirm the names.
PN220
How come you made that phone call?---Because I wasn't sure of all the names of the IES employees.
PN221
And who was asking you to give those names? What prompted you to make that phone call?---When I was preparing my statement.
PN222
So you were never informed to actually seek that Bernie Rubenstein come along and actually inform about that information?---No.
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN223
So in respect to the details of the negotiations, you are not aware of the content of such negotiations, and you haven't been involved in them?---With the ETU?
PN224
Yes?---Directly, no.
PN225
Have you had conversations with Mr Bain about the picket and the dispute?---I have had conversations with him, yes.
PN226
Did you have conversations with Mr Rubenstein also about the dispute?---I have only, apart from the phone call I made there, only one other conversation that I can recall, which was very brief and general.
PN227
Now, you talk about a labour supply contract. Does that have an expiry date?---I don't know the exact date.
PN228
Have you ever seen it?---No.
PN229
You have never seen the contract?---No.
PN230
In paragraph 66 you talk about the fact that - sorry, you have only been informed by Mr Wallace that Smorgon Steel has exercised its right, supposed right under a supposed labour supply contract to reduce the management fee?---Yes.
PN231
You are not aware of what the management fee, you have never seen that management fee or the supply contract?---I have seen the management fee, I have seen invoices for the management fee.
PN232
Yes, okay. But you have never seen the contract?---I have never seen a written contract.
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN233
Have you seen any invoices reducing the management fee?---No, I haven't. It is my understanding that they haven't been issued yet, that the exact amount is still under negotiation.
PN234
Okay. So at the moment there hasn't been any financial loss to the company?---Well, it is my understanding there definitely has, that Smorgon has claimed a reduction for the last three months.
PN235
But ADECCO hasn't paid any money over to Smorgons?---Smorgons pay us money.
PN236
That is right. They haven't, well, they haven't paid any - - -?---Well, they haven't paid - - -
PN237
You haven't agreed on the reduction?---They haven't paid the last three months.
PN238
And they haven't said they wouldn't pay?---No, they haven't said they will pay. All they have said is that - - -
PN239
They haven't said they would pay, they haven't said they would pay?---Well, they have said they won't pay the whole amount.
PN240
But you don't know how much?---Not to the exact cent, no.
PN241
Okay. No further questions, your Honour.
PN242
THE DEPUTY PRESIDENT: Thank you, Mr Borenstein. Mr Wilkins?
**** THOMAS CHARLES DAFFY XXN MR BORENSTEIN
PN243
PN244
MR WILKINS: Just one question, Mr Daffy. Can you please clarify for me the situation in terms of your knowledge, the knowledge that you have as to whether or not Smorgons have indicated to TAD that they intend to pay all of the amount which would otherwise be due to them but for the strike?---It is my understanding that if those people - the strike hadn't occurred, that we would have received our normal monthly management fee each month for the last three months, as has always been.
PN245
What has been said, what has been communicated by Smorgons to TAD that will happen now that the strike has occurred?---Because of the reduction in numbers there will be a reduction in the management fee payable.
PN246
Thank you. That is the only question I have.
PN247
PN248
THE DEPUTY PRESIDENT: Mr Wilkins, anything more?
PN249
MR WILKINS: No, your Honour. Given that the other material was put, was accepted before the Commission, it is not necessary for Mr Gianatti to give his evidence. And that is the end of our evidence, your Honour. Unless I misunderstand his Honour?
PN250
THE DEPUTY PRESIDENT: No. I have admitted that material. It doesn't preclude you from calling evidence if you wish to. I am not suggesting that you do. It is in your hands, of course.
PN251
MR WILKINS: Through an abundance of caution then, your Honour, I will - - -
PN252
THE DEPUTY PRESIDENT: It is a matter for you entirely. I don't give you any indication on that. It is your evidentiary case.
PN253
PN254
MR WILKINS: Mr Gianatti, can you please state your full name and address for the Commission?---600 Bourke Street is the address. Christopher Paul Gianatti.
PN255
Mr Gianatti, have you provided a statement for the purposes of these proceedings?---I have.
PN256
I believe, your Honour, that that statement has already been tendered and is marked exhibit W1.
PN257
THE DEPUTY PRESIDENT: Is it? Yes.
PN258
MR WILKINS: Is that a true and accurate statement, Mr Gianatti?---It is.
PN259
Thank you. No further questions.
PN260
THE DEPUTY PRESIDENT: Mr Borenstein?
PN261
PN262
MR BORENSTEIN: Mr Gianatti, the statements attached to your statement are from a number of people. Can I ask why you went down to the Commission to get a copy of them rather than actually ringing the persons and getting a statement from them?---Because it is our belief that the matters are on record and the evidence has been tendered.
PN263
So no attempts were made to contact Evan Bain?---None of which I am aware.
**** CHRISTOPHER PAUL GIANATTI XXN MR BORENSTEIN
PN264
Were you aware that Mr Thomas rang up Mr Rubenstein in respect - Mr Bernard Rubenstein, to find out the number of electrical employees that worked at IES at the Smorgon site?---Mr Thomas, no.
PN265
Sorry, Mr Daffy?---I was.
PN266
Yes. You didn't seek to see whether Mr Rubenstein could also provide a statement?---No.
PN267
Did you contact Mr Wayne Pearce to see whether he would provide a statement?---No, I did not.
PN268
No further questions, your Honour.
PN269
THE DEPUTY PRESIDENT: Thank you very much, Mr Borenstein. Mr Wilkins, any re-examination?
PN270
MR WILKINS: No questions.
PN271
PN272
MR WILKINS: That concludes our evidence, your Honour.
PN273
THE DEPUTY PRESIDENT: I have on file a statement of service from Nicole Louise Evison, and a statement from Yvonne Chong. I think that is all. Do you want to mark those for the purposes of convenience?
PN274
PN275
THE DEPUTY PRESIDENT: So that is the evidentiary case called by you, Mr Wilkins?
PN276
MR WILKINS: Yes, it is, your Honour.
PN277
THE DEPUTY PRESIDENT: Thank you very much, Mr Wilkins. Mr Borenstein, before we come to submissions perhaps I would like to hear any evidence you wish to call.
PN278
MR BORENSTEIN: Well, I have no evidence to call, your Honour. I suppose my evidence will be left to assertions from the bar, but I think I can leave that to submissions. I am happy to put my submissions first, seeing as my friend sort of did a bit of an introduction and put his evidence forward, it might be most convenient, and then he can reply to that.
PN279
THE DEPUTY PRESIDENT: All right.
PN280
MR BORENSTEIN: I think that might be the easiest, because I will be including some assertions in there, and better than being the assertions which are doubling up, I am happy to just go all the way through, and let my friend reply.
PN281
THE DEPUTY PRESIDENT: Well, just see if Mr Wilkins agrees with that.
PN282
MR WILKINS: No problems with that, your Honour.
PN283
THE DEPUTY PRESIDENT: Thank you, Mr Wilkins. All right, Mr Borenstein, I think it is your turn now.
PN284
MR BORENSTEIN: As your Honour knows, we dispute the section 166A certificate. As has been held by a number of Full Benches of the Commission, the Commission is required to identify conduct that is capable of being the subject of a notice under section 166A, is capable of being the subject of conciliation proceedings, capable of being the subject of attempts by the Commission to stop the conduct, and they might reasonably be subject of a declared intention to bring an action in tort.
PN285
Now, we say it is proper for the Commission to at least categorise the conduct. The conduct complained of here is, well, we separate into, one, obstruction and besetting, and two, stoppages of work. And I don't think there can be too much dispute about that, and we say it is proper for the Commission to actually look at the conduct, not just to say there is a bit here, so we just put it all in a circle and snap it up and handball it to the Supreme Court, or wherever it shall go.
PN286
Now, I would like to, in respect of the obstruction and besetting, it is only the obstruction and besetting that is unlawful. Pickets are not unlawful. And that has been held in Barlow World, the case which I am sure your Honour has been referred to a number of times, and there is a raft of cases which have held that picketing which is defined as standing on basically on a street outside a fence is not unlawful. The unlawful conduct occurs where you are obstructing or besetting person who are trying to enter a premises or the like.
PN287
If they are going to bring a legal action, it is not in respect of the picketing, it is in respect of obstruction and besetting. Now, there has been no obstruction and besetting for, I am not sure how long, possibly probably about two months now, and there is no evidence of any obstruction and besetting occurring just prior to or when the notice was issued, there is absolutely no evidence, it can't be disputed. And we say for the last two months there has been no obstruction and besetting.
PN288
The notice issued by my friends was issued I think on Thursday, 28 May. There was certainly no obstruction and besetting on that day or the preceding day, and I don't think there will be such a submission. Now, we submit that there must be conduct occurring, the conduct must be occurring when the section 166A certificate is sought, there must be obstruction and besetting. Now, if you read the provisions of section 166A, it makes it plainly clear that it is designed for the Commission to stop the conduct. Nearly every provision in there is referring to stopping the conduct, or if the conduct hasn't stopped, you know, if we look at 166A(5):
PN289
If such a notice is given, the Commission must take immediate steps to try or to continue to try under this Act to stop the conduct.
PN290
Well, you can't do that because the conduct is not going on, so if you can't satisfy one of the provisions in there. It clearly evinces the intention that the conduct is happening when the notice is issued, is filed with the Commission. Now, can I take you to a case, a Full Court of the Supreme Court which supports that submission, the National Work Force case.
PN291
THE DEPUTY PRESIDENT: Mr Borenstein, I have in front of me exhibit W4, paragraph 60 through to 65, and I suppose 66 and 67 as well.
PN292
MR BORENSTEIN: That is the affidavit of?
PN293
THE DEPUTY PRESIDENT: Mr Thomas Charles Daffy. Why in your view does that not constitute a plausible basis for an action in tort? I think you have said there has been no obstruction or besetting.
PN294
MR BORENSTEIN: There is no obstruction detailed in those paragraphs at all. The picketers remain there lawfully, and it is the clear evidence of the applicant that there is no obstruction and besetting, they just haven't mentioned it at all. And the current status of the picket is that they are still there. They have taken photographs of activities, but there is nothing unlawful about what they are doing there. The allegations, there has been no obstruction and besetting at all. And I can't see any argument on the basis of the Barlow World test which requires there to be a form of obstruction and besetting, that there is such conduct.
PN295
THE DEPUTY PRESIDENT: In paragraph 64 it states the employees have not performed work since 21 February.
PN296
MR BORENSTEIN: Yes. That has got nothing to do with the picket though.
PN297
THE DEPUTY PRESIDENT: No.
PN298
MR BORENSTEIN: That is to do with the stoppage, so that is a different type of conduct.
PN299
THE DEPUTY PRESIDENT: Indeed.
PN300
MR BORENSTEIN: That is industrial action. The picket isn't industrial action, even though it is an academic point, but the picket is a separate conduct.
PN301
THE DEPUTY PRESIDENT: No, I understand it. I am just asking you why isn't that evidence of conduct. Paragraph 64 is evidence of conduct, is it not?
PN302
MR BORENSTEIN: We say that if there has got to be evidence of obstruction - the conduct has got to be obstruction and besetting, not just a picket. You can't just say, give an affidavit, there is a person standing outside the fence.
PN303
THE DEPUTY PRESIDENT: Sorry, perhaps I could ask this question again, I seem to have misled you. I am sorry about that. I am just asking you why I can't find on the basis of paragraph 64 that conduct has existed since 21 February, conduct within - - -
PN304
MR BORENSTEIN: In respect to the stoppage of work?
PN305
THE DEPUTY PRESIDENT: Yes.
PN306
MR BORENSTEIN: I will get to the stoppage of work, if that is all right, your Honour. But I accept your point on that.
PN307
THE DEPUTY PRESIDENT: In your own time please.
PN308
MR BORENSTEIN: Thank you, your Honour. Can I hand up the National Work Force case.
PN309
THE DEPUTY PRESIDENT: How much longer will you be, Mr Borenstein, do you know?
PN310
MR BORENSTEIN: I will probably be about a half an hour. I just can't find it in my bundle of documents here, your Honour. Can I read out the paragraph?
PN311
THE DEPUTY PRESIDENT: All right. What is the case?
PN312
MR BORENSTEIN: The case is National Work Force and Others v Australian Manufacturing Workers Union at 76 IR 200, and I refer to page 212 of that decision. I should have it here.
PN313
THE DEPUTY PRESIDENT: It is all right, please proceed. I am getting a copy brought into court.
PN314
MR BORENSTEIN: Thank you, your Honour. Now, the appellants in this was National Work Force, an employer.
PN315
MR WILKINS: Your Honour, we have a copy of that document in the courtroom, but it is not the reported copy referred to, so as long as you are happy to work your way through and find the relevant reference, we might be able to assist the Commission there.
PN316
THE DEPUTY PRESIDENT: All right, thank you very much, Mr Wilkins.
PN317
MR BORENSTEIN: It is on page 13 of 23 in the copy handed up, your Honour.
PN318
THE DEPUTY PRESIDENT: Judgment of which member of the Court? Phillips, Charles or Batt JJ, Mr Borenstein, which one?
PN319
MR BORENSTEIN: It is on page 13 of that decision. I am just trying to see which Judge was speaking at the time. It is the Court speaking, your Honour.
PN320
THE DEPUTY PRESIDENT: It is the entire Court, is it?
PN321
MR BORENSTEIN: Yes, it is, your Honour.
PN322
THE DEPUTY PRESIDENT: Yes, thank you for that. So it is page 13.
PN323
MR BORENSTEIN: Page 13 of 23. In the reported copy it is at page 212 of volume 76 of the Industrial Reports. They say there - it is in the second paragraph, where it is starting "The appellants submitted," the appellants being the employer:
PN324
The appellants submitted that in view of these provisions a certificate could be given under subsection 6 only during the currency of industrial action of a type to which the section was directed as a whole. Obviously the Commission could not act under paragraphs (a) (b) or (c) of subsection 6 of industrial action had already come to an end.
PN325
Now, that was a submission put by the employer. And then down at the start of the next paragraph, the Full Court say:
PN326
In our view this argument should be accepted.
PN327
THE DEPUTY PRESIDENT: So when they say "In our view this argument should be accepted," this argument being the argument that?
PN328
MR BORENSTEIN: The submission by the appellant in the preceding paragraph.
PN329
THE DEPUTY PRESIDENT: The Commission couldn't act if industrial action had already come to an end.
PN330
MR BORENSTEIN: Could not act, yes, that is correct, your Honour, could not act under paras (a) (b) or (c) of subsection 6 if the industrial action had already come to an end.
PN331
THE DEPUTY PRESIDENT: Thank you.
PN332
MR BORENSTEIN: We say that is the basis, that is why - the Full Court are saying there that there must be conduct when the notice is filed.
PN333
THE DEPUTY PRESIDENT: I understand.
PN334
MR BORENSTEIN: And in this situation there is no obstruction or besetting, there hasn't been for a number of months, and there still isn't. All there is, is the people standing outside the fence, and that is not obstruction or besetting by the definition of Barlow World. And the evidence goes no further than that, we submit. Should that not be accepted, your Honour, we say that seeking a certificate as the applicant has done under subsection 6(a), that after the Commission starts to exercise conciliation powers in relation to the industrial dispute, it forms the opinion that it is not likely to be able to stop the conduct promptly, there is no conduct in respect of the obstruction and besetting to stop promptly. We say they can't rely on subsection A.
PN335
This is an argument that we put in the alternative, your Honour, in respect of the obstruction and besetting conduct. If your Honour looks at subsection 6(a), it only can issue a certificate in that situation if it forms the opinion that it is not likely to be able to stop the conduct promptly. We submit that it is clear that there is no conduct, there is no evidence of any, and on that basis we submit they can't rely on that subsection, therefore - and these arguments are put in the alternative on the basis that our primary argument is that there is no obstruction and besetting conduct, therefore no notice can be issued, no certificate can be issued.
PN336
THE DEPUTY PRESIDENT: Even if I accepted your views on that, Mr Borenstein, there is still the issue of the industrial action, and the evidence I have pointed to you.
PN337
MR BORENSTEIN: That is right.
PN338
THE DEPUTY PRESIDENT: You are coming to that?
PN339
MR BORENSTEIN: I am coming to that certainly. I just want to separate the two conducts. Because I think although section 166A is written in quite broad terms, I think the Commission does need to actually take a little bit of care in the conduct that it places a certificate on. It doesn't need to - I understand there is a number of cases which say you don't have to specify the details or specifics of it, but I think you need to categorise it, in my submission. I think if you are going to - the action in respect of the industrial action is completely different to action in respect of obstruction and besetting, they are completely different courses of action and have different foundations for the basis of them.
PN340
And we submit that the Commission really should take a role of at least supervising which action, which conduct is the subject of proceedings and which conduct isn't. The applicant might try and rely on subsection (b) of section 6 to say that they would be - that the obstruction and besetting conduct, if they can't sue in respect of that, substantial injustice will be caused to them.
PN341
THE DEPUTY PRESIDENT: Well, they have given no indication of reliance on that section, Mr Borenstein, at this stage.
PN342
MR BORENSTEIN: Well, if my friend says that he won't rely on that section in respect of the obstruction and besetting conduct, I am happy not to go any further on that point.
PN343
THE DEPUTY PRESIDENT: Are you, in fact, relying on that, Mr Wilkins?
PN344
MR WILKINS: I reserve the right to, your Honour.
PN345
THE DEPUTY PRESIDENT: All right, thank you.
PN346
MR BORENSTEIN: I will put some submissions on it for your Honour. In respect of that there is two requirements that they have to satisfy to be able to rely upon it, there is two jurisdictional requirements that the Commission has to be satisfied of. The one that, well, firstly, we say disallows them from relying upon it is that the Commission is not exercising conciliation powers in respect of the industrial dispute. They were exercised a long time ago, they were unresolved, they finished completely, and there has been nothing since.And as you will note, subsection 6(b) does say that:
PN347
To which the notice relates, while the Commission is exercising conciliation powers.
PN348
THE DEPUTY PRESIDENT: Well, on that issue, Mr Borenstein, I think where we left the conferences was this. Correct me if I am wrong. That the last conference was not successful in resolving the issue. I left it for parties to have the matter relisted at any time if they wished to relist it.
PN349
MR BORENSTEIN: And no parties wished to, your Honour, and that is important. And that was the situation that was dealt with in The Age, and I will just deal out copies of that, your Honour.
PN350
THE DEPUTY PRESIDENT: It is a decision at print ER913101.
PN351
MR BORENSTEIN: That is correct, your Honour.
PN352
THE DEPUTY PRESIDENT: A decision of 22 January 2002. Is that the matter where conduct had - - -
PN353
MR BORENSTEIN: Now, in this situation Commissioner Whelan in the first instance was dealing with a situation where the conduct was occurring when the notice was issued.
PN354
THE DEPUTY PRESIDENT: I think the Commission distinguished between conduct and industrial action, didn't they, in this matter, and found that even if industrial action had ceased, that didn't necessarily mean the conduct had ceased. Is that correct, is that the decision?
PN355
MR BORENSTEIN: That is not how I read it, your Honour. I read it - this case was dealing with a situation where there was industrial action. A section 127 order, they brought a section 127 and section 166A proceeding. The Commissioner issued the order preventing the industrial action, and on that basis refused - well, and then the section 166A order wasn't proceeded with. Then a couple of days later I think they came back and sought to have the 166A certificate brought on again.
PN356
They do overturn her decision, but in the end refused to issue a certificate because of the fact that there was no jurisdiction under 6(b) to issue the certificate. They agreed that the Commission was not being asked to conciliate the proceedings any more at this time that the certificate was sought. Now, in the section 127 and section 166A proceeding, if I could refer your Honour to paragraphs 1 to 32 of that decision. The applicant in that matter was trying to rely on paragraph 6(b), and they argued that the industrial dispute that was before the Commissioner was not settled on 27 July, which was when she issued a section 127 order, and therefore the Commission's powers of conciliation survived the section 127 order, and the Commissioner in her reasons for decision on 27 July, in fact, found that the section 127 order did not resolve the industrial dispute. Now, in 133 they say:
PN357
We are far from convinced that there was any -
PN358
well, they consider that the Commissioner's suggestion that the Commission was functus officio in relation to the section 166A matter on 30 July they found that was incorrect. They said:
PN359
We are far from convinced that there was any evidence before the Commission on 30 July which would grant a finding of an industrial dispute invoking the conciliation powers of the Commission. When the section 166A matter was listed on 30 July 2001, neither the appellant nor the respondent suggested that the underlying industrial dispute which gave rise to the conduct should be subject to further or any conciliation.
PN360
And that is the same situation here. Your Honour heard it in the conference before the proceeding, and there has been no conciliation for a long time and no party is seeking any conciliation or has indicated that they are seeking conciliation. And on that basis, at 138 they - - -
PN361
THE DEPUTY PRESIDENT: Well, the conference I just had was for the purpose of ascertaining whether there was any possibility of conciliation settling conduct.
PN362
MR BORENSTEIN: And the answers were no, the parties did not - I can't - the parties did not enter into any conciliation. I understand that maybe a conference off the record, but that doesn't - no one was asking the Commission to exercise conciliation powers. The employer has come here for a certificate, and we have come here to defend it, and the underlying industrial dispute, there was no conciliation of that at all, and hasn't been for three months or so, two or three months.
PN363
THE DEPUTY PRESIDENT: I tender the view that the conference was, in fact, a conciliation, Mr Borenstein, unless you give me a good reason now why it wasn't.
PN364
MR BORENSTEIN: I said there was a conference - - -
PN365
THE DEPUTY PRESIDENT: My prima facie view is that it was an exercise of conciliation.
PN366
MR BORENSTEIN: There has been no party has - as in this case, there was the right for conciliation, and they were there previously where there was conciliation, when the section 127 orders were first made, and the section 166A certificate was issued, was heard sometime after, a short time after. We submit that the applicant has made no request for the Commission to exercise conciliation powers, made no request at all.
PN367
THE DEPUTY PRESIDENT: No. But the point I made was this. I think prima facie the conference I held this morning was an exercise by me of conciliation powers. The conciliation failed to settle whatever is going on, but nevertheless I think prima facie, unless you tell me, give me a good reason why not, what happened this morning was conciliation.
PN368
MR BORENSTEIN: We would say if that is the case, and in this case the Full Bench should have held conciliation was held in respect to the section 166A and the 127 in this proceeding, and then they went on to the 127.
PN369
THE DEPUTY PRESIDENT: So it wasn't simply a hearing, there was the procedure followed by Commission Whelan was the same procedure I followed, which is to hold a conciliation conference followed by a hearing, or did she follow a different procedure?
PN370
MR BORENSTEIN: That is how I believe it to be. I will try and locate the - - -
PN371
THE DEPUTY PRESIDENT: You see, in paragraph 4 there is no reference to her conciliating the matter. It may well be that the procedure followed in that case was different to the procedure I followed, Mr Borenstein. Perhaps you would like to check that.
PN372
MR BORENSTEIN: Yes, I would. Yes, in reply I might seek to stage that issue. We would submit - - -
PN373
THE DEPUTY PRESIDENT: Check that over the luncheon adjournment.
PN374
MR BORENSTEIN: That would be easy, your Honour. I will move on. The second argument that I seek to raise, and there is reference to this in the same case, The Age case, is that there is no substantial injustice caused to the applicant in respect of the obstruction and besetting conduct. There is no evidence that as a result of that conduct they have suffered any damage. The obstruction and besetting as alleged, if any, is occurring outside the Smorgon site, not TADs site or their employment.
PN375
They have suffered absolutely nothing, and there is nothing in the material that shows that as a result of the obstruction and besetting they have suffered any damage. And I doubt that they could allege the same, and it is certainly not in their evidence.
PN376
THE DEPUTY PRESIDENT: Well, do they have to show damage?
PN377
MR BORENSTEIN: Well, in the terms of substantial injustice.
PN378
THE DEPUTY PRESIDENT: Don't all they have to show is a plausible - some sort of basis for a plausible action in tort, which is a very general test?
PN379
MR BORENSTEIN: Well, you can't have an action in tort without damage, that is the law, and I don't - and my friend argues otherwise, I would like him to show me where it says - where it shows where you can, but also in respect of substantial injustice, because that is one of the jurisdictional requirements under paragraph 6(b). And how can there be substantial injustice if they were not allowed to bring an action in tort in respect to the obstruction and besetting if they have suffered absolutely no loss at all? And they led no evidence as to that whatsoever.
PN380
On that basis the Commission cannot be satisfied, it can't take a leap of faith, as your Honour has used the phrase in a well written decision, to just assume that they will suffer a substantial injustice. And details of substantial injustice is discussed in The Age at pages 20 and 21. And it goes through the law there dealing with situations where corporations have been made insolvent, and I think administrators are doing something which may cause injustice to creditors. But it does require a real and substantial injustice, not just an insignificant one. And we say there is no evidence, and we also say that there just is none. We can't fathom what injustice they are suffering if they can't bring an action in tort in respect of the obstruction and besetting.
PN381
And my friend might have views on that, and we would be happy to reply to them, but I can't fathom what injustice is being caused to them. I will now turn, your Honour, to the stoppage of work. Now, there is no disputing, as far as I can see from the submissions and the statements, that the TAD employees have fulfilled the requirements to take protected action, ie, under a final notice of initiation of bargaining period, have filed the required notice of intended industrial action. Those notices, I don't think there is any argument that they are invalid at all. And my friend might make the submission otherwise, and I will deal with that in reply if that is so.
PN382
THE DEPUTY PRESIDENT: I think he has indicated that he will deal with that issue, as I recall. Correct me if I am wrong.
PN383
MR BORENSTEIN: Well, I think on a different basis, if I can assume from his submissions, and that is the basis that 170MM causes the action to be unprotected, and the flow on from that. I don't think it is a flow on from the TADs notice. I might - - -
PN384
MR WILKINS: That is correct, your Honour. At this stage I will reserve my position on whether the TAD notice is defective. But the substantial part of our submissions will be on the basis that the IES notices were defective, and that has in a sense polluted the industrial action being taken by the TAD employees and the relevant union officials that are respondents.
PN385
THE DEPUTY PRESIDENT: So the TAD notices are valid, are they?
PN386
MR BORENSTEIN: I think he is reserving his right on that, but as an initial basis we can proceed on that basis, and I will reply if he changes his position.
PN387
THE DEPUTY PRESIDENT: All right.
PN388
MR BORENSTEIN: So on that basis, yes, TAD are making the submission that because of IESs industrial action and because that is allegedly unprotected, that necessarily makes TADs employees industrial action unprotected. TAD argued that both the IES employees and the CEPU are not protected persons. We say that is misconceived and incorrect, and 170MM does not have that effect at all. Now, firstly, your Honour, the certificate sought by the applicant is just in respect of the CEPU and its officials, being Dean Mighell and Gerry Glover. So it is not aimed at any employees of IES or at TADs own employees. And I think that is accepted.
PN389
MR WILKINS: Not quite. The certificate refers to conduct involving both sets of employees, but the certificate is notification of the intention to pursue tort action arising from that conduct only against the union and the union officials.
PN390
THE DEPUTY PRESIDENT: Where is this draft certificate?
PN391
MR BORENSTEIN: I am not sure if there has been a draft certificate.
PN392
THE DEPUTY PRESIDENT: You are referring to the notice given, are you?
PN393
MR BORENSTEIN: Yes, I am referring to the notice, your Honour.
PN394
THE DEPUTY PRESIDENT: Yes, I see it.
PN395
MR BORENSTEIN: The schedule at the bottom.
PN396
THE DEPUTY PRESIDENT: Yes, I see.
PN397
MR BORENSTEIN: So it is basically the CEPU and its officials. Therefore the conduct they are complaining of is that the CEPU has encouraged industrial action in concert with one or more persons that are not protected persons. Now, that is not the case. Protected persons aren't persons that are taking protected industrial action. That is not what they are. Protected persons are defined in 170MM(3), if I could take your Honour to that. It does sort of mislead on the - if a person is not taking protected industrial action, then they are not a protected person, it doesn't follow - a protected person is an organisation of employees that is a negotiating party.
PN398
Now, a negotiating party is a party that has initiated a bargaining period, which the union has done. And section 170MI(3)(a) defines negotiating party, and it includes initiating party, which is the union, the CEPU. So in respect of the CEPU acting in concert with the TAD employees, the CEPU is a protected person whether or not there is unprotected industrial action going on anywhere. We are a protected person for the purposes of 170MM(3). The TAD employees are also protected persons because they are members of such an organisation, so they are members of the negotiating party, which is the union, which is a protected person.
PN399
Therefore any industrial action in concert between them and is in compliance with - well, they are not - section 170MM doesn't apply to them. Now, the members at IESA are also protected persons for the purposes of negotiating their agreement with IESA, and the CEPU is a protected person and still is, they both still are even if - it is totally irrelevant whether they are taking protected action or unprotected industrial action. That is not an issue. They are both protected persons for the purposes of their agreement with IESA. Now support for that proposition can be found in the Yallourn decision by Merkel J, which is reported at 95 IR 207, and it is at paragraph 40 of that decision.
[12.15pm]
PN400
THE DEPUTY PRESIDENT: Paragraph 40?
PN401
MR BORENSTEIN: Paragraph 40 on page 215, where it says:
PN402
Counsel for Yallourn Energy also contended that if its contention that any of the industrial action taken by a union or its members was not protected, was accepted, that had the consequence of the action of other unions engaged in concert with that union no longer being protected ...(reads)... were not negotiating parties as defined under section 170MI(3).
PN403
So following that Federal Court decision, just because one party does not take protected industrial action, it does not affect the other party, it does not make them non protected persons, and doesn't affect the other parties.
PN404
THE DEPUTY PRESIDENT: So just let me get this straight. This application is brought by TAD Pty Limited, okay. Now, TAD, ETU or the CEPU has served the relevant notices on TAD.
PN405
MR BORENSTEIN: That is correct.
PN406
THE DEPUTY PRESIDENT: And has taken industrial action pursuant to those?
PN407
MR BORENSTEIN: That is correct.
PN408
THE DEPUTY PRESIDENT: You say it is protected action?
PN409
MR BORENSTEIN: That is correct.
PN410
THE DEPUTY PRESIDENT: Now, CEPU has also served notices on what, IES?
PN411
MR BORENSTEIN: IES Australia, that is correct.
PN412
THE DEPUTY PRESIDENT: Right. There is some alleged defects in those notices?
PN413
MR BORENSTEIN: There is some alleged defects based on possibly not enough days being given, based on working days. Enough days were given, whether they are working days or not is an issue.
PN414
THE DEPUTY PRESIDENT: I recall that was the issue we dealt with on the last occasion.
PN415
MR BORENSTEIN: That is correct.
PN416
THE DEPUTY PRESIDENT: I recall that. Now, how is all of that relevant to the notices relating to TAD?
PN417
MR BORENSTEIN: We say they are not.
PN418
THE DEPUTY PRESIDENT: Right.
PN419
MR BORENSTEIN: We say they are not. We say both sets of employees are seeking agreements with their employers, and that is bona fide. The Commission has seen it, we are negotiating.
PN420
THE DEPUTY PRESIDENT: But are employees of IES engaged in any conduct affecting TAD?
PN421
MR BORENSTEIN: Because they are employed on the same site, your Honour, it is unavoidable that there is not some maybe - that things happen at the same time or, you know, you have a picket where both members are present. We are not going to set up - - -
PN422
THE DEPUTY PRESIDENT: That is right. So there is a relationship between - - -
PN423
MR BORENSTEIN: There is. I mean, there is.
PN424
THE DEPUTY PRESIDENT: The picket affects TAD, and the picket includes IES employees.
PN425
MR BORENSTEIN: Well, we say the picket doesn't affect TAD.
PN426
THE DEPUTY PRESIDENT: Well, I know what you say. I am not saying by the word affect that obstructing and besetting is occurring. I take note of your argument on that point. The picket, you know, I see. And that is the basis you understand that the applicant is putting its arguments, is it?
PN427
MR BORENSTEIN: That is correct. And they are saying that - it is really irrelevant whether IES employees are taking protected action or not. What the applicant is trying to say is, well, they are acting in concert, and protected persons from IES aren't protected persons in respect of the TAD agreement. We are seeking two separate agreements, which we are doing, and we are seeking agreements from each of those employers, which we are trying to do. And through all the negotiations we have had negotiations with IES separately and TAD separately and together at the initiative of Smorgons, who is not even an employer, also at the initiative of ADECCO.
PN428
So it is a hard situation because, I mean, the whole situation has arisen because Smorgons have turned a singular work force into a multiple work force with different contractors, therefore there is going to be some complications, you know, similarity in the claims, because they are on the same site and they work there, you know, they have been there for - well, I think IES has been there for over 15 years. So it is our submission that 170MM is not designed to say, well, you are taking the industrial action at the same time and you have got a picket, and both - the picket is being manned by both IES employees and TAD employees.
PN429
Section 170MM is directed at a secondary boycott situation. And can I hand up the explanatory memorandum for your Honour, which makes this clear.
PN430
THE DEPUTY PRESIDENT: Relating to the introduction of 170MM, is it?
PN431
MR BORENSTEIN: That is correct.
PN432
THE DEPUTY PRESIDENT: Thank you.
PN433
MR BORENSTEIN: It says at 9.172 that the new section 170MM:
PN434
Industrial action must not involve secondary boycott. Industrial action which amounts to a secondary boycott is not protected. This is achieved by restricting the protection of industrial action to that engaged in only by protected persons, ie, an organisation of employees that is a negotiating party or an employee who is a negotiating party.
PN435
Now, what MM is relating to is where, say, IES already had an agreement, they weren't negotiating an agreement, and in support of TAD employees they just walked off the job. Now, that is not the case here. The IES employees are bona fide and genuine in their attempts to negotiate an agreement with IESA, and that is what they are trying - and they are trying to hurt, as part of the negotiation that the Act sets up, they are exercising their rights under the Act against IESA.
PN436
Now, that is bona fide and I don't think that can be disputed. There is no evidence that the employees of IES are attempting to hurt TAD, there is no evidence of that at all. And that would be a secondary boycott. It is where action is being taken by a third party to hurt another party, which is the employer of the employees they are trying to assist. That is not occurring here, your Honour. They are genuine in their attempts to reach an agreement with IES.
PN437
And we say it would be a ridiculous situation where persons taking protected industrial action, just because they are at the same site and taken at the same time as other employees, makes the whole industrial action unprotected. That is not what MM is about. MM is about where industrial action is taken at another site purely to hurt the employer at the number one - the employer who is negotiating the agreement. There is no evidence of that here, and they are not doing that.
PN438
THE DEPUTY PRESIDENT: Well, the fact that there are bargaining periods in force, are relevant considerations, first of all, aren't they?
PN439
MR BORENSTEIN: That is correct.
PN440
THE DEPUTY PRESIDENT: Under Coal and Allied or other authorities.
PN441
MR BORENSTEIN: Yes.
PN442
THE DEPUTY PRESIDENT: Secondly, it is relevant for me to have regard to alleged defects or otherwise, should they exist.
PN443
MR BORENSTEIN: That is correct.
PN444
THE DEPUTY PRESIDENT: But thirdly, my role is limited. I don't have to go much beyond looking at whether arguments are plausible.
PN445
MR BORENSTEIN: Yes, that is correct, your Honour.
PN446
THE DEPUTY PRESIDENT: I don't need to, for example, do more than say the argument of the employer is a plausible argument. I don't need to determine it in the employer's favour. The threshold is rather low, if you like.
PN447
MR BORENSTEIN: The threshold, I accept that the Full Benches have, whether correctly or not correctly, have said that, the threshold is quite low. But they do in all cases - you will see that in all the cases they do actually have a look though, and they do have a look and see the conduct - - -
PN448
THE DEPUTY PRESIDENT: I am with you on this. There must be something there, some sort of conduct.
PN449
MR BORENSTEIN: And in a situation where the industrial action by TAD has gone through all the notice procedures and is protected industrial action, and now they are trying to come in with a section saying, well, because you are doing it in concert with the other employees. It doesn't matter that the other employees are taking protected or unprotected action, just because you are doing it at the same time and have attended meetings and - - -
PN450
THE DEPUTY PRESIDENT: I do understand your argument, and perhaps a court will agree with you, but at this stage all I need to do is find a plausible action in tort, and nothing beyond that.
PN451
MR BORENSTEIN: That is true, your Honour. I would say that the protected, it isn't plausible. I would say from the law it is just not plausible.
PN452
THE DEPUTY PRESIDENT: Because of what you say it is not plausible?
PN453
MR BORENSTEIN: That is right.
PN454
THE DEPUTY PRESIDENT: I understand.
PN455
MR BORENSTEIN: There can be no argument that we haven't gone through the right procedures, and we say it just cannot be plausible that just because employees are taking - two sets of employees are taking industrial action at the same time, that that means that they are taking industrial action in concert in breach of section 170MM, in a situation where they are both negotiating agreements with their respective employers. If IES sign the agreement tomorrow, and the IES employees said no, we are staying out to support the TAD employees, that is where it operates.
PN456
And we would be happy if TAD signed the agreement tomorrow to test that. But I assure you that they would return to work, and the TAD employees would remain out, or vice versa. And I think that is plausible, in that situation it is plausible. There is no argument otherwise.
PN457
THE DEPUTY PRESIDENT: Thank you.
PN458
MR BORENSTEIN: On that basis, your Honour, can I just sum up to just set out the points that I have made. Our first point is that you separate the conduct into the stoppages of work and the obstruction and besetting. We say that is not an onerous job on respect of the Commission, and in fairness to the union and its officials and the employees that the Commission at least has that role to actually assess the conducts in separate, because they are discrete conducts. One is dealing with industrial action where notices have been provided, and one is dealing with conduct completely separate to the industrial action, but just involves obstruction to the entry to the premises. So they are completely separate legal actions and courses of action. In respect to the picketing, we say - - -
PN459
THE DEPUTY PRESIDENT: But it is all over the same issue, namely, claim for an enterprise agreement.
PN460
MR BORENSTEIN: It is being done by the same people, but it is separate conduct.
PN461
THE DEPUTY PRESIDENT: Yes, I understand, thank you.
PN462
MR BORENSTEIN: We say it should be separated. We say that in fairness we shouldn't open up all types of conduct where there is no basis, where it is not plausible. In respect to the picketing, or in respect to the obstruction and besetting, it is wasn't happening at the time of the notice, hasn't happened for a number of months, and there is no evidence that it is occurring at the moment or in the future. On that basis we say there can be no valid notice, certificate issued for that conduct.
PN463
If your Honour doesn't accept that argument, we say that the applicant can't rely on subsection 6(a) because that only occurs where the Commission forms the opinion that it can't stop that conduct. And conduct isn't occurring, so the Commission cannot form that opinion. This is the obstruction and besetting. That conduct is not occurring, therefore how can you stop it?
PN464
THE DEPUTY PRESIDENT: No conduct to be stopped; is that right?
PN465
MR BORENSTEIN: That is correct. Then we turn to subsection (b). Your Honour said he believes he is exercising conciliation powers. It is our submission - and I can put this in reply - that the Commission has already exercised its conciliation powers, and it is no longer occurring, and the certificate now, when the Commission is about to issue the certificate, it is not exercising those conciliation powers and is not in the process of. And I rely on The Age case to say that it was clear before the notice was issued and when the notice was issued that both people, both parties did not require the Commission to exercise conciliation powers.
PN466
THE DEPUTY PRESIDENT: And you are checking that point about the procedure followed by Commissioner Whelan.
PN467
MR BORENSTEIN: I will check that point, that is correct.
PN468
THE DEPUTY PRESIDENT: Thank you.
PN469
MR BORENSTEIN: And subsection (c) just doesn't apply because we say the conduct, the obstruction and besetting has stopped.
PN470
THE DEPUTY PRESIDENT: Yes.
PN471
MR BORENSTEIN: In respect to the stoppages, we say that it is protected industrial action, and the notice requirements have been satisfied, and we say there is no evidence otherwise. In respect of 170MM tainting our industrial action, we say both TAD employees and the unions are both protected persons, and they still are whether someone is or isn't taking protected industrial action. And this certificate is aimed against the unions, and we are a protected person whether or not we are taking protected industrial action. We are the negotiating party, we are protected persons, therefore section 170MM does not operate to make our industrial action unprotected.
PN472
And lastly, as we just discussed, that the two, your Honour should not find that in the situation where there is two contractors on the site, on the same site, and just because they have meetings together and they have a picket together, that means they are acting in concert against each other's employers. All the evidence shows that they are taking action in support of their claims against their employer, and there is no evidence otherwise, and it just cannot be argued that in that situation that section 170MM applies to make the action unprotected. It just would cause havoc all over the industrial world, I would have thought.
PN473
In situations where employees are trying to take protected industrial action, are trying to do that, and that is what we are trying to do, and there is no doubt about that, against their particular employer. And the picket is there to do that, it is just there against their particular employer. And it is just served by example, if IES or TAD sign the agreement, those employees will go back to work, they will not keep taking industrial action in the form of a stoppage against their employee if their employer signs the agreement.
PN474
And there is no evidence anywhere that can be shown that the action by the employees of IES are directed at TAD, there is no evidence of that. Can I assist your Honour?
PN475
THE DEPUTY PRESIDENT: No. I think I will ask the question after lunch, if I could.
PN476
MR BORENSTEIN: Okay, that is fine, your Honour. I have got nothing further to add except in reply to my friend's submissions.
PN477
THE DEPUTY PRESIDENT: Thank you very much, Mr Borenstein. What I propose to do is adjourn now, and resume at 2 o'clock, unless anybody has a difficulty with that.
PN478
MR BORENSTEIN: Can I just note, your Honour, I am in another proceeding which is related to this matter, which I have pushed back to 1.30. If we could maybe extend the lunch break to 2.30. But I am in your Honour's hands. I understand that - - -
PN479
THE DEPUTY PRESIDENT: All right. Well, there is not much more to be done in this matter, I presume. How long will you be, Mr Wilkins?
PN480
MR WILKINS: I would suggest probably about an hour, your Honour, but it would depend, I expect, on the extent to which my friend wishes to take up any of the points I make. We could easily be here for a couple of hours if that is the way it works out.
PN481
MR BORENSTEIN: I will seek to be very brief, your Honour. If my friend goes for an hour, I doubt that I would go past 15 minutes.
PN482
THE DEPUTY PRESIDENT: All right.
PN483
MR WILKINS: That is the best indication I can give your Honour.
PN484
THE DEPUTY PRESIDENT: All right. Well, then we will adjourn until 2.30. Is that acceptable?
PN485
MR WILKINS: It is, your Honour.
PN486
MR BORENSTEIN: Thank you, your Honour.
PN487
THE DEPUTY PRESIDENT: All right, we will adjourn until 2.30.
LUNCHEON ADJOURNMENT [12.40pm]
RESUMED [3.04pm]
PN488
MR BORENSTEIN: Can I thank your Honour for just extending the time of the adjournment. I am indebted to your Honour.
PN489
THE DEPUTY PRESIDENT: Thank you, Mr Borenstein. I think we needed your appearance. Mr Wilkins?
PN490
MR WILKINS: Thank you, your Honour. I might start by handing up two decisions, your Honour, which I won't refer to immediately, but I will shortly. The first is the AMWU v Mobil Oil (1997) 72 IR 27, a decision of a Full Bench, and the second is CFMEU v Coal and Allied, a Full Bench decision, print P5522, or (1997) 42 AILR 3-640. Your Honour, I will start by going back and stepping back from this a little bit, and reminding us all that all is required to be satisfied for the Commission to issue a certificate in the order that is to be sought today is the four elements that my friend identified earlier, which is enforced by both the decisions I have just handed up, and that is, that there is conduct, the conduct that is capable of being the subject of the notice, is capable of the subject of conciliation, is capable of being the subject of attempts by the conciliation to stop the conduct, and conduct that might reasonably be the subject of a declared intention to bring an action in tort.
PN491
Now, my friend referred to The Age decision, and I would just like to deal quickly with the issues that were raised. The first was in relation to the picket, and the suggestion that a picket is not industrial action, or not necessarily industrial action. The leading authority on that is the NUW decision. But I put to his Honour that picketing can be industrial action, and it cannot be industrial action, or elements of it can be either. But the focus of today is the conduct. And there is a distinction between conduct and industrial action.
PN492
The authority, The Age Company Limited, an authority that was handed up by my friend earlier today at page 18 of 28, says that the word conduct is used in 166A, is not defined in the Act, it is used throughout as a noun. There is within 166A a strong contextual inference that conduct means industrial action. However, the Full Bench says:
PN493
No doubt it includes that meaning, clearly, however, it is not - - -
PN494
THE DEPUTY PRESIDENT: Where are you reading from?
PN495
MR WILKINS: The top of page 18 of 28, the first paragraph, your Honour.
PN496
THE DEPUTY PRESIDENT: I have found it.
PN497
MR WILKINS: The last two short sentences there, the last sentence:
PN498
Clearly, however, it is not confined to that concept.
PN499
In other words, conduct is not confined to industrial action. The fact that picketing may not necessarily constitute industrial action does not prohibit or restrict the role or jurisdiction of the Commission today in respect of what it does about the conduct referred to in the 166A notice. Further down in that decision at what is called paragraph 93, the last sentence:
PN500
Clearly section 166A contemplates a distinction between the concept of conduct and that of industrial dispute.
PN501
While I am dealing with this decision, your Honour, I will refer you to two other references which I will come back to. The second one is on page 19, paragraph 101. That paragraph reads:
PN502
The Commission's primary focus under section 166A(5) is to stop the conduct, the subject of the section 3 notice. If in the Commission's opinion the conduct is not likely to be stopped promptly, paragraph 166A(6)(a) -
PN503
which is the paragraph we are on today -
PN504
makes it mandatory for the Commission to immediately certify to that effect.
PN505
I will refer to a third comment by the Full Bench in that decision at page 22, paragraph 119, by way of concluding, or towards the end the Full Bench says:
PN506
However, it seems to us that the purpose or intent of 166A is to facilitate an inexpensive and expeditious resolution of an industrial dispute within the precincts of the Commission.
PN507
THE DEPUTY PRESIDENT: Where is this?
PN508
MR WILKINS: Paragraph 119 on page 22, at the bottom of page 22, your Honour.
PN509
THE DEPUTY PRESIDENT: Thank you.
PN510
MR WILKINS: I will come back to those references in the context of our overall application today. So in closing off on my friend's comments, yes, I accept that picketing is not always industrial action, but that does not prevent the Commission issuing the certificate we seek today. The second point I will note on is the decision of National Work Force, where my friend took his Honour to a reference in that decision, where at page 13 of 23, the paragraph that starts:
PN511
The appellant submitted that in view of these provisions.
PN512
A couple of comments on that.
PN513
THE DEPUTY PRESIDENT: Which case is this?
PN514
MR WILKINS: The National Work Force, Full Court of the Supreme Court of Victoria. I don't think it was marked. It was a decision handed up by my friend.
PN515
THE DEPUTY PRESIDENT: Which paragraph are you referring to?
PN516
MR WILKINS: Page 13 of 23.
PN517
THE DEPUTY PRESIDENT: I have it.
PN518
MR WILKINS: The paragraph is not numbered, I believe. The paragraph which my friend took us to is in the paragraph in the middle, which starts "The appellant submitted that." I just note firstly that if you go to the previous page, up to the third paragraph up, it says "His Honour explained." There was a reference to the decision of the lower Court, and it is not clear whether that quoted section continues down onto the next page. It quotes part of the Act. And in that paragraph which we were taken to, the words appear as follows:
PN519
...for obviously the Commission could not act under paragraph (a), (b) or (c) of subparagraph 6 -
PN520
that is in section 166A -
PN521
if the industrial action had already come to an end.
PN522
Now, there is various references to that in that decision, and that was what the point was being put by my friend, that if the action - sorry, if the conduct has stopped, the Commission cannot issue a certificate. Well, clearly in these circumstances the conduct has not stopped. The conduct we are referring to is the conduct both of the strike and of the picket. The fact that part of the picketing conduct may not be industrial action, does not stop it being conduct covered by our notice. That conduct continues. So it would be our submission that that decision does not stop the Commission from including in the notice the picketing conduct.
PN523
THE DEPUTY PRESIDENT: So what exactly does the conduct have to be?
PN524
MR WILKINS: Excuse me, your Honour?
PN525
THE DEPUTY PRESIDENT: What exactly does the conduct have to be?
PN526
MR WILKINS: It has to be conduct which is - - -
PN527
THE DEPUTY PRESIDENT: Plausibly the subject of tort.
PN528
MR WILKINS: Might reasonably be the subject of a declared intention to bring an action in tort. The Commission need only be satisfied of that.
PN529
THE DEPUTY PRESIDENT: Right.
PN530
MR WILKINS: Which, in my submission, it should be on the evidence before it today. On the point suggesting that there was no conciliation conducted earlier today, my view on that, if it is relevant at all - I think your Honour has his own view - was that what happened earlier today was, in fact, or capable of being called conciliation, or the exercise by the Commission of its conciliation powers.
PN531
The entire comment or submissions made by my friend in relation to The Age decision relating to section 166A(6)(b), and that decision of the Full Bench was essentially a decision on an esoteric point of jurisdiction relating only to 6(b), I would say is not relevant to these proceedings because at this point we do not seek to rely on 166A(6)(b), we seek to have a certificate issued under 6(a) today. If that was not occur we would move to (c) most likely. But for today's purposes we are not seeking to rely on (b). All of those submissions cease to be relevant.
PN532
The next decision that was referred to was that of Yallourn Energy, which was handed up by my friend. Essentially the argument was being put that section 170MM would not be relevant for these purposes because the union is a negotiating party. Now, without going into the detail of that, I submit that that decision does not prevent the order that we seek today, the issuing of a certificate, on the basis that - and I will come back to this shortly - under section 170MM there need only be one unprotected person or persons in order for the action being taken by the other parties to cease being protected. It might be useful if I briefly touch on that now. 170MM(1) says that:
PN533
Engaging in industrial action is not protected action if (a) it is engaged in in concert with one or more persons or organisations that are not protected persons.
PN534
My friend quite rightly pointed out that in subsection 3 protected persons are defined to include an organisation of employees that is a negotiating party. So clearly here, to the extent that the ETU is a negotiating party for the purposes of the agreement that is being sought, it would be a protected person. But that assumes or is on the proviso that section 170MM does not apply in another regard. And I am saying that it does, in that the persons who are not protected persons are the IES employees.
PN535
It therefore follows that the engaging in industrial action is not protected action by the TAD employees or by the ETU because it is engaged in in concert with the IES employees. And I will note that the definition of protected persons in MM(3) simply picks up - - -
PN536
THE DEPUTY PRESIDENT: Sorry, just so I get that argument straight in my head, if I could. So you are saying that because IES employees are engaged in some sort of conduct, whatever it is, on the picket line directed at TAD; is that right?
PN537
MR WILKINS: No. I will have to go through this in more detail, your Honour. Essentially the argument is that the industrial action that is, we say, arguably we say is - and you need only find that it arguably is being taken by the IES employees is not protected action, and I will give you two reasons for that which I will come to shortly, both relating to the - - -
PN538
THE DEPUTY PRESIDENT: Just in a sentence so I understand the full argument.
PN539
MR WILKINS: I beg your pardon, your Honour?
PN540
THE DEPUTY PRESIDENT: In a sentence the defects alleged.
PN541
MR WILKINS: Yes. The defects are that, firstly - - -
PN542
THE DEPUTY PRESIDENT: Are they the same defects I relied on on the last occasion?
PN543
MR WILKINS: No. One is the same, that there wasn't 72 hours of ordinary normal working time given before that action was started, and the second is that on 28 May this week, at 7 am, the most recent, up until that point, MO notice expired, and those employees continued to strike and stay on the picket after that time, and I have evidence they didn't attend work on that day, so therefore the action was unprotected on the 28th. And I will take your Honour to a decision that we have already referred to shortly, which establishes that a course of industrial action of that nature is one continuous course of action.
PN544
So whether it is polluted, if you like, from the original defective notice, or whether it is polluted by the action taken on the 28th, the whole course of action is unpolluted.
PN545
THE DEPUTY PRESIDENT: IES employees?
PN546
MR BORENSTEIN: Yes, the action - sorry, the whole of the IES action is unprotected, and that whole course of action is unprotected, therefore anyone taking industrial action or engaging in industrial action in concert with those unprotected persons will also be unprotected. So the basis of my argument is that the action taken - - -
PN547
THE DEPUTY PRESIDENT: So the fact that the IES notice expired or is invalid means, in effect, that the TAD notice is - - -
PN548
MR WILKINS: It doesn't affect the TAD notice, but it affects whether or not the action is protected, and therefore whether action may be taken, common law action may be taken in respect of it.
PN549
THE DEPUTY PRESIDENT: Why, because there is a secondary boycott element, or what?
PN550
MR WILKINS: There is also authority to suggest that even though the secondary boycott is included in the heading of section 170MM, it doesn't affect the way it actually operates. And I will take your Honour to some authorities shortly. Hopefully we will deal with this point. Is that adequate, your Honour, for the moment?
PN551
THE DEPUTY PRESIDENT: Please continue, thank you.
PN552
MR WILKINS: Your Honour, in respect of the facts and circumstances that the Commission needs to be satisfied of today, the first is that there is conduct which - the conduct referred to in the notice can be identified. The conduct we assert is the strike and the picket, the organising of, the incitement to participate in, participation in, the conduct of and the maintenance of the strike and the picket to the extent that it is described or outlined in the notice which was given to the Commission under section 166A(3).
PN553
I clearly do not want to confine or restrict the scope of that notice by anything that I say. I say we are relying on the notice as to the scope of the conduct that is described therein. Secondly, that the conduct is occurring or has occurred. For the background of the matter, the Daffy statement at paragraphs 17 to 31 and 32 to 48, and then the transcript of the proceedings before his Honour on 2 May, give the adequate background to the dispute. If we move to the picket which was established at the Smorgons Road site on the Monday, 27 February, and has been in place constantly since that time, I refer to the evidence of - the statement of Mr Daffy at paragraphs 49 to 51, and 54 to 65.
PN554
Now, I rely on the same affidavit or same statement at paragraph 49, as to evidence that Mr Glover, one of the respondents, was regularly present on the picket, and in our submission was involved in organising and setting up that picket, and organising and commencement of the industrial action. I refer also to the section 170MO notices which are exhibited to Mr Daffy's statement, served on TAD, which were each signed by Mr Mighell, who is another respondent to these proceedings, and we rely on that. And I rely on all the evidence that is currently before the Commission in these proceedings in respect of the conduct that has occurred from 21 February, and in relation to what we say was the unlawful conduct from - - -
PN555
THE DEPUTY PRESIDENT: So what were those paragraphs in Daffy, just give them to me again please?
PN556
MR WILKINS: The background, probably not that relevant, but the particular ones were from 49 to 51, your Honour.
PN557
THE DEPUTY PRESIDENT: This is background only, is it?
PN558
MR WILKINS: No, sorry, your Honour, this is the actual conduct that we are targeting in this proceeding.
PN559
THE DEPUTY PRESIDENT: Right, 49 to 51, yes.
PN560
MR WILKINS: 54 to 65.
PN561
THE DEPUTY PRESIDENT: Yes.
PN562
MR WILKINS: And that is in relation to the conduct of the picket, the presence of the picket, of ETU officials, and employees of both the applicant and of IES, and in relation to the presence on the picket of Mr Glover, specifically at paragraph 49 of the Daffy statement.
PN563
THE DEPUTY PRESIDENT: Thank you.
PN564
MR WILKINS: As examples. I will move now to the issue of - I say that on that basis there is conduct before the Commission, the Commission was capable of conciliating that, attempts to conciliate the conduct have not been successful. We now move to whether or not there might reasonably - conduct might reasonably be the subject of a declared intention to bring an action in tort. I take your Honour to the AMWU v Mobil Oil decision which was handed up a few moments ago, page 6 of 9 in that decision.
PN565
Your Honour, if you go to just past halfway down the page, the paragraph that starts "For much the same reasons." Reference is made there to the decision of the Full Bench in Wettinger Homes, and earlier decision, and it continues:
PN566
Would you not consider that it is necessary for us to decide or even to form a view about the question of whether the conduct described above might be sufficient to found an action in tort by one of the persons giving notice under section 166A.
PN567
And towards the end of that paragraph there was reference to the submission:
PN568
It is only necessary to identify whether there is conduct capable of being the subject of a notice.
PN569
And on the following page the quote ends, so continue on with the quote in Wettinger Homes, which is at the start, the top of page 7:
PN570
His Honour was required to immediately certify in writing to that effect under section 166A(6). Speedy conciliation is, in our view, the essence of the Commission's power under division 8, not the determination of what may often be complex legal issues, for example, whether an organisation has committed a tort. The determination of such issues is, we think, a matter for the Court before which any proceedings for a remedy are brought.
PN571
So again it is reinforcing the same point, that the Commission today need not satisfy itself if anything further than the fact that there is conduct of which I have referred is subject of a declared intention to bring an action in tort. The second point, moving on to the issue which we were dealing with a moment ago, section 170MM of the Act, I would like to take your Honour to the National Work Force decision which was handed up by my friend. Sorry, I handed up a copy of our decision relied on by my friend earlier today.
PN572
THE DEPUTY PRESIDENT: I have it.
PN573
MR WILKINS: Okay. I take your Honour to page 5 of 23 in that decision. The Full Court of the Victorian Supreme Court in that decision referred to the decision of the Judge in the first instance, and his finding that:
PN574
I find that in calling the strike to which I have referred, ie, the strike that began on 4 September, the first defendant acted in concert with the other defendants. The other defendants were not protected persons, they were not protected persons because they were not negotiating parties.
PN575
The basis of them being not protected persons in this case is slightly different. Going to the next paragraph:
PN576
It follows that the strike is not protected action within the meaning of the Act. This conclusion was important to the plaintiff's claim, including their present claim for immediate injunctive relief. The finding of concert within section 170MM was critical to the alleged liability of the defendants in tort, as it overcame what otherwise was the protection afforded by the Act.
PN577
Which is the same in the current circumstances. The Full Court goes on:
PN578
In our opinion there was ample evidence below -
PN579
referring to the decision of the below Court -
PN580
to sustain the finding that the first defendant acted in concert with the other defendants. First -
PN581
and then there is a reference -
PN582
the strike was called for midnight on a certain date, and which lasted 48 hours, and then there was a further and indefinite strike which commenced on 4 September and continues.
PN583
Now, the two things I want to bring to your Honour's attention is, firstly, there is a mention there in the next sentence:
PN584
There was evidence of meetings between representatives of the plaintiff's group, and representatives of the unions before the event, and although respondent's counsel were apt to characterise these exclusively as no more than negotiations, things were then said, especially by Mr Falen, who was present for the AMWU, that provided we think some evidence that the strikes were called, were called in concert with the AWU and FEDFA.
PN585
So there was reference there to the Court having knowledge of some meetings where these things were discussed. On the following page, page 6 of 23, about two thirds of the way down, there is extracted a notice which was published with a heading, Labour Hire Industry, which was authorised by officials or authorised by the different unions who are said to have been acting in concert. Now, in the current case, in the evidence of Mr Daffy and the other evidence there is evidence that on 21 February 2003 there was a stop work meeting attended by both the IES employees and the TAD employees, and it seems quite clear from the evidence that at that meeting it was decided to put in place the picket and to commence the indefinite strike from the following Tuesday, 25 February.
PN586
So I seek to rely on that. And also in relation to Mr Daffy's statement there is a notice, which is attachment TCD7 to the statement of Mr Daffy, which is a notice:
PN587
To whom it may concern. We, the ET union members employed by the electrical contractors at Smorgon Steel are in dispute over our new EBA. The contractors who employ us are refusing to sign the EBA. We ask that you respect a picket line in support of our claims for terms and conditions that allow us to support our families. Regards, ETU union members employed by TAD Industrial and IES Australia.
PN588
So that is clear evidence that the campaign by the ETU, the ETUs officials was one organised and engaged in in concert, and the TAD employees and the IES employees were essentially grouped together for the purposes of organising that industrial action and that picket. But I would also comment that it is not necessary for his Honour today to make any findings on these things. I just mention them to give his Honour comfort that there is material before him which suggests the cause of action may well lie.
PN589
THE DEPUTY PRESIDENT: Okay. So just let me see if I follow this. If we are saying on the basis of the National Work Force case, a decision of the Supreme Court of Victoria, the Full Court of the Supreme Court of Victoria, the TAD employees were acting in concert with IES employees, the second group not being protected, were not protected persons?
PN590
MR WILKINS: Yes.
PN591
THE DEPUTY PRESIDENT: And in so doing a plausible action in tort may lie; is that right?
PN592
MR WILKINS: Yes. Because there is a plausible argument on the basis of the evidence that the action of the IES employees became unprotected because it was taken in concert with - sorry, the action of the TAD employees became unprotected because it was taken in concert with the action of the IES employees.
PN593
THE DEPUTY PRESIDENT: Who were not protected persons?
PN594
MR WILKINS: Who was not a protected person. And to the extent that the ETU and the ETU officials named as the respondents were involved in organising and engaging in the conduct, the picket and the strike, they also become - they lose any protection they may otherwise have, because they are undertaking it in conjunction with the IES employees, which are unprotected persons. There is authority that a union can take industrial action under the definition in section 4(1) of the Act. They can take protected action.
PN595
But it is our submission that the protection that may otherwise cover the ETU and the officials falls away because it is taken in concert with the IES employees. It seems quite clear on the evidence, your Honour.
PN596
THE DEPUTY PRESIDENT: All right.
PN597
MR WILKINS: I will briefly take - - -
PN598
THE DEPUTY PRESIDENT: So that is the plausible action in tort point. Is there any more to be said on that, that you wish to say on that?
PN599
MR WILKINS: No, your Honour. Just bear with me one moment, your Honour. On the National Work Force decision at page 16 of 23, the point here, your Honour, is that to establish that there is arguable case, that the entire period of industrial action is unprotected. The fact that it became unprotected because of a faulty notice at the start, or whether it became unprotected because of a fault notice at the end, the entire period of the action is unprotected.
PN600
THE DEPUTY PRESIDENT: Where is that?
PN601
MR WILKINS: I would rely on the decision of National Work Force on page 16 of 23, and in particular the last two substantive paragraphs on page 16. Just to take a part of that, your Honour:
PN602
Engaging in those strikes was not then protected action because they were engaged in in concert with the AWU and FEDFA, which were not protected persons. It is surely a question of fact whether the AMWU and its members are still engaging in industrial action that commenced on 4 September. According to the three unions own notice it was not resolved by the members of all three unions in attendance on 4 September at the one meeting.
PN603
THE DEPUTY PRESIDENT: It was resolved.
PN604
MR WILKINS: It was resolved, excuse me, that the strike to commence forthwith would be an indefinite strike. And the notice that has been served on TAD in this instance also notifies an indefinite strike. And it seems clear enough to us that it is that strike in which the AMWU and its members are still engaged. I won't go on, your Honour. Your Honour obviously will look at that decision further if you feel the need.
PN605
But the point is that there is an argument that the entire period of action is unprotected, therefore any engaging in concert during any of that period would render the other action also unprotected. I think I have dealt with that point adequately, subject to questions of the Commission. The TAD employees and the IES employees acted in concert, in that on 21 February 2003 they met together with ETU officials and organised and agreed to set up the picket and to take the strike action to commence on 25 February.
PN606
In support of that I refer to the Daffy statement at paragraph 53, attachment TCD7 to the Daffy statement, attachment CPG1 to the GNA statement, which is the statement of Evan Bain on 25 February, at paragraphs 4 to 6, and then the supplementary statement of Evan Bain at paragraphs 2 to 6, and the second supplementary statement of Evan Bain at paragraphs 2 and 3, and also at paragraphs 4 to 7 of the statement of Wayne Pearce.
PN607
THE DEPUTY PRESIDENT: Hang on, the extra supplementary statement of Bain at what paragraphs?
PN608
MR WILKINS: The second supplementary of Bain is paragraphs 4 to 7 - sorry, 2 and 3, excuse me, your Honour.
PN609
THE DEPUTY PRESIDENT: Right.
PN610
MR WILKINS: And then of Wayne Pearce, paragraphs 4 to 7. One further point to draw to your Honour's attention is that the 170MO notice that we say expired, or did expire at 7 am on 28 May, the fact that the IES employees continued to work after that time, after the notice expired, there is evidence in paragraphs 9 and 10 of the statement of Ms Pardo. And the notices themselves that show that they expired at that time are attachment PP4 to the statement of Ms Pardo.
PN611
The only other comments I would like to briefly make, your Honour, are that as my friend pointed out earlier, it is necessary for an action in tort to lie for there to be damage. I refer to paragraph 66 of the Daffy statement. I also refer to paragraph 63 of the Daffy statement, which covers banners which were on the picket, banners which showed the name of ADECCO. My submission is that there is an argument that by displaying the name of ADECCO, the parent company or the group of companies that includes TAD, there is messages being sent to the public, there is messages being sent to other contractors that go onto site, and there is an argument that there is a damage to the reputation of the company as a labour hire provider, and that damage is arguably being caused by the unlawful conduct of the ETU, the officials and the employees.
PN612
For today's purposes I think it is adequate, your Honour, that there be proof of some damage, and although our evidence has already gone in, and one of our witnesses, Mr Daffy, said that the invoices from Smorgons had not been received, I have been advised in the lunch break that those invoices have been received and there is a significant reduction in the amount that is to be paid as a consequence of the strike. In closing, your Honour, returning to my initial, is that in circumstances such as this, unless the Commission - it is my submission that unless the Commission can legitimately form a view that it can promptly stop the conduct, it has no choice, it has not discretion, it must issue the certificate under section 166A(6)(a).
PN613
That is what we would seek the Commission to do. And we do have a copy of a draft certificate which we can hand up to his Honour when that is appropriate.
PN614
THE DEPUTY PRESIDENT: Please.
PN615
MR WILKINS: You will see, your Honour, that the certificate is drafted in such a way as to cover all the conduct outlined in the notice that was provided to the Commission and served on the respondents.
PN616
THE DEPUTY PRESIDENT: Just let me read it for a minute please.
PN617
MR WILKINS: Yes, your Honour.
PN618
THE DEPUTY PRESIDENT: All right, thank you. Is there anything else?
PN619
MR WILKINS: No. Subject to comments by my friend, your Honour, that is the substantive submissions, unless your Honour has any questions.
PN620
THE DEPUTY PRESIDENT: Bear with me for a minute, I may have some questions.
PN621
MR WILKINS: Yes, your Honour.
PN622
THE DEPUTY PRESIDENT: All right, thank you very much, Mr Wilkins.
PN623
MR WILKINS: Yes, your Honour.
PN624
THE DEPUTY PRESIDENT: Mr Borenstein?
[3.40pm]
PN625
MR BORENSTEIN: Thank you, your Honour. In respect of the issue regarding The Age case which I said I would get back to you on, it flows from that decision - I am not sure if your Honour has also read it - no. What occurred there was, I think it was on 27 July, section 127 and 166A notices and applications were filed, and it was brought on the Commissioner exercise conciliation powers. It didn't resolve. She then made section - had a hearing, exercised 127 orders, and then approximately two days later the company came back and said, oh, we forgot about the 166A certificate, we want that as well, and she held, and the Full Court held that the exercise of conciliation powers was over, even though she exercised them directly before the hearing of - after the notice of section 166A notice was filed.
PN626
THE DEPUTY PRESIDENT: Right, thank you.
PN627
MR BORENSTEIN: And in that respect the Full Bench held that the conciliation powers may well have been exercised, but at the time of making the orders conciliation was not sought by either party, and exactly the same situation as here, we submit, that both parties did not seek conciliation, and therefore you went on and heard the application the same way Commissioner Whelan did. I might refer your Honour to that case.
PN628
MR WILKINS: Your Honour, I am not sure if it does assist, whether your Honour is asking, pursuing this for other reasons, but given that we have said we are not seeking to rely on 166A(6)(2) or (b), whatever it is, today, I think that is - my friend would agree that this case is only dealing with that provision, unless I am mistaken.
PN629
MR BORENSTEIN: Well, section A also refers to the fact that the Commission having exercised conciliation powers - - -
PN630
THE DEPUTY PRESIDENT: Well, there is a big difference. I mean, B says while the Commission is exercising conciliation powers, whereas A says, after the Commission starts to exercise conciliation powers.
PN631
MR BORENSTEIN: Well, we would submit that the Commission never did exercise conciliation powers.
PN632
THE DEPUTY PRESIDENT: Why is that? Why do you say that?
PN633
MR BORENSTEIN: Because both parties did not - were not involved in any conciliation.
PN634
THE DEPUTY PRESIDENT: Well, what about this morning? Why wasn't that conciliation in your view?
PN635
MR BORENSTEIN: Because the parties did not consent to entering into conciliation and did not - conciliation involves - you would expect would involve some kind of negotiation. And in no way would we say that that occurred. And it seems the Full Bench have taken the view that you actually - - -
PN636
THE DEPUTY PRESIDENT: Well, the parties consented to conciliation by engaging in it with me this morning at the start, I think.
PN637
MR BORENSTEIN: Well, your Honour, we would say that CEPU never entered into conciliation. We said that we weren't willing to conciliate.
PN638
THE DEPUTY PRESIDENT: I think we agreed that there was no point in any further conciliation.
PN639
MR BORENSTEIN: No point in any conciliation.
PN640
THE DEPUTY PRESIDENT: I don't recall the second. I do recall - - -
PN641
MR BORENSTEIN: That is how I believe it.
PN642
THE DEPUTY PRESIDENT: All right, that is how you would characterise - - -
PN643
MR BORENSTEIN: I was trying to be quite careful, and I recall I - basically what I thought was said and how I wanted to phrase it was, there had been conciliation previously and there was no result, there had been none since then, and there is no point to have any now. And I think the same view was indicated by my friend, and he wanted to proceed and seek the certificate.
PN644
THE DEPUTY PRESIDENT: Well, what in your view is conciliation, Mr Borenstein, just to help me make a decision on that point?
PN645
MR BORENSTEIN: Sorry?
PN646
THE DEPUTY PRESIDENT: What do you think is conciliation?
PN647
MR BORENSTEIN: I think with conciliation there has to be an acceptance of the parties about - there has to at least be - the parties have to at least discuss the issues, there has to be some entering into, instead of just saying, oh, should we conciliate it? Asking the parties whether we should conciliate, I would say doesn't go as far as saying they have exercised conciliation powers. You asked should we conciliate. I said we have before, it is not worth doing it now, there is no point, let's proceed to whether a certificate should be issued.
PN648
THE DEPUTY PRESIDENT: I must say my recollection of the conference is slightly different, Mr Borenstein. I am not trying to be difficult about this, but my view of what took place is essentially this. I asked the parties if the matter related - what the substance of the dispute was, if it was what I thought it was, and indeed it was.
PN649
MR BORENSTEIN: And the parties said it was the - yes, the dispute at Smorgons, yes.
PN650
THE DEPUTY PRESIDENT: Yes, all right.
PN651
MR BORENSTEIN: And then as I recall it, you proposed that should I attempt to conciliate?
PN652
THE DEPUTY PRESIDENT: No, I didn't use those words.
PN653
MR BORENSTEIN: It might not have been - I am not exactly sure what the words were.
PN654
THE DEPUTY PRESIDENT: It was something along the lines of, is there any point in discussing this any further? And the parties were clearly of the view that there wasn't any point to it.
PN655
MR BORENSTEIN: And I would say the words that you said are words to the effect, do you want me to conciliate?
PN656
THE DEPUTY PRESIDENT: I don't recall those words.
PN657
MR BORENSTEIN: No, you didn't say those words. But I am saying, is there any point in discussing this further?
PN658
THE DEPUTY PRESIDENT: Yes. Well, my view - - -
PN659
MR BORENSTEIN: Is the equivalent of, do you want me to conciliate this?
PN660
THE DEPUTY PRESIDENT: I understand. Well, I think that may be an unduly narrow view of what conciliation is, with respect.
PN661
MR BORENSTEIN: I accept that, your Honour. But to say that the union has entered into conciliation when we arrive, and you come in and sit down and ask, is there any point in discussing this dispute, and we say - and both parties say no, we just want to seek a certificate, to say that is conciliation I would say would be widening it too much. There has to be at least some conciliation. I mean, the Commission did not exercise any conciliation. It came in, asked the parties if it wanted to discuss it, they both said no, and that was it. Surely there has to be more. Surely that is below the line. There has to be at least some two way communication between the parties or via the Commission somehow.
PN662
THE DEPUTY PRESIDENT: What about the previous exercises in conciliation, do they count for the purposes of 6(a)?
PN663
MR BORENSTEIN: We would submit not. We submit that it would have to be - - -
PN664
THE DEPUTY PRESIDENT: They don't? Why not?
PN665
MR BORENSTEIN: We would submit it would have to be after the notice.
PN666
THE DEPUTY PRESIDENT: It says after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion. So the only reference in time in 6(a) is conciliation powers in relation to the industrial dispute. If you recall, we agreed that the substance of the issues had been conciliated before, which is the industrial dispute, namely, the claim for an enterprise agreement and the dispute about that, and we were in a furious agreement that the issues before me today were the same as those regarding which we had four episodes at least of conciliation.
PN667
MR BORENSTEIN: We did have episodes of conciliation, your Honour. I would make the submission that the conciliation - well, the conciliation powers referred to in paragraph 6(a) are referring to paragraph subsection 5, and saying that those powers have to be exercised to stop the conduct once known. We say therefore it follows that the conciliation powers have to be exercised after a notice is filed.
PN668
THE DEPUTY PRESIDENT: Thank you.
PN669
MR BORENSTEIN: I won't put my submission. I will leave it there, your Honour.
PN670
THE DEPUTY PRESIDENT: Thank you very much.
PN671
MR BORENSTEIN: My friend seems to come to the conclusion that because the IES employees are not taking protected industrial action, that somehow changes the situation. That is totally irrelevant. Whether they are taking protected action or unprotected industrial action is irrelevant.
PN672
THE DEPUTY PRESIDENT: What about the National Work Force case?
PN673
MR BORENSTEIN: That is a situation where they hadn't even filed a notice of initiation of bargaining period. The parties in that case they hadn't filed a notice of initiation of bargaining period, therefore the union wasn't a negotiating party. That is at page 6 of 23, where it says:
PN674
It was common ground that neither the AWU nor FEDFA had given notice under section 170MI.
PN675
That is for the reason they are not a protected person, because they don't come within the definition of MM(3). Whereas in this situation we have filed our notice of bargaining period, therefore the union is a protected person within the definition of MM(3) in both cases.
PN676
THE DEPUTY PRESIDENT: I understand your submission.
PN677
MR BORENSTEIN: So it is very distinguishable from the current situation. Because it is easy to get confused about protected persons under MM(3), where you don't need to have a notice of protected industrial action, and then the common phrase of protected industrial action which supposes that you have filed a notice for protected industrial action, but that has got nothing to do with 170MM(3). And it is that point that just shows how ridiculous it would be if a situation where there is two contractors on a site, two sets of employees, and just because they might have a meeting where they both pass resolution to take industrial action against their specific employers, that makes it unprotected.
PN678
I mean, it just allows companies to make it even more difficult to satisfy the rigorous requirements of the Workplace Relations Act but just splitting up the work - - -
PN679
THE DEPUTY PRESIDENT: It sounds more like an argument for law reform perhaps, Mr Borenstein, and I certainly understand what you are saying.
PN680
MR BORENSTEIN: But also it is clear that the provision is not directed at this kind of occurrence. It is directed at occurrence where someone outside the relationship takes action aimed at your employer, and that is not what is happening. Indirectly it might somewhat affect them, but there is no evidence of it. The IES employee are affecting their employer, and the TAD employees are affecting their employer. There has been no change by the fact whether IES employees are taking protected or unprotected action.
PN681
Your Honour, we would say that the explanatory memorandum clearly shows that it is attempting a secondary boycott situation, and in no way are the IES employees boycotting TAD. And even though - - -
PN682
THE DEPUTY PRESIDENT: They are on the one picket line together.
PN683
MR BORENSTEIN: But we are not affecting TAD at all on our picket line. The IES employees - - -
PN684
THE DEPUTY PRESIDENT: Yes, the obstructing and besetting argument, yes, I recall that.
PN685
MR BORENSTEIN: Yes. But the stoppage of work by the IES employees is not affecting TAD, and the IES employees on the picket line is also not affecting TAD. How is it - I don't think it has been put how it is affecting TAD. TADs picket line is affecting TAD because of the TAD employees on it. Of course, in an industrial dispute like this where parties take - wherever a party takes protected industrial action, there might - if my friend's submission is followed, even if protected industrial action is 100 per cent secure, and we have followed all the requirements, it might, of course, be subject to an intention to take tort, because that is why protected action is there, to protect you from those tort actions.
PN686
And I would plead with the Commission to take a more active role, not onerous role, but just a more active role in just actually looking at the conduct and saying, well, you know, would this plausibly be subject to tort action? And the facts are, the TAD employees have filed all the required notices, they have done all the required things, and they are still going to be taken to the courts. And in my submission that is not what section 166A is there to do, and the Commission is there to at least apply some sort of restraints on the action by employers.
PN687
THE DEPUTY PRESIDENT: So you are saying essentially that the action is clearly protected, all of it?
PN688
MR BORENSTEIN: That is correct.
PN689
THE DEPUTY PRESIDENT: And that that should be sufficient, that is sufficient for present purposes.
PN690
MR BORENSTEIN: The stoppage of work is clearly protected. I say they have filed all the notices, and that hasn't been disputed, in compliance of the Act. And they are saying because a third party has arguably filed - not complied with the Act in the notices, that the whole thing is unprotected. And that is not the purpose of the Act. The purpose of the Act is, you file your notices and you seek your claims against your employer, and that is exactly what they have done.
PN691
Now, in respect of the picket, we say there has been no evidence of obstruction and besetting, but I understand they have filed affidavits from the previous proceeding. That hasn't occurred for two months, yet they are still trying to rely upon it now. I mean, to say that the picket includes the obstruction and besetting, I think is unreasonable. The obstruction and besetting is completely separate, and that stopped, and that stopped a long time ago. It is not a course o conduct because it has ended.
PN692
How else would you end that course of conduct? Would you have the picket go off the street for a day and come back, and then the course of conduct ends? That is not there because the unlawful conduct has ended, that is the obstruction and besetting. And that is quite an important point, because too often picketing is just where there is an obstruction and besetting, the standing on the street is included in that. But in this situation where you do have a lawful picket, and there was allegedly a couple of occurrences two months ago of obstruction and besetting which have not occurred for two months, it is a tall order to say, well, that is a course of conduct, and because they are still standing on the side of the street that conduct is still continuing.
PN693
And I think that is a bit unfair and doesn't really provide the picketers with much encouragement to do that if you say, well, look, you have stopped, but as long as you keep standing there doing nothing we are going to say it is a course of conduct. It doesn't seem logical to myself, and I think it would be unreasonable for the Commission to say, well, the conduct is still continuing because you are still standing on the side of the road, even though you are not blocking anyone. Unless your Honour has any questions, my submissions.
PN694
THE DEPUTY PRESIDENT: Thank you very much, Mr Borenstein. Mr Wilkins?
PN695
MR WILKINS: Maybe just a right of reply on the conciliation point, because the second reference was made about The Age decision.
PN696
THE DEPUTY PRESIDENT: Yes.
PN697
MR WILKINS: My reading of the Act would be that it does refer to conciliation in relation to the industrial dispute. I am instructed that there was conciliation previously in relation to that industrial dispute, where the parties, the union and the applicant sat down and went through the agreement clause by clause before the Commission in the course of conciliation, so there has previously been conciliation in relation to that particular industrial dispute. And conciliation powers are defined in section 4(1) simply as conciliation powers means the powers of the Commission in relation to conciliation. It is a very broad definition.
PN698
On the matter of fact as to the course of the conversation this morning, my recollection was along the lines of, unless there is change from either party there is no point in continuing in the conciliation forum we started in because there was no possibility of a resolution. It would have been open to his Honour to come in on the transcript on record and then to say whether we go into conciliation, but we didn't. We started in conciliation, we had that discussion, decided that there was no point in continuing in a conciliation forum.
PN699
By my friend choosing his words carefully to try and, if you like, trick the Commission into not conciliating, I don't think that is necessarily effective. In my view there was conciliation, and there has been sufficient conciliation in these proceedings to enable the Commission to issue the certificate sought.
PN700
THE DEPUTY PRESIDENT: Just one point, Mr Wilkins. It does say 166A subsection 6, sub subsection (a), it does say exercise conciliation powers in relation to the industrial dispute, it does say that. However, as Mr Borenstein pointed out, 166A(5) refers to the Commission taking action in connection with a notice.
PN701
MR WILKINS: They are two separate provisions, your Honour.
PN702
THE DEPUTY PRESIDENT: Yes.
PN703
MR WILKINS: I would say that 5 imposes an obligation. 5 says the Commission must take immediate steps to try or to continue to try by the exercise of its powers to stop the conduct. Simply by convening the hearing, arguably the Commission is exercising its powers in an attempt to stop the conduct. I don't think it otherwise deters from the obligations under 166A(6).
PN704
THE DEPUTY PRESIDENT: All right, thank you very much. All right. Well, I am in a position to give my decision now, if that is suitable to the parties. I have listened carefully to the submissions of those appearing today. I have had regard to the evidence led and the documents tendered, firstly. Secondly, my recollection of a conference accords with that of the employer, and I regard the conference that took place this morning as an exercise in conciliation. In any event conciliation in relation to the industrial dispute has occurred on at least four previous occasions. In my view and in the view of those - and it was a matter of agreement that the substance of the issues was the same.
PN705
Thirdly, I have had regard to the description of the Commission's task under section 166A contained in the Coal and Allied case (1997) 77 IR 142 at 146, and seek to undertake my task consistent with that description, and consistent with section 166A. Having regard to the material before me, I agree with the submissions of the employer for the reasons provided by the employer, that I am required to issue a certificate under section 166A subsection 6, sub subsection (a), and I will now do so.
PN706
A copy will be provided to the parties shortly. Finally, I reserve the right to publish further reasons for decision. This matter stands adjourned.
ADJOURNED INDEFINITELY [4.04pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #W1 BUNDLE OF MATERIAL HEADED WITNESS STATEMENT OF CHRISTOPHER GIANATTI PN65
ANDREW THOMAS, SWORN PN69
EXAMINATION-IN-CHIEF BY MR WILKINS PN69
EXHIBIT #W2 WITNESS STATEMENT OF ANDREW THOMAS PN78
WITNESS WITHDREW PN83
PETRONILLA PARDO, AFFIRMED PN85
EXAMINATION-IN-CHIEF BY MR WILKINS PN85
EXHIBIT #W3 WITNESS STATEMENT OF PETRONILLA PARDO PN89
CROSS-EXAMINATION BY MR BORENSTEIN PN93
RE-EXAMINATION BY MS WILKINS PN159
WITNESS WITHDREW PN171
THOMAS CHARLES DAFFY, SWORN PN173
EXAMINATION-IN-CHIEF BY MR WILKINS PN173
EXHIBIT #W4 WITNESS STATEMENT OF THOMAS DAFFY PN177
CROSS-EXAMINATION BY MR BORENSTEIN PN190
RE-EXAMINATION BY MR WILKINS PN244
WITNESS WITHDREW PN248
CHRISTOPHER PAUL GIANATTI, SWORN PN254
EXAMINATION-IN-CHIEF BY MR WILKINS PN254
CROSS-EXAMINATION BY MR BORENSTEIN PN262
WITNESS WITHDREW PN272
EXHIBIT #W5 STATEMENT OF NICOLE EVISON PN275
EXHIBIT #W6 STATEMENT OF YVONNE CHONG PN275
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