C2003/2478, Transcript of Proceedings [2003] AIRCTrans 3309 (6 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C No 2003/2478

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Thiess - Hochtief Joint Venture
(being a joint venture Thiess Pty Limited
and Hochtief AG Australia) and Another in
relation to entry to the site of the
Epping to Chatswood Underground Rail Link Project

SYDNEY

3.02 PM, TUESDAY, 22 JULY 2003

YTHE COMMISSIONER: Could I have appearances please?

PN1

MR G. HATCHER: I appear with Mr CROSS for Thiess Pty Limited and Hochtief AG Australia.

PN2

THE COMMISSIONER: Thank you Mr Hatcher.

PN3

MR A. HATCHER: I appear for the AWU.

PN4

THE COMMISSIONER: Thank you Mr Hatcher.

PN5

THE COMMISSIONER: This is going to be difficult with two Hatchers. I assume that neither of you are going to object to leave being granted to the other counsel.

PN6

MR G. HATCHER: No.

PN7

THE COMMISSIONER: In that case leave is granted so Mr Hatcher on the side of the applicant perhaps if you could go first please.

PN8

MR G. HATCHER: May it please the Commission. Our clients have formed a joint venture for the specific purpose of executing a contract to perform tunnelling and associated works connecting the Epping Railway Station with the Chatswood Railway Station. There are to be some four stations in between. To give effect to their contract they entered into negotiations with the Labor Council of New South Wales with a view to obtaining a certified agreement prior to engaging on the work. They were successful in that endeavour and there is a certified agreement in place. The Thiess-Hochtief Epping to Chatswood Underground Rail Link, CMFEU, AMWU Construction Enterprise Agreement 2003-2006, an agreement that is not short on words in its title.

PN9

THE COMMISSIONER: Yes, I have a copy. Thank you Mr Hatcher.

PN10

MR G. HATCHER: Thank you Commissioner. I should immediately observe that the AWU, the respondent in respect to this notice is not a party to that agreement. I should also indicate that they were involved in the initial negotiations leading to the establishment of a certified agreement but agreement with the AWU was not possible. Nonetheless the agreement extends to the entire site and regulates exclusively conditions on the site. In recent time, Commissioner, Mr Brown an organiser of the respondent organisation, has attended on the premises and in other circumstances has also engaged in communications with representatives of our clients. Mr Brown has indicated an intention to disrupt the operations on site he says with a view to ensuring that our clients will pay greater remuneration than that payable under the terms of the certified agreement.

PN11

He has accompanied that conduct with threats. He has further unlawfully entered the site disguising himself in tunnelling gear and entering the premises. Moreover on Tuesday last he conducted an impromptu meeting of members and incited - that is members of the AWU, and other persons not members of the AWU but all of whom are employees of our clients and bound by the terms of the certified agreement and encouraged them to cease work and he was successful in that endeavour and 24 hours production was lost on Tuesday of last week. If it please the Commission the terms of the contract under which our clients are executing the rail link provide for liquidated damages and those liquidated damages are to a maximum of $193,000 per day. Thus industrial action is sought to be avoided in the terms of the certified agreement, a matter that I can address on some more detail should the need arise.

PN12

Now, if it please the Commission we acknowledge that it might be put against us that the circumstances in which our client operates and its relations with the AWU are such that no certified is available under section 166A. Such an argument, as we apprehend it, would place reliance on the Full Bench decision of this Commission in the Age Company Limited, an appeal from a decision of Commissioner Whelan and that decision is to be found in print 91310. Might I hand up a copy of that, Commissioner? It is a Full Bench presided over by Vice President Ross and if I could perhaps simply distil the relevant reasoning. His Honour, the Vice President, or at least the Full Bench appeared to come to a conclusion not dissimilar to his Honour's earlier conclusion in relation to section 111AAA, that is that the reference to industrial dispute in section 166A of the Act is a reference to an industrial dispute as found to exist.

PN13

Clearly that is the law for the moment and in that circumstance when one has regard to the tests in section 166A that:

PN14

An action in tort may not be brought by a person against an organisation of employees or an officer of such an organisation in relation to conduct by the organisation in contemplation or furtherance of claims that are the subject of an industrial dispute.

PN15

Now Commissioner clearly if industrial dispute means an industrial dispute as found the claims that are advanced by Mr Brown and the AWU against the client are not claims in contemplation or furtherance of an industrial dispute found to exist by the Commission. For a start there is no inter-stateness. So, if it please the Commission prima facie the position is that our clients are unrestricted by section 166A but in order to ensure that the matter might be canvassed in the appropriate forum we gave notice of our client's intention to commence the proceedings in tort in order that if there is a contrary view to be put in the Commission it might be put and the Commission might take the steps available to it under the legislation. I think that in brief is the position we find ourselves in, Commissioner.

PN16

THE COMMISSIONER: Thank you Mr Hatcher. Yes?

PN17

MR A. HATCHER: I must admit that last bit wasn't entirely clear to me.

PN18

THE COMMISSIONER: I'm sorry?

PN19

MR A. HATCHER: I must admit that last part of Mr Hatcher's submission wasn't entirely clear to me.

PN20

THE COMMISSIONER: Did you want to ask for clarification now?

PN21

MR A. HATCHER: Perhaps Mr Hatcher can. What do you actually want?

PN22

MR G. HATCHER: Well, if it is - to be as clear as I possibly can , if it is the AWUs position that the Commission as constituted is bound by the Full Bench decision and accordingly would find that the conduct of which my client complains is not in contemplation of furtherance of claims that are the subject of an industrial dispute and therefore no certificate can issue can issue under section 166A, we invite them to say so, we accept that that submission would be accepted and that will be an end to these proceedings. It will of course give rise to an estoppel in other proceedings. I don't wish to be at all shy about disclosing that. If they wish to contend that they have the protection available under section 166A such as it might be in these circumstances then the matter is before the Commission and they can put what they would wish to in that regard.

PN23

THE COMMISSIONER: Does that help you, Mr Hatcher?

PN24

MR A. HATCHER: In one sense it does and in one sense it doesn't. WE are here to respond to an application by the notifier which I will refer to as Thiess and it is really up to Thiess to indicate whether it genuinely presses this application or not. In effect what my learned friend has just put is that whether the application is pressed or not is dependent upon some response we might make. We are the respondent to this application and we are entitled to know whether it was genuinely pressed by the applicant or not. If it is genuinely pressed then I will respond to it. If it is not then the matter should be dismissed and I don't need to say anything. It's not up to me to indicate whether this application should go forward or not. Unless my friend indicates that he wishes to press the application on some basis which he identifies to the Commission I don't propose to say anything.

PN25

THE COMMISSIONER: Did you need some time to consider that, Mr Hatcher, or are you right to proceed?

PN26

MR G. HATCHER: I'm right to proceed, Commissioner. We make it clear that there is conduct that my client complains of that is purportedly in furtherance of claims against my client. We anticipate that when we bring the proceedings that we would bring to protect our client's interests there may be some reliance placed upon the protection afforded by section 166A of the Act by the respondent. Accordingly, we've notified the Commission of our intention to bring an action in tort. Having done that, the Commission, if it finds that the circumstances are such that a certificate is necessary, that is, it has the jurisdictional basis to proceed, we'll attempt to procure a cessation of the conduct. If, however, the Commission is satisfied that the jurisdictional prerequisites for the issue of a certificate are not there then the Commission will simply dismiss the proceedings, the jurisdictional prerequisites not being there.

PN27

We have disclosed to the Commission in my respectful submission, as we are bound to do, a Full Bench decision of which we are aware which suggests that the jurisdictional prerequisites are not there because the reference in section 166A of the Act to industrial dispute means an industrial dispute as found in accordance with the provisions of the Act, an interstate industrial dispute in respect of which a finding of dispute has been made. Now, if that decision be correct and of course we acknowledge it's a Full Bench decision and the prima facie position must be that it is correct - - -

PN28

THE COMMISSIONER: Well, certainly I don't think I can take a contrary view to it, Mr Hatcher.

PN29

MR G. HATCHER: I think that's right, Commissioner. There is some doubt about that in the High Court's judgment in PREI but I think the safer view is that - - -

PN30

THE COMMISSIONER: Unless I was wanting to be courageous I think I'm bound by that decision.

PN31

MR G. HATCHER: Indeed. But, Commissioner, we saw it as appropriate that we inform the Commission that the Commission consider whether steps can be taken to procure a cessation of the conduct and whether a certificate is necessary having been appraised of the relevant law in the area. We've afforded that opportunity to our friends. If they concede the law is as we have put then the appropriate step is, as my friend says, to dismiss the proceedings. If they wish to be heard to say that there is a requirement on the Commission to issue a certificate, that is, the jurisdictional prerequisites are there, then they have their opportunity. I don't think I can put it clearer than that, Commissioner.

PN32

THE COMMISSIONER: Thank you. Yes, Mr Hatcher?

PN33

MR A. HATCHER: Can I respond to that this way? I don't necessarily find myself bound to fall within the paradigm of this case constructed by my learned friend. We think a more useful approach which will avoid the necessity of dealing with this jurisdictional issue which has been raised by my friend is for the Commission to explore consistently with the provisions of the statute whether there's any ongoing conduct as described by my learned friend and whether that can be brought to an end. The position is that, without making concessions about the role of my client in it, there was a stoppage of work by employees last week. We don't concede that it was induced or encouraged by my client but it did occur.

PN34

Further, there was an entrance to the site by an official of my client last week. We say that occurred lawfully and that is the position as I understand it relied upon by Thiess. Now, the statutory duty of the Commission under this provision is to examine the conduct alleged by the notifier and to take steps within a prescribed time limit to see if that conduct can be brought to an end and if it can't be there is an obligation to hand down a certificate. We think the appropriate course is for the Commission to firstly examine the question of whether there is any ongoing conduct to be brought to an end because we say the provisions are predicated on that notion and secondly, if there is, how that conduct can be brought to an end.

PN35

Now we await with interest what is the conduct which Thiess wants my client to cease. We're not currently engaged in any conduct that could fall within the description advanced by my learned friend but if he says we are we want to know what it is and then the Commission can take steps to make sure that that conduct ceases. We think that's the appropriate line of inquiry for the Commission now to take and that can be done addressing the practicalities of the matter and putting aside for the minute any jurisdictional question, if it please the Commission.

PN36

THE COMMISSIONER: Did you anticipate that if that step was taken, Mr Hatcher, that would be by way of evidence or in conference?

PN37

MR A. HATCHER: At least in conference so that we can have identified to us precisely what it is that Thiess wants us to stop doing and then we can decide whether or how we can stop it. But at this stage we're mystified as to what it is that we have to stop doing. If either by way of submission or in a conference Thiess can identify that to us I can then take instructions as to what our response to that is.

PN38

THE COMMISSIONER: Perhaps I can anticipate what you want to have stop happening if it in fact is ongoing but perhaps, Mr Hatcher, did you want to perhaps continue on the record or whether it might be more usefully explored in conference leaving aside the jurisdictional issue just for the moment?

PN39

MR G. HATCHER: We're content to have the matter explored in conference, Commissioner.

PN40

THE COMMISSIONER: And you're content for that, Mr Hatcher?

PN41

MR A. HATCHER: Yes.

PN42

THE COMMISSIONER: In that case we'll go off the record.

OFF THE RECORD [3.19pm]

RESUMES [4.27pm]

PN43

THE COMMISSIONER: Gentlemen, I think we're right if you're ready to go on. There has been some discussion off record and I think, Mr Hatcher, you're going to put something upon the record.

PN44

MR A. HATCHER: What we've attempted to do, Commissioner, is to develop a position which responds to the allegations of conduct made by my learned friend earlier this afternoon and I intend to read the position which we've developed out onto the record and in our submission, and we think this is agreed by Thiess, this will mean that at least at the current time there's no basis upon which a certificate under section 166A can be ordered. The position is as follows and when I read this out I'll say the letters THJV to refer to the notifier. The position is this:

PN45

Without any concessions being made as to the allegations advanced by Thiess in this proceeding the AWU agrees

PN46

(1) That its officials will not attempt to enter the site, that is, the site of the Parramatta Rail Link Project other than pursuant to a statutory right of entry noting that THJV concedes that the Australian Workers Union, New South Wales, that is, the New South Wales registered union, officials of that union have a statutory right of entry under the Occupational Health and Safety Act 2000 (NSW). To the extent that there is a dispute about whether any AWU official has a right of entry under the Workplace Relations Act 1996 that may be resolved under section 285G.

PN47

(2) Mr Kevin Brown will not in the future make any threat to disrupt or delay the Parramatta Rail Link Project or to threaten to arrange for an unlawful picket of the site.

PN48

(3) Mr Kevin Brown will not induce employees of THJV to engage in industrial action.

PN49

So that's the position, Commissioner, and in our respectful submission that directly responds to the various allegations made by Thiess and that position having been advanced we say there is no basis upon the facts currently known to the Commission to make any certificate under section 166A, if it please the Commission.

PN50

THE COMMISSIONER: Thank you. Mr Hatcher for the notifier?

PN51

MR G. HATCHER: Commissioner, can I firstly deal with the last point that fell from my learned friend? As the Commission is aware we've pointed to the jurisdictional obstacle facing us in seeking a certificate but we nonetheless thought it appropriate to put the matter before the Commission in order that the respondent union might have access to the Commission's conciliation or at least its assistance in whatever capacity to seek to procure a cessation of the conduct in case it did wish to rely on an indemnity notwithstanding an indemnity under section 166A, notwithstanding the Full Bench decision and of course the Commission knows that Mr Adam Hatcher sensibly put the suggestion to the Commission that the Commission not determine that issue but rather seek to bring about a cessation of the conduct. So that issue simply hasn't been dealt with.

PN52

I'm pleased to say that the undertakings that have been given on behalf of the AWU by my learned friend Mr Adam Hatcher do satisfy my client based on my client's understanding of those undertakings and my client's understanding is that as to the question of right of entry there will be no testing by the AWU or any officer of that organisation of a right of entry under the Workplace Relations Act.

PN53

Rather, if they seek to assert a right of entry under the Workplace Relations Act they might assume that our clients would refuse them and they will bring whatever proceedings they would under the Workplace Relations Act. The other observation, Commissioner, is that items 2 and 3 in the undertakings proffered by my learned friend relate specifically to Kevin Brown and we acknowledge that the allegations that we have made are directed specifically to Mr Kevin Brown, an officer of that organisation. We don't understand the AWU to be offering those undertakings in any sense of being cute in the suggestion that some other officer would simply step into the shoes and engage in that conduct.

PN54

Commissioner, finally, we would ask that the Commission adjourn these proceedings. We understand that the Commission is generally reluctant to take that step but in section 166A proceedings to the extent they be alive there is the question of whether conduct, subsequent conduct is part of continuing conduct for the purposes of the time limit in the section and the Commission sees from the nature of the conduct we allege if those undertakings were not complied with it would seem to be at least arguably continuing conduct and it's for that reason that we ask the Commission to adjourn the proceedings accepting the undertakings proffered by Mr Adam Hatcher.

PN55

THE COMMISSIONER: Mr Hatcher, for the AWU, did you have any objection to the matter being adjourned?

PN56

MR A. HATCHER: I think our slight preference would be for the matter to be dismissed but I don't wish to be heard at any length about that matter. As to paragraphs 2 and 3 of the proposal I advanced to the Commission, as Mr Gary Hatcher observed, those paragraphs are drafted the way that they are because they are directly responsive to the allegations that had been made in the Commission. No allegation has been made against any other Australian Workers Union official, so we see no need for the proposal to say anything about any other official.

PN57

THE COMMISSIONER: Although perhaps my preference normally would have been to dismiss the application I think perhaps in the circumstances of this case I'll just adjourn the proceedings generally and thank you all for attending today.

ADJOURNED INDEFINITELY [4.34pm]