C2003/662, Transcript of Proceedings [2003] AIRCTrans 331 (4 February 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 VT1344
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2003/662

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Amec Engineering Pty Limited
concerning the installation of new
co-generators to the Eastern Treatment
Plant at Thompsons Road, Bangholme

MELBOURNE

9.18 AM, MONDAY, 20 JANUARY 2003

Continued from 17.1.03

PN140

THE COMMISSIONER: I think we had Mr Peace in the witness box.

<MALCOLM PEACE, ON FORMER OATH [9.18am]

<CROSS-EXAMINATION BY MR ADDISON

PN141

THE COMMISSIONER: Mr Peace, we won't re-swear you, you are still under oath?---Yes.

PN142

MR ADDISON: Yes, thanks, Commissioner, I think it is up to me, isn't it?

PN143

THE COMMISSIONER: Have we lost Mr Maddison?

PN144

MR G. BORENSTEIN: Sorry, Commissioner, I appear for the CFMEU now, Mr Maddison is unable to attend.

PN145

THE COMMISSIONER: Thank you, Mr Borenstein.

PN146

MR ADDISON: Mr Peace, you are a project manager?---That is correct.

PN147

And you work for Amec, is that correct?---That is correct.

PN148

How many people does Amec employ on the site?---In the order of about 10.

PN149

10. And what classifications are those 10 employed in?---Predominantly in the project management team.

PN150

Supervisory?---Supervisory, administration.

PN151

So no hands on workers?---No.

PN152

The hands on workers are all provided by Adecco, is that correct?---That is correct.

**** MALCOLM PEACE XXN MR ADDISON

PN153

Yet it is you that has made the decision to reduce the Adecco workforce, isn't it?---That is correct.

PN154

And it is you that has decided the number of the reduction, isn't it?---That is correct.

PN155

And it is you that has identified the names of the eight people to be reduced, isn't it?---Yes.

PN156

Yes. Now, out of the 31 you have decided that eight specific individuals will be terminated. How did you come to those eight names?

PN157

MR CREIGHTON: Mr Commissioner, I don't think that that question is either appropriate or relevant. I don't think the method by which my client selected the employees has any bearing on the fact - on the application that is before the Commission at this point.

PN158

THE COMMISSIONER: Do you want to tell me, Mr Addison.

PN159

MR ADDISON: Commissioner, the application is an application for a 166A certificate. That certificate will allow the employer access to the code system. The termination of the eight was alleged to be part of this dispute. It is fair and reasonable, in my submission, for the Commission to acquaint itself with the circumstances of that issue. The issue, we will contend, that Amec has acted in an unconscionable way potentially. I don't know how Amec have selected the eight individuals. I am trying to ascertain that factual background for myself.

PN160

THE COMMISSIONER: Mr Creighton's point is, though, is the selection of those individuals relevant - - -

**** MALCOLM PEACE XXN MR ADDISON

PN161

MR ADDISON: Yes, it is.

PN162

THE COMMISSIONER: - - - to the complained of action.

PN163

MR ADDISON: Yes, it is because if the company, if Amec has acted in an unconscionable way it is appropriate that the Commission acquaints itself with that factual context prior to issuing the 166A certificate if the Commission is minded to issue the 166A certificate in the first instance. It is a matter of discretion and we say it is an appropriate and proper question.

PN164

MR CREIGHTON: If the company has acted in, as Mr Addison puts it, an unconscionable manner, that may be relevant in another place. It has no bearing on the application for a 166A certificate that is presently before the Commission. The eight employees have been terminated. We have submitted, and I don't think it is contested, that the action that is taking place is related to the termination of those eight employees. The merits of that selection is not relevant to these proceedings.

PN165

THE COMMISSIONER: Mr Addison, what is the discretion you are talking about?

PN166

MR ADDISON: Commissioner, you do have discretionary powers with regard to 166A particularly under 166A(6). 6(b) talks about injustice. Now, that injustice goes to the person who gives the notice.

PN167

THE COMMISSIONER: The applicant, yes.

PN168

MR ADDISON: It is the applicant, not the respondent.

PN169

THE COMMISSIONER: That is right.

**** MALCOLM PEACE XXN MR ADDISON

PN170

MR ADDISON: However, inherent within that whole concept, we say, is the ability for the Commission to exercise discretion. The Commission needs to, in our submission, acquaint itself with the factual position. Commissioner, the authorities with regard to 166A basically say that there is a three stage test. First of all that the conduct that is complained of is capable of being the subject of a notice. Secondly, that it is capable of being the subject of conciliation. Third, that it is of a character that, reasonable, can be a notification pursuant to a tort action in the courts. Now, that has been held in Mobil and then Transfield Obayashi, Full Benches of the Commission in both instances.

PN171

We say the conduct complained of here is picketing and stoppages of work. That is the only conduct that is complained of in the notice. The stoppages of work, on the evidence that has been given by Mr Peace, either relate to occupational health and safety issues, which is exempt under section 4 of the Act, or is protected industrial action. Mr Peace has given evidence that people are taking protected industrial action under the auspice of a bargaining period which is exempt from tort proceedings under section 170MT(2) of the Act. People are engaged in protected industrial action in our submission.

PN172

THE COMMISSIONER: What on earth does that have to do - protected action have to do with the selection process of the individuals?

PN173

MR ADDISON: Well, one of the issues that is alleged to be a root cause of this dispute is the unconscionable action of the company in unfairly and improperly terminating eight people. If this dispute is to be resolved - and part of the Commission's function and the Commission still has, until ten past four this afternoon, the ability to stop this dispute, to resolve it, to stop the conduct by conciliation rather than formal proceedings. And Mr Creighton, on Friday, decided to bring it in a formal proceedings and unfortunately that is where we are. We, the unions for our part - - -

PN174

THE COMMISSIONER: Well, he didn't alone decide to bring it into these formal proceedings.

**** MALCOLM PEACE XXN MR ADDISON

PN175

MR ADDISON: Well, the unions for their part this morning have spoken to Mr Creighton and asked Mr - and offered - offered to put an open offer on transcript to stop the conduct that is complained of.

PN176

MR CREIGHTON: Mr Commissioner, this is referring to without prejudice discussion. I don't think it is appropriate that it be raised on transcript at this point.

PN177

MR ADDISON: Well, with respect, Commissioner, it wasn't put without prejudice, it was put as a clear offer and it is not without prejudice. We have put an open offer to this company to stop the conduct it complains of. We have put that offer. We have said the action is protected in terms of the stoppages, that will continue because it is protected. The protest line will, in the proper and lawful manner in that it will put its position and request people not cross.

PN178

There will be no physical impeding or obstructing. The Amec management will be allowed access as indeed will the subcontract management which is the conduct complained of. That has been rejected. We say another manifestation of unconscionable conduct on the part of this company and the Commission ought be acquainted with the factual context in which this dispute has arisen. So we say that it is important that the Commission understand the full factual matrix before making its decision to issue a certificate.

PN179

THE COMMISSIONER: Mr Addison, I don't agree with you on your argument about discretion. I don't believe that the discretion expressed in 166A(1)(b) refers to a discretion in respect to the people that you represent, it applies to the applicant. However - or the other point that I want to make is that 166A requires the Commission to make a decision based on the facts.

PN180

MR ADDISON: That is correct.

**** MALCOLM PEACE XXN MR ADDISON

PN181

THE COMMISSIONER: And in making that decision of fact sometimes that requires valuation of circumstances and situations. I will allow your question but I am allowing it on the basis of what I have just explained to you that this is a matter that is based on the facts and it is not an argument about whether people are being fairly treated or not.

PN182

MR ADDISON: It is for you to be aware of the factual basis and the factual context - - -

PN183

THE COMMISSIONER: Go ahead with your question.

PN184

MR ADDISON: I accept that, Commissioner.

PN185

So after all that, Mr Peace, could you tell me how you selected the eight individuals?---We looked at the areas where there had been a turn-down in work and selected personnel from those areas.

PN186

It had nothing to do with the fact that they were shop stewards?---Nothing.

PN187

MR CREIGHTON: Commissioner, I am sorry. This really is not relevant to these proceedings. It may be relevant to other proceedings, that I readily accept, but I think it is absolutely unreasonable to expect my client to answer those questions in proceedings of this character under oath.

PN188

THE COMMISSIONER: Perhaps it doesn't take him anywhere to ask them and get the answers. Look, I will go a step further in what I said before. I think those sort of arguments, as Mr Creighton puts, is an argument for another place. I am not sure where it would take you if you got the answer you are seeking.

**** MALCOLM PEACE XXN MR ADDISON

PN189

MR ADDISON: Now, you referred, I believe, on Friday to an agreement. Have you got the Melbourne Water Eastern Grid Energy Project Generating Plant Contract Agreement 2002 with you?---Not currently with me, no.

PN190

You had it on Friday, didn't you?

PN191

No?

PN192

You are aware of that agreement though?---Certainly am.

PN193

Yes. And you are aware of 3.6 of that agreement which raised, "Each subcontractor - - -

PN194

MR CREIGHTON: Mr Commissioner, do you object to my client being provided with a copy of the agreement?

PN195

THE COMMISSIONER: No, I - no, I am just having a look at the copy myself to see the clause and then I am going to hand it on to him. He does need to have it in front of him.

PN196

MR CREIGHTON: We do have further copies.

PN197

THE COMMISSIONER: Oh, please hand up a further copy to him?---Thank you.

PN198

MR ADDISON: 3.6 I want now?---Mm, mm.

PN199

Continuing:

**** MALCOLM PEACE XXN MR ADDISON

PN200

Each subcontractor must certify an agreement in the same terms of this agreement prior to commencing work on the project site.

PN201

Now, this agreement is certified, isn't it?---That is correct.

PN202

Yes. And it is an agreement freely entered into between Amec and the respondent unions?---That is correct.

PN203

Yes. Adecco did not certify an agreement in the same terms as this agreement - - -

PN204

MR CREIGHTON: Mr Commissioner, I am sorry, we have the same issue again. This issue, if it is of any relevance, is relevant to proceedings in another place. Mr Addison is alleging that my client has breached the agreement. If that is indeed the union's position there are other avenues open to them, it is not relevant to these proceedings.

PN205

MR ADDISON: Once again, Commissioner, it is relevant in the terms that the Commission needs to be satisfied of certain things, needs to be aware of the facts and it is relevant to these proceedings in my submission. I understand that Mr Creighton would want to confine me as much as possible so that the unconscionable - - -

PN206

THE COMMISSIONER: Well, I am not sure he is trying to confine you, he is trying to give your attention - or focus your attention on the requirements of a 166A application and if you get, as I said before, if Mr Peace says to you: Yes, we breached the agreement, what does that do for you?

PN207

MR ADDISON: It doesn't do anything for me, Commissioner, but it makes you aware of the factual basis.

**** MALCOLM PEACE XXN MR ADDISON

PN208

THE COMMISSIONER: And what does it do for me?

PN209

MR ADDISON: Well, it allows you to determine whether - - -

PN210

THE COMMISSIONER: I don't have a discretion in respect to 166A.

PN211

MR ADDISON: Well, you do in this respect, Commissioner, under 166A(6)(b) you could issue a certificate in the next half an hour or you could seek, on the basis of the factual context, to try and resolve the dispute using the window that we have between now and ten past four. 166A(6)(b) allows you the discretion if you believe that there would be an injustice to the applicant to issue the certificate early.

PN212

MR CREIGHTON: Mr Commissioner, if it makes Mr Addison's task any easier for him I place on the record that the applicant does not seek that you exercise your discretion under section 166A(6)(b). We are content if that is the Commission's view to wait until the expiry of the 72 hours.

PN213

MR ADDISON: Yes, I hear the offer and we are just having a quick discussion with regard to that. I don't think it is open to Mr Creighton to actually put that. It is your decision, it is not Mr Creighton's decision or anybody else's decision in this room, it is the Commission's decision.

PN214

THE COMMISSIONER: Well, he wasn't making a decision he was telling me what their position is.

PN215

MR ADDISON: That is right, that is right. But 6(b) reads, "If the Commission decides" etcetera, and then at the end, "the Commission must immediately certify in writing to that effect". So it is not a question of the applicant being able to put that proposition. That is a matter solely for you, Commissioner. And that is why we say a whole section requires the Commission to have a grasp of the factual context.

**** MALCOLM PEACE XXN MR ADDISON

PN216

THE COMMISSIONER: Well, I have made my rulings clear to you and you understand my position but in the interests of conserving time I will allow you to continue.

PN217

MR ADDISON: If the Commission pleases.

PN218

Now, on the basis that Adecco had not entered into a MECA agreement you are aware, aren't you, that the unions have notified bargaining periods with Adecco?---I am.

PN219

Yes, you are. Commissioner, I am not sure whether bargaining periods were handed up the other day but maybe if I tender the AMWU bargaining period and the ETU bargaining period.

PN220

THE COMMISSIONER: Is it a CEPU?

PN221

MR ADDISON: Yes, I think the CEPU one I am handing up, yes.

PN222

THE COMMISSIONER: It is in that bundle. Thank you. Go ahead.

PN223

MR CREIGHTON: I think the point is, Mr Commissioner, there is no bargaining period for the CFMEU. The CEPU period would cover ETU and there is an AMWU but no CFMEU.

PN224

THE COMMISSIONER: Yes.

PN225

MR ADDISON: Can the witness be shown that bargaining period?---Ta.

**** MALCOLM PEACE XXN MR ADDISON

PN226

Have you seen those bargaining periods previously, Mr Peace?---No, I have not.

PN227

But you are aware that bargaining periods were served - - -

PN228

THE COMMISSIONER: One moment, Mr Addison.

PN229

MR CREIGHTON: There is absolutely no reason why the witness should have seen these bargaining periods, they are directed to another party.

PN230

THE COMMISSIONER: Yes.

PN231

MR CREIGHTON: I really don't think this is relevant, Commissioner.

PN232

MR ADDISON: Well, they are directed to another party, another party, Commissioner, which the witness has already agreed he had told to sack eight of their workers. Now, the witness has already agreed to that, that he told them. Not only sacked eight but which eight? So this witness had a very, very clear and direct involvement with Adecco, very clear and direct in my submission.

PN233

THE COMMISSIONER: Well, his answer to your question is he has never seen them before.

PN234

MR ADDISON: But you are aware that bargaining periods had been sought?---I was.

PN235

Yes. And you were aware that notices of protected industrial action had been served also, weren't you?---I was.

**** MALCOLM PEACE XXN MR ADDISON

PN236

Yes. And you are aware that any action that is occurring on the site in terms of work stoppages is done under that notice of protected industrial action, aren't you?---No.

PN237

From the AMWU's point of view?---Well, to the best of my knowledge, I was also advised that the AMWU's notice of protected industrial action had ceased.

PN238

And I know why you were made aware of that but I will deal with that in submissions.

PN239

THE COMMISSIONER: Yes, Mr Creighton.

PN240

MR CREIGHTON: Commissioner, I am afraid we are going round the same issue again. This issue is not relevant to these proceedings. The question of whether the industrial action is protected or not - industrial action, I point out, directed against Adecco, that is a question for another place. It simply does not bear upon the application that is before the Commission.

PN241

THE COMMISSIONER: I agree, Mr Addison.

PN242

MR ADDISON: I will move on, Commissioner, I will move on.

PN243

Now, you gave evidence on Friday that you had heard about a discussion between an Adecco manager and Mr Bradley and others that this was really about the eight people. Do you recall that?---Mm, mm.

PN244

Were you present at that meeting, at that discussion?---No.

PN245

No. So how were you aware of that discussion?---Because I had been briefed on it after the meeting.

**** MALCOLM PEACE XXN MR ADDISON

PN246

By whom?---I believe that meeting was by one of the Adecco personnel that were there. It was - I think that was John Henderson.

PN247

John Henderson. And who was John Henderson?---He is an Adecco management person.

PN248

Management person of Adecco. And he had had the discussion?---I believe he had been party to that discussion.

PN249

You believe he had been party to that discussion. Did he tell you he had been party to that discussion?---Yes.

PN250

Yes. Now, you gave evidence also that there are some occupational health and safety issues on the site. Do you recall that?---Yes. Yes.

PN251

Can you tell us what the occupational health and safety issues are?---I believe that the date for the tagging of the sheds has expired.

PN252

Yes, but - - -?---And hence, it is an unsafe situation for the guys to sit in there.

PN253

And you accept that the tags are out of date?---I went and had a look at some of them and, yes, they were out of date.

PN254

Okay?---I didn't inspect all of them.

PN255

Have you any reason to believe that the others might be in date?---No, I do not have any reason to believe that.

**** MALCOLM PEACE XXN MR ADDISON

PN256

Now, there was also some occupational health and safety issues which you gave evidence about, as I understand it, that caused the downturn in employment?---Caused the - it was party to the reason why some of the work places weren't available.

PN257

Yes. Yes, that is as I recall it. That is as I recall it. You said that they - there was difficulty in access the workfaces because of occupational health and safety issues. Is that correct?---Heat and noise, yes.

PN258

Heat and noise. Yes. How is that heat and noise generated?---The noise is predominantly generated by the - some diesel engines. And the heat partially by the diesel engines, but mainly by some boilers within this building.

PN259

Okay. Is maintenance carried out in that area?---It is.

PN260

So Transfield employees work in that area?---They do.

PN261

And how do Transfield employees cope with that environment?---You would have to ask Transfield.

PN262

Well, I put it to you, Mr Peace, that Transfield employees cope with that environment by going in, doing what they needed to do, and being allowed to retreat from the area on a needs basis. Would you agree?---I have no idea. I have no idea how Transfield cope with it.

PN263

You don't know?---I don't.

PN264

Has there been any investigation by yourself, members of your management, and/or Adecco to find measures to mitigate the occ health and safety issues?---There has been extensive measures been undertaken.

**** MALCOLM PEACE XXN MR ADDISON

PN265

Extensive measures have been taken?---We have engaged - - -

PN266

On what basis? Sorry?---We have engaged consulting firms to review the conditions, in accordance with - we had presence from occ health and safety personnel from both the CFMEU and the ETU to discuss the same issue. The site safety committee were quite concerned. The course of action was something that was being discussed, and had been discussed on a number of occasions, and was being - we were looking at the best way forward.

PN267

And what recommendations came forward from that?

PN268

MR CREIGHTON: Mr Commissioner, the same issue again. I just do not understand what these - this line of questioning has to do with the 166A application that is before the Commission, for the record.

PN269

THE COMMISSIONER: Thank you. Does it have anything to do with it, Mr Addison?

PN270

MR ADDISON: Well, once again, only on the same basis that I previously put.

PN271

THE COMMISSIONER: Well, if you proceed you proceed in the knowledge of what I have said about it before.

PN272

MR ADDISON: Indeed.

PN273

THE COMMISSIONER: But time is pressing to us, as you will appreciate. 4.10 will loom large. I understand, Mr Creighton, when we break for the other matter that I have listed, has a pressing engagement and we can't resume until 12.

**** MALCOLM PEACE XXN MR ADDISON

PN274

MR ADDISON: Right.

PN275

THE COMMISSIONER: That will have ominous signs for the parties.

PN276

MR ADDISON: Well, we might be able to use that time to try and resolve these matters.

PN277

THE COMMISSIONER: I would be very grateful if the parties at least try.

PN278

MR ADDISON: That would certainly be the union's intention.

PN279

THE COMMISSIONER: Go ahead.

PN280

MR ADDISON: We are not going to finish before 10 anyway, Commissioner. There is submissions today yet. Were there any recommendations?---There were a number of recommendations, but it wasn't - it certainly was far from being finalised. The - a number of items had been put to the safety committee to take to the troops. And some actions had actually been taken to implement items to try and open up a smaller area of the workplace.

PN281

If the workface had been opened up, the eight employees would still be employed, wouldn't they?---If the workface had been opened up, potentially, yes.

PN282

Potentially, yes.

PN283

THE COMMISSIONER: The eight, you are talking about.

**** MALCOLM PEACE XXN MR ADDISON

PN284

MR ADDISON: Yes.

PN285

THE COMMISSIONER: Yes?---The - you need to bear in mind that there was other factors that led to it. Not just that one workface.

PN286

MR ADDISON: My instruction is that the - I withdraw that. The requirement to open up the workface would require some temperature measurement with a wet and dry thermometer, wouldn't it?---Yes. Having a wet globe bulb test, or whatever it is called. Wet bulb globe tests, yes.

PN287

And Amec didn't even bother to do that, did they?---Don't think you would be quite on the money there. Amec, through the consultants, were organising to have that done. But - - -

PN288

But it wasn't done?---No. It wasn't done. Because there were things that had to be done prior to that being done.

PN289

And those things were?---Getting the existing ventilation system maintained and up to speed.

PN290

And why wasn't that done?---Well, Amec requested Transfield - or requested Melbourne Water to get Transfield maintenance to do those works. And I believe those works were conducted. I still don't have any official feedback, but I believe those works were conducted and completed in the week prior to Christmas.

PN291

So that was completed? That was completed?

PN292

THE COMMISSIONER: Witness, you have to answer. We are recording your answers. You can't nod your head?---Sorry. I believe so.

**** MALCOLM PEACE XXN MR ADDISON

PN293

MR ADDISON: Yes?---To the best of my knowledge.

PN294

So the preliminary works, with regard to the heat stress issues, were completed a week before Christmas, which would have been around about 20 December? 18 December?---Somewhere in there.

PN295

And - - -?---I haven't got any formal notification that the have been completed, but I believe they have.

PN296

Right. And once they are completed, the wet and dry bulb test can be done?---Mm.

PN297

Then measures can be put in place to mitigate the heat stress factors? Yes?---Yes.

PN298

Yes. Now, given the preliminary works have been completed, to your knowledge, around about, let us say 18 December for the sake of the argument, week before Christmas. That is seven days before Christmas, the 18th. Why didn't you go ahead with the test and then look at measures to mitigate, rather than giving Adecco the instruction on that very day to terminate eight people?---Because there were a number of other issues involved and also, I mean, once we got the tests we were aware that there were a number of things that were going to have to be implemented to make it a safe environment. So there was still no opportunity when we returned to work or that workface to be fully open and available.

PN299

But it could have been partially opened, couldn't it?---It is possible that some areas in there may have been available.

PN300

Yes?---But - - -

**** MALCOLM PEACE XXN MR ADDISON

PN301

So it could have been partially opened, and you may have had a - give your instruction to terminate four people instead of eight. You could have mitigated it, couldn't you?---I don't know that it was as simple as that.

PN302

But it is possible, isn't it?---We would have had to sat down and re-reviewed what areas we would have been able to access, but - - -

PN303

Indeed, yes. You would have had to sit down and think it through?---As - - -

PN304

But you didn't bother, did you?---No - I think you are a long way off the beam there. There was a lot of serious consideration and - given to how this was done. And the fact that we needed - there was not the access there.

PN305

Yet the preliminary works had been done. You have already said that?---A minor portion of preliminary works had been done, yes.

PN306

Yes. In terms of the noise, had any preliminary work been done there?---We had had consultants in to review the noise, yes.

PN307

Yes. And were recommendations issued?---Yes.

PN308

And were the recommendations followed through?---They were provided to the safety committee, yes.

PN309

Provided to the safety committee?---Yes.

PN310

Did the company do anything to follow through on the recommendations? Apart from giving it to the safety committee?---The company felt that it was then in the safety committee's hands to review and advise their acceptance of the recommendations.

**** MALCOLM PEACE XXN MR ADDISON

PN311

Right. Right. But rather than pursuing that avenue, and getting the work done, so as to open the workface, you decided to sack eight people instead. That is true, isn't it?---No, I don't believe so.

PN312

Did you find it all too hard, dealing with the occ health and safety issues?---No, I don't believe so.

PN313

Yet you didn't deal with them, did you? You simply gave the report to the safety committee?---Because the report was then needed to be reviewed by the safety committee to get their acceptance. I mean, there was no point in Amec saying, "Well, we are happy with it. The noise is no longer going to be an issue." It needed to be accepted by the workers.

PN314

And when you gave the report to the safety committee did you tell them that there was an urgency with regard to it? Did you tell them?---The safety committee were fully aware of the urgency of being able to get into that area, and that I was very concerned at the lack of access to that site.

PN315

Did you tell the safety committee that people were going to get dismissed from their employment on the basis of the report, if it wasn't dealt with quickly?---The safety committee were not told that. No.

PN316

No. No. Why weren't they told that? Wouldn't it have speeded things up? Wouldn't the safety committee have been much more - wouldn't the safety committee have been dealing with the issues in a much more urgent fashion had they been told that some of their fellow workers are going to get the sack?

PN317

MR CREIGHTON: I don't see how the witness could possibly be expected to know that, Commissioner.

PN318

THE COMMISSIONER: Notwithstanding that, I think this is an appropriate time, and I renew my request to the parties that we are going to have now two hours before we reconvene, and that I hope that that will be well and genuinely used.

**** MALCOLM PEACE XXN MR ADDISON

PN319

MR ADDISON: If the Commission pleases.

PN320

THE COMMISSIONER: We will adjourn until 12.

SHORT ADJOURNMENT [9.56am]

RESUMED [12.04pm]

PN321

MR MADDISON: Now, Commissioner, before we commence can I announce a change of appearance. I now appear on behalf of the CFMEU, instead of my learned friend, Mr Borenstein.

PN322

THE COMMISSIONER: Thank you. You are still under oath, witness.

PN323

MR LEANE: Can we have another of appearance. I will represent the CEPU, instead of Mr Borenstein. Thank you.

PN324

THE COMMISSIONER: Sorry, Mr Leane.

PN325

MR ADDISON: Thanks, Commissioner. I have only got a couple more questions. Now, I think we have dealt with the health and safety issues. We had some discussions about the health and safety issues before we broke. You gave evidence on Friday about some environmental issues, too?---Mm.

PN326

What were those environmental issues?---Disposal of the waste oil from the existing engines.

**** MALCOLM PEACE XXN MR ADDISON

PN327

Yes. Has the relevant authorities been involved with that matter?---Who do you mean?

PN328

The EPA, yes, EPA. Have they been involved?---The EPA, I believe, are aware of it. Yes.

PN329

Okay. And has any action been taken to rectify those problems?---That issue is being currently addressed.

PN330

Okay. And are there recommendations to resolve it?---I haven't seen a copy of the report as yet from the - it was purely the discussions that took place on the day that we are reacting to.

PN331

Okay. So there has been, to your knowledge, no moves to rectify that problem at this point in time?---Sorry, could you re?

PN332

Sorry. To your knowledge - - -?---Yes.

PN333

- - - there has been no moves to rectify that position at this point in time?---Now or no?

PN334

No?---No moves.

PN335

Sorry, it is my accent?---We are currently working on ways to rectify that.

PN336

And it is not rectified at this point in time?---It is not rectified.

PN337

Okay. Now, can I just take you to 18 December. You had a meeting on 18 December, didn't you?---Sorry?

**** MALCOLM PEACE XXN MR ADDISON

PN338

You had a meeting on 18 December - - -?---Yes.

PN339

- - - with Mr Bradley?---Yes.

PN340

And that meeting went for a significant period of time?---Yes.

PN341

My instruction is it was about a $2.50 site allowance issue. Is that correct?---I think that was part of what the meeting was about. Yes.

PN342

Yes. And, Mr Bradley put to you at that meeting or asked you at that meeting, what the veracity of the rumours of that redundancy were, didn't he?---I don't recall that.

PN343

You don't recall it. Well it was specifically put to you, "what is the truth of the rumours of redundancy". And your answer was, "there is no truth to the rumour"?---I have heard that question being - I have heard that being said in the past but I don't recall having heard that in that meeting.

PN344

You had heard it around that time, though, hadn't you?---No. Since then people have said to me that that took place in that meeting, but I don't recall it actually taking place.

PN345

I have no further questions for this witness, Commissioner.

PN346

MR MADDISON: I have no questions for this witness, Commissioner.

PN347

THE COMMISSIONER: Mr Leane?

<CROSS-EXAMINATION BY MR LEANE [12.08pm]

**** MALCOLM PEACE XXN MR LEANE

PN348

MR LEANE: Yes, Malcolm, can we take you back to Wednesday the 15th. In your evidence last week you said that you believe you were denied entry into the site?---Yes.

PN349

And on what premises did you believe you were denied entry?---On the morning of Wednesday the 15th, because when I arrived at the gate and asked if I could have entry, I was told that that wasn't the case.

PN350

And what time was that?---It would have been at 6.30 I was told that it looks like it, when I said are you blocking access, I was told "it looks like it".

PN351

It looks like it. That is a reply. So did you drive up to the gate after that?---Well I couldn't drive up to the gate because there was cars across the driveway.

PN352

And what time was this, at 6.30. Did you - is it your understanding - do you recall that there might have been Transfield personnel outside the gate at that time at 6.30?---They were quite a ways back from the gate, were a few Transfield personnel.

PN353

So they weren't inside the premises at the time?---No.

PN354

Is it your understanding that they did go in shortly after that, around 9.30?---My understanding is that around 9.30, yes.

PN355

And their cars and a number of cars was in front of the gate at 6.30. Is that what you are saying? And that is why you couldn't approach the gate?---I couldn't tell you whose cars were in front of the gate.

PN356

Did you approach the gate at 9.30 when it was clear?---No. By then I had left site and I was in some meetings.

**** MALCOLM PEACE XXN MR LEANE

PN357

So that day you didn't drive up to the gate to gain entry?---Not after that 6.30.

PN358

Thursday, the next day, did you?---I personally didn't but a number of our people did.

PN359

What about Friday?---I did.

PN360

You did. And on what premises did you say you were denied entry on that day?---On the premise that I got told that I wasn't going in.

PN361

By?---Terry Roach.

PN362

Was that his words?---His words were - off the top of my head at the moment I can't recall his words, so - - -

PN363

Did he say, you can't go in?---I asked if I could go in and I think I was told - I was told, only if we can all go in together.

PN364

So would the answer to my question is, did he say, you can't go in, would that be no?---He didn't say no.

PN365

Did you or any of your personnel attend the site today?---I did. Yes.

PN366

Did you go in the gate?---I did.

PN367

Did you attend your normal premises of work, inside the complex where - your office?---I did.

**** MALCOLM PEACE XXN MR LEANE

PN368

Did any of your other personnel attend your office today?---One other. Yes.

PN369

Okay. So you were never actually told by anyone that you can't go in?---Are you asking me if they were the exact words that I was told?

PN370

Yes?---I was never told those exact words, no.

PN371

Thank you.

PN372

THE COMMISSIONER: Yes, Mr Creighton.

<RE-EXAMINATION BY MR CREIGHTON [12.11pm]

PN373

MR CREIGHTON: Just one question on re-examination, Commissioner. On Friday, when you were giving evidence, Mr Peace, I asked you whether you had returned to the site since 15 January and you described your visit on Friday. And what you said was:

PN374

I went to the site at about a quarter past seven this morning and was met at the gates by Terry Roach, and I asked Terry if I could go on site and his comment was, only if we all went on together.

PN375

Is that your recollection of that exchange?---Yes.

PN376

No further questions, Commissioner.

PN377

THE COMMISSIONER: You are excused, witness. Thank you very much.

<THE WITNESS WITHDREW [12.12pm]

PN378

MR CREIGHTON: I have no further witnesses at this point, Commissioner.

PN379

THE COMMISSIONER: Right.

PN380

MR ADDISON: AMWU doesn't intend calling witnesses, Commissioner.

PN381

MR MADDISON: The position of the CFMEU is similar to Mr Addison's.

PN382

THE COMMISSIONER: Mr Leane?

PN383

MR LEANE: Same position for the CEPU.

PN384

THE COMMISSIONER: Yes. Please proceed, Mr Creighton.

PN385

MR CREIGHTON: If the Commission please, as I have had occasion to point out several times, this morning, this is an application under section 166A of the Workplace Relations Act, not section 178 or any other provision. Section 166A requires that:

PN386

A party may not bring an action in tort under the law of the State or Territory against ...(reads)... set out in section 166A(6).

PN387

The evidence that we have placed before the Commission shows that organisers of all three of the unions organised in the application, were present at the site on 15 January and one or more of them had been present on occasions since then. Evidence also shows that there were and are ETU banners at the site. I submit that these factors are sufficient to establish the conduct was engaged in by or on behalf of the three organisations subject to this application.

PN388

The evidence that we have led shows that the activities at the site were taken in contemplation or furtherance of claims that are the subject of an industrial dispute, there is an industrial dispute concerning the termination of employment of eight employees of Adecco and claim that those employees be reinstated, there is said to be a dispute in relation to the terms and conditions of Adecco employees, it is said that some or all of that conduct is protected, there may be said to be an industrial dispute about occupational health and safety issues.

PN389

It is, for the purposes of these proceedings, irrelevant whether any or all of that conduct is protected industrial action. It is irrelevant whether any or all of that conduct constitutes industrial action within the meaning of that term in section 4 of the Workplace Relations Act. What matters is that there is conduct that is taken in contemplation or furtherest of an industrial dispute. And I would submit, Mr Commissioner, that it is manifestly clear that there is such conduct, that it is being taken in contemplation of furtherance of an industrial dispute, and that being the case, the Commission, in my respectful submission, has no choice but to issue the certificate that we seek, at the latest at ten past 4 this afternoon but albeit that the Commission does have a discretion to issue a certificate prior to that time, on the basis of either 166A(6)(a) or (b).

PN390

I indicated earlier we do not press the 166A(6)(b) matter. You, in your discretion, may feel that it would be appropriate to issue certificate in reliance on paragraph (a) but again I do not press that matter. If the Commission pleases.

PN391

THE COMMISSIONER: Thank you. Mr Addison.

PN392

MR ADDISON: Yes, thanks, Commissioner. Commissioner, the conduct complained of in the application is conduct of work stoppages and of picket activity. The work stoppages issue, the evidence of Mr Peace reveals that the action is protected industrial action. A bargaining period from the AMWU and the ETU has been submitted as part of the evidence in these proceedings. And the industrial action is protected industrial action. Some doubt has been raised with regard to that, from a submission that I made to you last week, Commissioner. That submission, after checking, was wrong. And I made a submission that the authorisation notice may elapse after the three day period if the action doesn't start.

PN393

That was contrary to authority. And on checking the Federal Court decisions in Davids and the Federal Court decision in PWB Anchor, have confirmed that that was, in fact, a wrong submission of mine. Just because the action starts late doesn't mean it is not protected. It continues to be protected industrial action. So I just wanted to make sure that that is clearly on the record. So we say that the action that is being taken is protected industrial action and as such is immune from actions in tort, pursuant to section 170MT(2). And MT(2) reads:

PN394

Protected action does not lie under any law of a State or Territory.

PN395

And it goes on. The immunities within the Act, we say, apply to the conduct of stoppages. With regard to the picketing activities, there is a protest line at site. We say that the protest line is not acting in an unlawful manner, it is acting in a purely legal manner. There is a right of people, which has been recognised across the board, for them to protest and for them to ask people to respect their protest. And that is what is occurring at the site, nothing more, nothing less. And, Commissioner, I said earlier that there is a three stage test with regard to the issuing of a 166A certificate.

PN396

THE COMMISSIONER: Before you go to that and getting back to the picket. Vehicles restricting access. You say there is nothing unlawful about that?

PN397

MR ADDISON: There is no evidence that a vehicle restricted access, Commissioner. There is evidence that a vehicle was parked there. But there is no evidence that the vehicle restricted any access of anybody or anything. There is just no evidence, in these proceedings, with regard to that matter. There is evidence that a car was parked there and that is as far as the evidence goes, in my submission. Yes, and as my friend, Mr Maddison, points out, if you are satisfied that the car that was parked was, somehow, preventing access, then you would also need to be convinced that one or all of the three unions were responsible for the car restricting that access. Not just any person. It could have been parked there by anybody.

PN398

THE COMMISSIONER: A careless parker, is that what you are putting to me?

PN399

MR ADDISON: Well, Commissioner, you need to be satisfied. The application is directed towards the unions, the three unions, no towards just anybody. There is no evidence, none whatsoever, as to whose car it was, what the purpose of it being parked there was, whether it was restricting access or not. There is just no evidence, at all, with regard to those matters. So we say, that the picket, the protest, if you like, or picket if you prefer to call it that, is acting in a legal manner. The three stage test that has been adopted by the Commission, as I said earlier, in Mobil and in Transfield Obayashi, and I think by Commissioner Simmonds in Adecco and various other decisions, basically is (1) that the conduct complained of must be capable of a notification and clearly it is and has been; (2) that it be capable of conciliation - clearly it is and has been; (3) that it be reasonable - a reasonable chance of founding an action in tort.

PN400

And, Commissioner, we say there is no evidence at all, before the Commission, on which the Commission could be satisfied that the matters complained of can't found an action in tort, under any conditions. The action in terms of stoppages, as I said, is protected and the Act itself clearly says that no action that is protected action, lies under the law of a State or a Territory. That is tort law. There is no prospect. And the evidence is, it is protected and there is no prospect under the terms of the Workplace Relations Act, itself, of that action being the subject of an action in tort.

PN401

With regard to the protest activity, there is no evidence, in my submission, that the protest activity is in any way unlawful. There is no evidence that can connect the respondents to this application to any unlawful activity at the protest line. Therefore, in my submission, this application fails on the third limb of the test. There is no prospect, at all, on the basis of the evidentiary material in front of the Commission, that the Commission can be satisfied that there is a reasonable chance that the conduct can found an action in tort. And on that basis the application should be dismissed. If the Commission pleases.

PN402

MR MADDISON: Commissioner, at the outset, the CFMEU is in a position without conceding that there has been any obstructive picketing, that we undertake that there would be no obstructive picketing behaviour. And we say, the primary submission, faced with those undertakings, you can be satisfied that the conduct has stopped within the 72 hours. Failing that, Commissioner, we would say that on the evidence before you, today, and we would preface these submissions by saying that you need to be satisfied, at the expiration of the 72 hours, that the conduct subsists. The evidence in relation to events today, through cross-examination by Mr Leane, of Mr Peace, was that the Amec employees or the managers, were able and did access the site.

PN403

We say, that in respect of evidence currently before you of the most recent events, you cannot be satisfied that the conduct which is subject to the notification, currently subsists.

PN404

THE COMMISSIONER: What do you say about Adecco employees being obstructed?

PN405

MR MADDISON: Sorry?

PN406

THE COMMISSIONER: What do you say about the allegation that Adecco employees are obstructed?

PN407

MR MADDISON: If we assume, and we don't concede, Commissioner, if we assume that that is the case, we would say that that does not warrant a certificate against the CFMEU. The notification is in respect of the CFMEU and we should say that it was confined to CFMEUs activities. If there was evidence and we say there is none before you, of CFMEU officials encouraging etcetera their members who are employed by Adecco to behave obstructive picketing, that may be relevant. But there is no such evidence of that. And even if there was evidence of the Adecco employees engaging in obstructing picketing, without that causal link between those members and the union, we would say that that, of itself, wouldn't be - without that causal link, without that evidence, then the certificate should not, not issue.

PN408

And we do recognise the authorities, Commissioner, that the evidential barrier is somewhat lower in the type of proceedings like these, than what may normally be the case, but we still say that you need to be satisfied of the existence of the conduct and relevant conduct of the union.

PN409

THE COMMISSIONER: Yes. But what I am asking you is, does your undertaking extend to them?

PN410

MR MADDISON: Sorry, Commissioner, I was - can I get some instructions from the official who is here?

PN411

THE COMMISSIONER: Just before you respond, Mr Maddison, I include in that other subcontractors like Ofinac.

PN412

MR MADDISON: Sorry?

PN413

THE COMMISSIONER: I include in that question, other subcontractors such as Ofinac, I think is the name of the other subcontractor.

PN414

MR MADDISON: Can I answer the first proposition, first, Commissioner, in respect to the Adecco employees. It is difficult - absent - those people being here, for the union to give an undertaking on their behalf. What two officials who are presently in the Commission would undertake to do is to go out to the picket line and to inform those members employed by Adecco, as to what does constitute lawful picketing activity and inform them that the union could not condone activity that was unlawful. And that we are just simply not in a position to be able to give undertakings on behalf of those people without speaking to them beforehand, Commissioner.

PN415

THE COMMISSIONER: Yes.

PN416

MR MADDISON: In respect of the second - the contractor and if there is other contractors, again, I would just beg the Commission's indulgence to allow me to get instructions from the officials.

[12.31pm]

PN417

Commissioner, in respect of other subcontractors my instructions are that there are no employees of any other subcontractors "personning", if that is the correct verb, that - the picket line. In those circumstances, and noting what I said earlier about giving undertakings in respect of people who aren't here, but that there is not employees of other subcontractors on the picket line, so those - any such undertakings wouldn't really have any real meaning. But I am instructed that if for whatever reason that case arose, that the same undertakings in respect of informing persons at the picket line as to what constitutes lawful picketing activity would be undertaken by the officials.

PN418

THE COMMISSIONER: Am I to take it from your submissions that the three unions on the picket line - represented on the picket line are not acting in concert?

PN419

MR MADDISON: They are certainly not my instructions that we are acting in concert.

PN420

THE COMMISSIONER: So you have different rules amongst the people on the picket line for who is admitted and who is not, or do they act in concert?

PN421

MR MADDISON: I don't - sorry, Commissioner, I don't understand the question.

PN422

THE COMMISSIONER: You have got a picket line, that is common ground. It is alleged that some people can have access and others can't, and I am saying there are representatives of three unions on that picket line, have they got similar instructions or are they just operating under their own rules separately?

PN423

MR ADDISON: In respect of the CFMEU position - and I can't speak for the other unions - is that the union has not participated in any obstructing picketing activity.

PN424

THE COMMISSIONER: Yes.

PN425

MR MADDISON: And certainly we would say that the evidence before you is consistent with that submission. There is no evidence that the CFMEU are engaging in any obstructing picketing activity.

PN426

THE COMMISSIONER: Go ahead.

PN427

MR MADDISON: Commissioner, I do apologise to my friend; I have only got two copies of a decision I seek to rely upon. I will give Mr Creighton my copy in one minute. I was just a bit pressed for time due to other matters before other commissioners. It is a decision of Deputy President Hamilton. In effect it is two decisions. Paragraphs 1 through to 15 is the matter at first instance where no certificate was issued and thereafter there was a fresh notification lodged. That information commenced at paragraph 16 and subsequent to the second notification a certificate was initially granted.

PN428

But we say that the position at first instance before his Honour Deputy President Hamilton is analogous to the matter before you. That is that there was evidence of the existence of a picket line. There was evidence of union officials being in and around that picket line, but as his Honour concluded in paragraph 14 in respect to the first matter, that he is not prepared to simply assume such conduct in a leap of faith and that is in respect of the union and relevantly at that time was the TCFUA. Those mere factors, as Mr Creighton similarly in his submissions has sought you to do on the basis of that evidence, you should take that leap of faith and issue a certificate against the union.

PN429

Now, we say that that cannot be right and without more that is not sufficient. Commissioner, in respect of the four relevant elements that my friend - I will just pass this to Mr Creighton in one second - I just wanted to go to the four elements that - Mr Addison alluded to one of them, being that the - there might reasonably be subject of a declared intention to bring an action in tort. We would adopt the submissions of Mr Addison in respect of 170MT and the protected action interplay between those sections and 166A. And further we say that there is no evidence of any loss currently before you. Now, without that element of loss then the matter cannot reasonably be subject of a declared intention to bring an action in tort.

PN430

And if the Commissioner would have regard to the application in paragraph 24, at its highest it says that the subcontractor may also claim costs from the company in due course. In respect of the jurisdictional pre-requisites, one is that there has to be furtherance of claim that are subject of an industrial dispute. As I apprehend my friend's primary submission they rely upon the fact that they say there is an existence of industrial dispute concerning the termination of eight employees of Adecco. We say that that cannot found an industrial dispute. For there to be an industrial dispute there must be an employee/employer relationship and with the Adecco employees being terminated there is no employee/employer relationship and accordingly any reliance upon that matter cannot found an industrial dispute.

PN431

I don't have them before me at the minute, but I am aware of authority in respect of 127 applications seeking substantially orders to reinstate people who have been terminated, have failed on the basis that there cannot be an industrial dispute because there is no longer and employer/employee relationship. Commissioner, for those reasons we say that no certificate should issue. If the Commission pleases.

PN432

MR LEANE: I just start by saying, Commissioner, that none of the CEPU members that are wiring the plant - the project which Amec is responsible for, worked directly for Amec. They worked for a company called Adecco, who were supplying the labour. There is - the CEPU has been taking protected action against Adecco in support of negotiating a new agreement with Adecco. Our agreement expired at the end of last year and as a result there has been some work stoppages in support of that agreement.

PN433

As Malcolm Peace's evidence supported, there has been no direct evidence of any of these unions denying Amec action - sorry, access to the site. As a matter of fact there is no evidence that any of the unions before you have denied anyone access to the site. There have been a number of people going into the site to perform duties that they have always performed previous to any of this dispute with Adecco has occurred.

PN434

THE COMMISSIONER: Are you in a position here and now to give an undertaking that no-one will be denied access?

PN435

MR LEANE: No-one has been directly denied access, Commissioner.

PN436

THE COMMISSIONER: No, but are you prepared to give an undertaking that they won't be?

PN437

MR LEANE: Well, I am prepared to give an undertaking that we will follow the peaceful protest which we have been doing, Commissioner.

PN438

THE COMMISSIONER: Yes.

PN439

MR LEANE: For that matter this union in particular is miffed by this particular company seeking this application to stop action against them, which hasn't been evident, hasn't been happening. It has never been the intent of the CEPU - I can't speak for the other unions but I am sure they are in line with what I am saying.

PN440

THE COMMISSIONER: Thank you.

PN441

MR ADDISON: Commissioner, if I just could before Mr Creighton responds - just so that it is clear, the AMWU is prepared to give the undertaking in exactly the same form as the CFMEU has indicated this morning. As I said earlier, just so it is clear on the record. If the Commission pleases.

PN442

THE COMMISSIONER: Well, so it is clear tell me what it is you are undertaking?

PN443

MR ADDISON: Well, we will undertake to inform any of our members, whomever they are employed by, who are involved in protest activity at the site, of what constitutes lawful protest activity and that the union will not countenance unlawful activity. If the Commission pleases.

PN444

THE COMMISSIONER: Thank you. Yes, Mr Creighton.

PN445

MR CREIGHTON: The position first of all in relation to union involvement in the - what is happening at the site is quite clear from Mr Peace's evidence, that officials of the union were directly involved in events at the site. I refer you in particular, Commissioner, to paragraphs 114, 121, 124 of the transcript for Friday's proceedings; 125. I take you again to the requirements of section 166A, Commissioner. My learned friends - my friends at the other end of the table are endeavouring as best they can to obscure the issue, but the issue is very simple. There is conduct.

PN446

Even if the conduct of - not of course that I am conceding such - but even if the conduct simply consisted of the communication of information we would say that that is still evidence of behaviour that may found an action in tort.

PN447

THE COMMISSIONER: But you have to tell me what the conduct is you complain of.

PN448

MR CREIGHTON: The conduct we complain of is conduct that has had the effect of interfering with the performance of our contracts with our principals, and that is why in our application we foreshadow that we would be taking proceedings in tort for inducing breach of contract, interference with contractual relations and unlawful means conspiracy. We have led clear evidence that employees of Amec have been obstructed, that employees of our contractors have been obstructed. We have also suggested that the action is being taken in support of action which we in another place may choose to argue, and indeed will argue, is unprotected.

PN449

Now, with the greatest respect it is not for the Commission - the Commission is not called upon for the purposes of section 166A to determine whether the action is indeed protected or not. There is clearly action taking place which if it is not protected is tortious. My client is suffering loss as a consequence of that action. One of the manifestations of that action is the picket. Another manifestation of the action is that employees of an entity with whom my client has a contractual relationship for the supply of leather, is unable to supply leather.

PN450

Mr Maddison makes the point that there is no employer/employee relationship. In my respectful submission that is not to take the words - the definition of industrial dispute in their proper context. It is a dispute about matters pertaining to the relationship between employees - between employers and employees and manifestly this is a dispute which concerns the decision of my client to dispense with the services of eight employees who were provided to it by another entity. That is clearly within the definition of industrial dispute as set out in the Act and as interpreted by a line of High Court authorities since social welfare in 1983.

PN451

THE COMMISSIONER: What do you say about the undertakings that they say now they are prepared to give?

PN452

MR CREIGHTON: They do not alter the fact that there is a course of conduct that is - of which the picketing - or protest, to use my colleague's term, is part of a course of conduct that my client proposes to make subject to common law proceedings - proceedings in tort. The question of whether that action is protected is - I have said this several times - for another place. The giving of the undertakings does not decontaminate the overall course of conduct of which the picketing is a manifestation. If that conduct is contaminated, for example, because of the involvement of unprotected parties, then this undertaking is neither here nor there.

PN453

The evidence of loss is, I entirely accept, relevant to the outcome of any common law proceedings that may be initiated. It is relevant to whether my client has the capacity to obtain interim relief from an appropriate court, but it is not relevant to whether there is conduct in contemplation of an industrial dispute for the purposes of the Act.

PN454

THE COMMISSIONER: Just so that I am clear, what is it that the company wishes to cease by 4.10?

PN455

MR CREIGHTON: By 4.10 we would seek that the picket disappear entirely and that any industrial action that may be unlawful cease - any action in contemplation of an industrial dispute cease.

PN456

THE COMMISSIONER: Yes.

PN457

MR CREIGHTON: In the case of Adecco employees that may well involve a return to work, since there can be no argument that the CFMEU employees can be taking protected action, and if the action is being taken in concert then that contaminates the action taken by the members of the CEPU and the AMWU. We don't say that it may not be possible for members of the CEPU and the AMWU to take protected action at some time in the future, but the action in which they are presently engaged we would argue. But again, if I may say so, Commissioner, I don't think this is for the Commission to determine.

PN458

But if you ask me what would we like to happen, I think what we are saying is that we would like this tainted action to stop. And if the unions then put themselves in the position where they can take protected action there is not much we can do about it.

PN459

THE COMMISSIONER: It does require me to decide whether Adecco employees in part - whether Adecco employees can return to work and there is the question of the occupational health and safety problems.

PN460

MR CREIGHTON: Well, indeed, and my client would very much welcome the opportunity to address the occupational health and safety issues if it and its contractors could obtain access to the site.

PN461

THE COMMISSIONER: Yes.

PN462

MR CREIGHTON: And I would remind the Commission of Mr Peace's evidence on Friday, that he asked the union - he asked the ETU representative whether they would be prepared to make one of their members available to rectify the matter or to permit a contractor to enter the site and he was told in no uncertain terms that they would not. But, of course, my client accepts that if there are occupational health and safety issues those need to be addressed before people can resume work. I am not at this point conceding that there are, nor am I disputing that there are occupational health and safety issues, but manifestly if there are they must be addressed. I think that is everything I want to say at this point, Commissioner.

PN463

THE COMMISSIONER: Thank you. Is there anything further you want to say, Mr Addison?

PN464

MR ADDISON: I don't think so, Commissioner; I think everything has been said that can be said, except with regard to Mr Creighton's wishes we have given an undertaking with regard to the picketing activities. That undertaking would be consistent with lawful activity and it is not, as I say, a matter that can found an action in tort with regard to ceasing our protected action. Commissioner, that would be - I think Dr Creighton is seeking to undermine the whole scheme of the Act. We have legal rights with regard to that. MT2, as I have already pointed to, protects us. We are prepared to act completely lawfully. If the Commission pleases.

PN465

THE COMMISSIONER: Mr Maddison.

PN466

MR MADDISON: Commissioner, there is one matter that arises from the questioning of yourself to Mr Creighton as to what was the exact conduct that he sought to be stopped by 4.10 this afternoon. Commissioner, I don't intend to paraphrase his response, but I just refer you to - I do have copies - a recent decision of Munro J in TDU v AMWU where in paragraph 38 - - -

PN467

THE COMMISSIONER: Are you going to give me a copy or are you - - -

PN468

MR MADDISON: Yes, Commissioner, and I do have spare copies of this one, so I can give my friend a clean one. Paragraph 38 which is on page 10, with the greatest of respect to Dr Creighton we say that what his Honour Munro J said there is certainly apposite of current circumstance - or that submission, where he has held:

PN469

That in this instance I am not prepared to certify that I have not stopped conduct which has been so vaguely delineated.

PN470

And then his Honour does go on and he understands how that can sometimes be the case, given the truncated nature and the time frames which these applications - or notifications are dealt with. But we say that that finding is apposite to the current situation that is being now so clearly articulated to the Commission. We have given undertakings which would appear to go to what we apprehend the notification seeks to be stopped.

PN471

THE COMMISSIONER: In respect to the picket?

PN472

MR MADDISON: Yes. Anything further that has been put by Mr Creighton, we say that - I have already said what we say about that, Commissioner.

PN473

THE COMMISSIONER: Mr Leane.

PN474

MR LEANE: Nothing further, Commissioner.

PN475

THE COMMISSIONER: Does that conclude everything everyone wanted to put to me?

PN476

MR CREIGHTON: I just simply make the point, Commissioner, in relation to the TDU decision that that is one paragraph taken out of the context of his Honour's decision, where in fact he did grant the certificate that was sought, and I would suggest that the evidence that has been led is of such clarity and certainty that those comments of his Honour are quite irrelevant to the matter before the Commission.

PN477

MR MADDISON: Commissioner, if I could just beg the indulgence of the Commission.

PN478

THE COMMISSIONER: Yes.

PN479

MR MADDISON: Given the submission just made by Mr Creighton the certificate was not granted in that matter as sought, but very much in amended form taking into account the evidence and the conduct that was complained of. I commend that decision in total, Commissioner, in respect of this matter.

PN480

THE COMMISSIONER: I am mindful of the 72 hour requirement. I intend to reserve my decision at this time.

ADJOURNED INDEFINITELY [12.56pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MALCOLM PEACE, ON FORMER OATH PN141
CROSS-EXAMINATION BY MR ADDISON PN141
CROSS-EXAMINATION BY MR LEANE PN348
RE-EXAMINATION BY MR CREIGHTON PN373
WITNESS WITHDREW PN378