C2003/4400, Transcript of Proceedings [2003] AIRCTrans 3164 (23 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 3650

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/4400

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Auschar Operations Pty Ltd for an order
to stop or prevent industrial action at
Auschar's Swan Road or Porters Road sites
in Morwell

MELBOURNE

12.02 PM, THURSDAY, 10 JULY 2003

Continued from 9.7.03

PN308

MR R. DALTON: I appear for the applicant with Mr Twigger.

PN309

THE SENIOR DEPUTY PRESIDENT: Yes, by leave granted on the previous occasion, yes.

PN310

MS Z. ANGUS: I appear on behalf of the Australian Workers' Union. Can I note while I am on my feet that there is no appearance from the AMWU and I have just spoken to the organiser down at the site, Latrobe Valley, and I understand that there was an attempt made to contact the AMWU but it has been unsuccessful and for that basis and for a number of other reasons that I will put it would be, if you like, a miscarriage of justice for the AMWU to proceed with the 127 given the short notice.

PN311

THE SENIOR DEPUTY PRESIDENT: Are you appearing on behalf of the AMWU?

PN312

MS ANGUS: Well, I am not but I make that point because the material that has been provided so far to the Commission distinguishes between the conduct of the two unions and while I quite clearly am capable of appearing on behalf of the AWU, given that there is difference in the material and I am not instructed by the AMWU, then I can at least make a submission on their behalf that it would be unfair for the matter to proceed.

PN313

THE SENIOR DEPUTY PRESIDENT: You are doing so more as a friend of the Court, are you, Ms Angus?

PN314

MS ANGUS: Friend of the Court.

PN315

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Dalton.

PN316

MR DALTON: Thanks, your Honour.

PN317

THE SENIOR DEPUTY PRESIDENT: I think you do need to address that. The matter has been brought on at very short notice.

PN318

MR DALTON: Yes.

PN319

THE SENIOR DEPUTY PRESIDENT: We did send a facsimile transmission to the officers of the AMWU and that transmission was sent successfully according to our records. My associate asked your instructing solicitor, or your firm rather, to contact the AMWU about today's proceeding. What can you tell me about it?

PN320

MR DALTON: Your Honour, firstly, thank you for calling it on at such short notice. My client appreciates that.

PN321

THE SENIOR DEPUTY PRESIDENT: I said that I would, yes.

PN322

MR DALTON: Yes. We have made attempts to contact Mr Addison, so attempts have been made I think on his mobile phone and through his secretary. Those attempts haven't been successful and messages have been left for him.

PN323

THE SENIOR DEPUTY PRESIDENT: Yes. And has anybody else at the AMWU been contacted? His secretary obviously.

PN324

MR DALTON: Yes, the secretary has been informed about the listing details and as we understand it the notice of listing has been sent and that followed the letter that - - -

PN325

THE SENIOR DEPUTY PRESIDENT: Yes. I may require some evidence about that but proceed.

PN326

MR DALTON: Thanks, your Honour. Unfortunately this morning there was not a resumption of work by the employees of the two contractors who were the subject of this dispute being Huon Personnel and Kingston Engineering Services. Of particular concern to my client was the fact that all of the employees of those two contractors, whether or not they were due to work at the Porters Road site, went straight to the brew room at the Porters road site in the morning.

PN327

THE SENIOR DEPUTY PRESIDENT: Just remind me what the other site was?

PN328

MR DALTON: That is Swan Road, your Honour.

PN329

THE SENIOR DEPUTY PRESIDENT: And that is something different to what would normally happen, is it? They would normally go to - - -

PN330

MR DALTON: On my instructions those who were working on the Swan Road plant would go there and that they know who they are and so the fact that they turned up to the brew room at Porters Road indicated to my client that that had been preordained, probably the previous day. That is of particular concern to us because of the manner in which the application was progressed yesterday and the manner in which it was adjourned.

PN331

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dalton. On your instructions did all employees who were provided with appropriate gear return to work yesterday?

PN332

MR DALTON: Yes.

PN333

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, go on.

PN334

MR DALTON: So we see this as a bit of ducks and drakes when the matter has been brought before the Commission. Following some delays the employees eventually returned to work only to be followed this morning by a deliberate stoppage of work. Now, management has tried repeatedly throughout the course of this morning to achieve a return to work. Apparently the reason given as to why they were in the sheds was that it was too cold and that they didn't have jackets. You might remember, your Honour, how I flagged that issue on the record.

PN335

THE SENIOR DEPUTY PRESIDENT: Yes.

PN336

MR DALTON: Now, by about I think shortly before 10 am my client realised that it wasn't going to be able to get these people back to work and it was in those circumstances that we wrote to the Commission setting out briefly those facts that I have just referred to in asking for this matter to be re-listed. Now, since the matter has been re-listed I have been able to get some instructions which I think are as about up to date as one can get. Mr Lee from the AWU is on site.

PN337

THE SENIOR DEPUTY PRESIDENT: What position does he have?

PN338

MR DALTON: He is the area organiser.

PN339

THE SENIOR DEPUTY PRESIDENT: Of which union, sorry?

PN340

MR DALTON: Of the AWU.

PN341

THE SENIOR DEPUTY PRESIDENT: AWU.

PN342

MR DALTON: Mr Terry Lee.

PN343

THE SENIOR DEPUTY PRESIDENT: He is the local organiser?

PN344

MR DALTON: Yes.

PN345

THE SENIOR DEPUTY PRESIDENT: Yes.

PN346

MR DALTON: Now, he is making attempts to put a proposal with a view to achieving a return to work, however that hasn't been successful as yet, although I do understand that some employees have returned to work, however a number of them have gone home of their own accord, not with the authorisation of Auschar or their employers.

PN347

THE SENIOR DEPUTY PRESIDENT: Yes. How many Auschar employees are not working today?

PN348

MR DALTON: The Auschar employees are working, I am instructed.

PN349

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN350

MR DALTON: So we are only dealing with the employees of the two contractors, Huon Personnel and Kingston Engineering.

PN351

THE SENIOR DEPUTY PRESIDENT: And they are members of both the AWU and the AMWU, are they?

PN352

MR DALTON: That is right, yes. Now, Mr Steve Dodd, who is the AMWU area organiser, is also on site or has been until very recently, as are the respective union delegates who are employed by Auschar. That is Les Lawrence, L-a-w-r-e-n-c-e, from the AWU and Steve Evans, the AMWU delegate.

PN353

THE SENIOR DEPUTY PRESIDENT: So Lawrence is the AWU delegate and Steve?

PN354

MR DALTON: Steve Evans being the AMWU delegate. Now, as I said, it appears that Mr Lee is trying to get a resolution. I should also inform your Honour that yesterday evening Australian Char received copies from these contractors, 170 MO notices that they had received from the AMWU. Those notices, your Honour, indicate an intention of the AMWU to commence industrial action from 7 am on Wednesday, 16 July and the nature of the intending industrial action is described as rolling stoppages that will affect all of the company's operations connected with the maintenance shutdown.

PN355

THE SENIOR DEPUTY PRESIDENT: So rolling stoppages. Are you going to produce that document?

PN356

MR DALTON: Yes, I think I have got spare copies.

PN357

THE SENIOR DEPUTY PRESIDENT: Yes, rolling stoppages that will affect?

PN358

MR DALTON: Yes, rolling stoppages for the company's operations connected with the maintenance shutdown for Auschar Operations Pty Ltd at Porters Road and Swan Road, Morwell. The name of the company is misdescribed but the sites are described. What we would say about that, your Honour, is that these companies have received notices in circumstances where in our submission there has not been any real attempt by the AMWU to reach agreement with either of those employers and in fact if your Honour has had the opportunity to look at the statement of Mr Dalton, it appears that the only contact that I think at least one of the contractors had with the AMWU is that Mr Warren has just sent him a copy of the insert, company name, labour hire agreement.

PN359

THE SENIOR DEPUTY PRESIDENT: Yes, and that would indicate in your submission that the industrial action is unauthorised, would it?

PN360

MR DALTON: It would indicate to me, your Honour, that the industrial action proposed - - -

PN361

THE SENIOR DEPUTY PRESIDENT: Sorry, not as unauthorised. It wouldn't be protected.

PN362

MR DALTON: That is right.

PN363

THE SENIOR DEPUTY PRESIDENT: Because of section 170 - I had it marked. I had it flagged yesterday but I don't today.

PN364

MR DALTON: I think it is MP. I am just going on memory. But specifically the requirement that you attempt to reach and agreement before you take this sort of action.

PN365

THE SENIOR DEPUTY PRESIDENT: Yes. I know the requirement. I can't remember the number of the section off hand.

PN366

MR DALTON: Yes, MP, your Honour, negotiation must precede industrial action or lock out.

PN367

THE SENIOR DEPUTY PRESIDENT: Yes.

PN368

MR DALTON: Your Honour, in a nutshell, what we would say is that an order should issue in the form sought. The only exception being that we don't seek the amended form of the order.

PN369

THE SENIOR DEPUTY PRESIDENT: No, it is the original form.

PN370

MR DALTON: So just the original form.

PN371

THE SENIOR DEPUTY PRESIDENT: Yes.

PN372

MR DALTON: That is, the order should be directed at both unions and their members who are employed by these contractors. The reason we say an order should issue is that industrial action is still happening and it was happening as recently as this morning and while we have some - the latest intelligence suggests that there may be a return to work by some of them, a number of them have just gone home.

PN373

THE SENIOR DEPUTY PRESIDENT: Yes. Remind me what the company policy is in relation to the issue of jackets?

PN374

MR DALTON: The company policy on jackets is that once you are employed for a period of three months you will be issued with a jacket.

PN375

THE SENIOR DEPUTY PRESIDENT: That is the Auschar policy?

PN376

MR DALTON: That is the Auschar policy.

PN377

THE SENIOR DEPUTY PRESIDENT: And does that apply to contractors?

PN378

MR DALTON: Well, Auschar is content to allow that policy to apply to contractors. Now, obviously they don't have the opportunity to work for Auschar for three months for this particular shutdown.

PN379

THE SENIOR DEPUTY PRESIDENT: Yes.

PN380

MR DALTON: But I am instructed that the position of the contractors as communicated to Mr Twigger over the last 24 hours is that they are prepared to provide jackets to these people so it is not really an issue as far as we can see.

PN381

THE SENIOR DEPUTY PRESIDENT: I am sorry, just run that past me again. Auschar is prepared to provide jackets to - - -

PN382

MR DALTON: No, the contractors will provide the jackets. Auschar said that if jackets are to be provided it should be consistent with the terms of Auschar's enterprise agreement which wouldn't - and it is existing terms and conditions on site, which wouldn't provide for the jackets in the context of this shut because Auschar employees don't get a jacket until they have worked for three months.

PN383

THE SENIOR DEPUTY PRESIDENT: Yes, but beyond that the contractors have indicated that they would provide the jackets.

PN384

MR DALTON: They have.

PN385

THE SENIOR DEPUTY PRESIDENT: And how has that indication been given and has it been communicated to the unions or to the men on site?

PN386

MR DALTON: My understanding is that Mr Twigger has had some conversations with - - -

PN387

THE SENIOR DEPUTY PRESIDENT: Mr Twigger being?

PN388

MR DALTON: Mr Twigger is the former head of - - -

PN389

THE SENIOR DEPUTY PRESIDENT: Explain for the purposes of the record who he is.

PN390

MR DALTON: Production Services Manager for Auschar.

PN391

THE SENIOR DEPUTY PRESIDENT: Yes. Now, what has he done?

PN392

MR DALTON: And he has had some telephone conversations with the respective managers of the contractors and he has raised this issue of the jackets and those managers have indicated that they would be providing jackets to their employees who were working at Auschar.

PN393

THE SENIOR DEPUTY PRESIDENT: Have they provided the jackets

PN394

MR DALTON: No, they haven't as yet. This is something that has been dealt with over the last 24 hours as I understand it - or this morning.

PN395

THE SENIOR DEPUTY PRESIDENT: Are you instructed as to when the jackets will be provided?

PN396

MR DALTON: No, I am not, your Honour.

PN397

THE SENIOR DEPUTY PRESIDENT: Yes.

PN398

MR DALTON: Your Honour, we say that industrial action is happening. We also say that it is threatened. We say it is threatened because of the nature of the stoppages, the on and off nature of it in recent times, and in particular the AMWUs stated intention to take rolling stoppages, presumably of a similar nature to that which has happened so far, and we say at this stage the Commission can be satisfied that that is industrial action that wouldn't enjoy the protection that is afforded under the Act by virtue of 170MP.

PN399

THE SENIOR DEPUTY PRESIDENT: And even if it would it hasn't occurred yet. It can't obtain that protection for some period of time.

PN400

MR DALTON: No, and we would of course be prepared to have an exclusion in the order that we seek. That would involve an amendment I think. We would content for an additional clause in the order to say that it doesn't apply to protected action. Is that necessary? A section 127 order doesn't apply.

PN401

MR DALTON: The Act says as much.

PN402

THE SENIOR DEPUTY PRESIDENT: Yes.

PN403

MR DALTON: But the order on its terms has I think - a number of orders have previously made that point clear in the order because it is distributed to people and so they are aware of it and they don't have to go to the Act to check on that.

PN404

THE SENIOR DEPUTY PRESIDENT: Yes.

PN405

MR DALTON: Your Honour, it is certainly - - -

PN406

THE SENIOR DEPUTY PRESIDENT: I will mark that, sorry.

PN407

MR DALTON: Yes.

EXHIBIT #AUSCHAR3 TWO LETTERS FROM THE AMWU TO HUON PERSONNEL PTY LTD AND KINGSTON ENGINEERING NOTIFYING THAT INDUSTRIAL ACTION IS TO TAKE PLACE

PN408

MR DALTON: Your Honour, the witness statement of Desmond Peter Dalton that was filed and served I think on the 8th, yes, the evening of the 8th, it was referred to yesterday, however given the way the application went yesterday it wasn't necessary to call Mr Dalton. Mr Dalton is at the site at the moment dealing with the issues and trying valiantly to get these people back to work, so he is not in a position to swear to the contents of that statement.

PN409

THE SENIOR DEPUTY PRESIDENT: Yes.

PN410

MR DALTON: In the context of these proceedings we would ask that that statement be marked and accepted into evidence. Obviously the weight attached to the matters that he has put need to take into account that he is not available to be cross-examined on that material.

PN411

THE SENIOR DEPUTY PRESIDENT: When could he be here?

PN412

MR DALTON: Well, he is available over the telephone of course if there is any issues that need to be raised with him.

PN413

THE SENIOR DEPUTY PRESIDENT: No, I want to give Ms Angus an opportunity to cross-examine him.

PN414

MR DALTON: Yes. Well, I think that would take at least two hours. It is a two hour drive at least.

PN415

THE SENIOR DEPUTY PRESIDENT: Yes.

PN416

MR DALTON: Your Honour, there is one document I would like to hand to you just for completeness. It is a notice to all personnel that was issued on the site on 8 July, towards the end of the day, and it was ready for people when they came to the brew room at 8 am yesterday. You will recall that there was a mass meeting yesterday morning.

PN417

THE SENIOR DEPUTY PRESIDENT: Just give me a moment to read it, please.

PN418

MR DALTON: Yes, your Honour.

PN419

THE SENIOR DEPUTY PRESIDENT: Are you tendering that?

PN420

MR DALTON: Yes, your Honour.

EXHIBIT #AUSCHAR 4 NOTICE TO ALL PERSONNEL, ISSUED 8 JULY

PN421

MR DALTON: Your Honour, Mr Dalton instructed me yesterday that about 60 copies of this was left in the brew room, also posted in that area to ensure that all of the employees who were sitting there were aware of the company's position in relation to the bans and specifically in relation to this application.

PN422

THE SENIOR DEPUTY PRESIDENT: Yes.

PN423

MR DALTON: Your Honour, it is the company's hope that the matter can be resolved with the organisers down on site this afternoon, but in the circumstances we do press for an order at this stage and certainly subject to a right of parties to re-apply in the event that there are developments of a positive nature.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes. Do I have any power to make an interim section 127 order?

PN425

MR DALTON: You do, your Honour, because the powers available to you under section 111 in terms of general part VI powers are obviously available to you in exercising powers under section 127, the context does not require otherwise. So section 111(1) says that the reference to industrial dispute, the start of section 111(1).

PN426

THE SENIOR DEPUTY PRESIDENT: Yes.

PN427

MR DALTON: Is to be taken to be a reference to any other proceeding unless the context otherwise requires and section 127 - - -

PN428

THE SENIOR DEPUTY PRESIDENT: Subsection 4, yes.

PN429

MR DALTON: Correct. Subsection 4 in fact positively makes it clear that those powers are available to you and section 111(1) includes a range of powers. 111(1)(b), including a provisional award or order.

PN430

THE SENIOR DEPUTY PRESIDENT: Yes.

PN431

MR DALTON: In my submission you do have that power and it is appropriate to be made today in the circumstances. It could be made interim. Matters such as - well, if the industrial action continues the matter can be dealt with in more detail. Mr Dalton can be available for cross-examination at that time. So those are the submissions in support of the application, your Honour.

PN432

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Angus.

PN433

MS ANGUS: Yes, your Honour. Five minutes before 12, before we commenced I got instructions from the organiser, that is Terry Lee who is at the site and I have been told that all employees are back at work and there is no industrial action. The reason why there was some difficulties getting people to work this morning was that 70 per cent of the contractors, of those two, KES and HP, in fact were not paid last week and the reason that they were not paid last week was that Auschar failed to forward the time and wages sheets over to those two contractors which meant that they were not in a position to pay their employees because they didn't have the calculation of hours.

PN434

THE SENIOR DEPUTY PRESIDENT: Why wasn't I told about this yesterday or was I?

PN435

MS ANGUS: Well, I wasn't aware of it yesterday but I do actually recall that - - -

PN436

THE SENIOR DEPUTY PRESIDENT: Well, why wasn't it raised with you?

PN437

MS ANGUS: No, that Mr Addison actually raised the matter to the Commission.

PN438

THE SENIOR DEPUTY PRESIDENT: But that wasn't an issue that was preventing a return to work as far as Mr Addison was concerned. You weren't here yesterday afternoon for reasons better known to you.

PN439

MS ANGUS: Yes.

PN440

THE SENIOR DEPUTY PRESIDENT: Than to me, but that wasn't an issue that was raised by Mr Addison that would prevent a return to work.

PN441

MS ANGUS: Well, I can't speak on behalf of Mr Addison.

PN442

THE SENIOR DEPUTY PRESIDENT: It is ducks and drakes, isn't it, as Mr Dalton says?

PN443

MS ANGUS: No, I don't believe that is the case, your Honour.

PN444

THE SENIOR DEPUTY PRESIDENT: There is a return to work and then five minutes later there is a refusal to work for another reason and then a return to work and then a refusal to work for yet another reason. One minute it is jackets. One minute it is pay.

PN445

MS ANGUS: What happened this morning was that when the organiser went out to the site employees said we still haven't been paid, the reason that we haven't been paid is that Auschar hasn't forwarded the material, as they are required to, to the contractors so that the contractors can then pay us. Terry Lee then commenced the process of negotiating with the pay office to get a copy of those time and wages sheets. People had to check them. It then took a number of hours for the pay office to process those pays.

PN446

THE SENIOR DEPUTY PRESIDENT: Then why shouldn't they have continued working while that was taking place?

PN447

MS ANGUS: Well, that is a question ultimately that, you know, people you would need ask people themselves.

PN448

THE SENIOR DEPUTY PRESIDENT: Well, it is a question I am asking you. It is a question I am asking you. Why should I be influenced by that?

PN449

MS ANGUS: Well, the reason why I think it is - it is important to understand that there is some tension and hostility at that site at the moment. People are being relied on for their work and yet there is not a feeling of reciprocal respect between the employees who weren't paid, who didn't receive the protective clothing that the people they are working next to were receiving, who are according to, and I haven't checked the records myself, but according to - and my understanding is that people are being paid 10 per cent less than the people that they are working side by side with. These things generate feelings of frustration and hostility towards the company.

PN450

THE SENIOR DEPUTY PRESIDENT: And there is processes that can be undertaken to have these matters dealt with - - -

PN451

MS ANGUS: And those processes were followed this morning.

PN452

THE SENIOR DEPUTY PRESIDENT: - - - and orderly and proper fashion without a refusal to work.

PN453

MS ANGUS: Well, those processes were followed this morning and people are now back at work and people are being paid properly.

PN454

THE SENIOR DEPUTY PRESIDENT: Well, that seems to be contrary to Mr Dalton's instructions.

PN455

MS ANGUS: Well, yes, and I was surprised because - - -

PN456

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN457

MS ANGUS: If it is the case that some people have gone home and the organiser has told me that everyone is back at work, there is no industrial action, there is no problems and we are not expecting any further industrial action and therefore there is no threat, if it is the case that people have gone home then that is certainly not with the authorisation of the union or that is not part of some concerted industrial action campaign. I can't explain that because my instructions are that that is not the case and that people are working as usual.

PN458

THE SENIOR DEPUTY PRESIDENT: Yes.

PN459

MS ANGUS: The second point that we make is that a revised position has been put to the companies for their consideration which is short of the log of claims and it is a - well, I can't speak on behalf of the AMWU but it is not the insert company name document. It is a position that certainly the AWU believes would be voted for in support of and would represent a resolution to the dispute. The companies are considering their position in relation to that and we are waiting for a response.

PN460

THE SENIOR DEPUTY PRESIDENT: When was that revised position to the company?

PN461

MS ANGUS: At some stage this morning and so we are not aware how long it will take the company to get back to us with a response but they are certainly in the process of considering it.

PN462

So there is no industrial action. Negotiations are on track if you like. There has been a revised position put by the union. We are awaiting their response. We are not threatening to take industrial action and it is not our intention to take industrial action. We may consider, as is our entitlement under the Act, protected industrial action to advance those negotiations, but we are not engaging in any unprotected industrial action on the site at the moment.

PN463

Your Honour, on the basis of that, in our submission it would not be appropriate to issue an order and it is for the following reasons. There is, as I have pointed out, there is no industrial action happening. We are not threatening to take any and the only arguable basis that the Commission could grant an order and attract the jurisdiction is on the basis of past conduct. Now, there is a decision and I don't have it to hand because of the short notice, but the decision I think it is Munro J, the Rheem's decision. Have you heard of that? Anyway, it is a decision in relation to a company called Rheem's Australia where it was decided that although there was no industrial action happening, threatened, the past pattern of industrial action could constitute a probability of ongoing and further industrial action.

PN464

But in that instance, and it is the only decision that I am aware of where past pattern alone enabled the Commission to grant an order, in that instance there were 40 separate incidences of industrial action. Now, that is just not the case here. There was an issue this morning. There was an issue yesterday. They have both been fixed and, your Honour, I would make the point that it would be inappropriate for the Commission to rely on the witness statement that has been filed by the company in the absence of cross-examination because it is clearly contested.

PN465

From an AWU perspective there are three paragraphs in here that just plainly untrue in relation to the AWU. The AWU did not engage in a four hour stoppage. That is part of Campaign 2003 and the AWU has not signed up to Campaign 2003, which is referred to I think in paragraph 20 of his statement. Further, the AWU does not have any bans amongst Auschar production workers in relation to contractors, so we very strongly contest paragraphs 26 and 27.

PN466

So in particular, in relation to paragraphs 20, 26 and 27, we take issue with the veracity of Mr Dalton's statement in relation to the AWU and given that all the Commission in our submission has to rely on to attract the jurisdiction to enable it to grant an order is some issue of past conduct, we say that conduct has ceased. As of this morning it has been fixed. People are back at work and negotiations are back on track, and further, that to the extent that - - -

PN467

THE SENIOR DEPUTY PRESIDENT: I think you are starting to repat yourself, Ms Angus.

PN468

MS ANGUS: Yes. And to the extent that past conduct is considered, it is contested and it is very strongly contested in relation to the AWU. Your Honour, if you are minded to issue an order we would say this, that it should be at the very least, it should be a short order sufficient only to get the parties back on track in the negotiations. It should expressly exclude protected industrial action and it should only be for a limited period of time to have a sort of, if you like, well, a shock value or a dispute settling initiative that should serve only to encourage the parties to resolve the dispute directly between themselves.

PN469

But what we would say as a more appropriate course of action for the Commission, what we would say is that - and we would invite the Commission to hold a conference of the parties, of the two contractors, the affected unions and Auschar, if it is inclined to come, a conference of the parties to conciliate in a more constructive manner if you like rather than the punitive measure of a 127 order, to facilitate negotiations to actually reach an agreement. So they are our submissions, if it please the Commission.

PN470

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Dalton, I am going to stand the matter down for five minutes to enable you to make a phone call to ascertain whether or not on your instructions there has been a return to work and then I will hear you further.

PN471

MR DALTON: Yes, your Honour.

PN472

THE SENIOR DEPUTY PRESIDENT: I think given what Ms Angus has just said about being told that everybody has gone back to work, I would like you to see if you can confirm that or not.

PN473

MR DALTON: Yes.

PN474

THE SENIOR DEPUTY PRESIDENT: I will adjourn until 20 to one and my associate will come in to see if you are ready to tell me what is going on.

SHORT ADJOURNMENT [12.34pm]

RESUMED [12.52pm]

PN475

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dalton.

PN476

MR DALTON: Thanks, your Honour. In the time that we have been allowed we have made the checks and there is a full return to work now.

PN477

THE SENIOR DEPUTY PRESIDENT: There is a full return to work?

PN478

MR DALTON: Yes, there is and there are two employees of Kingston Engineering who have left the site because they are tired of the stoppages and they have decided to return to the workshop of Kingston Engineering, which leaves the application where it stands. We press for the orders for the reasons that I have already put, because we say that further stoppages - - -

PN479

THE SENIOR DEPUTY PRESIDENT: Are likely, yes.

PN480

MR DALTON: Are likely. I should also add in fairness to the AWU, this is a matter that is being driven by the AMWU.

PN481

THE SENIOR DEPUTY PRESIDENT: Yes, that became fairly clear yesterday when Mr Addison was addressing me.

PN482

MR DALTON: Yes, and the fact is that Kingston Engineering and Huon Personnel have not agreed to the labour hire agreement and while that remains the case, the prospect of further stoppages at the instigation of the AMWU local leadership remains high in my submission. Unfortunately the AWU employees, or the employees who are members of or eligible to be members of the AWU, get caught up in that.

PN483

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN484

MR DALTON: And the likelihood of them taking industrial action is high for the same reason. However, I think we would have to say in fairness to the AWU local leadership that they have not been - I don't think it is likely that they will be organising industrial action and in fact - - -

PN485

THE SENIOR DEPUTY PRESIDENT: Does that mean you wouldn't seek an order against the AWU?

PN486

MR DALTON: So at this stage we don't press for an interim order against the AWU. We do however press an order against the AMWU and all employees who are engaged to do maintenance work at the sites who are employed by Huon and Kingston Engineering. We agree with Ms Angus's alternative submission as to the type of order that could be made. It could be for a short period of time and it could also be attached with directions that the unions make attempts to reach agreement on the arrangements that should apply for the shutdown. But it is appropriate in the circumstances in my submission that an interim order be made to avoid the situation that we have encountered today where there was just a return for the afternoon and then they end up in the brew room all morning.

PN487

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Dalton, I am very inclined to make the order you seek but given that there has been a return this afternoon and given that this matter was brought on on about an hour's notice and in the absence of the AMWU I am loathe to do so. What I will do is adjourn this matter until 9 o'clock tomorrow morning when you can pursue the application and you can have Mr Dalton available to be cross-examined if necessary and I will need a fair bit of persuading, I will make it known to Mr Addison tomorrow that not to make the order.

PN488

I request that you notify the AMWU by any means you consider appropriate but certainly by facsimile transmission and possibly by hand delivered letter that the matter is to be listed at 9 am tomorrow and I expect representation from the AMWU at that time.

PN489

MR DALTON: If the Commission pleases.

PN490

THE SENIOR DEPUTY PRESIDENT: In the circumstances I think the requirements of natural justice necessitate that I give the AMWU that opportunity to put what it wants to put. I will adjourn until 9 am tomorrow.

ADJOURNED UNTIL FRIDAY, 11 JULY 2003 [12.56pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AUSCHAR3 TWO LETTERS FROM THE AMWU TO HUON PERSONNEL PTY LTD AND KINGSTON ENGINEERING NOTIFYING THAT INDUSTRIAL ACTION IS TO TAKE PLACE PN408
EXHIBIT #AUSCHAR 4 NOTICE TO ALL PERSONNEL, ISSUED 8 JULY PN421