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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SPENCER
C2003/4896
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) by
Bradken Resources Pty Limited for orders
in respect of industrial action at
Karrabin premises
BRISBANE
9.22 AM, FRIDAY, 25 JULY 2003
PN1
THE COMMISSIONER: Good morning. Can I take appearances please?
PN2
MR M. BELFIELD: If the Commission pleases, Belfield, initial M, from the Australian Industry Group on behalf of Bradken Resources. With me today I have MR TREVOR HINES and MR PHIL ROBINSON of the company. Thank you.
PN3
THE COMMISSIONER: Thank you, Mr Belfield.
PN4
MR E. MOORHEAD: If it pleases the Commission, my name is Moorhead, initial E, on behalf of the AFMEPKIU. With me is MR PETER LEES and MS CAITLYN ALLEN.
PN5
THE COMMISSIONER: Thank you, Mr Moorhead. All right. It's your notification - - -
PN6
MR BELFIELD: Thank you, Commissioner.
PN7
THE COMMISSIONER: Mr Belfield, would you like start?
PN8
MR BELFIELD: Yes, please. If I may tender an original copy of the application and the draft order. Thank you. A copy has been provided to the union this morning. That's the same document, obviously, that was provided by fax and by e-mail.
PN9
Commissioner, if I could just start out by saying that whilst Mr Moorhead and I haven't discussed this point, it is, I think, necessary that we establish that there are agreed facts so we're not going off the tangent and pursuing matters which don't need to be pursued.
PN10
THE COMMISSIONER: All right. Well, if - you're going to set those out at the beginning and Mr Moorhead might confirm if that's the case.
PN11
MR BELFIELD: Yes. Thank you. Firstly, I'll tender a summary that the company has prepared of meetings and notices, etcetera, which will be self-explanatory.
PN12
THE COMMISSIONER: We'll mark that exhibit 1.
PN13
MR BELFIELD: Thank you.
PN14
THE COMMISSIONER: And that's as you've described it, a record of meetings, etcetera.
PN15
PN16
MR BELFIELD: Commissioner, you are familiar with the parties in this matter - - -
PN17
THE COMMISSIONER: Yes.
PN18
MR BELFIELD: - - - and we were recently before you in relation to some industrial action that had being taking place prior to the commencement of protected industrial action. The subject matter of that industrial action was the enterprise bargaining agreement. The union, we said, were premature in taking that industrial action, but nonetheless, we've come some way since that point, as you can see on the summary of events that - - -
PN19
THE COMMISSIONER: What was the date when that was before the Commission, can you recall?
PN20
MR BELFIELD: 3 July, I believe.
PN21
THE COMMISSIONER: 3 July?
PN22
MR BELFIELD: 3 July. Commissioner, the purpose of establishing the facts is that we don't refute that there is a bargaining period in place for the union and also I'd say the union would recognise that there's a bargaining period in place for the employer. Both parties have provided the necessary notice under the Act for establishment of a bargaining period. Also, there has been protected industrial action that has taken place. In respect to the AMWU, those are stoppages in some instances and in most instances, as you can see on the bottom part of that exhibit 1, they are notices of industrial action that involves, to coin the phrase as often tested, rolling stoppages. We're not contesting the nature of those notices, but you can see that there's been quite a number of them. They've been provided with the requisite three days' notice - as you can see, 2 July, effective 8 July and so on.
PN23
Now, in response to those actions by the AMWU and its members, the company has issued lock-outs under section 170MO(3)(a)(i). So the lock-outs have been issued in response to the notice of protected industrial action and actual industrial action by the employees. The company has not issued, as I understand it, a lock-out notice pursuant to its own bargaining period in the sense that every lock-out that has been issued, every notice has been issued on a shift by shift basis in response to the action that has been forecast by the union. I don't believe those facts are contested by the employees.
PN24
THE COMMISSIONER: Is that the finish of the agreed facts section?
PN25
MR BELFIELD: Yes.
PN26
THE COMMISSIONER: Do you have any objection to any of those formally agreed facts, Mr Moorhead?
PN27
MR MOORHEAD: To some extent, Commissioner. In respect of these dates - I believe that the meetings are correct and the lock-out days are correct. I would assume that the notices of intended industrial action received are correct, but I haven't had a chance to check those exact dates, Commissioner. But they do seem to indicate the union's pattern that has been involved in this campaign. We do agree that there's bargaining periods in place by both the employer and the union in this case. We do agree that there's been protected industrial action by the AMWU. Commissioner - - -
PN28
THE COMMISSIONER: Well, I don't want all of your submissions, but is there specific parts of what Mr Belfield said that are not agreed?
PN29
MR MOORHEAD: Well, I'm just about to address that one, Commissioner.
PN30
THE COMMISSIONER: All right.
PN31
MR MOORHEAD: Now, Mr Belfield has said that the action was in response to the action forecast by the union.
PN32
THE COMMISSIONER: So are you saying the lock-out action?
PN33
MR MOORHEAD: Well, what we will agree, Commissioner, is that the employees were locked out and that they were given notices prior to the start of each shift, but - - -
PN34
THE COMMISSIONER: But you won't agree with?
PN35
MR MOORHEAD: That it's in accordance with section 170MO(3)(a)(i).
PN36
THE COMMISSIONER: And the particular distinction you draw, that - - -
PN37
MR MOORHEAD: Well, Commissioner, the distinction we draw is that - thank you, Commissioner. Commissioner, the reason why we say that is predicated on some assumptions about what the submissions of the employer in this case will be in relation to what constitutes "in response" and after the start of industrial action, and what the action has to be in response to. So, I mean, if - Mr Belfield's words were that's in response to forecast action - - -
PN38
MR BELFIELD: Well, if I could - - -
PN39
THE COMMISSIONER: What we might do - - -
PN40
MR BELFIELD: The point that Mr Moorhead is raising I can clarify. The action - - -
PN41
THE COMMISSIONER: Well, just a minute. As I understand it we've reached where we don't have agreed facts and we might go back to Mr Belfield to continue his submissions and then - - -
PN42
MR BELFIELD: It might help Mr Moorhead. The response - and I used the wrong word in terms of forecast given that there were - every day or so were receiving notices. The lock-outs were in response to actual industrial action taken by the employees. The employees and the union had given notice of those in accordance with the Act, but in terms of the lock-out, it was in relation to if the company was responding to the industrial action organised or engaged in by the union, to paraphrase that.
PN43
So I'd just make that point. If that's not agreed then Mr Moorhead can say so, but in our view it was in response to that. There has been no challenge, Commissioner, of those lock-outs since they commenced, and in that sense I would submit that we can only assume that the union did not take any legal concern as to the technicality of those lock-outs. If there is now, then that's actually a matter for further proceedings, not this proceeding here.
PN44
THE COMMISSIONER: So, Mr Belfield, the document exhibit 1 where the lock-out dates are set out; you're saying that those lock-outs were taken in specific response to the industrial action, and is that with respect to the 24 hour strike or that's not the totality of the industrial action that you refer to?
PN45
MR BELFIELD: Sorry, Commissioner. Could you restate that?
PN46
THE COMMISSIONER: When you say that the lock-outs were taken directly in response to the industrial action - - -
PN47
MR BELFIELD: Yes. As opposed to lock-outs given with three days notice - - -
PN48
THE COMMISSIONER: Yes.
PN49
MR BELFIELD: - - - under the bargaining period.
PN50
THE COMMISSIONER: Right. And is the industrial action - am I to assume it's only those 24 hour strikes that you've made reference to on that document? Because I know the notices go to far more than that.
PN51
MR BELFIELD: Excuse me. As I've been instructed, it was in relation to the rolling stoppages notices.
PN52
THE COMMISSIONER: Yes. So not simply those 24 hour strikes.
PN53
MR BELFIELD: Well, a lock-out - how can I put it? I guess the irony here, Commissioner, is that when they're on strike what's the point of locking out? The purpose of the lock-out as a response tool is that the employees were attending for work for periods of - - -
PN54
THE COMMISSIONER: I just wanted to clarify that this doesn't represent the total nature of the industrial action that the company was subjected to.
PN55
MR BELFIELD: No, it doesn't. I don't seek - - -
PN56
THE COMMISSIONER: That's all right.
PN57
MR BELFIELD: I don't seek to misrepresent it either, if I could say. Commissioner, I think it would probably be convenient if I could ask Mr Hines to give a statement. I have provided a statement to Mr Moorhead, or a copy of Mr Hines' statement to Mr Moorhead, this morning. I'd like to provide you with a copy and ask Mr Hines be asked to give that statement under oath.
PN58
THE COMMISSIONER: Mr Moorhead, you've had the opportunity to read that particular statement?
PN59
MR MOORHEAD: Yes, we have, Commissioner.
PN60
THE COMMISSIONER: All right. I might just take a minute to do - Mr Belfield, just before Mr Hines provides evidence, is it appropriate at this stage to give me just the status quo of what is occurring on site?
PN61
MR BELFIELD: Okay. Well, Commissioner, there's no one at work. Well, I don't believe - there might be about 20 people, I understand, but the situation, to put it in summary, is that the employees had been - who are subject to their own notice of protected action and subsequently responses by the employer to lock out, employees had been - some had been participating in a picket at the outside of the gates of the premises and some had not attended work at all. Now, that had proceeded for some five days or so. As of 23 July the employer advised the employees and their representatives that no further lock-out notices would be issued.
PN62
The union responded later that evening with a notice of - and I provide you with that, Commissioner - with a notice that they would refuse to work from the time of that notice until midnight on 29 July. So in effect the union is taking industrial action. We say - and this is the basis of our submission - we say that is unprotected industrial action and that indeed the union should have provided the employer with notice in accordance with the 170MO(2)(b). That is, a 72 hours or three working days' notice.
PN63
So that's the status at this stage, Commissioner. The parties have circled, I guess, each other, figuratively, to address the merits of their respective claims in these negotiations and unfortunately that's not the basis of which we're here before you today to ask for assistance in that regard, but it is a specific issue to do with the nature, or the legal nature of the action that's occurring. And we say that the - because it is unprotected action, we seek a Section 127 order to the effect that they will return to work and comply with the terms of the Act.
PN64
THE COMMISSIONER: All right. Would you like Mr Hines to give that evidence, then?
PN65
MR BELFIELD: Mr Hines, you have a copy of the statement that we've been referring to before you?---Yes.
PN66
Commissioner, do you require Mr Hines to sign that or just to affirm that it's a correct and true - - -
PN67
THE COMMISSIONER: Yes. Sworn and - - -
PN68
MR BELFIELD: This is a true and correct statement?---Yes. This is the best understanding. I've confirmed it with other managers as well who were actually party to it to make sure that, you know, there isn't any misrepresentations or details.
PN69
THE COMMISSIONER: Right. So you prepared that two page statement that's provided before the Commission today, Mr Hines?---I have prepared it and consulted with other managers present at the time to make sure there was no - let's say misunderstandings or misperceptions.
PN70
All right.
PN71
MR BELFIELD: Could I provide, Commissioner, Mr Hines and yourself with a copy of a notice of intention to lock out and a notice to day shift employees.
PN72
PN73
THE COMMISSIONER: I'm not sure. Did Mr Hines state his full name for the record?
**** TREVOR JAMES HINES XN MR BELFIELD
PN74
MR BELFIELD: Sorry.
PN75
If you could, Mr Hines?---Trevor James Hines.
PN76
And your position with the - - -?---Manager, engineering operations and projects at Bradken Ipswich.
PN77
Have you been taking a - what role have you taken in the negotiations, Mr Hines, for this enterprise agreement?---It's a - I run the operations. I take a leadership role and as per our enterprise bargaining agreement we have a - set up a management team with two elected management representatives, two supervisors and work-force representatives and a union organiser and I suppose I lead our team. I'm not directly involved in the day to day negotiations, but I certainly take a leadership role with regard to let's say direction with regard to where we head and seek appropriate advice.
PN78
You have heard me refer to exhibit 1, which is a chronology of events surrounding this matter; are you familiar with that chronology of events, that document?---That is the table - yes, I haven't ticked every box on it, and pulled every notice out and ticked it off, but that certainly appears to me to be a reasonable - very good representation of the matters that have taken place.
PN79
Thank you. Could you identify - you say in your statement that the last notice of intention to lock-out was issued for day-shift on Wednesday, 23rd; is that document before you? You have two documents, one is a notice to the - Harrison, State Secretary of the AMWU, and another one which is notice to day-shift employees. Is that the documents you are referring to in your statement?---Yes, that is correct.
PN80
THE COMMISSIONER: Do you seek to tender those, Mr Belfield?
**** TREVOR JAMES HINES XN MR BELFIELD
PN81
MR BELFIELD: Yes, please.
PN82
THE COMMISSIONER: We will mark both of those together as exhibit 3. That is the notice of intention to lock out day-shift, 23 July 03, and the notice to the day-shift employees.
EXHIBIT #3 NOTICE OF INTENTION TO LOCK OUT DAY-SHIFT DATED 23/07/2003, AND NOTICE TO THE DAY-SHIFT EMPLOYEES
PN83
MR BELFIELD: If I could also provide a - Commissioner, if I could provide yourself and Mr Hines with a copy of another notice of intended industrial action.
PN84
Mr Hines, in your statement, the last paragraph of your statement, you refer to receiving a facsimile from the AMWU at 5.16 pm?---Yes.
PN85
That document; is that the document that you received, or copy of the document you received?---That is correct. Yes, that is noted as - yes, that is correct.
PN86
I seek to tender that.
PN87
PN88
THE COMMISSIONER: Is that document date?---Up the top it is actually date and time-stamped, actually, from our fax, it is actually on the - - -
**** TREVOR JAMES HINES XN MR BELFIELD
PN89
Sorry, down the bottom as well, 23 July.
PN90
MR BELFIELD: Yes. So if I could just draw your attention, Mr Hines, to the - would you say that it was received at 5.16 pm; how can you identify that?---It is shown on the top of the fax, the receipt time, and I think I received it probably within five minutes or so of it coming in.
PN91
That is the first time you ever seen it, just shortly after it came in by fax?---Absolutely.
PN92
No other copies were provided to you?---No.
PN93
Commissioner, I have no further questions of Mr Hines at this stage.
PN94
THE COMMISSIONER: Right, thank you, Mr Belfield. Mr Moorhead, do you have any cross-examination?
PN95
PN96
MR MOORHEAD: Now, Mr Hines, in your statement you say that Bradken have taken legal industrial action, and I assume by that you are referring to the shift by shift notification of lock-outs?---Yes.
PN97
Commissioner, can I tender a bundle of documents?
PN98
Mr Hines, do you recognise those documents?---Yes, they certainly appear to be the documents I have sent through by fax.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN99
I might inform the Commissioner that they are not all the documents, they are just a sample of the shift by shift notification?---Yes.
PN100
And you served those on the union?---Yes, they were faxed into - yes. Not necessarily myself, but certainly one of my staff members did at the appropriate time, if the bans weren't lifted.
PN101
If the bans weren't lifted?---Yes, if the industrial action wasn't lifted. We had staff on site 24 hours a day, and the purpose for that was to make sure that if there was a return to work by - and lifting of bans, that - and limitations, that we would be able to bring people back on site, and that was the instructions as we list in our communication to employees. We actually wrote communications and had handed them out as soon as the bans on limitations were lifted and we were able to operate profitably or economically, we would be able to lift the notices.
PN102
Okay. Now, if I can take you to the first notice, Mr Hines, in response - it says that it is in response to industrial action. What industrial action was that in response to, Mr Hines?---The industrial action was actually in response to the bans and limitations. The issue we have is we had actually been through continued as the - let's say the rolling stoppages, as those continued we noticed significant problems with productivity. At the start we achieved about 75 per cent productivity, then dropped down to 65 per cent productivity, and went down to 41 per cent productivity in some areas. Based upon that we had no option but not to be able to continue to do it, and we just advised the workforce, look, until you lift these bans and limitations we will not do it. We want to get back to the negotiating table and so right from the start the decision was made to do it on a shift by shift basis. And that is also confirmed in our communications to the employees.
PN103
Okay. So when was this action - you are referring to industrial action to which you are responding, when was that action occurring?---When was it occurring; I don't understand your question.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN104
Sorry, on your notice of 17 July - I think this is actually the first one that you issued to the night-shift?---Yes, yes.
PN105
You - what was the - so it was in relation to the bans, but when were those bans occurring?---The lock-out; when were they occurring?
PN106
Yes?---They were occurring on each shift.
PN107
Were they occurring on 17 July when you issued the notice?---The bans and limitations?
PN108
Yes?---Night-shift of 17 July - this is the night-shift notice you are referring to?
PN109
Yes?---Okay. There is a minor technical issue in there which we did have to grapple with, and that was where the actions were noted to take place from - let me get this right - the shift started at 11.30, and your notices - our shift started around 11.30 - I think, and your notices said they were going to take place from 12.01, and so we had an issue with the shift; what do we do with the shift? The notice you referred to here, specifically the AMWU put on actually started at midnight, the workers weren't turning up at midnight, their actual start time for the shifts was 11.30, 11.45, it is staggered a lit bit in each area, Dave, between the
PN110
MR D. FYFFE: Yes, night-shift and machine shop starts.
PN111
THE WITNESS: Yes, they have a slight - 10 minute difference.
PN112
MR MOORHEAD: So back to my question, Mr Hines, so this was in response to the bans and limitations that were occurring prior to this lock-out notice?---Say again.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN113
This notice on the 17th, you were responding to the industrial action that was occurring prior to the lock-out notice?---This notice to you was actually responding to your notice of intended industrial action. The notice that went to the employees on the midnight shift, that went to employees was actually dated - and I can get a copy of that from my files here - will show that it was actually dated the 16th, or whatever the day before was because it was a - we knew it was a technical issue in there with regard to how do we handle this? How do we keep the references to your documents because your documents were starting at 12.01? Our shift that worked - actually started from 11.30 did 30 minutes work or 20 minutes work up to 12.01, if they would have been there they would have been doing that, then continued on until 6.30, 6.20 or whatever the appropriate time is.
PN114
This was issued at 11 - 10 o'clock by the facsimile time on the top there. So you were responding to the industrial action which the union had notified that it was intending to take at midnight that night?---Yes, we were - that's right, and we were - we were responding on this document to the metal - the AMWU notification, so you knew what it related to and the notice to the workers indicated the ship situation.
PN115
Okay. So I'm just - okay. Now - - -
PN116
THE COMMISSIONER: Just on that, Mr Moorhead, I just want to clarify. Mr Hines, you're saying if I look at exhibit 1 which sets out the AMWU notice of intended industrial action?---Mm.
PN117
There was, you're saying, in this a notice that was effective on 17 July?---Which notice are your referring to? I've now got - I'm sorry, Commissioner.
PN118
Well, perhaps you don't need to look at - on this chart it says that the date received and the date effective and it says that there was a date - on 11 July you received by this exhibit 1?---Sorry to interrupt, Commissioner, I don't have that document.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN119
All right?---Sorry about that.
PN120
MR BELFIELD: Well just - Mr Moorhead may have a copy. We're looking for it at the moment, Commissioner.
PN121
THE COMMISSIONER: All right. Exhibit 1. I'm just looking at exhibit 1?---Exhibit 1.
PN122
Just the schedule.
PN123
MR BELFIELD: Yes, I know, Commissioner, but we're actually looking for the notice that was received on 11 July, the actual notice.
PN124
THE COMMISSIONER: All right?---Which seems to be the problem.
PN125
Well, while you're doing that, just - if you just look to this question, Mr Hines?---Yes.
PN126
Just in summary form?---Mm.
PN127
This particular document indicates there, on 11 July you received notices that you say would have been effective. The intended industrial action was effective on 17 July?---Yes.
PN128
And it's to that industrial action was to be effective on 17 July, and assume on the night shift?---That's correct.
PN129
That you prepared your particular lock-out notice?---That's right.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN130
And I'm assuming that that intended industrial action, the document will reveal it, indicates that the unions action start at midnight?---Yes.
PN131
On the night shift. Your shift started at 11.30?---Mm.
PN132
And your lock-out was to start at - that's the response of the company, isn't it?---Yes, at - well, it was: if you can't - if you're not going to start work without the bans and limitations, right, and that's what everyone's been told - if you're not going to start without your bans and limitations, you will locked out.
PN133
And what time did the lock-out commence?---At the start of the - at the start of the shifts and I think it's 11.30, 11.40, something like that, the exact times. I've got to tell you there's two different - - -
PN134
I understand?---Two different times, yes.
PN135
Two different staggered shift starts?---Yes, but they're both before midnight.
PN136
And that's what time the lock-out commenced?---Yes.
PN137
At the commencement of those shifts?---That's right and we - the communication to the employee with regard to it, indicated that it was for the shift starting, in this case, it would have been the 16th. The one they did on the 17th - on the 18th would have been for the - for that midnight shift would have been actually on the day that it had started.
PN138
All right?---So that that's the notice to the employee.
PN139
All right. Mr Moorhead. I just wanted to clarify - - -
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN140
MR MOORHEAD: Yes.
PN141
THE COMMISSIONER: - - - what was occurring there...
PN142
MR MOORHEAD: Thank you, Commissioner. Now, Mr Hines, in the bundle of documents that I gave you there's - the second document is the 18th of July, a notice to lock out the day shift?---Where's that one - dated 18 July. Yes.
PN143
Now, what was that. You said that that's in responding to industrial action. What industrial action was that responding to?---Notice of intention to lock out day shift on 18/7 would be responding to the lock-out notice that would have been issued the earlier day for three or four days earlier.
PN144
Sorry, the union's industrial action notice?---Sorry?
PN145
The union's industrial action notice?---The notice to the union - your notice, a notice to our employees.
PN146
This notice on 18 July?---Yes.
PN147
Was given in response to the industrial action which the union had notified and which the employees intended to take on 18 July?---Yes, yes, that's right. Yes, they would - that's right. The union had notified it and the workers were going to take action and we again, on each shift by shift basis, gave good communication and a notice that related to each shift.
PN148
And so is that the same for all of these notices, Mr Hines?---I would certainly expect it to be. That's the process we've been using consistently all the way through.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN149
Okay. And you were always - and you were responding to the industrial action which the union had notified you and intended to take on that - that shift?---We were following the legal process, as directed by AIG and we were responding to the workers as we required for their industrial action.
PN150
Okay?---So I understand there's a - there are - I should say multiple notifications required and we complied with those the best we could.
PN151
Okay. So the notice that you gave on Wednesday morning to the day shift, was that in response to - what was that in response to, just to be clear?---Wednesday - 18 July?
PN152
23 July?---23 July.
PN153
The last one you gave?---Oh the last - the last one. Okay, was that in response to continued industrial action?
PN154
What was in response to?---Same thing, to continue bans and limitations and we communicated that every day to our employees. As soon as you lift your bans and limitations we want everyone back to work.
PN155
Now, in the third paragraph of your statement, Mr Hines, you've said the decision not to issue further lock-out notices was made during the day shift on 23 July 2003?---That's correct.
PN156
Now, when during that day shift was that decision made?---It was after lunch. I'd actually - my secretary gave me a notice for some wives actually, that just showed - was about extreme hardship and yes, I decided I didn't want to - we weren't getting anywhere and yes, so it was after lunch.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN157
What time do you have lunch?---I don't think I even had any lunch that day, to tell the truth.
PN158
Well can you put - - -?---Trying to get a time?
PN159
Yes?---I guess it would have been around, I don't know, talk through the situation after lunch some time. I think we would have talked around implications for probably an hour or so, something - half an hour, something like that, so - - -
PN160
So, what, half past 1, 2 o'clock?---Half past 1, possibly. Half past 1, 2, around that time. I can't be exact. Like I said, there were lots of issues going on here with regard to - you know, just trying to deal with the situation: how are we going to do it properly, what have we got to do, how do we - yes. So it was around that time.
PN161
Okay. Now, if I can take you to the fourth paragraph?---Mm.
PN162
At approximately 2.45 pm supervisors were instructed?---Mm.
PN163
Who instructed the - did you give the instruction to supervisors?---We've got multiple areas. We've got two areas. We've got an engineered products area and a rail area, with different manufacturing managers and we've gone out through various manufacturing managers.
PN164
So you would have given the instruction to the manufacturing managers?---Oh, we actually had a meeting discussing what it would take, what we'd do, and what would happen in the end.
PN165
Okay. And were the supervisors who were to give the instructions in that meeting?---No.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN166
So the manufacturing managers went out and told the supervisors to - - -?---Yes, there were various phone calls and communications happening there, just to - I mean, there's only a two locations where it occurs, so it's not such a big deal.
PN167
Okay. Now - and how were those instructions to be given to employees?---Which instructions are you referring to?
PN168
You're said here that supervisors are instructed to remove notices from clocks. I assume it's a lock-out notice on the clocks to advise employees when they clock - intended to lock in?---Yes.
PN169
Clock in?---That's right.
PN170
Then you've got, "And they were given new instructions to advise employees of lock out notices not being issued"?---Mm.
PN171
Now, when were those - the instruction to advise employees given? Was that at the same time as the instruction to remove notices from clocks?---Yes, yes, because the thing is people - some people coming in early, we just needed to make sure that we had those issues covered off.
PN172
Okay. Now, how were those instructions to be given to employees?---As simply as possible. We didn't want to get into a debate about the issues. We just wanted to communicate very simply that Bradken was not going to issue lock out notice.
PN173
Okay. Well, you might have done it simply, but how was it done? Physically, how were employees advised?---The first thing was they were - it was - they were advised that the clocks - all notices - we actually had notices up around the clocks and those sort of things. All those were - were removed.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN174
Yes?---And the - the supervisors were given the verbiage to speak. It was very simple, "We don't want to get in discussions. It's very simple. Bradken wants our workers back at work. We will be - we want - we'll be lifting the notices, even though the bans and limitations are in place."
PN175
Now, you said later instructions were given to phone employees?---Mm.
PN176
How much later was it?---To phone employees was actually - Adam Johnson gave that, and my recollection is that was after we went out to the gate because there were a heap of employees who were not there. There was only sort of 50 people or so who had turned up. So they hadn't even bothered turning up or coming in. I think they assumed that it was there or whether they just were phoning up the various delegates and asking what was going on, but there were only able 50 people out there, and I've got to say I didn't know until I went out there how many people were going to be there. We - again, we didn't know. We had different numbers of people turning up each day and I think it was just the mood of the situation. Some mornings you'd have a lot of people coming in. I think the anticipation that perhaps something might have shifted but that afternoon when I went out there there was only - would have been only 50 people actually turned up and hardly any people turned up to the clocks, so - - -
PN177
Okay.
PN178
THE COMMISSIONER: Was that 50 out of what would have been expected - - -?---280, say.
PN179
Would they have been expected to be at work at that time on those shifts?---At that time - - -
PN180
That's the total work-force, 280, isn't it?---Yes.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN181
MR MOORHEAD: How many people on the afternoon shift, Mr Hines?---I guess probably 80 or so. There was just a mix - there was actually a mix of shifts on the gate.
PN182
Okay. So what time was the afternoon shift to start?---The two areas - I think it's 3.30, 3.20. You might correct me there, Dave. The exact time of the two shifts?
PN183
MR BELFIELD: You can't do that?---Well, 3.30, 3.20; in that order. It's around that time. As I said, I can never remember - we've got that many different shifts there. We've got another three different shifts operating the foundry, so - - -
PN184
THE COMMISSIONER: That's fine. It's your evidence.
PN185
MR MOORHEAD: So your evidence was that you didn't phone employees til after 3.30 and down here you didn't go out to the picket and inform the union until after 3.30. Is that correct?---Yes. We got advice that hardly any people were coming up to the clocks, okay, and so we went out and we got advice. Hardly anyone has come back. I mean, it didn't take the supervisors very long to work out that, you know, people weren't going to come, and we got advice.
PN186
Okay. And you spoke to Mr Lees at that time?---Started off I think with a group of workers and David, I think, and then Peter came along. I think you were up - might have been on - I think it was yourself first. But, yes, certainly Peter was there.
PN187
Okay. And Peter informed you that the employees would have to have a meeting to see what their decision would be?---I think the blokes just wanted time to talk initially and then they went - after that they went across the road to have a meeting. There was - it was a fairly emotional time. There was a lot of emotions running high when we went out there, so - - -
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN188
But they were deciding on your response, weren't they?---Sorry?
PN189
They were deciding on your response, weren't they?---Yes, well, a lot of blokes said - there were blokes who said just a variety of things from, you know, "Just give us your offer and we'll -" you know, "let's do it now," to others saying, "We don't want to go back to work." I think there was a bit of just - what would you say - dissent or - not dissent. That's not the word. We got mixed understanding or not agreed position, and, yes.
PN190
Now, you've got:
PN191
After some time Peter Lees advised myself and Adam Johnson that the members had decided they would not return to work.
PN192
When were you told that?---I don't know. I said in my statement - I think I put it was about an hour, hour and a half later. There was a lot of discussions going on at the time. I can't remember whether it was exactly, like, 4.22 or quarter to - I really don't know, because there was a lot of talk went on first. We then drew back. They then went across the road and had a meeting for some period of time.
PN193
How long was that meeting for?---I don't know. Could have been 10 minutes, 20 minutes; not sure. In that order of time I would guess.
PN194
But after that meeting, Mr Lees came back to you and said they wouldn't return to work, though, didn't he?---Say again?
PN195
Mr Lees came back to you after that meeting and said they're not going back to work?---He actually said that - I think his words were something like, "The fellows want to negotiate now. Let's go and have the meeting now and settle this;" something like that. "Fellows -" and I think he did say, "The fellows don't want to come to work."
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN196
Okay. Now, explain to me the second sentence of the penultimate paragraph?---Which one is that?
PN197
The sentence that starts, "I support ...". How does that support your conclusion that the union's industrial action is not in response to yours?---Well, I just - that was just my feeling in terms of what was said and what was going on. "You've done this." It was just the way - that was the feeling and impression I got.
PN198
But - - -?---I think that's where it came from. I mean, why is it? It's all part of the sentiment of the moment, what's going on. You take in what you hear, you take in the environment and that's what you sense. That's what you feel. That's what you believe.
PN199
Did you come to this belief by discussing it with other managers, as you have stated at the outset of your statement? Did you - you said that you consulted with other managers about the accuracy of your statement. Did you consult with other managers about the accuracy of that belief?---After the meeting, okay, it's very interesting because we actually had a discussion on that and that was really what it got distilled down to and I spoke with Adam and I think Phil Morris was there as well, just saying, "This is how it appeared," and Adam felt the same thing.
PN200
Was Adam involved in this conversation with Peter Lees?---Yes, he was with me at all times that I went out - - -
PN201
Who else was involved in that conversation with Peter Lees?---Just myself and Adam Johnson. That was all.
PN202
So you named another person who you discuss about it - - -?---You said, "Did you have a discussion later."
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN203
Yes?---That was Phil Morris who was - he's the manufacturing manager.
PN204
Okay. So Phil Morris was involved when you were discussing the feeling about the union's motivation?---I'm just saying he was witnessing or present at the discussion; that's all.
PN205
You didn't consult him as you said you had earlier? You said that you consulted other managers about the accuracy of your statement?---As appropriate to the relevance in each area. For example, Phil and Adam and - were organising clock issues, so is this information right? Are these the times? Was this the process? Was this actually what happened? I've tried to validate each of those areas as appropriate.
PN206
So you didn't - - -?---So - - -
PN207
You didn't seek advice from Phil Morris?---With regard to that opinion?
PN208
Yes?---No. He wasn't there.
PN209
Now, why would Mr Lees having to get advice from legal people support your opinion that the union's motivation was not to respond to your - - -?---It was I suppose the style and the manner of the things that were said just with regard to it.
PN210
Okay. So Mr Lees saying that he's going to get legal people to decide on how he's - what their course of action will be in order to not be in breach, how does that support your opinion?---Well, as I was saying, it's just the style and approach in terms of what was done there. There were - yes, I'm just running back through my mind now.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN211
So the style and approach of Mr Lees is the basis on which you came to the conclusion about - - -?---And the words - the general words and stuff that were spoken at the time.
PN212
Okay. Now, did Mr Lees say that the members' response to the lock-out was that they would seek their legal people to issue a notice of intended industrial action?---No, I don't believe that. I think what my comments were - you can repeat your question again. Everyone seems - can you repeat that again?
PN213
Yes. I'm putting it to you that Mr Lees said to you - - -?---Yes.
PN214
- - - the response of the members to your industrial action was that they would have to seek - they would be getting their legal people to issue a notice of intention of industrial action?---Let me think back through the situation. He came back - he came back across the road and advised that the - they wanted to - the workers weren't going back to work. They wanted to have a negotiation now. "Let's get this settled. Let's get this settled." I was uncomfortable with that because there was a lot of emotion going on. I think Peter made some comments to me. "We thought you might do this this morning;" something like that. You know, "Now, I've got to go and -" yes, it was - yes. In the order of, "Yes, I've got to go get my legal advice," or "see my legal people," or "do what's got to be done." There were two separate sort of conversations there in that. They were sort of - and that's why I'm saying there's two separate elements to it.
PN215
And what did you - what was your reply when Mr Lees said that he'd be getting legal people to fax you a notice?---I - I can't remember if there was actually any reply or - I can't remember.
PN216
Well, I'm putting to you that you said, "I thought that would be the case"?---Oh, it's possible. It's possible.
**** TREVOR JAMES HINES XXN MR MOORHEAD
PN217
Okay. Now, in this same conversation, did Mr Lees also ask you for clarification of when the lock-out would be lifted?---Clarification of when the lock-out was lifted? There were certainly lots of questions with regard to clarification with regard to what conditions were on it, as if what hooks were there. There were lots of questions on that. What I had - like, separately come back to me and asked me about the conditions on it - "What's the conditions? Is there" - and we said, "There is no conditions on this. It's - we're left doing this as an act of good faith".
PN218
No further questions, Commissioner.
PN219
THE COMMISSIONER: All right. Thank you, Mr Moorhead. Anything in re-examination, Mr Belfield?
PN220
PN221
MR BELFIELD: Mr Hines, you - in cross-examination, you've discussed with Mr Moorhead the - that there were a number of employees who never bothered or that you couldn't provide notice of intended - - -?---Yes.
PN222
- - - lock-out, because they just didn't turn up?---Yes.
PN223
Was that - the initial lock-outs that you gave, were you able to provide notes as to all employees?---Oh, yes. Yes.
PN224
Okay. And was it a progressive thing, that numbers reduced over the days?---Yes, certainly.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN225
Okay. So when did the pickets - when did the picket - when was the picket set up, approximately?---I think it went on on the - either the Friday night or something - or over the weekend. I'm not sure.
PN226
Last week?---I've - sorry?
PN227
That's last - - -?---No, no, no.
PN228
Last Friday?---When I was - it was - I had to go to Sydney on the Thursday - on the Friday night and I was in - - -
PN229
THE COMMISSIONER: That's last Friday?---Last Friday?
PN230
MR BELFIELD: Anyway, so the - - -
PN231
THE COMMISSIONER: Are you saying it's possibly the Friday before?
PN232
MR BELFIELD: The picket's been on for a number of days. Was the picket on on Tuesday? I attended your offices, remember, on Tuesday evening?---This Tuesday? Oh, yes, the pickets were in place then, absolutely.
PN233
Okay. And they were - so they were in place the day before - - -?---Yes.
PN234
Monday?---I can't remember whether it was on Friday or over the weekend. I was told, when I came back to work on Monday, because I was down in - I was interstate. I was told that blokes had attended there over the weekend and I'm certainly aware of that. Now, whether they went there Friday, I can't recall. I don't know.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN235
And what's the nature of the picket? What are they doing? How is it set up?---Well, we've got half the foundry - half the site operating.
PN236
MR MOORHEAD: Commissioner, that material wasn't contained in my cross-examination or in the evidence-in-chief.
PN237
THE COMMISSIONER: I think there was a reference to the establishment of the picket, wasn't there?
PN238
MR MOORHEAD: There was in the evidence-in-chief, Commissioner, but - - -
PN239
THE COMMISSIONER: All right. Well, is there much more on that, Mr Belfield?
PN240
MR BELFIELD: Well, it's an issue that goes to the issue of Mr Lees' alleged comments about being in breach that Mr Hines has made, and - - -
PN241
THE COMMISSIONER: All right. Well, can - - -
PN242
MR BELFIELD: Mr Moorhead has taken some time addressing that and Mr Lees has not been in the witness box to allow me to cross-examine him. So I believe that it would be appropriate if I could get Mr Hines to outline the circumstances under which the discussion took place with Mr Lees - - -
PN243
THE COMMISSIONER: All right. Well, if that's the purpose - but I think Mr Moorhead's correct in saying that there wasn't a specific amount of time spent on the establishment of the picket.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN244
MR BELFIELD: Okay. Well, on the - was the picket in place on 23 July?---What day is that?
PN245
That's the day you went and spoke - - -
PN246
THE COMMISSIONER: That's Wednesday.
PN247
THE WITNESS: Oh, yes, okay - absolutely.
PN248
MR BELFIELD: Wednesday. Yes, okay?---Yes. As I said, I - - -
PN249
Was the picket in place - - -?---I was told on Monday the blokes had slept over the weekend.
PN250
Okay?---That's what - there were some blokes there.
PN251
Right?---And when I came in on Monday morning, it was certainly well and truly in place.
PN252
Okay. The picket has established - like it's got tables and chairs and things - - -?---Tables, chairs, tents, signs all along the road - yes, banners.
PN253
Okay. Now, was the picket in place in that form on Thursday 24 - yesterday?---Yes.
PN254
Is it in place today?---Well, I haven't been to work this morning, but I'm sure it will be there - yes.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN255
You talk about in your statement that in your opinion - is that an opinion you still hold? It says here, "In my opinion, the advice from the union for intended industrial action"?---Yes. That was my belief. That is my belief.
PN256
Yes?---That's absolutely right. That's the way - - -
PN257
So that - - -?--- - - - I read the situation and that's what I read.
PN258
Yes. So that opinion could not only be formed at the time but also be an opinion that you still hold now?---Yes. I do believe it was a response to us lifting the bans.
PN259
Okay. So when you spoke to Mr Lees about that you were not going to reissue notices - - -?---Mr - it was the whole work floor. It was everyone who was there, I was addressing.
PN260
Okay. His response, in your words, was that he thought he needed to get some legal advice because he would be in breach. What's your - in your opinion, where did the difference between what he was intending to do, in your mind, and what - that you had changed some circumstances - what was - what was your - - -?---What was - well - - -
PN261
- - - understanding of that?---There was discussion at first. There was - as you can imagine, Commissioner, there's probably 50 people there, very upset and very emotional, and there was lots of volatility. They downloaded lots of, let's say, information in various forms. That was one part of the event. We withdrew and went across the road for a meeting. Peter then came back after that. There was some talk about, as I said, trying to have this continue with negotiations at that time. And, as I said, we just didn't feel it was appropriate - with just the emotions and everything, it was going to be fruitful; it was better for everyone to go back to work and, you know, come back tomorrow with a bit of a clear head rather than, let's say, trying to work through with all the emotions because it was a fairly volatile situation - an emotional situation out there for everyone.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN262
So - - -?---It's a serious issue.
PN263
Your lock-out, you would agree, would you not, your lock-out was a form of industrial action by yourself?---Say again?
PN264
Would you agree that lock-outs that you had issued was a form of industrial action by the employer?---Yes, and was in response to the bans - - -
PN265
Yes. So - - -?--- - - - and limitations.
PN266
So you told Mr Lees, did you not, that you were no longer going to take lock-outs and therefore no longer going to take industrial action?---That's correct, and there were also no conditions on that. We just - - -
PN267
So - - -?---We just did it in a hope of trying to break the deadlock.
PN268
So you - it was put to you by Mr Moorhead that Mr Lees said to you, in fact, that the employees - regarding to their response - "to your industrial action". What industrial action was occurring?---We had none.
PN269
Did you tell Mr Lees that you may reissue a lock-out notice in the near future?---No. We - we had discussions over what we - whether we should stay to time and we agreed before Wednesday that we would have no time on it and - because that was just going to be seen as inflammatory. If you're going to put out an olive branch, we though it was better to put one out without conditions on it and just say, "Here's an olive branch".
PN270
So you stand by your statement that the union response was in relation to your advice that you would not be taking or issuing further lock-out notices?---That is correct, that is correct.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN271
Okay. I have no further questions, thank you, Commissioner.
PN272
THE COMMISSIONER: All right. I just want to ask Mr Hines - and you can re-examine if necessary.
PN273
You made reference that you had wanted the employees to go back to work. What was the intention in relation to negotiations if the employees had gone back to work?---The intentions were we had - we had no contact with employees, with the type of industrial that had been in place, we weren't able to communicate with the employees. I had tried some communications with the employees on Monday, at the picket-line, that was actually seen as something very negative, and there were no tool-boxes, we couldn't hold tool-boxes with the workers, that was one of the other limitations that were in place, we could have no communication with the workforce. So it was really just a stand-off and we said we are both here, I am getting - and I was getting phone-calls from workers' wives, and I said this is enough, we are hurting too many people; standing apart like this it is not going to help us.
PN274
Right. So the last meeting was on 24 July, and what was the company's intention if the employees had gone back to work on the 23rd, on the - - -?---We had the meeting - well, yes, we had a meeting on the 24th, that is correct, in spite of no return to work. I participated in a meeting at that time, that was my first direct participation in the direct negotiations, trying to, let's say, get an understanding of what the - well, really, basically, what I said was, "What have we got to pay to get the workers back to work?" We have had enough, everyone is hurting too much, this is not good, I don't want - you know, we can't afford to hurt families.
PN275
So if the employees were to return to work what is the company's intended scenario, if that was the case? Is there to be a meeting?---Yes, we have got to have communication with the workforce. We need communication.
PN276
And that can't occur until the industrial action stops is what you are saying, Mr Hines?---That certainly has been the case, Commissioner, that there has been the communication - has been, yes, nil.
**** TREVOR JAMES HINES RXN MR BELFIELD
PN277
Right?---Very ineffective.
PN278
Is there anything arising from that, Mr Belfield or Mr Moorhead?
PN279
MR BELFIELD: No, thank you, Commissioner.
PN280
MR MOORHEAD: No, Commissioner.
PN281
THE COMMISSIONER: All right. Thank you for giving your evidence, Mr Hines.
PN282
THE COMMISSIONER: Mr Belfield, do you have some submissions?
PN283
MR BELFIELD: Yes, I do, Commissioner. Commissioner, the relevant sections of the Act state - and it is split into two - - -
PN284
MR MOORHEAD: Sorry, can I just - you intend to - we intend to call evidence as well, Commissioner.
PN285
THE COMMISSIONER: My apologies.
PN286
MR MOORHEAD: Sorry, I just - - -
PN287
THE COMMISSIONER: I wasn't aware.
PN288
MR BELFIELD: Well, that wasn't advised to me right until this point, Commissioner.
PN289
THE COMMISSIONER: All right. Who do you intend to call, Mr Moorhead?
PN290
MR MOORHEAD: Mr Lees.
PN291
MR BELFIELD: Well, is there a statement prepared so - allow us to read the statement?
PN292
THE COMMISSIONER: Well, I am just surprised, because reference was made that Mr Lees wasn't giving evidence in this matter, and I think you said, Mr Moorhead, that Mr Belfield could call him if he wished to.
PN293
MR MOORHEAD: Commissioner, I think Mr Belfield said that Mr Lees wouldn't be available for - but we have never said that.
PN294
THE COMMISSIONER: Is there any statement from Mr Lees?
PN295
MR MOORHEAD: No, there is not, Commissioner. We would propose to do it by evidence-in-chief, orally.
PN296
THE COMMISSIONER: Right. Well - - -
PN297
MR BELFIELD: Well, Commissioner, I have got a serious problem with the proceedings and the process that the union is now suggesting. Mr Lees has sat here, listened to the evidence of Mr Hines, has whispered instructions and issues in Mr Moorhead's ear for Mr Moorhead to put to Mr Hines. Now, there is a certain injustice now for the union to suggest that the laws of evidence are fair and reasonable by allowing Mr Lees to sit in the witness-box and give evidence after such time as being privy to all the evidence that Mr Hines has provided. I would - I don't believe that the Commission should allow Mr Lees to decide to give evidence after he has heard the evidence of Mr Hines.
PN298
THE COMMISSIONER: In any event - - -
PN299
MR BELFIELD: If he wished to give evidence, and a submission of Mr Hines' statement was provided some 10 minutes before the proceedings, and at no point did the union say to me we would like to give evidence in regard to this. I think they waited to see what was going to come out of cross-examination and then make a decision. That is entirely inappropriate, Commissioner.
PN300
THE COMMISSIONER: Well, there are two issues - - -
PN301
MR BELFIELD: They have had their opportunity.
PN302
THE COMMISSIONER: Two issues; normally Mr Lees is here as an instructing party to the union, and just as I wouldn't expect Mr Hines not to be - to proceed or have a place in these proceedings to provide instructions to you, Mr Belfield, I normally allow Mr Lees as well to have that instruction. However, I would say, Mr Moorhead, you are aware that it is normal procedure to make it plain to the other party, and certainly if provision is available prior to the proceedings or at the start of the proceedings to have a witness-statement, or at least put the parties on notice that Mr Lees would be providing evidence. So in fact any particular statements or issues could be covered perhaps with Mr Hines, so that the employer is on notice.
PN303
I intend at this point, for a couple of minutes, to go off the record so that I can advise the parties in relation to another schedule matter and perhaps how this matter will proceed. Thank you.
OFF THE RECORD [10.26am]
RESUMED [11.55am]
PN304
THE COMMISSIONER: We'll go back on the record. I should say that I've had the opportunity whilst also finalising that other matter to read the documentation. Is there a document that establishes the notice of the lock out for the afternoon shift? I've got it for the day shift but for the afternoon shift on 23 July?
PN305
MR BELFIELD: No, because it wasn't - it wasn't an issue.
PN306
THE COMMISSIONER: Well, this is the missing gap so can you just address me on that particular point?
PN307
MR BELFIELD: Okay. The notice of the - to the employees of the lock out on the day shift, day work - - -
PN308
THE COMMISSIONER: Which is the document I have?
PN309
MR BELFIELD: Yes, was the last notice of lock out provided to any employees.
PN310
THE COMMISSIONER: So you're saying that in relation to the - and perhaps maybe this would be the point. I should say at this particular point that I think it's appropriate that I allow the applicants first to provide their particular case in relation to this application, and the onus is on the applicants in relation to seeking these orders. So at this point I think I'd like to hear from Mr Belfield in relation to persuading me in relation to this particular application. It may be that you want to make a submission in relation to Mr Lees' evidence after that point, but there is certainly some specifics that I want to have addressed in relation to the material that I've heard so far, Mr Moorhead.
PN311
MR MOORHEAD: Sorry, Commissioner, I'm just a bit confused what the proposal is.
PN312
THE COMMISSIONER: Well, I'd like to - the proposal is I hear Mr Belfield's submissions. I've certainly heard a fair bit from Mr Lees, and I should say for the purpose of the record, off the record. I understand that that is not evidence. I have no reason to consider that and I don't think Mr Belfield will say that what Mr Lees would say in evidence is perhaps different to what he's provided off the record. However, if, in fact, it becomes necessary and pertinent to hear that particular evidence, we can go to that and hear the respondent's case.
PN313
Obviously to issue orders the onus is on the applicant to convince me of their particular case in the first instance. So, at this stage, I've had the opportunity to read the documents and I think it's pertinent that I hear Mr Belfield's submissions.
PN314
MR MOORHEAD: Thank you, Commissioner.
PN315
MR BELFIELD: Commissioner, as I've said, it's not a lengthy submission. The first - firstly, I'd like to just address you in relation to the application itself for a draft order. The application seeks a Section 127 order in relation to the prevention of industrial action that is occurring. The order seeks a period of seven days for want of a better - any other period. We're not seeking to deny obviously the rights of the parties to negotiate under protected action, but obviously the issue of time may be reduced due to the fact that the section - genuine notices under - protected action notices can, in fact, be allowed to proceed. But we say because there is no genuine notice in place up until midnight, Tuesday night, then the order must apply at least until midnight Tuesday night.
PN316
There is - the union will provide you material. As I understand, it hasn't been put in to evidence but they in fact - I believe that they have issued notices of 24 hour stoppages that might commence from midnight on Tuesday, 29th, is it - and that they meet the requirement of the Act in the sense that they have three days - there's been three working days before those notices kick off. So the one we're contesting is, indeed, the one that was tendered as Exhibit 4.
PN317
THE COMMISSIONER: Yes.
PN318
MR BELFIELD: So the nature of the notice of - sorry, the nature of the order that we're seeking would at least have to operate up until midnight on Tuesday, 29th, so I couldn't be more specific there, Commissioner.
PN319
THE COMMISSIONER: Mr Belfield, just while you're on that topic of intended - notices of intended industrial action.
PN320
MR BELFIELD: Yes.
PN321
THE COMMISSIONER: Am I right from Exhibit 1 in drawing the conclusion - that's the document you provided that sets out the meetings and the notice of intended industrial action?
PN322
MR BELFIELD: Yes, that's the one with all the dates?
PN323
THE COMMISSIONER: Yes.
PN324
MR BELFIELD: Yes.
PN325
THE COMMISSIONER: Am I right in confirming that the company did receive notices of intended industrial action from the union formed in the appropriate - and I think this was part of the agreed facts if I recall - formed in accordance with the legislation that actually cover the period up until 28 July?
PN326
MR BELFIELD: Yes, I've - the notices that are outlined there dated - received on 18, 21 and 22, would have covered the period - and I say would - cover the period 24, 25 and 28.
PN327
THE COMMISSIONER: And why do you say "would" because you say that this other notice - - -
PN328
MR BELFIELD: This is the point which I will be - - -
PN329
THE COMMISSIONER: All right.
PN330
MR BELFIELD: - - - I will be addressing in my submission, Commissioner. So turning to the Act, Commissioner, the relevant sections of the Act are known to the parties quite well. The issue that we say that the point turns on is under Section 170MO(2)(a). The union has issued a notice in its submission. That notice is Exhibit 4, and that notice in the union's opinion is protected action due to the operation or requirements of (a) - 2(a) in that the action is in response to and is taken after the start of a lock out of employees by the employer, etcetera. It's not a notice that is - under (b) which requires at least three working days, so that's the point in which the legislation addresses this particular industrial dispute.
PN331
THE COMMISSIONER: And are you going to address me specifically in relation to the breach there?
PN332
MR BELFIELD: Yes, yes, of course. We say that - sorry, I'll turn to the Exhibit 4 itself, Commissioner, and just draw - - -
PN333
THE COMMISSIONER: Yes.
PN334
MR BELFIELD: - - - you to some issues there. The notice refers to in the third sentence - third line, sorry - that it says inter alia:
PN335
In response to your industrial action by way of a lock out that the employees, members will organise and engage in industrial action.
PN336
And it goes on to give particular reference to the refusal to work from the time of this notice until midnight on 29 July, 2003. It's specific and we don't challenge the issues of specificity. We don't challenge the details of that notice in that regard, but we say that the whole notice is invalid because it's not consistent with the requirements that are outlined in Section 170M(2)(a).
PN337
Now, if we say what time did this - and this is critical to our submissions, Commissioner - if we say what time did this notice take effect from, there is a date on the letter itself above the signature of Mr Harrison dated 23 July that it's established case law, Commissioner, that days must be full days. This was received, as you can see from the top of the page, by - - -
PN338
THE COMMISSIONER: I think it's agreed 5.16.
PN339
MR BELFIELD: Yes, that's right and Mr Hines gave evidence to that effect. So just as an aside, there's - - -
PN340
THE COMMISSIONER: You'll certainly tell me if it's not agreed, Mr Moorhead.
PN341
MR MOORHEAD: No, it is agreed. I've just got the transmission report for you.
PN342
THE COMMISSIONER: It is agreed.
PN343
MR BELFIELD: Okay.
PN344
THE COMMISSIONER: All right.
PN345
MR BELFIELD: Thank you. Okay. Putting aside the question of whether, in fact, facsimiles of notices are, indeed, appropriate - - -
PN346
THE COMMISSIONER: Well, it's of no relevance because the parties have agreed.
PN347
MR BELFIELD: Yes. That's right. So if - and again, Mr Lees has maybe suggested in evidence and submissions that there was advice given to Mr Hines prior to this turning up - prior to exhibit 4 turning up by facsimile - that there would be some notice being forwarded from the Union, or that there was an intention. Now, just to clarify that, there is, under - it's been recognised, and I'll just refer to the matter of - which I'll tender - Visy Board v The AMWU - the same union - before Commissioner Jones in July 1999, and it says that - at paragraph 15 - that to satisfy - sorry. I'll just provide a copy of this. My well organised documentation has gone astray due to the adjournment. At item 15, Commissioner, it just says:
PN348
To satisfy section 170MO(3) -
PN349
which is the section about providing written notice - sorry, MO(5), my apologies - which says that:
PN350
a written notice or notification under this section must state the nature of the intended action and the day when it will begin.
PN351
That decision states that those written notices must state the nature, etcetera - in other words, supplementary verbal advice or information cannot satisfy the requirements of MO(2) and MO(5) when those provisions are read together. So I say that any other advice to the company - - -
PN352
THE COMMISSIONER: Did not meet the requirements until the - - -
PN353
MR BELFIELD: That's right.
PN354
THE COMMISSIONER: - - - a written document was provided.
PN355
MR BELFIELD: So we're only looking at - as far as the commencement of the relevant notice - the commencement time is 16 minutes past 5 on 23 July.
PN356
THE COMMISSIONER: By then you're into what shift?
PN357
MR BELFIELD: Into the afternoon shift. The afternoon shift commenced at 3.30 pm as it usually does, and as I've already - it was already pointed out in evidence that the last notice of lock-out what was issued was for the day shift which commenced at 7 am. And it's, again, clear that there was that intention for Mr Hines to go and talk to the employees and the delegates about what the company was going to do in the sense that it was not going to issue further notices was as much a result of Mr Hines' approach to at least communicating with employees, but also because people weren't turning up in any case to start those shifts.
PN358
THE COMMISSIONER: Point of clarification. The lock-outs and - I think the evidence was that they had been - the notices had been undertaken on a shift basis - - -
PN359
MR BELFIELD: Yes, that's right.
PN360
THE COMMISSIONER: - - - and for how many shifts prior in terms of days had the shifts been looked at? So the afternoon shift on prior days; how many had been locked out?
PN361
MR BELFIELD: That was the fifth day.
PN362
THE COMMISSIONER: All right. And the notices of that intended lock out of those shifts had been provided each day - - -
PN363
MR BELFIELD: Yes.
PN364
THE COMMISSIONER: - - - at the commencement of that shift.
PN365
MR BELFIELD: Yes, it had been prior to the commencement of that shift, yes. It had been signed on the notice board and progressively over those days, as the evidence shows, that less people attended for work, but the record shows, and I don't think it's contested, that those notices were issued. Mr Moorhead take the point about when they were active, but I see that is completely irrelevant because the issues - the notice of lock-outs were issued at the time that there was a - because they were in response to industrial action notices of the union, and you can see from that schedule that there was a notice of industrial action provided - you can see by the schedule if - Commissioner, exhibit 1.
PN366
If I take you to the bottom group of dates from the - and correlate to the group of dates above, that is, the lock-out dates, you can see that the lock-out dates fall well within the notice of intended industrial action received by the company from the union because they too were issuing them in 24 - with three days notice but 24 hour operations.
PN367
THE COMMISSIONER: Yes.
PN368
MR BELFIELD: So there's no doubt that there was industrial action occurring at the time the lock-outs were issued.
PN369
THE COMMISSIONER: So when do you say the first time the employees on the afternoon shift on 23 July would have been aware that the lock-out was lifted?
PN370
MR BELFIELD: I can't speak on behalf of every employee. I would - - -
PN371
THE COMMISSIONER: Well, when do you say the employer effected that?
PN372
MR BELFIELD: Some time three - I think Mr Hines' evidence is some time about 3.30 he went and said, "Look, I'll let you know that we're not issuing further lock-out notices," and hence the subsequent conversation with Mr Lees.
PN373
THE COMMISSIONER: Right. And that was at the front gate, I think the evidence was.
PN374
MR BELFIELD: Yes. I'm sorry, the evidence - also I do recall Mr Hines did say under cross-examination that there were other people who were advising - that supervisors were advising as many people as they could. The aim was obviously to get people to attend for the afternoon shift.
PN375
THE COMMISSIONER: All right. And was there also, you know, some individual notification - I thought the recollection was that there was some individual faxing or - - -
PN376
MR BELFIELD: There was an attempt to communicate with a number of people of the fact that there were no lock-outs, because again, Commissioner, we get back to the point that people were not attending for work. They were either manning the picket or staying at home, and the aim of the process - if you put within the context of the ebb and flow of negotiations, the aim of the company, as Mr Hines has put in evidence, was to reduce the issues between the parties. It was to lift one part of the reciprocal industrial action and the response that the union took to the company lifting the lock-out was to impose wide-spread notices of industrial action.
PN377
So, Commissioner, the legislation, I think, is fairly clear, that it says that you've got to have - that the requirements to have the action to be protected action is that it has to be in response to and taken after the start. Now, if we just address the issue - the words "in response to," we can - on that alone, Commissioner, I think you could find that the notices in exhibit - - -
PN378
THE COMMISSIONER: 4.
PN379
MR BELFIELD: - - - 4 was insufficient and does not meet requirements of 170MO(2)(a).
PN380
THE COMMISSIONER: Just so that I understand you, Mr Belfield, because you say at this stage no lock-out was in place for the afternoon shift.
PN381
MR BELFIELD: When the notice was received.
PN382
THE COMMISSIONER: Yes.
PN383
MR BELFIELD: Absolutely, absolutely. It's just impossible. It wasn't in place. That's a very clear - - -
PN384
THE COMMISSIONER: For the afternoon or night shift?
PN385
MR BELFIELD: That's right, or in any sense. As I said, the day shift was the last one which received the lock-out.
PN386
THE COMMISSIONER: There is no - because I think I've only got the documentation lifting the lock-out for the day shift. Would that be correct?
PN387
MR BELFIELD: No, well, there's no lifting required. It's not re-issued.
PN388
THE COMMISSIONER: That's right, because it was only in place at that stage, the last one that was put in place was for the day shift of 23 July.
PN389
MR BELFIELD: That's correct.
PN390
THE COMMISSIONER: All right.
PN391
MR BELFIELD: So we say that the lock-out - sorry, Commissioner, exhibit 4, and the industrial action that was taken was, in the union's view, consistent with exhibit 4, was not in response to the lock-out. The advice from Bradken at approximately 3.30 was that no further notices would be issued and that this is consistent with the advice that in the previous five days, four or five days, that the lock-outs had been provided on a shift by shift basis. So there's clearly an end time in relation to each lock-out that was provided. It was only for the duration of that shift and that's consistent with, as I say, previous notices and media statements by the company.
PN392
So in other words, the unions can't say that the requirements of the lock-out - sorry, the requirements - their response notice was taken whilst a lock-out was in place and, as I said, not in response to. You see, there's another interesting debate, Commissioner, that we have had for at least five days lock-outs being issued and no response by the union - no notices received saying that we're responding by taking full industrial action.
PN393
THE COMMISSIONER: Was that a necessity when they did have notices of intended industrial action in place?
PN394
MR BELFIELD: Yes, that's the irony, that they didn't need to do it. But see, at the point when they were advised there would be no further lock-outs and therefore there would be no industrial action, they then retaliated, as I understand it, by issuing the notice. Now, Mr Lees hasn't given evidence but Mr Hines has said that the view of Mr Lees and potentially his advisers within the union was that the continuation of employees' failure to not attend for work, even under the existing notice of rolling stoppages which we say are still current.
PN395
So the 18th - the notice - we'll go to exhibit 1. On 18 July, 21 July and 22 July notices had been provided by the union in relation to 24-hour rolling stoppages for 24, 25 and 28 July. Now, those notices we say are not in - we don't contest those notices, though they've been constructed, in our view, according to the legislation. However, when we received the - as you can see from exhibit 4, when you look at the bottom of that it says:
PN396
This notice supersedes all previous notices only to the extent of inconsistency.
PN397
Now, all I can say is that the intention of the union was to have exhibit 4 over-ride any previous notices that they had issued to the company, albeit those ones dated the 18th, 21st and 22nd.
PN398
And again, get back to this scene being played out at the front gates. Mr Hines comes out and another supervisor advised people but Mr Hines and Mr Lees have a conversation. Mr Lees knows that there is existing notices of protection action issued by the union which related only to bans limitations. He then understands that if there is no lock-out in place then there would be prima facie a responsibility for the employees to attend for work as of afternoon shift, 23 July. His response - and I think the words that were used by Mr Hines was words used to the effect of, "Well, we'd be in breach," because if they stayed outside they would be in breach of their own existing notices, that is, for rolling stoppages, because those notices don't say there's a total refusal to work - the phone call to the union, the notice being faxed through to the company, which was received at a quarter past 5 and that that notice is alleged to supersede all previous notices.
PN399
So it was a response to the fact of the company who said, "We're not going to issue lock-out notices". It's very clearly in that vein. So we say that, you know, on the balance of probability, that the issuing of their notice of intended industrial action was that the union was responding to the employer not issuing a lock-out, and we say that balance of probability is extremely high.
PN400
As I've said, the employees had failed to attend for subsequent shifts, even though they had not been issued with notices of lock-out, and we say that that failure to attend those shifts, starting afternoon shift on Thursday and proposed to extend through to Tuesday midnight, the 29th, is unprotected industrial action. Now - - -
PN401
THE COMMISSIONER: Even though there were these other notices of intended industrial action in place?
PN402
MR BELFIELD: Yes.
PN403
THE COMMISSIONER: And you say that they're totally invalid because - - -
PN404
MR BELFIELD: Well - - -
PN405
THE COMMISSIONER: - - - of this?
PN406
MR BELFIELD: No. Well, the union propose that they're invalid. We say they actually are valid. So indeed there would be, in our submission, nothing unlawful or illegitimate of employees attending for work since Thursday afternoon through to 29 July, albeit with bans and limitations, which is consistent with the notices of 18, 21 and 22 July from the union. We say that those are still alive. The union is saying, "No. We've superseded those with this other notice". And our point is - - -
PN407
THE COMMISSIONER: Because this notice is a complete refusal to work in any way?
PN408
MR BELFIELD: That's right. That's right. And one is for no work to be done at all; the other notices which we say are legitimate, are for only some work to be done. So I guess it's like saying to the employees, "Please come back with the bans and limitations on it because we think that's the lawful action". The unlawful action is total refusal to work and, accordingly, we seek the section 127 notice.
PN409
Now, I think, again, it's not a question of stretching credibility here, Commissioner. The reality is that, by the company not issuing a lock-out notice, the union and its members would have been required to either attend for work with or without the bans or to take strike action through no attendance.
PN410
Now, the union and its members have sought to continue the effect of the lock-out - in effect, that impact, by refusing to work at all and, you know, this is an industrial strategy that they've adopted. We're not going to comment whether that's right or wrong, but we say it's certainly not lawful because the Act does create a regime that both parties must comply with and we say that the union has not complied with it. Albeit a technical point, it's still a point of some legal merit and I think that the union would concede that in recent weeks, there has been a lot of activity before the Commission in relation to the nature of notices. I'll refer to the PBR case and the Calsonic case, in particular, where specificity of notices and operative dates of notices - - -
PN411
THE COMMISSIONER: Are you going to hand those up?
PN412
MR BELFIELD: Sorry, no, Commissioner. I'm just referring to - that it is at the top of the minds of the parties to these proceedings that both parties are needing to address the technical points of notices.
PN413
THE COMMISSIONER: All right. The reason I asked about those notices of intended industrial action and the difference - I don't actually have those before me, do I?
PN414
MR BELFIELD: No, you haven't been - - -
PN415
THE COMMISSIONER: All right. But - - -
PN416
MR BELFIELD: I can only say that that's what has been received by the company, but I can tender those.
PN417
THE COMMISSIONER: But there's a point of your submission where you say the unlawfulness arises - or the unprotected - because they are at variance in terms of what was protected action.
PN418
MR BELFIELD: Well, yes. We have - this is only the facsimile received from the union. I don't have copies, Commissioner, and I apologise. But these say - I'll pick one and I'll just paraphrase it - received on - - -
PN419
THE COMMISSIONER: I mean, if those notices had, in fact, covered a total refusal to work - - -
PN420
MR BELFIELD: The words are the same, but the one dated 17 July - - -
PN421
THE COMMISSIONER: Yes.
PN422
MR BELFIELD: - - - says that, as from 12.01 am on Wednesday 23 July, so midnight on 23 July, there would be a ban on overtime - again, I paraphrase - a ban on working with casual or labour, a ban on participating in toolbox meetings and bans on certain products and parts of products and stop work meetings, including 30 minutes stoppage every hour. So a 30 minute stoppage every hour, so hence the rolling stoppages. Now, that notice is, I believe, the same - contains the same detail of actions that had preceded it. So on the schedule exhibit 1, that's an example. So we say on 18, 21 and 22 July, there are notices in place with the same intention to take protected action for the 24th, 25th and 28th.
PN423
THE COMMISSIONER: All right. So there's no doubt that type of industrial action is protected as per those notices - - -
PN424
MR BELFIELD: Yes. We don't take - - -
PN425
THE COMMISSIONER: - - - but the distinction - - -
PN426
MR BELFIELD: Can I just tender that?
PN427
THE COMMISSIONER: The distinction you call is that exhibit 4 provides a total refusal to work in comparison to - - -
PN428
MR BELFIELD: That's right.
PN429
THE COMMISSIONER: - - - the notices?
PN430
MR BELFIELD: That's right. Now, the union has provided a notice here saying:
PN431
This notice supersedes all previous notices.
PN432
So in their view those ones dated the 18th - well, where they overlap, again they overlap on the 17, 18, 21 and 22 July notices, they say that they no longer exist. Now, the section 127 order that we submit, Commissioner, says that they've returned to work with no bans or limitations.
PN433
Now, if the finding of this Commission is that the notice of exhibit 4 is not capable of providing protection to the action which is referred to in that notice, then the Commission must also determine whether or not the previous notices dated 17, 18, 21 and 22 July that the union had issued were either in place still or not in place, due to the fact that there is an issue of supersession. What is the intention? I would say the intention of the union is that they have superseded those notices, albeit with one which does not meet the requirements of section 170MO(2)(a). Now, it's not protected action but they can't have it both ways. They can't go back and say, "That one now is active. Those previous notices are active."
PN434
We concede that. They can't do that. We say that all notices are no longer in place until such time that the three days - three working days requirement is met and I understand that there is one under way or a notice is current for action to commence 12.01 on Wednesday, I think, the 30th. So that's by the by, but in other words it's a double jeopardy, I guess, if you put it that way, that the union has put itself in, because whilst this notice does not meet the requirements to make it protected action, at the same time it does actually withdraw from the earlier notices which may well have been protected action. Now, I've had - again, this is a matter for evidence, but if you look at the matter of what - what does the last sentence mean?
PN435
This notice supersedes all previous notices only to the extent of any inconsistency.
PN436
Well, it's a total inconsistency. One says that "We will refuse to work from the time of this notice until midnight", and the other ones talk about rolling stoppages, bans on labour, bans on overtime, etcetera. It's totally inconsistent. So you can't - you know, one must displace the other entirely, and unfortunately, in our submission, for the union, that the notice dated 23 July may displace the earlier notices, but it, in itself, does not meet the requirements of the Act. Commissioner, that's essentially the gist of our submissions. We say it's straightforward, that the notice is not in response to issuing of a lock-out. That's been made clear in the evidence of Mr Hines, and neither is it in relation to an existing or active lock-out, and therefore the words that "the action is in response to and is taken after the start of a lock-out", simply cannot be - it simply doesn't meet any of those requirements. If the Commission pleases.
PN437
THE COMMISSIONER: All right. Thank you. Mr Moorhead?
PN438
MR MOORHEAD: Commissioner, we seek to call Mr Peter Lees.
PN439
THE COMMISSIONER: Well, at this stage, Mr Moorhead, I think it's - I don't necessarily have to hear the evidence of the respondent. You can press that particular point if you wish, but certainly the applicant has made out their particular case - well, the applicant has provided its particular case at this point with the submissions. I note that the employer wasn't put on notice in relation to the evidence of Mr Lees. He has provided, off the record, in summary, his involvement in this matter. I know that that is not evidence, but I would expect, at this point, to perhaps hear your submissions, Mr Moorhead. Is it specifically - and I think I can ask you the nature of the evidence, given that the employer hasn't been given a statement, whether it's necessary to hear that particular evidence.
PN440
MR MOORHEAD: Well, Commissioner, the evidence that we would seek to call from Mr Lees would be in relation to what occurred on Wednesday afternoon, and the intention of the union in taking the industrial action that it has. Now, the evidence of Mr Hines has called into question that intention. Now, his - - -
PN441
THE COMMISSIONER: But how does that assist me in assessing - I mean, my understanding of the case on behalf of Bradken is that this is a breach in relation to the technical requirements of meeting the legislation. So my understanding is that the nature of that legislation, if it's the intention of the union to take that action, how does that assist me in determining whether the technical requirements have been met? That is, whether a lock-out was in place; whether that action was taken in response to that lock-out.
PN442
MR MOORHEAD: Well, Commissioner, our submission is that the words, "in response to", as they have been argued by Mr Belfield - sorry. Our understanding of the submissions of Mr Belfield and the evidence of Mr Hines was that the action of the union was unprotected because the union took the action for the reason of the withdrawal of the lock-out notices, rather than for the taking of the lock-out. Now, we - firstly, we challenge that submission in relation to what is required in terms of a response within the meaning of section 170MO, but we also challenge the factual basis on which that is made, because, in our submission, the intention of the union was to respond to the lock-out.
PN443
THE COMMISSIONER: But why is it necessary for me to go beyond the wording of this particular document as provided to the employer?
PN444
MR MOORHEAD: Well, Commissioner, if - - -
PN445
THE COMMISSIONER: I'm not suggesting I wouldn't hear your submissions on your interpretation of the legislation, but why, if Mr Lees says, "Our intention was" this or that, "but it's not been", you know - am I now to look at the actual wording that's provided to the employer - the written notice?
PN446
MR MOORHEAD: Well, that would be our submission, Commissioner, but our concern, though, is that the employer party has called into question that the intention was other than that expressed by the union. So I'm happy to address you with submissions, Commissioner, and address you as to where we differ from the evidence of Mr Hines.
PN447
THE COMMISSIONER: Well, Mr Moorhead, I'm not convinced that to assist me with your - or that the evidence would put you in any disadvantage not hearing that evidence in discharging those particular submissions. I mean, what you've said is that Mr Lees would give evidence in relation to the intention, but if, in fact, what's played out in the documents is not - in terms of what's played out in the documents as given to the employer is in contrast to the intention - I mean, the employer and the Commission have to look at the documents; isn't that correct?
PN448
MR MOORHEAD: That's our submission, Commissioner, and we're happy to proceed on that basis.
PN449
THE COMMISSIONER: All right.
PN450
MR MOORHEAD: Commissioner, the issue before you, as Mr Belfield put it to you, is whether the notice which is exhibit 4 in today's proceeding comes within the definition of notice under section 170MO(2)(a). Now, just for completeness, Commissioner, I might hand up a copy of that notice with the transmission report, which is consistent with the evidence of Mr Hines - - -
PN451
THE COMMISSIONER: Thank you.
PN452
MR MOORHEAD: - - - that arrived at 5.16.
PN453
THE COMMISSIONER: My apologies, Mr Moorhead.
PN454
MR MOORHEAD: That's all right. Commissioner, in examining section 170MO(2)(a), I refer you to the decision of Finkelstein J in Cadbury Schweppes v The Australian Hospitality and Miscellaneous Workers' Union, a decision of 8 December 2000.
PN455
THE COMMISSIONER: Do you have a few documents to hand up there, Mr Moorhead?
PN456
MR MOORHEAD: No, I don't, Commissioner.
PN457
THE COMMISSIONER: Thank you. I'm concerned about my associate.
PN458
MR MOORHEAD: Sorry. Okay. Commissioner, at the outset I must say that the decision of the Federal Court in this instance was of an interlocutory nature, so it doesn't determine the issues finally. But what the decision does do, Commissioner, is it examines the requirements for notice under section 170MO(3) in respect of employers, which we say - which also uses the words, "in response to and takes place after".
PN459
THE COMMISSIONER: So you say it's a reciprocal argument in a sense?
PN460
MR MOORHEAD: Yes, we do, Commissioner. The comments made by the Commission in this respect are also as equally applicable to section 170MO(2)(a). Now, from paragraph 25 of that decision to the end of that decision, his Honour Finkelstein J considers the industrial action taken by Cadbury Schweppes in this instance. What had occurred, Commissioner, is that the Cadbury Schweppes had issued a notice of lock-out between the dates - sorry. The company gave notice on 25 November in response to the union's industrial action that the employees be locked out from 27 November until 4 November, and that was said to be in response to the industrial action taken by the union in that case.
PN461
Now, importantly, at paragraph 11, which outlines - in which the Court outlines the fact in that case, it says there the company observed a second notice of lock-out during the period of the lock-out, which was also said to be in response to the industrial action. Now, Commissioner, at 25 and on, the Court rejects the submissions of Mr Friend that the Section 170MO should be interpreted to require that the employer be given one opportunity to respond and one opportunity only. And that is - - -
PN462
THE COMMISSIONER: Where is that specifically?
PN463
MR MOORHEAD: Well, in - the Court in that case quotes the submissions of Mr Friend of the union.
PN464
The Act allows -
PN465
and I will quote from the bottom:
PN466
The Act allows the responsive action so that a person who is the subject of industrial action doesn't have to submit to it for the three-day picket. They can take immediate action in response.
PN467
But in my submission they can only do that once, because otherwise once anyone takes - - -
PN468
THE COMMISSIONER: Sorry, whereabouts are you there, Mr Moorhead?
PN469
MR MOORHEAD: At the top of the page, of the final page, sorry.
PN470
THE COMMISSIONER: I see.
PN471
MR MOORHEAD: Prior to - in paragraph 27 going to 28. The submissions of the union there were that the employer could only respond once to the industrial action of the employees. But importantly, Commissioner, the facts in this case were that the company had taken industrial action and notified further industrial action where no industrial action was occurring by the employees. By the nature of the lock-out there was no industrial action happening.
PN472
And what the Court finds there is that there is not a serious question to be tried in that that construction that limits the employer to have one lock-out during the - when the industrial action is occurring is not accepted by the Court, and is not consistent with the construction of Section 170MO(3) in that case. I mean - - -
PN473
THE COMMISSIONER: Mr Moorhead, does this, though, go to the point - because my understanding is that that is not in contention that the union can take a series of - and certainly I am looking to debate that particular point with you - the union can take a series of planned industrial action as defined by appropriate written notices, and so too can the employer in response, or in terms of lock-outs. But isn't it the distinction here is that the circumstances are that the employer's industrial action has in fact been lifted?
PN474
MR MOORHEAD: Yes, Commissioner, and that is where we say this decision is consistent, because we say it is not a requirement that the industrial action of the employer be currently happening. We say that, you know, there is no requirement that the response decided by the union be provided by notice or otherwise during the period of the industrial action.
PN475
THE COMMISSIONER: All right. So I understand you, Mr Moorhead, you are saying that it would be a narrow reading of Section 170MO(2)(a) if the action is in response to and taken after the start of a lock-out is to confine that to one specific lock-out as lifted on 23 July, it should refer to those previous lock-outs.
PN476
MR MOORHEAD: Well, our - Commissioner, our submission is that there are two requirements - - -
PN477
THE COMMISSIONER: I think that means no, Commissioner; is that right?
PN478
MR MOORHEAD: No, I think we are arguing at cross-purposes, Commissioner.
PN479
THE COMMISSIONER: All right.
PN480
MR MOORHEAD: Commissioner, our submission is that there are two elements; one that is in response to, and one that it is taken after the start of the industrial action. We say that it is clear that it is taken after the start of the industrial action. The industrial action started on 17 July and continued up until half-past three on Wednesday. We say - - -
PN481
THE COMMISSIONER: That is the lock-out, you are saying, it is taken after a period of lock-outs?
PN482
MR MOORHEAD: Yes, taken after the start of the lock-out. And we say that requirement is met. We say it is also in response to that union members in question made - and this is evidenced by the notice sent to the company - decided that their response to the employer's lock-out was that they would have further industrial action by way of complete refusal to work. And on that basis we say the requirements of the Act are met; that - Mr Belfield put it to you that, well, you know, the union has had five days, five working days to have a response to the lock-out. Well, Commissioner, our submission is that by the very nature of it the employees were locked out. They - there is no response to make that - at that time.
PN483
THE COMMISSIONER: You can't take a strike when employees are locked out.
PN484
MR MOORHEAD: Exactly, Commissioner. I mean, there is no way the employees could breach their contract of employment when their contract of employment has been suspended by a lock-out, Commissioner, so the industrial action of the union followed on directly from the lock-out of the employer. In that way, Commissioner, the proximity is all of, you know, any gap between the end of the lock-out and the beginning of the industrial action is administrative in terms of providing the notices the union is required to make. They made those notices as soon as practically possible, after they were aware that they had the opportunity to take industrial action.
PN485
Prior to that time there was no opportunity to take industrial action because as I just submitted, Commissioner, there is - you can't strike while you are locked out. So in that respect, Commissioner, we say that the action was in response to and taken after the start of a lock-out. Now - - -
PN486
THE COMMISSIONER: What do you say, though, about the specificity - as I think Mr Belfield has termed it - that if you look at the afternoon shift on 23 July there was no lock-out in place, there was no start of a lock-out? And I understand what you are saying, that you are saying that full industrial action, in terms of total refusal, could only be put into place once that was lifted. But what do you say about his argument that there is a breach in place, and I know that this is perhaps what your submissions have gone to, but particularly he says that now the lock-out is lifted and as he reads that particular section this industrial action cannot be in response to the lock-out because there is no lock-out in place.
PN487
Is it fair to say that your submissions are that the lock-outs have been in place, and that that is the reading, the more general or wider reading, that you were taking that industrial action in response to the lock-outs that have been in place since 17 July?
PN488
MR MOORHEAD: Yes, Commissioner.
PN489
THE COMMISSIONER: I just want to clarify; that is the submission.
PN490
MR MOORHEAD: That our - that the response by the union was to that lock-out that had been taken, Commissioner, and that is why we say the decision of Finkelstein J is of assistance, because in that case the employer took industrial action. Even though the employees weren't taking industrial action it was still said to be in response. There was a three-day gap between when the employees last took industrial action, and when the employer put in place its response to that industrial action. And there was no - and in that case, although it wasn't directly considered. The Court raised no issue with that being in response to the industrial action taken by the employees.
PN491
So Commissioner, we say that there is no requirement that the response be given during the actual period of the lock-out. And, Commissioner, the union has played by the same rules that the company has played by. The company have locked-out employees, they say, for - they have locked-out employees for, they say, the industrial action that was intended to be taken. Well, Commissioner, our submission is that the company may not have clean hands when it comes here today, Commissioner, because the Act doesn't say that you can take industrial action in response to intended industrial action; you can take industrial action after the industrial action has occurred. So Commissioner, we - - -
PN492
THE COMMISSIONER: But the employer's industrial action was in response to actual industrial action on behalf of the union, wasn't it?
PN493
MR MOORHEAD: Well, Commissioner - - -
PN494
THE COMMISSIONER: There was actual industrial action in place. I'm not suggested that it wasn't protected; you had notices in place. But there was actual industrial action occurring. Correct me - - -
PN495
MR MOORHEAD: There was industrial action, Commissioner, but the evidence of Mr Hines today was that the approach taken by the employer was locking out the employees for action they intended to take, not action they had taken. I asked Mr Hines on a number of occasions, "For what purpose" - "What were you responding to in this notice?" And Mr Hines' evidence was clear in all those cases, and that was: the employees had issued notice and had intended to take industrial action during the time of that notice. In particular, Commissioner, Mr Hines raised the issue of the 11.30 shift start and the industrial action notice for 12 o'clock.
PN496
Mr Hines said in his evidence that, "We got in," - basically that, "We got in first, because the shift was going to be on for half an hour before the industrial action, so then we - so we locked them out first." So in that respect, Commissioner, we say that the employer has not been responding to the industrial action of the employees if the submissions of the company are to be accepted by you. Commissioner, we - - -
PN497
THE COMMISSIONER: What does that - keep going, Mr Moorhead?
PN498
MR MOORHEAD: Commissioner, and - I mean, Commissioner, we can - in our submission, we have met the elements of that Act. The elements of the Act have two elements that it is taken in response to. As I have said earlier, that that response was made when the employees had the opportunity to respond; that the intention of the union to respond is evidenced in the industrial notice given to the company and put forward to the Commission today; and that there was no reason to take - to file a notice of industrial action in response earlier, because it was a futile exercise. So when the opportunity arose, the employees took their response to the company's industrial action.
PN499
THE COMMISSIONER: All right. Whilst you're talking about aims and intentions, Mr Belfield has given a submission that the aim of the process of the company to lift the industrial action was, as I understand it, you know, a genuine attempt to endeavour that there would be some good will then expressed on behalf of the union to get the parties back to the negotiating table.
PN500
MR MOORHEAD: Commissioner, there has - there's been negotiations throughout the period of industrial action.
PN501
THE COMMISSIONER: But they haven't resolved the matter.
PN502
MR MOORHEAD: No they haven't, Commissioner. And they don't seem to be progressing the matter, from - the parties are a long way apart and have resorted to industrial action in an attempt to negotiate a certified agreement. But in our submission, that - the company and the union - I think as you stated earlier - are at a stand-off. They've reached a stalemate, and - - -
PN503
THE COMMISSIONER: But the - that's why I ask you, because as I understand it, the employer has now taken a different tack in terms of - both parties have taken industrial action as contemplated by the legislation. The employer has now removed their industrial action - lifted their industrial action in the aim of, I would suggest, breaking that stalemate. So in response to that, since you're making intentions - submissions about the intentions of the industrial action - do you have any submissions to make on that ground?
PN504
MR MOORHEAD: Commissioner, I mean, I wasn't at the meeting in question, but my assumption would be - the meeting of the members in question - that employees who have been locked out for five days would be quite keen to - sorry, I might start again. The company has locked out the employees for five days - five consecutive days - then has come back to the employees and said, "Now we've had our shot, we're calling it quits, and we're all going to live as a happy family again." Now, what our members are saying is, "Look, they can't give us a belt like that and then come back and say, 'Hey, look, we're all friends again.' We want our chance, too."
PN505
You know, to put it crudely, Commissioner, that's exactly it: that our members have been hurt by those lock-outs in a number of ways; that they - the company has come back and said, "Well, look, you know, we're calling it off. We've had our go." You know, and our members say, "We want to have our go. We want to respond to your lock-out." I mean - - -
PN506
THE COMMISSIONER: The employer's action started on 17 July, didn't it?
PN507
MR MOORHEAD: Yes, Commissioner.
PN508
THE COMMISSIONER: You've been having a go a fair long - a fair way before that, haven't you?
PN509
MR MOORHEAD: Yes we have, Commissioner.
PN510
THE COMMISSIONER: From about 8 July.
PN511
MR MOORHEAD: Yes, Commissioner. But Commissioner, our submission is that whether the - the Act has given the - gives the employees their decision to take that protected action in response to the employee's industrial action. The wisdom or otherwise in negotiating an agreement in that manner, we say, is not something that's before the Commission in this matter today. So Commissioner, we've - we say that they have responded to that lock-out in - in a manner provided for under the Act. We say that there's no requirement that it be provided during the period of the lock-out, and we say that it was taken after the start of the lock-out.
PN512
So in our submission, the requirements of section 170MA(2)(a) have been met, and the action is protected. Now, Commissioner, in respect to section 127, we have to concede that the jurisdictional elements are met, but Commissioner, we say that in the discretion you have whether to issue an order, that we say our action is protected industrial action, and that that is a heavy factor that should weigh on the Commissioner's discretion, and on that basis, an order should not be issued. With respect to the other industrial action notices issued, Commissioner - - -
PN513
THE COMMISSIONER: This union has, certainly, though, on previous occasions, in relation to Bradken, sought that I exercise my discretion in favour of the union in a sympathetic way in contrast to the company, hasn't it? I mean, we've been here before, where there was a clear case of taking unprotected action. I think that was probably in part conceded by the union in the previous matter before the notices were put in place, Mr Moorhead, wasn't it?
PN514
MR MOORHEAD: Well, Commissioner, in our submission, that is a - that situation can be distinguished. In our - that case is different to today, when industrial action is happening. In that case, industrial action had happened, and the only industrial action that was threatened - and this was conceded by the company at that stage - was protected industrial action from 8 July, in terms of the bans that were put in place. Commissioner, we did seek that you exercise your discretion favourably, as you would expect we would. But Commissioner, that case is different, because the union - the employer had made an application in respect to industrial action being taken, and was seeking to rely on the ground that industrial action was threatened by the parties. Now - - -
PN515
THE COMMISSIONER: We're both aware of the - - -
PN516
MR MOORHEAD: Yes. And we concede that we did threaten industrial action in that case, but within the confines of the protected industrial regime.
PN517
THE COMMISSIONER: Well, I think you did more than threaten it; you took it, didn't you?
PN518
MR MOORHEAD: We did, Commissioner. And - but all within the confines of the Act. So - and that's the scheme set up by the Act, and we say that we followed it. We did in that case. We may not have on the industrial action which had caused the employer to file the application in the previous matter, but the action to date since we were last before you, Commissioner, has all been in accordance with the Act. We've given notice on a daily basis; we've made - given the employer three clear days' notice of the action; Commissioner, and yesterday we gave another three days notice of action for 30 July.
PN519
THE COMMISSIONER: In putting that notice on the employer, when do you see those negotiations continue?
PN520
MR MOORHEAD: Well, Commissioner, to date the negotiations have continued regardless of industrial action by either party. We've been prepared to talk to the employer while we're locked out. They have been prepared to talk to us while we've been - have bans and - - -
PN521
THE COMMISSIONER: So you are indicating a commitment to the Commission of current and continued preparedness to have discussions.
PN522
MR MOORHEAD: Yes, Commissioner, we are. We're - Commissioner, no-one liked to be in this situation, and we're - we want to resolve it as much as the company do, I'm sure, and we're committed to continuing negotiations. We say they have at the moment reached a stalemate. The parties are apart and negotiations - quite lengthy negotiations have been unable to bring the parties closer together.
PN523
THE COMMISSIONER: So regardless of what's - whether orders are issued here today, how do you then see that that stalemate will be changed? Are the union indicating that they will take any steps towards effecting a change in that stalemate?
PN524
MR MOORHEAD: Commissioner, in terms of breaking that stalemate, we have negotiated with the company. We sat at length with them yesterday and they asked us to put on the table our offer. We asked them to put on the table their offer, and it's gone on and on and on. Commissioner, we have reached that stalemate, and we're exercising our rights under the Act, we say, to break that stalemate through industrial action.
PN525
THE COMMISSIONER: All right. That's fine. Mr Belfield, anything in response?
PN526
MR BELFIELD: Thank you, Commissioner. Mr Moorhead addressed you on why you should use some discretion in this matter, and I think he was trying to suggest that you should approach the interpretation of section 170MO, the question of timing of notices and whether it was response to, or whether it was not, you should take some discretion and look at it in terms of degrees of difference between what we say should have happened and what the union says should be allowed to happen, and they refer to the decision - or this matter they put up of Cadbury Schweppes.
PN527
I'm sorry, I fail to see the purpose of submitting this case, as it suggests it supports the union's proposition. The proposition really wasn't clearly put in any case, but one thing I did take note of in this decision was the last page where the Court responds to the submissions of the union, and it goes on to say at 28 that the union's description of the objection of section MO may be accepted, but it goes on to say,
PN528
But it does not, in my opinion, constitute a sufficient reason to warrant the construction for which the union contends a construction which, in my view, is inconsistent with the clear language of the relevant sections.
PN529
And this is about company's issuing lock-out notices, initiating a protected action with the requisite three days notice. Now the - and whether or not the second notice could be seen to be valid. It was also given with three days notice. But more importantly, Commissioner, that document - this decision goes on to say in section 29, paragraph 29 half way down, it says,
PN530
Section 170 MO(3) contains the requirement which an employer must satisfy before a lock-out will be protected action. Provided the relevant requirements are satisfied, the lock-out will have the benefit of immunity.
PN531
And then the last sentence of that:
PN532
The only work of that section is to specify the type of notice that must be given so that action under ML will be protected by ML - 170 MT.
PN533
So that's the point I think you used earlier in addressing Mr Moorhead, that the content of his notice is in fact what you should be looking at. And my earlier description of 170 MO was that there are requirements specified. This decision by the Court says that it - that the notice inter alia that the notices must be consistent with the clear language of the relevant section.
PN534
Now, I think it would be a bit of a long bow to say that if you say that after the start of a lock out of employees, you look at those words alone - that that could mean a lock out of employees had occurred yesterday but is no longer in place, or occurred the day before but is no longer in place.
PN535
Mr Moorhead's suggestion that as a matter of degrees, that well, it was only a matter of hours after, should not be accepted. It is not in place. It does not meet the requirements of section 170 MO2. So that's the issue of whether the action was in place at the time of the notice, which we say - - -
PN536
THE COMMISSIONER: In any event, I don't know that that decision assists - is a particular point from either perspective in relation to that. I take your submission. I don't think it's particularly on point in relation to section 170 MO(2).
PN537
MR BELFIELD: Yes, okay. Well, we say - one thing I would draw from it is they talk about the language of the Act. Getting back to the issue of retaliation, i.e. that that wasn't for in turn a response to the lock out. The union had been issuing notices on a regular basis, and exhibit 1 shows that, and those notices were consistently for a 24 hour period, which specified the nature of the action.
PN538
Those notices were issued as late as 22 July. It must have occurred to the union that at some point the company could stop issuing lock-out notices and that that would leave the employees, as it were, in a position where they could be regarded as taken unprotected action, because the notices that they had issued were not sufficient to cover the hours of work that they were not working. Now, because of that - the knowledge - - -
PN539
THE COMMISSIONER: Sorry, I'm not following that particular point, because these notices, which you've now provided me, are simply in relation to bans et cetera.
PN540
MR BELFIELD: That's right, yes, but talking about he concept that in this industrial strategy where the unions have chosen to - sought to continue the effect of the lock out by refusing to work, in the words of Mr Moorhead.
PN541
THE COMMISSIONER: You are talking about exhibit 4 now?
PN542
MR BELFIELD: Yes.
PN543
THE COMMISSIONER: Yes.
PN544
MR BELFIELD: Yes. So Mr Moorhead made the reference that they sought to continue the circumstances that employees were not at work beyond when the lock out was no longer in force, by issuing this notice to take refusal to work and that was immediate.
PN545
Now, they - it would seem that no-one within the union even thought that the lock outs would stop, but instead of issuing a notice that specified, for example, that could have given notice that at a date to - let's say they gave a notice on 17 July - - -
PN546
THE COMMISSIONER: To commence three days hence of a total refusal.
PN547
MR BELFIELD: Yes, that's right, but they could have given notice to say that - or even in response to, Commissioner - this is my point. Not the three days. They've always had that capacity, to give three days notice, and they still do. We say that the argument about being in response to would have been valid if they had issued a notice during a period of lock out that says, and I'll even give you some suggested words, that in the event that the lock out is lifted that the employees will continue to take - refuse to work. Okay? So they could specify, and again I won't talk about drafting words, but it was an option available to them - a genuine option available to them, to retaliate, as they say, for the lock outs being in place, and of course to give them immediate protection for any withdrawal of those lock outs, which I think anyone in industrial relations could realise that that was a very likely possibility.
PN548
Now, they didn't choose to take that action. Instead, they got caught on the hop and they realised they needed to get a notice in as quickly as possible. We say that that notice is insufficient because it doesn't meet the requirements of the Act. So - - -
PN549
THE COMMISSIONER: Because specifically, it is not in response to a lock out that is on foot.
PN550
MR BELFIELD: That is exactly right, Commissioner. So the - indeed, the union, given its concern at the action of lock outs, continued to issue these rolling stoppage notices, dated - if you look at the dates of the lock out, they started on 11 July and then we've got 1, 2, 3, 4, 5, 6, 7 separate notices issued by the union after the first lock out notice was provided.
PN551
It didn't seem there was much retaliation in that respect. They could have changed the nature of their notices. They could have given notice to the employer that they would be taking strike action from the point at which the lock-out ended. So I'm just saying that the logic doesn't really follow that that was the only option available to them, that, you know, the structure of the Act doesn't take into account the circumstances that they found themselves in. I just refuse to accept that that discretion should be provided by you.
PN552
THE COMMISSIONER: But isn't it fair to say that the only options available to them were if in fact on the employer's interpretation of that provision that to effect the total refusal to work would have been to provide a written notice of intention three day hence after the lifting of that particular lock-out.
PN553
MR BELFIELD: That's right. In the circumstances that they were in on Thursday - and this wasn't planned, by the way. It was suggested that this was some sort of strategy by the employer, the strategy being made very clear, it was to assist - to allow the parties to re-address the issues. It wasn't designed as a trick and fortunately we're now in the circumstances where the company is now fighting to ensure that its legitimate action is also reciprocated by legitimate action on the part of the employer. So we seek a return to work. We seek it through the section 127 order because there seems to be no other way to achieve that. If that return to work is for a short period only, at least the company has a capacity to have work performed in that period and at the same time we would be able to address the ongoing matters between the parties. I think it offers opportunity. It's certainly not as a punishment.
PN554
THE COMMISSIONER: Well, since you've raised the efficacy of any order if it's made, and you say that there would be only a short return to work perhaps given the notices, what is the - it's now 1 o'clock or just after. The afternoon shift starts at 3.30.
PN555
MR BELFIELD: Well, they're not there. Sorry - my apologies.
PN556
THE COMMISSIONER: Yes, but that will be - - -
PN557
MR BELFIELD: Yes, but that's right. Yes, they normally start at 3.30. So yes, we would obviously seek to have the order effective from that point.
PN558
THE COMMISSIONER: And what occurs over the weekend normally?
PN559
MR BELFIELD: There's no ordinary time, as I understand. There would be overtime and if that's allocated - - -
PN560
THE COMMISSIONER: But that's not been organised at this stage?
PN561
MR BELFIELD: No, well, it's been impossible to but obviously there would be work available.
PN562
THE COMMISSIONER: And - all right. Is there anything further at this stage?
PN563
MR BELFIELD: No, thank you, Commissioner.
PN564
THE COMMISSIONER: Mr Moorhead, whilst you don't get to make any other response, is there any other issue that you think it's necessary to - you're not taking any objection at this stage to Mr Lees not providing evidence?
PN565
MR MOORHEAD: No, Commissioner.
PN566
THE COMMISSIONER: All right. I intend to adjourn for a short time to consider those issues. I'll just go off the record for a moment.
OFF THE RECORD [1.08pm]
RESUMED [2.25pm]
PN567
THE COMMISSIONER: I would set out for the record that, as has been conceded by the parties, I consider the jurisdictional prerequisites in relation to this Section 127 application have been met. I turn to the issue of the Commission's discretion in relation to such an application. Firstly, this matter pivots on the provision as set out in section 170MO(2)(A) and (B). The employer's predominant argument in this regard is that the wording in this provision should be construed narrowly, that the requirements are that the construction in response, or the action in response should be taken after the start of a lock out of employees by the employer, in respect to the negotiation of a proposed agreement. That is, the action should be with respect to a lock out that is on foot. In contrast to this, the union's submission is that the reference to lock out refers more generally to previous lock outs.
PN568
The circumstances currently are that the employers and union clearly have been engaging in industrial action as contemplated by the negotiating provisions of the Act, and clearly seem to be protected in its form. The union has lodged notices of intended industrial action in place up until the period of 28 July, covering protected action in the form that can be distinguished from the notice of exhibit 4; that is, in the form of bans or limitations. However, when, on 24 July, the employer, after a lock out being in place on the day shift, then did not put a lock out in place for the afternoon shift for 23 July, the union responded in writing, setting out as per exhibit 4, that:
PN569
In response to your industrial action by way of a lock out, to organise and engage in industrial action in accordance with the provisions applying to a protected action as set out in Section 170ML of the Act.
PN570
The particulars of this notice are as follows:
PN571
Members and officials of the AMWU will refuse to work from the time of this notice until midnight on 29 July 2003.
PN572
And it further goes on to set out:
PN573
This notice supersedes all previous notices only to the extent of any inconsistency.
PN574
Thus, potentially, effectively, by its wording, invalidating the wording of the prior notices of intended industrial action as set out in the schedule in exhibit 1. I have reservations with regard to the communications by the employer to the union and the employees that no lock out was to be in place for the afternoon shift of 23 July. I particularly emphasise, however, that I have considered this matter separate to any previous history of the applications regarding these parties and this site, which have recently come before me. I do not attach any association to previous matters, and to the actions taken by either party in this particular application.
PN575
I have, in relation to this matter, decided to exercise my discretion as follows: I see the employer's actions to lift the lock out as a genuine act to progress negotiations on site. I stress that, in the circumstances of this case, what might have been hoped to be a movement this week towards tying up an agreement with only limited industrial action, seems to have struck difficult grounds. Having heard the evidence, I am inclined to the view that the difficulty on the ground was to be minimised by the employer's actions to lift bans and have a cooling off period. This has not eventuated.
PN576
I note the words of Munro J in similar circumstances, where he stated:
PN577
There needs to be a sensitivity to the obligations, requirements, and art of producing agreements through conciliation and negotiation. Those aspects are more important in many instances, than a high level of awareness of the sanctions, penalties, and opportunities for litigation with which the current negotiating regime abounds.
PN578
And I certainly emphasise those words to the employer as well. I also note his imposed formula in analogous circumstances to those as presented to me. That said, I am satisfied, for more reasons than one, that this is the case, where, having regard to the observations I made allowing the adjournment for discussions in this matter, there should be a form of compulsion put on both parties to these proceedings.
PN579
I will give that form of compulsion as an order under Section 127. I attach to it conditions and directions that are intended to encourage at least the parties to get on with the negotiating task that should be the primary function of any bargaining period. The conditions are intended also to encourage the union to observe the necessary elements of the responsibility, and accountability, obligations, associated with the rights that it has as a negotiating party. However, I note that the action taken by the union may potentially be protected industrial action, and that will only be a matter if, in fact, such an order was progressed to a court.
PN580
I will indicate on the record that I propose that the form of the order will be known as the Bradken Resources Proprietary Limited Industrial Action Order 2003. It applies to the work and employment regulated by the agreement to which I have referred. The parties bound are the AMWU and Bradken. The parties shall comply with the order; that includes, both the employer, I emphasise, the union, and employees, bound. The direction as to the industrial action to stop or not to occur is in an unusual form, I note. The order sets out that the action relates to the union and to its employees, but I will be seeking a commitment from the employer that they, too, will not engage in any industrial action for the period that I have set out in the order.
PN581
The applicant employer and union shall be under a restriction that is both a form of prohibition and a form of licence. That is, that they shall not take any industrial action until next Wednesday. I note the current lack of appropriate notices would prevent this in any event. The direction and conditions are for this cooling-off period for both parties to enable on each of those days next week for the negotiations to be progressed, with a report back to the Commission next Friday, 1 August, at 2 pm. I expect, before the parties leave the precincts of the Commission today, that arrangements will be made between the employer and the appropriate union parties, for the appropriate meeting to commence on Monday morning.
PN582
The order shall come into effect from 4 pm today, 25 July 2003, and shall remain in force until midnight next Tuesday, 29 July. I clarify that this order should prevent the union and its members, the employees of Bradken, and the employer, from taking industrial action for that limited period of time. This is specifically designed to ensure that the principal purpose of the negotiations as contemplated under the provisions of the Act take precedence, and that the agreement can certainly, in this interim period, be substantially progressed and hopefully resolved. I would expect a detailed report back in the Commission next Friday, 1 August at 2 pm.
PN583
Are there any questions or clarifications? If not, I would have my associate hand out that order. Nothing further? I will adjourn.
ADJOURNED UNTIL FRIDAY, 1 AUGUST 2003 [2.33pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #1 SUMMARY OF MEETINGS, NOTICES, ETCETERA, PREPARED BY COMPANY PN16
TREVOR JAMES HINES, SWORN PN65
EXAMINATION-IN-CHIEF BY MR BELFIELD PN65
EXHIBIT #2 STATEMENT OF TREVOR JAMES HINES PN73
EXHIBIT #3 NOTICE OF INTENTION TO LOCK OUT DAY-SHIFT DATED 23/07/2003, AND NOTICE TO THE DAY-SHIFT EMPLOYEES PN83
EXHIBIT #4 FACSIMILE FROM AMWU PN88
CROSS-EXAMINATION BY MR MOORHEAD PN96
RE-EXAMINATION BY MR BELFIELD PN221
WITNESS WITHDREW PN282
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