C2003/3875, Transcript of Proceedings [2003] AIRCTrans 2444 (17 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 2972
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2003/3875

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

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

MELBOURNE

1.38 PM, FRIDAY, 30 MAY 2003

PN1

MR C. O'GRADY: I seek leave to appear as counsel on behalf of IES Australia.

PN2

MR G. BORENSTEIN: I appear on behalf of the CEPU.

PN3

THE SENIOR DEPUTY PRESIDENT: Any objection to Mr O'Grady?

PN4

MR BORENSTEIN: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr O'Grady.

PN6

MR O'GRADY: Thank you, your Honour. Your Honour, can I start off by thanking your Honour for listing this matter as promptly as you have, and I appreciate your Honour sitting through your lunchtime to hear it. It may be that this is an application with respect to which there is very little contest on the facts, and is really going to turn on the exercise of your Honour's discretion under section 127. Your Honour, it might help explaining the background of the matter, and then seeing whether we need to put people into the witness box.

PN7

If I could hand up to your Honour a chronology of events which I have provided to Mr Borenstein, and also a brief outline, which I have also provided. And finally, your Honour, if I could also hand up the relevant documentation, and I don't think this is contested. Your Honour, if I can take your Honour firstly to the chronology.

EXHIBIT #A1 CHRONOLOGY OF EVENTS

PN8

MR O'GRADY: Thank you, your Honour. Your Honour will see that in December of last year the ETU initiated a bargaining period with respect to my client. In February - and these are the documents that have been handed up to your Honour. In February of this year there was a 170MO notification issued. The industrial action that was set out in that notice was a number of various bands, and also there were to be some 24 hour stoppages of work.

PN9

On 21 February, the ETU issued a further 170MO notice, indicating that on or from 25 February of 2003 the industrial action would be an indefinite stoppage of work. Now, of importance, your Honour, is that between 21 February and 25 February was a weekend, and my client doesn't work, or the employees - it is our position, your Honour, that the employees who were the subject of this notice do not perform work, it is not a working day, to work on the weekends.

PN10

The point was taken that in those circumstances, three clear working days has not been provided. I am putting this, your Honour, by way of background. It is not put that this is the basis of the 127 order application that is before your Honour today. Your Honour will see that on 15 April my client filed in the Federal Court an application - - -

PN11

THE SENIOR DEPUTY PRESIDENT: I am sorry, there was another step on 25 February.

PN12

MR O'GRADY: Sorry, yes. Sorry, your Honour. On 25 February the industrial action commenced, and there was also a picket erected. On 15 April a 170NC application was filed by my client, and it was part of that application that the industrial action was unprotected because the three working days notice had not been given. That matter is still before the Court. But there was no application for interlocutory relief as part of that application.

PN13

On 17 April there was a further 170MO notice filed by the ETU, and your Honour will see that it sought to indicate that the protected action or the industrial action that would be taken would be a stoppage between 7 am on 28 April and 7 am on 28 May. Your Honour, notwithstanding that the industrial action was to come to an end at 7 am on Thursday morning, it didn't cease, your Honour. The strike continues and, indeed, the picket is still in place, and it is our position, your Honour, that in those circumstances the industrial action is clearly unprotected industrial action.

PN14

In response to that we filed the 127 application yesterday, your Honour. Sometime thereafter we received a further 170MO notification indicating that from 4 June 2003 to 4 August 2003, both inclusive, the members of the ETU who were subject to the notice would be engaging in the stoppage of work, and it would appear, your Honour, that the gap is to address the need to provide us with three clear working days notice prior to the industrial action commencing.

PN15

Your Honour, my instructing solicitors wrote to the union yesterday seeking that they confirm that they will direct their members to present themselves for work at 7 am today. No such confirmation was received and, as I understand it, the individual employees are still on strike. And really that is the factual basis, your Honour, upon which we would make this application. Your Honour, as far as - - -

PN16

THE SENIOR DEPUTY PRESIDENT: I should mark the bundle of accompanying documents, I think.

EXHIBIT #A2 MISCELLANEOUS DOCUMENTS

PN17

MR O'GRADY: Your Honour, if I can briefly go to the outline of submissions that I have handed up to your Honour. Your Honour, there is nothing, as I understand it, controversial in the first part of the submissions. The relevant provisions are set out, and for emphasis the parts upon which we rely are underlined. It is our position, your Honour, that the position is that there is industrial action happening at this point in time, and it is in relation to both an industrial dispute and work that is regulated by a certified agreement. I have a copy of the relevant certified agreement, if your Honour wishes me to hand that up to you.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN19

MR O'GRADY: It is an agreement that your Honour certified on 2 March 2000.

PN20

THE SENIOR DEPUTY PRESIDENT: So that we know what we are talking about, I will mark the copy of that agreement.

EXHIBIT #A3 CERTIFIED AGREEMENT DATED 02/03/2000

PN21

MR O'GRADY: Thank you, your Honour. Your Honour, my client is clearly a person affected by the industrial action and, indeed, directly affected by the industrial action. Its employees have been out on strike now for some, as I understand it, close to 100 days. That strike is continuing and obviously is incurring ongoing losses to my client. Your Honour, dealing with the elements of jurisdiction, you will see in paragraph 4 I have just simply set out the passage from Vice President Ross' decision in Patrick Stevedores v MUA, where your Honour, in effect, paraphrases the requirements of the Act, as setting out the prerequisites for the Commission's jurisdiction to make an order under section 127.

PN22

And as I understand it, your Honour, it is not contested that those jurisdictional prerequisites are made out here. The question, your Honour, in my submission is really one of whether as a matter of discretion your Honour should make an order. Your Honour will see at paragraph 10 I have set out the passage from Coal and Allied, where the approach to the Commission's discretion is set out, and in paragraph 13 I have set out the passage appearing at page 327, where the Full Bench refers to the need for there to be some illegitimacy.

PN23

Your Honour, of course those comments, or those passages have to be read in the context of the subsequent decisions of Coombs v CBI Constructors, in the sense that, as I understand it, those decisions stand for the proposition that there really is no fetter on your Honour's discretion. And to the extent to which the passage in Coal and Allied is seen as imposing a fetter, that the Full Bench should not be seen as having done so.

PN24

The rule number, your Honour, is set out in paragraph 15. Your Honour, we say that clearly this is unprotected action and action that is being taken in breach of section 170NC. It is action that is occasioning my client considerable loss, and it is also action that currently is exposing both the union and its members to actions in contract and tort. Your Honour, the scheme of the Act was, we would submit, succinctly stated by the Full Court of the Supreme Court of this State in the National Work Force decision, and to similar effect by Merkel J in the ACI Operations case. And if I could hand up a copy of those decisions to your Honour, and I have a copy for my friend.

PN25

Your Honour, firstly, with respect to National Work Force, which is reported in (1998) 3 VR 265, your Honour will recall that one of the issues in that case was whether or not there was a right to strike, just as Harper at first instance had held, or indicated that in his view there was such a right, and it was put to the Full Court, or the Court of Appeal that that proposition was inaccurate, given the way in which the Act purports to regulate industrial action. The relevant passage commences at page 275, your Honour.

PN26

And you will see at line 26 on that page the issue of the right to strike, or 25 - sorry, line 26, and then further in the quote set out commencing in line 30, the issue of the right to strike is dealt with, and the passage from the Judge at first instance is set out. And you will see at line 40 that it was submitted by counsel for National Work Force that the Judge was in error in that regard, and his submission appears at the foot of page 275 and onto the top of page 276, and it was a submission that was clearly accepted by the Court of the Appeal. And the relevant passage, your Honour, commences about halfway through the first full paragraph at page 276, in the sentence commencing at the end of the line "If, as we think," their Honours say:

PN27

If, as we think, his Honour meant otherwise, then, with respect, that was error. The Act now circumscribes the right to strike in the area of certified agreements, and it does so by according immunity from civil suit to such industrial action only when the action is taken within a bargaining period or one or other of the negotiating parties, and then only if taken under the conditions set out in section 170ML and following.

PN28

Now, here, your Honour, the action that is ongoing has not been taken in accordance with those conditions, and in those circumstances we would submit, your Honour, it is clearly prima facie illegitimate industrial action and is the sort of action that should be the subject of an order by your Honour under section 127. And their Honours continue:

PN29

According to the Industrial Relations Commission in Coal and Allied, the Act appears to create more than one category of unprotected action.

PN30

And they say:

PN31

Yet it is enough here that the respondent's conduct was unprotected protection, for the right to strike is then circumscribed, if not, indeed, curtailed by the very existence of the right to bring a civil suit. So much can be said without drawing on section 170NC.

PN32

And they go on to deal with the difficulty of construing section 170NC, but then they continue on once again in the bottom third of that paragraph:

PN33

Suffice for present purposes to say that if industrial action is to constitute protected action which is immune from private suit in tort, then those who would engage in such industrial action are required to do so only on the terms laid down in the Act. In bringing this action in the Supreme Court it can be said that the plaintiffs were only insisting that the defendants either conform to the dictates of the Act or proceed further in disregard of the Act at their peril.

PN34

And their Honours continue more generally to discuss the right to strike issue, but that was the passage that I sought to take your Honour to. Your Honour, there is a similar theme in his Honour, Merkel Js decision in the ACI Operations case. Your Honour, this was a 170NC application, but clearly, your Honour, there is an overlap with these issues, given that the breach of section 170NC flowed from the fact that the industrial action was unprotected.

PN35

And your Honour will see at paragraph 32 and 33 and following, or 32 and 33, which is on page 7 of 13, if the numbering on the bottom left hand corner of the page is correct, and your Honour will see in paragraph 32, his Honour Merkel J referred to and set out a passage from his Honour North Js decision in the Australian Paper case, and then his Honour continued:

PN36

However, an equally important aspect is that save for protected action no other action, whether industrial or otherwise is to be taken by any person within the intent to coerce persons to make, vary or terminate certified agreements. These related aspects are critical to protecting and maintaining the integrity of the bargaining process provided for under the Act. The carefully prescribed limitations on the use of industrial or other action that is not protected action for the purposes of supporting or advancing each party's position as part of that process reflects a legislative policy that in general the freedom of the parties to negotiate may be fettered by protected action, but not by any other coercive action.

PN37

Your Honour, it is really for those reasons that we would submit that as a matter of discretion your Honour should make the order sought in the terms set out in the application. Your Honour, it might be said against me that, well, an order would have only marginal utility on the basis that come 4 June, the last or most recent notice that has been filed by the union and served by the union will come into effect, and in those circumstances your Honour should not make an order.

PN38

In my submission there is nothing in the Act which would preclude you making a section 127 order at this juncture. The Act clearly contemplates that if the action is protected action, then under section 170MT1 your 127 order will not apply to it. But it does not prevent that order, if you like, subsisting. And, your Honour, that is important in this regard. Firstly, my client has a right to direct its employees to perform work unless they are engaging in protected industrial action. And we would submit that on the material that has been put before your Honour, clearly since 7 am yesterday they haven't been engaging in protected industrial action, and the union appear to be acknowledging that they won't be engaging in protected industrial action until Wednesday of next week.

PN39

The action that is being taken is occasioning loss to my client, and it is entitled to try and address that by asking its employees to perform work during that period. And I say that, your Honour, without conceding that the action that the union has flagged commencing on 4 June will be protected action. It may or may not be. But we say that at least for these days my client is entitled to direct his employees to return to work, and we would submit that it is perfectly appropriate for your Honour to make an order under section 127.

PN40

I say it also for this reason, your Honour. If it be the case that the current action is unprotected industrial action, then the union and its members are exposed to a range of sanctions, whether it be an application for a penalty under section 170NC, an action in damages for breach of contract, potentially an action in tort, subject to the requirements set out in section 166A. We haven't gone down that path with respect to this unprotected industrial action.

PN41

We have come to the Commission and asked the Commission to direct the employees to comply with their obligations under the Act. In my submission that is a matter that should weigh in your Honour's exercise of your Honour's discretion, in that, in effect, if your Honour does not exercise your discretion, then a mechanism for ensuring compliance with the Act is not being exercised, and at the end of the day that confines my client to perhaps more Draconian courses.

PN42

And so, your Honour, it is for those reasons that we would submit that, firstly, your Honour has jurisdiction to make an order and, your Honour, secondly, that it is a matter of your Honour's discretion that such an order should issue. Your Honour, I am in a position to put Mr Rubenstein in the box to establish any gaps in the evidence that are said to exist. In my submission, as I said at the very outset, this isn't a case where there is a factual dispute of any real magnitude. The real issue is one of your Honour's discretion, and it is for that reason that I have attempted to address it in the way that I have. If your Honour pleases.

PN43

THE SENIOR DEPUTY PRESIDENT: Mr Borenstein?

[1.55pm]

PN44

MR BORENSTEIN: Thank you, your Honour. As my friend said, the Commission does have a wide discretion, and the facts in this case aren't going to be disputed, and I think the main issue is in respect of discretion which, as he correctly said, is unfettered for the Commission. Now, this dispute has got a long history. The members have been, we say, been taking protected industrial action since February 25, and they have been on the picket line and continuing to have a stoppage of work since that time, not being paid, and there is still no - it doesn't look like there is any way that the dispute is going to be resolved at the moment, and it is just going along like that at the moment.

PN45

All along the union has made genuine attempts to have the industrial action protected. Sir, in respect of the first notice of industrial action to IES, it is our submission that we did give three clear working days notice. Employees of IES have worked seven days. And I suppose the reason we weren't brought for a section 127 over that is because they are possibly right, but that is going to be an issue that is going to be dealt with in the courts already as a part of their 170NC action.

PN46

So we have filed a number of notices which we all along have attempted to make protected and satisfy the requirements of the Workplace Relations Act. We did serve notices, a notice for IES employees that did expire on 28 May 2003, and through an administrative oversight it failed to serve the further notice that has now been filed. When this was discovered on 21 May 2003, a notice was immediately served, and it takes effect from 4 June 2003.

PN47

Now, in the decision of the CEPU v AG Coombs, which is reported at 87 IR 110, the Full Bench in that criticised the CEPU for not purporting to comply with the Act. That is at page 122.

PN48

THE SENIOR DEPUTY PRESIDENT: Sorry, what page?

PN49

MR BORENSTEIN: At page 122. I will give a more specific reference to your Honour, if I could, a bit later. But in that case the union was criticised for not purporting to comply with the Act. In this case we have purported to comply all along with the quite rigorous requirements of the Act, and quite technical requirements. We have oversighted - we have done an oversight, and on that basis we say that in the Commission's discretion it shouldn't make unlawful the conduct of employees who are purporting to take protected industrial action, and for the four or five days that are in the gap they shouldn't receive an order which makes their conduct unlawful, as well as the union unlawful.

PN50

In respect of another discretionary consideration which we seek the Commission to refuse to make the section 127 orders, is the lack of utility of making the order, in that the action will be protected on 4 June 2003. That is this coming Wednesday.

PN51

THE SENIOR DEPUTY PRESIDENT: Why do you say that constitutes a lack of utility?

PN52

MR BORENSTEIN: Well, we would say that in the situation where the members have been taking protected action for almost 100 days, and through an administrative oversight four or five days become unprotected, that an order requiring them to return to work would be a massive upheaval for them and would seriously, you know, affect their rightful negotiations which they believe they were taking. And to have to have that massive upheaval in a situation where the protected action returns on 4 June 2003, we say in the Commission's discretion would not warrant the Commission making that four day period unlawful and exposing them to orders in the Federal Court. The respondent already has its right, has already initiated legal action against the employees.

PN53

THE SENIOR DEPUTY PRESIDENT: But it would only expose them to orders if they didn't comply with the order.

PN54

MR BORENSTEIN: That is correct, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR BORENSTEIN: The applicant already has the ability - is already suing its employees in the Federal Court under 170NC, and doesn't lose those rights because a section 127 order is not made here in the Commission. A third discretionary point which we submit is quite substantial and has been purely left out by my friend in his chronology and his submissions is the behaviour of the company and Smorgons, and the fact that, well, firstly, we have initiated proceedings against Australian Steel Company which is trading as Smorgons, for coercion for a company not to make an agreement, so coercion by Smorgons on IES not to make an agreement with the CEPU.

PN57

Now, I have an affidavit which I haven't been able to bring here, because I was already in the Commission at the time I received the listing, but I would like your Honour to see it before you make your decision, where it exhibits taped evidence which we have of Mr Rubenstein saying that he would be willing to sign the agreement, but he can't because Smorgons will terminate his contract at the Smorgon site, words to those effect.

PN58

And the affidavit also details conversations Mr Glover had with Mr Rubenstein, who is the managing director of IES, where Mr Rubenstein says I will commit to signing the agreement, and then after being told by Smorgons not to sign it or you will lose your contract, comes back and says, no, he can't sign the agreement. The industrial action would not be happening if it wasn't for the coercion by Smorgons. There would be an agreement.

PN59

The employees who are going to be subject to this order are victims of that coercion which is being played out by Smorgons upon the employer, but the employees are the victims of that coercion because they are being made, or not being made, but they are being forced to, we submit, take industrial action in support of a claim that they want to seek. And Smorgons is not a party to the agreement, it is not a party to the negotiations, and we submit - and the claim that we are bringing, we say that Smorgons are coercing, and the employees are the victim of this coercion.

PN60

I can provide a copy of that affidavit to your Honour, but not at the moment, unfortunately. But on those bases, your Honour, we say that the Commission has a wide discretion, and the conduct of these employees should not be made subject to a section 127 order where they are purporting to take protected industrial action, have done so for almost 100 days, and by an administrative error by their union, four days of it becomes unprotected.

PN61

That coupled with the fact that these employees are the victim of coercion, by unlawful coercion by a company which we are bringing proceedings for, just adds to the fact that the discretion should not be exercised against them. They have been out there for 100 days, and to make an order against them on the basis of their union administrative oversight, would be devastating to them as well as the union. In respect of a balance of convenience argument, whether that goes to the discretion or not, the protected industrial action has been going for 100 days. Them going back for four days is not going to add anything to my client - sorry, to the applicant.

PN62

And we submit the fact that they will be back out again on 4 June suggests that there is marginal utility in requiring them to go back to work, and having them go out again. It may inflame situations. I don't want to project, but employees who have been out for such a long time are quite emotional about these things and they are all struggling quite severely. On those bases we say that a section 127 order would not serve the purposes that it was set up for, and we submit that unprotected industrial action isn't necessarily illegitimate, and in these circumstances - and that is said in a number of cases, in Coombs and in the Coal and Allied, and I think it is in Coal and Allied at page 329, and in Coombs at page 111 and 112, which I think my friend has quoted in his submissions anyway.

PN63

Just because it is unprotected doesn't meant it is illegitimate, and especially in a situation where they have been out for 100 days on protected industrial action, and then four of them become non protected. We say that the Commission should weight it all up in the circumstances, and not issue the order. Unless the Commission has any questions?

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein. Mr O'Grady?

PN65

MR O'GRADY: Yes, thank you, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Perhaps during your reply you might just tell me what the company does and what the employees of the company do.

PN67

MR O'GRADY: I apologise, your Honour. I suspect that both myself and Mr Borenstein have an understanding of this history because - - -

PN68

THE SENIOR DEPUTY PRESIDENT: A certain familiarity with the matter, yes, which I don't.

PN69

MR O'GRADY: Yes, your Honour. And perhaps the best and shortest way of doing that, your Honour, if I could hand up to your Honour the transcript of the proceedings in a 166A application brought by Smorgons against the union with respect to this action. A certificate was issued by Deputy President Hamilton on 2 May, as I understand it. Your Honour, in essence my client provides electrical - I will just get this right - is an electrical and mechanical labour supply contractor. It has a number of clients for whom it provides those services, but one of its largest clients is the Australian Steel Company Operations Pty Limited, commonly known as Smorgon Steel. So that is what my client does.

PN70

The employees who are on strike are, as I understand it, electrical workers, and they are, as is apparent from the documents I have already handed up to your Honour, they have engaged in industrial action with a view to obtaining a new certified agreement to replace the certified agreement whose nominal expiry date has now past, and I have provided your Honour with a copy of that.

PN71

Your Honour, if I can perhaps turn to the issues raised by my friend. Perhaps the first point I would seek to make is that, my friend said unprotected industrial action is not necessarily illegitimate. And that may be right, your Honour, but we would say that in the light of the authorities that I have taken your Honour to, that is a difficulty proposition to sustain, but let's accept for the moment that that is right. However, this is industrial action which is clearly being taken in order to support or advance claims for a new certified agreement.

PN72

It is industrial action which, absent the protection conferred by the Act, is clearly in breach of section 170NC, because its subjective is to coerce my client into entering into a new agreement with the union. And in those circumstances, your Honour, we would say that absent the protection afforded by the Act, it is industrial action which is rightly described as illegitimate. Your Honour, my friend also indicated that there was little utility in the orders that have been sought.

PN73

Your Honour, at the end of the day, of course, my client is in a better position than my friend to make an assessment of whether or not there is anything that it will derive from asking these men to go back to work, and it has clearly made that assessment, and it has made this application in consequence of that assessment. It is not uncommon, your Honour, where the stoppage of work is not an indefinite one, but consists of a number of bans or relatively short strikes, for the employer to use the time when the people are no longer engaging the industrial action to address problems that have arisen during the time when the industrial action was imposed.

PN74

Now, my client was entitled to assume, when it did not receive a 170MO notice on Monday of this week, that from 7 am Thursday morning it would be able to usefully deploy its workers. Now, my friend says, well, we made a mistake. The remedy for that mistake, your Honour, in my submission - - -

PN75

THE SENIOR DEPUTY PRESIDENT: Is that a realistic - - -

PN76

MR O'GRADY: Sorry?

PN77

THE SENIOR DEPUTY PRESIDENT: Is that a realistic assumption? It might be an assumption that one might make based upon the law, if what you say is the correct application of the law. But in the context of an industrial dispute that has involved the employees being out on the grass in excess of 100 days, is it a realistic assumption to think that, well, in two or three days time they are all going to go back?

PN78

MR O'GRADY: Your Honour, I can say this quite frankly, your Honour. We didn't know what was going on.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. But you said it was entitled to make an assumption.

PN80

MR O'GRADY: Yes. And I adhere to that, your Honour, and I adhere to that in the light of what the Full Court of the Federal Court said in Davis Distribution, when they set out what is the function of 170MO notice, namely, to enable an employer to be aware of the nature of the industrial action that they are going to be subjected to, and plan around it, if you like. And this notice is really quite specific, the notice that expired on Thursday morning is really quite specific. It doesn't speak of an indefinite stoppage of work, it says we are going to take industrial action up to this point in time.

PN81

And it is in different form, your Honour, to the notice that preceded it, which did speak of an indefinite stoppage of work. So, your Honour, whilst clearly there was always the potential that there would be further industrial action, in my submission my client was entitled to proceed on the basis that absent a further notification it would be entitled to direct its employees to return to work.

PN82

And if I can say this, your Honour. If it is the case that there was an oversight or an error by the union, then the remedy for that is for the union to direct its members to go back to work at least until 4 June. The act doesn't say anywhere, as I read it, your Honour, that as long as you are meant to serve a 170MO notice the action becomes protected, or you were going to but you didn't get around to it, the action becomes protected.

PN83

The scheme of the Act, as I understand it, your Honour, and is discussed by the decisions I have taken your Honour to, is that taking industrial action with a view to obtaining a certified agreement is generally prescribed. But there is an exception. If you comply with the - and my friend said quite detailed or onerous obligations, and Parliament must be taken to have made a choice in that regard - if you comply with the obligations in the Act it will be protected industrial action.

PN84

Now, for whatever reason the union haven't complied with those obligations, and whether they did so by way of an oversight or for any other reason, in my submission, doesn't really change that. Your Honour, my friend also sought to make some submissions based upon the proceedings that the union have filed against Smorgons in the Federal Court, and those proceedings, you know, it is common ground, have been instituted.

PN85

There was an application for interlocutory relief before his Honour North J. His Honour North J declined to grant the interim orders being sought by the union, and the matter, as I understand it, has been set down for a trial with a relatively expeditious timeframe, and that matter is pending. My friend said one of the affidavits or one of the pieces of material put before his Honour in that case was an affidavit of a union official, Mr Glover, and that is the case, that there was an affidavit along those lines, and it is the case that there was a transcript of a phone call that Mr Glover surreptitiously recorded when he was speaking to my client.

PN86

Your Honour, the legitimacy and propriety of Mr Glover's action in that regard is still in issue. As I understand it, Smorgons - and I wasn't appearing in that case - but Smorgons reserved their rights with respect to that affidavit, and your Honour will be aware that there have been a number of decisions of the Federal Court where the propriety of, if you like, engaging in conversation with a view to garnering evidence that you are going to obtain by way of a surreptitiously recorded phone call, is something that is frowned upon by the Courts. That was one of the hamburger decisions as I recall it. Marshall J, I think, spoke in very strong terms against that practice, and as I understand it that was endorsed by a subsequent Full Court.

PN87

Your Honour, Smorgons aren't a party to our application here. And to suggest that because the union have made a number of allegations that have not been tested and, indeed, have not resulted in interlocutory orders, to suggest that because the union have made those allegations against Smorgons that is a reason for disentitling my client from the orders we seek, in my submission it just has no substance, with respect. Your Honour, it is for those reason that, once again, we would seek that your Honour make the orders sought. If your Honour pleases.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The Commission will adjourn briefly and consider what has been said. I appreciate the urgency of the matter, and I would expect to be in a position at 2.45 to advise the parties of my decision.

SHORT ADJOURNMENT [2.22pm]

RESUMED [2.50pm]

PN89

THE SENIOR DEPUTY PRESIDENT: Because of the time element involved in this, what I have to say now is reasonably brief, and I don't intend to deal in detail with all the submissions and arguments that have been put to me this afternoon. But this is an application by IES Australia Pty Limited for orders under section 127 of the Workplace Relations Act 1996, that industrial action being taken by its employees at various sites cease.

PN90

It is not contested that the jurisdictional prerequisites for the making of a section 127 order exist, nor in general are the facts contested. The issue before the Commission is whether in the circumstances it should exercise its discretion under section 127 to make appropriate orders. In short, industrial action has been taking place for a period in excess of 100 days. Negotiations for a new agreement appear to have stalled. The industrial action that has been taking place has been the subject of several notices under section 170MO of the Act.

PN91

For a period up to 7 am on 28 May 2003, the action appears to have been protected. A section 170MO notice given on 17 April 2003, specified that the protected action would consist of a stoppage of work between 7 am on 28 April 2003 and 7 am on 28 May 2003. A further section 170MO notice has been given today specifying that the protected action would consist of a stoppage of work between 7 am - I think it is just between 4 June 2003 and 4 August 2003.

PN92

That leaves a period during which any industrial action that may continue would appear to be unprotected. The failure of the CEPU to issue a section 170MO notice in such time as might have meant that industrial action after 7 am on 28 May 2003 continued to be protected action is said to have been an administrative oversight. On the material before me I am prepared to accept that this is the case.

PN93

The parties have argued this matter on the basis that the discretion conferred upon the Commission by section 127 is broad and unfettered. In the circumstances where the employees concerned have been pursuing their industrial action on the understanding that it constituted protected action, I do not consider that the mistake of the union should be visited upon them. I do not therefore consider they should in this case be made subject to an order that might have serious ramifications for them.

PN94

I agree, however, with counsel for the employer that the remedy in such a circumstance is that the CEPU should direct its members to go back to work. I will therefore issue an order that will bind the CEPU and its officers, officials and employees. A copy of the order will be faxed to the parties as soon as it has been signed, indeed, if necessary, e-mail can be availed of if the parties so wish. It will operate from today and will cease to operate on 4 June 2003. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.54pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 CHRONOLOGY OF EVENTS PN8
EXHIBIT #A2 MISCELLANEOUS DOCUMENTS PN17
EXHIBIT #A3 CERTIFIED AGREEMENT DATED 02/03/2000 PN21