C2003/5111, Transcript of Proceedings [2003] AIRCTrans 3661 (21 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2003/5111

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union and Another
for an order to stop or prevent industrial action
in relation to proposed revision of bonus
arrangements

SYDNEY

3.06 PM, THURSDAY, 7 AUGUST 2003

PN1

MR G.J. HATCHER: May it please the Commission, I seek leave to appear with my learned friend, MR K.G. BENNETT, for the applicants.

PN2

MR A. NEILSON: If it pleases the Commission, I appear on behalf of the AMWU New South Wales Branch in this matter.

PN3

THE COMMISSIONER: Do you have any objection to Mr Hatcher's appearance, Mr Neilson?

PN4

MR NEILSON: We do insofar as that we don't see what utility Mr Hatcher can provide for the purposes of the hearing today. We're hopeful that the matter can proceed by way of conciliation and in that regard I do raise a concern now that the CFMEU aren't present here today given that they are listed as a respondent to the application. There is some speculation that the CFMEU were only served this afternoon at approximately 2 pm for a 3 pm matter. I haven't had any personal discussions with the CFMEU about that so I raise my concern that they're not present here today. On that basis I believe that the matter should be stood aside so as to allow the CFMEU to make an appearance or, in the alternative, to allow some form of contact to be made with the CFMEU to ascertain their whereabouts and ascertain whether or not they will be making an appearance in the matter.

PN5

THE COMMISSIONER: Mr Hatcher, have you got anything to indicate, just leaving the leave to one side at the moment, as to when the CFMEU were served. There was I gather a phone call with my Associate earlier and this is a letter from them which I don't know whether you want a copy, but indicating that they were served at 2.10 today. The Mining Division national office was served at 2.10, which I presume is 2.10 pm, and I don't know whether it's appropriate to read what is in the letter onto the record, but indicating that apparently it should have been served on the branch office not the mining division. I gather there would be no dispute that the mining division probably doesn't have any role in the work, or is there?

PN6

MR HATCHER: Whoever else may occupy the office that the mining division are at, apparently it is the registered office of the organisation and that is the office that is required to be served with the documents, to the extent there is a requirement for service of an application under section 127.

PN7

THE COMMISSIONER: Is that the federal office?

PN8

MR HATCHER: Yes, Commissioner.

PN9

THE COMMISSIONER: It's in the same office as - - -

PN10

MR HATCHER: The state branch? Apparently not.

PN11

THE COMMISSIONER: The state branch I understand is at Granville or Lidcombe or somewhere but I think the federal office is somewhere in the city.

PN12

MR HATCHER: My instructions are the federal office was the place where service was effected. If that also be the place where the mining division has its office, sobeit.

PN13

THE COMMISSIONER: I'm not sure, Mr Hatcher.

PN14

MR HATCHER: Commissioner, I also have available a facsimile record of transmission to the CFMEU at phone number 9267 2772 and 9267 2460, the latter number being the disclosed facts on the CFMEU website. That facsimile transmission indicates that the matter was transmitted at 5.56 pm last evening. Can I tender that?

PN15

THE COMMISSIONER: Yes, but that wouldn't have been of the hearing because I didn't get the file until this morning.

PN16

MR HATCHER: No. Quite so. It would have been of the application.

PN17

THE COMMISSIONER: Yes. So this 9267 2772 you say is the number of the federal office?

PN18

MR HATCHER: If it please the Commission I tender the hard print of the web page for the Construction, Forestry, Mining, Energy Union National Office under the web page entitled, Contact Us, which has the facsimile number 9267 2460.

PN19

THE COMMISSIONER: So that's the handwritten number under here. I take it that your instructing solicitor may have been the person who's handwritten that or someone - - -

PN20

MR HATCHER: Yes. In fact I can put her in the witness-box and prove that if necessary, Commissioner.

PN21

THE COMMISSIONER: I don't know that we need to go to that extent.

PN22

MR HATCHER: To complete the picture we also have a facsimile transmission of further correspondence to the same organisation at the same fax number at 11.13 today indicating the time of hearing. I tender that as well.

PN23

THE COMMISSIONER: I'm just looking at the rules in fact to see what it actually provides.

PN24

MR HATCHER: I can assist the Commission on that. The High Court today - - -

PN25

THE COMMISSIONER: Yes, I've seen a decision, Mr Hatcher. We're not dealing with Bahamas or anything like that, are we in this particular case?

PN26

MR HATCHER: No, Commissioner, but the High Court are of particular assistance on this point because they make it clear in accordance with the Full Bench decision that service is not a prerequisite to jurisdiction in this Commission. It simply requires that procedural fairness be effected and we would submit that the material before you clearly satisfies that count, particularly when one has regard to the work to be done by section 127.

PN27

THE COMMISSIONER: Mr Hatcher, I can certainly say that my concern is procedural fairness as well. Obviously you're asking me or presumably will be going to ask me to make an order which has potentially very serious consequences not just for the particular organisation concerned but possibly its members and others who may be affected. I'm therefore perhaps more hesitant in relation to these issues of notification etcetera than I would be if it was just an industrial dispute where at the end of the day my powers may be somewhat less than they potentially are in a 127. I fully understand from your client's point of view why they wish to push ahead but, as I say, I'm - maybe we'll just see where we go and - - -

PN28

MR HATCHER: I can indicate if it's of any assistance to the Commission that of the 600 or approaching 600 employees involved in this application only 10 or a number approximating that number are on my instructions members of the CFMEU.

PN29

THE COMMISSIONER: Nevertheless, you - - -

PN30

MR HATCHER: I accept, yes.

PN31

THE COMMISSIONER: If you obtain your order you then, subject to other things, would be at liberty to proceed against those 10 just as much as you may be against the other 590 or whatever may be the situation.

PN32

MR HATCHER: Quite so. And the Commission is of course aware of the nature of 127 orders in the sense that it is urgent relief. It's not the sort of relief that is intended to sit by while people wait to read something in the newspaper.

PN33

THE COMMISSIONER: No. I'm aware of that. I suppose we're faced with a couple of options: one is to proceed now in the CFMEUs absence and whichever difficulties that may in fact cause when it comes to issues of whether orders should be issued, or if so dates and when that might happen; or we adjourn to allow them time to get here to be able to defend themselves. Mr Neilson, are you aware of - this correspondence doesn't really assist in the sense of indicating whether someone is on their way or whether they're not proposing to send anyone.

PN34

MR NEILSON: Commissioner, I actually haven't had any discussions with anyone from the CFMEU. We were served with an amended application at 1.30 pm today so the 2 pm would seem to be that the CFMEU was served after us. We would prefer to have the matter stood down so as to allow some further clarification to be sought from the CFMEU about whether they intend to appear today at all. Given that there is some conjecture about the service of the documents upon them, we would think that that's the most prudent course given that, although Mr Hatcher made reference to only 10 employees being CFMEU members, the Commission is correct in its observation that those orders if issued upon the CFMEU and its members have serious consequences.

PN35

So we would think it prudent so as to allow either your Associate or myself to try and contact the CFMEU to ascertain the position in light of the correspondence, although it is somewhat ambiguous, it is correspondence contesting service, so as to allow them to make a determination about whether they're going to appear today. If they're not going to appear then the matter can of course proceed but if they are going to appear we would say they should be given the opportunity to appear given that they say that they were only served at 2.10 today.

PN36

THE COMMISSIONER: Mr Neilson, if that's going to be the case it would certainly only be a short adjournment. It's not a case of into tomorrow or anything; it would be 10 or 15 minutes for that purpose. Would there by any difficulty with that, Mr Hatcher? I know you'd probably prefer to proceed right now.

PN37

MR HATCHER: Yes, 10 or 15 minutes would be convenient, Commissioner. If there's any suggestion of any larger application for adjournment or consideration of adjournment we'd wish to be heard and we may adopt a different course.

PN38

THE COMMISSIONER: Yes, certainly. I realise that but I thought 10 or 15 minutes is fair in the overall scheme of things. I'll also arrange for my Associate to provide both of you with a copy of - no, it's another AMWU person. You haven't changed allegiances temporarily, have you, Mr Morrison?

PN39

MR MORRISON: No, Commissioner.

PN40

THE COMMISSIONER: I'll also arrange for my Associate to provide you and Mr Neilson a copy of this correspondence from the CFMEU. I don't know that it's going to shed more light on the situation but certainly so that you've got that and we'll attempt to make contact with them now. We'll adjourn for 10 or 15 minutes to hopefully allow that to happen.

SHORT ADJOURNMENT [3.16pm]

RESUMES [3.35pm]

PN41

THE COMMISSIONER: My associate during the break contacted the CFMEU and apparently they are not sending anyone. Mr Kesby whom I gather is the relevant organiser, is in fact either on his way to Warrick Farm and there about this particular time. I've also in the meantime in fact, made some inquiries about fax numbers and certainly, that 9627.2460 is in fact the fax number of the Federal Office. The Mining Division in fact, isn't even co-located, it's actually located now with the Maritime Union in Sussex Street, so with a totally different thing, so I don't know where the Mining Division got caught up in the thing.

PN42

But nevertheless, for what it's worth, Mr Hatcher, I'm certainly satisfied the National Office received service, if they haven't passed it on to the branch its unfortunate but I don't suppose we can do anything about it at the moment.

PN43

Mr Neilson, did you want to say anything about the service?

PN44

MR NEILSON: If I could indicate that I have had some discussions with Ms Sullivan from the CFMEU regarding this particular matter and the CFMEU have taken a firm position that they haven't been served correctly with the documents. They say that the documents were indeed, served upon the Mining Division, they say that the Construction and General Division the documents should have been served upon, is in a completely different building and that the person who served the documents simply saw CFMEU on the door and slipped it under the door. Now, I can't attest to whether or not that is correct.

PN45

The second point Ms Sullivan asked me to make was in relation to the fact that this application was not served upon the State Office of the CFMEU, the members of which this order seeks to bind, are members of that State-based organisation which has State registration. The applicant served two copies of the application upon the AMWU, they served one application on the Federal officer of the AMWU and they served the second application upon the State office of the AMWU. That is why the AMWU is present here today. The CFMEU I guess, was not extended that same courtesy of having an application served upon its State office.

PN46

The third point I wish to make and whilst I haven't seen the application which was lodged with the Commission is that Rule 68 which provides for the service of documents provides that documents must be provided personally or leaving the document at the registered organisation's address. Now, we say that we see no application for an order for substituted service. Service was effectively effected on the AMWU for instance, when personal service was made to the AMWU offices at 1.30 pm today.

PN47

The CFMEU contend that service was effected upon them at 2.10 pm today and they deny that that service was effected correctly, hence they are not present here today. Mr Hatcher made reference to a High Court decision earlier, we haven't had the opportunity of reviewing that decision, I think it was handed down today but what we say is that in terms of procedural fairness, the CFMEU should be given the opportunity of attending this hearing so as to be heard in relation to the application.

PN48

We say that service hasn't been correctly affected. If you read the letter of Rule 68 service was effected upon the AMWU at 1.30, we say that that is not sufficient time to defend the application which is presently before the Commission. The CFMEU has indicated that they do wish to be heard in these proceedings, they've indicated that if the Commission is minded to adjourn the proceedings today, then they will be here first thing tomorrow morning so as to be heard. We would certainly press that as being the appropriate way forward, given what we say in relation to service, that we once again press that service has not been correctly effected.

PN49

The application once again, seeks to bind the CFMEU and its members albeit it only 10 members but as the Commission recognises, there may be some serious consequences if the CFMEU and its members don't comply with the order. Given that there is also a potential for the order to be made today, communicating the effect of that order and the imposition of that order is going to be extremely difficult.

PN50

If the Commission is minded to continue the hearing today, we may wish to make further submissions in relation to that. But it is certainly our position and after discussions with the CFMEU, that the application which is presently before you today be adjourned and it be adjourned until tomorrow morning. If it please the Commission.

PN51

THE COMMISSIONER: Mr Hatcher?

PN52

MR HATCHER: If it please the Commission, the CFMEU have now appeared in these proceedings and so, there is simply no need to consider the question of service.

PN53

THE COMMISSIONER: Sorry, how do they appear? By the letter, you mean?

PN54

MR HATCHER: No, by my friend's submission. Not only has he appeared on their behalf but he made an application on their behalf.

PN55

MR NEILSON: I make the application on behalf of the AMWU having a conversation with the CFMEU, I intend to in no way to hold myself out as a representative fo the CFMEU.

PN56

THE COMMISSIONER: I didn't think you were, Mr Neilson.

PN57

Mr Hatcher, have you got any submissions you want to make about the issue of the personal service and substituted service, etcetera?

PN58

MR HATCHER: Commissioner, let me start at the first proposition that my friend put, that somehow we seek orders against the State union, we don't, we seek orders against the Federal union, the Federal union is a party to the certified agreement, it's only in their capacity as members of the Federal union, party to the certified agreement, that our employees have any contact with the CFMEU. Accordingly, it's against the Federal union that the orders are sought.

PN59

So to the suggestion that somehow the State union has an interest, we simply say that is a nonsense, no orders are sought against that organisation. To the suggestion that there is a requirement to effect personal service in order for the Commission to proceed, I readily concede, as I did at the outset, that the Commission needs to be satisfied that natural justice is available to the parties.

PN60

But section 127 orders are orders for urgent relief designed to protect parties from industrial action of a kind that is said to warrant special sanction by the Commission, it is urgent relief to be supported by urgent relief in a court if necessary, urgent interlocutory relief. It's relief that can be made available by the Commission of its own motion and int he absence of any parties, if it appears appropriate to the Commission so to do.

PN61

Now, true it is that my client has moved the Commission and has given all the parties notice of its intention so to do in circumstances where it says it's exposed to illegitimate industrial action. My client could equally have approached the Federal Court immediately and sought ex parte relief, that is relief without giving any party any notice of the application and the court would have had to decide whether it was appropriate to proceed ex parte, whether it was appropriate to issue orders as to short service, making the matter returnable for instance, at 3 o'clock this afternoon, the application having been filed last evening or to make some other order.

PN62

Now, to suggest that these applications under section 127 need be served by certified post is to say that section 127 has no work to do and we say that can't be right. All the Commission needs to be satisfied of is that the parties have been notified of the proceedings and to the extent they wish to avail themselves of it, have an opportunity to be heard in the proceedings. I should say, if the Commission were against me on all that, we would still wish to press the proceedings against the AMWU, as I indicated, there are only 10 employees at one of the plants affected out of some 500-odd employees, 150-odd employees who are or might be members of the CFMEU.

PN63

THE COMMISSIONER: Sorry, I did not know whether there was another point you wanted to make before I called on Mr Neilson again.

PN64

MR HATCHER: There was, Commissioner, and of course, it's our contention that personal service was effected, we have had an affidavit of service prepared, we were attempting to get it up to court but my instructions that service was effected on a gentleman by the name of Jaff Mergick who is said to be the Records Manager for the CFMEU, presumably that means he has some control over the records of that organisation. May it please the Commission.

PN65

THE COMMISSIONER: Mr Neilson, did you want to put anything in response to Mr Hatcher acknowledging that you are not appearing for the CFMEU and I'm not taking you as appearing?

PN66

MR NEILSON: Thank you, Commissioner, my friend makes reference to section 127 orders being on the basis of urgent relief sought, he made reference to potential Federal Court action, then dealing in hypotheticals there, they haven't done that, they are here before the Commission today but the Act, from my understanding, makes reference to, as soon as practicable. What we say is practicable that both parties be given the opportunity to appear.

PN67

Now, the CFMEU is not here today. We press that they haven't complied with the rules as to service. It is often the case that were a party seeks to effect service by way of facsimile, that they make an application for an order for substituted service and that's not an unusual application and it's not unusually refused by the Commission. The parties who have prepared the application before the Commission today are not unfamiliar with industrial proceedings and they are not unfamiliar with section 127 applications.

PN68

The fact that they haven't availed themselves of the opportunity to correctly effect service should not we say, impinge the AMWU and whilst not appearing for the CFMEU, the CFMEU in these proceedings, we say if they want the application to be heard there are certain procedures which must be followed, they are aware of those procedures, we would submit, they haven't followed those procedures. We don't believe that the Commission should hear this application today.

PN69

If the applicant wishes to press the application, they can do so, they can serve the parties correctly and we will appear. Other than that, we are in an unenviable position where one party is not present at the proceedings, technically we would submit that we were served at 1.30 pm today, the relevant organiser isn't able to be present today, given that they are probably out at the site, the site would be close to an hour away. We say in terms of procedural fairness, leaving aside the service question which we say hasn't been effected correctly, in terms of procedural fairness, it is important that both parties be present.

PN70

it is important that at least the AMWU for instance, be able to avail itself of the appropriate information it needs to defend the application which is before the Commission, we haven't had sufficient opportunity to do that, therefore, we say we are being denied procedural fairness. We would submit that the application be stood aside and if the Commission pleases, it can be heard at 9 am tomorrow morning.

PN71

We don't think that that would unfairly prejudice the respondent, given that they are seeking to unfairly prejudice, sorry, unfairly prejudice the applicant, given that they are seeking to today unfairly prejudice the respondents in these proceedings. If it please the Commission.

PN72

MR HATCHER: If it please the Commission, an application such as that in a court would, to have any semblance or any prospect of success, be accompanied by an undertaking as to damages. My client will suffer damages in the order of half a million dollars if the Commission accedes to this application for adjournment. This is an application for adjournment by a party complaining about service who appears in the proceedings.

PN73

Once you appear in the proceedings any complaint you may have as to formal service is gone. It is one of the most fundamental rules of law. Service is simply there to ensure that the parties are on notice of the proceedings. Once they have had the benefit of that notice and attend, unless it be a measure of the court's jurisdiction, of which it clearly isn't in this case, then they have no objection, no proper objection to the proceedings going forward.

PN74

Commissioner, we are content if Mr Nelson doesn't feel sufficiently instructed to properly represent the organisation. We are content to proceed ex parte. We are quite content to take the burden upon ourselves of properly and candidly putting before the court the facts and inviting the Commission to make appropriate orders, because we have no fear in the facts, it couldn't be suggested that this industrial action could be justified in any sense.

PN75

The majority of the employees engaged in the industrial action don't even have a grievance, they simply walk out to support the employees who are said to have a grievance which is a claim placed on the employer during the currency of a certified agreement contrary to the terms of the certified agreement and in respect of which they expressly refused to submit the grievance to the Commission.

PN76

If it please, we ask that the Commission proceed to hear our application. As I have indicated, if the Commission is against us in relation to the CFMEU we are content to adjourn so much of the application as concerns the CFMEU and deal with the remainder of the application.

PN77

THE COMMISSIONER: Thank you. It is perhaps an unenviable position that I am in, in relation to the issues that you have both put before me today. Nevertheless, I have to decide whether or not we go on. I think that what I will do is that I am satisfied that people have been served in relation to the matter and notwithstanding your submissions, Mr Neilson, it will go ahead as pressed by Mr Hatcher. However, if something occurs during the proceedings that I am going to stop them then, but it might go to whether or not Mr Neilson is in an adequate position to properly defend his position. We might have to look at where we go there, but we will go ahead at the moment. Thank you.

PN78

MR HATCHER: Commissioner, might I firstly tender a copy of the certified agreement that applies?

PN79

THE COMMISSIONER: I have one here, Mr Hatcher.

PN80

MR NEILSON: Commissioner, can I just raise by way of procedure that leave hasn't been granted for Mr Hatcher to appear in these proceedings and we press our application opposing his leave.

PN81

THE COMMISSIONER: Do you want to put something, Mr Hatcher, as to why leave should be granted. I am sorry I overlooked that point?

PN82

MR HATCHER: If it please the Commissioner, we would rely on the nature of section 127 proceedings being, as is apparent from the section itself, a precursor in this Commission to subsequent proceedings in a court, we would rely upon the unlawful nature of the industrial action embarked upon, that we would submit that the Commission would be assisted by submissions as to the law on. We would rely accordingly on the provisions of section 42(iii), paragraph B:

PN83

The subject matter of the proceeding is such that there are special circumstances that make it desirable that the parties be represented.

PN84

Those special circumstances being the nature of a section 127 application. The fact that if it is not complied with there will be proceedings in the Federal Court to enforce compliance and that a consistency of representation is something that our client would seek to achieve and we also rely on the fact that our client can, in the circumstances of this case, only adequately be represented by counsel's solicitor, or agent, and we say, again, it is the nature of the circumstances that give rise to that position.

PN85

THE COMMISSIONER: You don't think that Mr Bariston can jump up to the bar table and take your place, Mr Hatcher?

PN86

MR HATCHER: I am sure Mr Bariston would make every genuine endeavour to put the case as strongly as he could, but Commissioner it is our client's desire that the case be put as firmly jurisdictionally as it might so as to ensure that any orders that are made by this Commission are enforceable and the Commission is well familiar with the early course of section 127 orders, where parties have obtained relief from this Commission and were unable to enforce them satisfactorily as a result of the Federal Court finding that the orders granted were deficient. We had hoped to represent our client in such a way that such a problem would not arise. May it please the court.

PN87

THE COMMISSIONER: Thank you. Mr Neilson, did you want to put anything more on the record?

PN88

MR NEILSON: Commissioner, I will keep my comments brief. Mr Hatcher correctly identifies the special circumstances of the application. We made an application for an adjournment on the basis of those special circumstances in the unenviable position we were in. We would say that in light of Mr Hatcher's submission about what he says are complex legal issues and accepting what the Commission said in relation to service, we would say that an adjournment should be granted so as to enable AMWU to seek legal advice on this particular application - if the AMWU so chooses.

PN89

My instructions may be that I appear subsequent to any adjournment but given that the applicant appears today represented by four legal counsel. We would say that the AMWU should be given the same opportunity and I will leave my submissions at that.

PN90

THE COMMISSIONER: Sorry, you didn't want to put anything further, Mr Hatcher, did you?

PN91

MR HATCHER: Just a brief reply, Commissioner. Clearly the AMWU has had that opportunity. They know the site that is out on strike. They know the number of employees involved. They know the cost. They know the strike is indefinite. They know that the matter is before the Commission. They have had the opportunity to chose their representation.

PN92

THE COMMISSIONER: I will grant you leave, Mr Hatcher, to appear. Should matters come up that I believe Mr Neilson may require extra advice or assistance on we can revisit that as we go. But I am satisfied under 42(iii)B, and I must say I am not so sure about C, but on B I will grant you leave.

PN93

MR HATCHER: May it please the Commission.

PN94

THE COMMISSIONER: If you would like to go ahead, please?

PN95

MR HATCHER: I tender the agreement that applies our client's operations.

PN96

THE COMMISSIONER: Sorry. I will just say to you, Mr Hatcher, I have actually got a copy. It is the one of 9 November 2001?

PN97

MR HATCHER: That is the one, yes. Can I just say by way of background that the agreement binds the two respondent unions, the AFMEPKIU and the CFMEU - - -

PN98

THE COMMISSIONER: And the CEPU as well, but I gather they are not - - -

PN99

MR HATCHER: They are not the subject of this application. Can I also draw the Commission's attention to clause 26, the no extra claims provision. Clause 27, the disputes procedure, which, of course, in the usual form allows for the matter to be submitted to this Commission - in the not so usual form, permits the Commission to arbitrate and in the most usual form requires that work continue uninterrupted while the matter is within the disputes procedure.

PN100

THE COMMISSIONER: Mr Hatcher, can I just ask and perhaps you will get to that later - I take all that on board. I gather though from what is in the application that the issue that has led to this alleged action is something that doesn't fall squarely within the agreement?

PN101

MR HATCHER: Well, it is an issue that is unregulated by the agreement, but because the employment is regulated by the agreement if there is to be some claim in relation to that or some dispute in relation to that, it nonetheless needs to be processed through the agreement.

PN102

THE COMMISSIONER: I suppose what I have got in the back of my mind, which is a more a practical thing which is, say a group of employees had a dispute about this issue of bonuses which, I gather, is not covered, certainly from what I could see it wasn't covered there. What I could potentially see happening is, they could raise this and then the company could, in fact, say, well the Commission, in fact, can't deal with it because it doesn't arise, it is not a dispute arising under the agreement. For instance if it was a dispute over bereavement leave, okay, fair enough, it is in the agreement and provided those steps are gone through, I am just wondering whether you are going to address that as a - - -

PN103

MR HATCHER: Commissioner, we say that the no extra claims provision applies such that if it is a claim for something different advanced by the union, something not prescribed by the agreement the it's prohibited.

PN104

THE COMMISSIONER: Yes, I am not taking away from that side of your argument but I thought you were also saying that if there was an issue as there is that it should be processed through the disputes procedure, I suppose what I was raising is that I could see a possible argument coming from the company as well, you can't take it through this because it's not covered by the agreement.

PN105

MR HATCHER: My client certainly hasn't put that submission, indeed, quite the contrary. My client's contention has been that the matter should be processed through the Commission.

PN106

THE COMMISSIONER: It's just that that, believe or not Mr Hatcher, is an issue that sometimes - Mr Neilson is nodding - it sometimes is something that is raised by the other party to an agreement that, well, it's not covered by this particular document. So, in effect, bad luck.

PN107

MR HATCHER: Commissioner, my instructions far from being to take any such point are to expressly concede that the matter can be dealt with under the disputes procedure and indeed it's been my client's position to urge upon the employees that it be so dealt with.

PN108

THE COMMISSIONER: Thank you.

PN109

MR HATCHER: And I think that creates an estoppel if anyone is wanting to do anything else during the currency of the agreement in relation to this issue.

PN110

THE COMMISSIONER: Right. Whether or not there may be a separate question as to whether the Commission itself felt it had the jurisdiction but that would be a different issue. I just wanted to know on that point.

PN111

MR HATCHER: Commissioner, since the Commission is clearly alive to the circumstances, can I immediately hand up correspondence of 27 September 2001 which was part of the background to negotiations in relation to the agreement. It's from our clients to Ms Perkins.

PN112

THE COMMISSIONER: Did you want that marked, Mr Hatcher?

PN113

MR HATCHER: It's perhaps convenient, Commissioner.

PN114

THE COMMISSIONER: Mr Neilson, do you have any difficulty? I know that you've just seen that and I appreciate the fact that you quite probably haven't seen it before.

PN115

MR NEILSON: I have no objection to it being tendered subject to my being given the opportunity to read it and any concerns I raise accordingly.

PN116

THE COMMISSIONER: Yes. I will mark that as VISY1.

EXHIBIT #VISY1 CORRESPONDENCE DATED 27.9.01

PN117

MR HATCHER: The Commission sees that the prefatory expression is:

PN118

During the recent EBA negotiations it was agreed that the matters outlined below would be dealt with in the terms of the content of each item as spelled out in this correspondence.

PN119

So it's a collateral arrangement, as it were, to the agreement itself, exchange of correspondence not an uncommon feature. The Commission then sees the second heading, Production Bonus:

PN120

The current production bonus system in place at Visyboard, Warwick Farm and Smithfield to be reviewed ...(reads)... re revised incentive program

PN121

Can I inform the Commission that in the approaching two years since September 2001 what's occurred, there have been extensive discussions between our clients or more particularly our client, Visyboard, and the unions in relation to the production bonus system at Warwick Farm and Warwick Farm alone. In recent times our client has formulated a position that it would like to put in place a new bonus scheme and informed employees of this and informed employees that it would underwrite the new bonus scheme guaranteeing for the next three months that they would receive no less than the amount currently available under the bonus scheme and that they could agitate any disagreement they may have in relation to that during those three months through the disputes procedure.

PN122

That offer or proposal was apparently considered so offensive that yesterday the 200 employees at Warwick Farm ceased work at midday and continue on what we are told is an indefinite stoppage. Warwick Farm produces products to the value of $400,000 per day, so our client has already lost production in excess of $400,000 from Warwick Farm. Then in a particular offensive twist to the matter there was a meeting at the Smithfield site this morning commencing at 6.00 am, that's the Visyboard site at Smithfield whee 170 employees are engaged and which produces again some $400,000 worth of goods per day and those employees ceased work at 7.00 am embarking upon an indefinite stoppage.

PN123

Our client, Visyboard also trades from premises at Smithfield under the name, The Packaging Company. In those premises some 70 employees are engaged producing product to a value of $100,000 per day and at 10.00 am those employees ceased work in sympathy with the Warwick Farm employees an indefinite stoppage. Our client Visypaper also engages employees at Smithfield in its operations which trade as Visy Recycling. There are some 30 employees involved in that business and that business produces some $100,000 worth of product per day. At 8.00 am this morning those employees ceased work on an indefinite stoppage in sympathy with the employees at Warwick Farm.

PN124

Commissioner, the Visypaper operations operated by our client, Visypaper, also at Smithfield employ some 70 employees. They produce some $500,000 to $600,000 worth of product per day. There was a shift due to start at 3.00 pm this afternoon. That shift did not start and we are instructed that those employees are also engaged in an indefinite stoppage in sympathy with the employees at Warwick Farm.

PN125

So, Commissioner, we have the employees at Warwick Farm, the only employees with any conceivable grievance and when one says conceivable grievance their grievance is that they do not wish to have submitted under the disputes procedure the question of whether it is appropriate that the production bonus be reviewed when they agreed to it being reviewed as a collateral arrangement to the certified agreement and in a circumstance where our client is content to underwrite the minimum payments available under it for a three month period and, even more offensive, a further 350 employees are engaged on an indefinite strike in sympathy with that client.

PN126

If it please the Commission, I know the Commission is well familiar with the Full Bench decision of this Commission in Coal and Allied Operations Pty Limited v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, perhaps not surprisingly, a judgment reported in 1997 Vol 73 IR 311. Can I hand up a copy of that report, Commissioner.

PN127

THE COMMISSIONER: Mr hatcher, can I clarify before we get on to that, in relation to the Smithfield, this Visy1 in that paragraph that you referred to indicates that the bonus system at Smithfield is also going to be reviewed.

PN128

MR HATCHER: Yes.

PN129

THE COMMISSIONER: Do I take it from what you earlier said that the discussions thus far have not dealt with the Smithfield bonus but only Warwick Farm?

PN130

MR HATCHER: Only Warwick Farm as I am instructed.

PN131

THE COMMISSIONER: But it's intended that at some time - - -

PN132

MR HATCHER: That was the intention in September 2001,

PN133

THE COMMISSIONER: Whether it still is - - -

PN134

MR HATCHER: Yes. Now, the Commission will recall this litigation. It was the Hunter Valley Number 1 dispute in one of the many parts of its litigious history. But it was the first assessment by a Full Bench of the Commission of exactly what power was conferred on the Commission under section 127 and in a quite detailed and considered decision, the Commission analysed the right to strike, the changes in the right to strike, the legislative policy that might underpin giving to the Commission the power to prohibit strike action.

PN135

In a particularly poignant passage at page 327 the Commission sees that at about point 4 there's a reference to the policy issues which might have underpinned the legislation and then at point 7, the Full Bench say this:

PN136

Viewed in perspective with the provisions of the Act generally ...(reads)... as a contravention of the Act.

PN137

Then the Commission sees at page 330 of the report at about point 5, having referred to the question of whether it's necessary that the industrial action be demonstrably not protected action, the Commission say:

PN138

Each of those points is a development of a theme based on a characterisation ...(reads)... the power in section 127.

PN139

Over the page, 331, towards the bottom of the page, indeed at point 9:

PN140

It follows in our view that as a general rule in the exercise of the discretion ...(reads)... under section 170MW.

PN141

So, if it please the Commission, we need satisfy the Commission of the jurisdictional facts identified at page 330, that is that there is industrial action taking place, so much is not in issue and that it's taking place at a place of work that is regulated by a certified agreement. The Commission has the agreement before it. Then we need to satisfy the Commission that the industrial action is not considered to be protected action or plainly likely to be protected action.

PN142

If it please the Commission, there's no initiation of bargaining period which is, of course, the first step in protected action, nor could there be, there being a certified agreement currently applying to the site which provides for no extra claims. So we're driven back to the discretion. Is this industrial action that is illegitimate in the sense warranting some special sanction by the Commission. In our respectful submission, it plainly is.

PN143

There's substantial damage being done to the business of our clients and the Commission sees that the damage arises in respect of Warwick Farm where the employees are not content to have their grievance submitted to the Commission but rather insist upon a right to stay on strike indefinitely with a view, presumably, to forcing our client to alter its position in relation to the rights and entitlements agreed in the certified agreement, clearly illegitimate industrial action.

PN144

As to the remainder of the employees, it's a sympathy strike. Now, if ever there was a policy that was clear under the Workplace Relations Act it was that Australia had seen the last of sympathy strikes. The Commission knows from section 170MN that even if there be protected action, if any other person joins in, in sympathy, the protected action ceases to be protected. It is how keen the legislature was to impose sanctions on what used to be a relatively common feature of Australian Industrial Relations, the sympathy strike.

PN145

Now, if it please the Commission, because of the different sources of illegitimacy in the way in which the industrial action arises, we've taken the step of reducing the orders that we ask the Commission to make to writing and distinguishing between the two sites. Can I hand up firstly the order that we would ask the Commission to make in relation to the Warwick Farm operations?

PN146

THE COMMISSIONER: Now, this order that you're handing up, Mr Hatcher, differs from what was originally sought and then amended.

PN147

MR HATCHER: It will in substance, Commissioner, be the same order. I think the first order originally sought, because Warwick Farm was the first place to go out, so that would - - -

PN148

THE COMMISSIONER: So what you've just handed up now, you say is the same or as far as substantial provisions are concerned as what was initially sought by your client when they lodged the application.

PN149

MR HATCHER: Yes, Commissioner and the Commissions are where we then filed an amended application which sought to pick up some of the sites I've referred to. It didn't pick up Visy Paper because Visy Paper only joined in at 3.00 pm. But we've instead prepared a second order to cover the Smithfield's sites. Can I hand up a copy of that?

PN150

THE COMMISSIONER: Did you want these marked, Mr Hatcher?

PN151

MR HATCHER: It's probably convenient, Commissioner.

PN152

THE COMMISSIONER: It is probably convenient. Subject to the fact, Mr Neilson, I know you haven't had a chance to look at them yet, but I'll mark the one that relates to the draft order relating to Warwick Farm as Visy 2 and the other order as Visy 3.

EXHIBIT #VISY 2 DRAFT ORDER RELATING TO WARWICK FARM

EXHIBIT #VISY 3 DRAFT ORDER RELATING TO SMITHFIELD SITES

PN153

THE COMMISSIONER: Now, I just notice with Visy 3 there's some handwritten changes, is that because the CFMEU has no employees at any of the Smithfield - - -

PN154

MR HATCHER: No members at any of the Smithfield operations, that's so, Commissioner. So it's on the Warwick Farm order in relation to which there is any concern about the CFMEU, if it please the Commission.

PN155

THE COMMISSIONER: Mr Neilson, did you want a moment or two to digest these two documents?

PN156

MR NEILSON: Yes, if I could be given the opportunity I would appreciate just a couple of minutes just to have a quick look at them. Can I perhaps seek a point of clarification from my friend. He's saying that the Smithfield site went out at 3.00 pm this afternoon?

PN157

THE COMMISSIONER: Was that Visy Paper, I think, Mr Hatcher?

PN158

MR HATCHER: Yes, Visy Paper Pty Limited.

PN159

THE COMMISSIONER: The 70 employees you say.

PN160

MR HATCHER: That's so, Commissioner.

PN161

MR NEILSON: Commissioner, I'm in somewhat of a difficult position in that I was here at 3.00 pm this afternoon and I have no knowledge, apart from what my friend has just told me, that Visy Paper have actually gone out on strike and I'm handed an order here that seeks to bind them, so I will just flag that I am in a difficult position as to be able to try and defend the Visy Paper application in that I didn't even know they were out on strike. Perhaps I will try and seek some instructions, but once again I don't know how sufficient those instructions could be obtained in five to 10 minutes.

PN162

MR HATCHER: Commissioner, can I briefly respond to that. The Commission needs to be satisfied that there is industrial action taking place. If it's put in issue that Visy Paper are on strike, well, we'll call evidence to support the proposition that Visy Paper are on strike. Subject to that, if it's a matter of convenience, clearly if they weren't on strike the order would not cause them any inconvenience at all.

PN163

THE COMMISSIONER: Yes, but that's perhaps no reason to make - I could make orders telling a whole lot of people that they should be at work and they're probably at work right now, so I can understand Mr Neilson's difficulty in the fact that he certainly was here at 3.00 pm. We're both witnesses to the fact that he was here.

PN164

MR HATCHER: I won't put him to proof of that, Commissioner.

PN165

THE COMMISSIONER: Mr Neilson, I'm wondering whether I should perhaps give you the opportunity to make a phone call. I don't know whether that will actually shed any light on the situation.

PN166

MR NEILSON: I can attempt to contact Ms Amanda Perkins.

PN167

THE COMMISSIONER: Yes, I was going to say maybe Ms Perkins can shed some light on that.

PN168

MR NEILSON: I certainly hope that she can, for my benefit at least. I will take that opportunity.

PN169

THE COMMISSIONER: Yes. I think maybe if we just have a very brief adjournment to allow you to do that and to just look at these. I don't think anything's going to be lost, Mr Hatcher, and it might shed light on the situation if Mr Neilson can find Ms Perkins in the first place and whether she can in fact shed light on it.

PN170

MR NEILSON: Yes. It sometimes is difficult finding Ms Perkins but I will put out the scouts for her.

PN171

THE COMMISSIONER: Thank you. We will just adjourn briefly for that purpose.

SHORT ADJOURNMENT [4.22pm]

RESUMES [4.37pm]

PN172

THE COMMISSIONER: Yes, Mr Neilson?

PN173

MR NEILSON: Yes, I have taken some instructions from Ms Perkins and it does appear that the site made reference to by my friend has gone out today at 3.00 pm and that they are currently on strike, so I guess there's no contesting that fact and there's no need for my friend to adduce evidence in that regard. Was my friend concluded on his submissions?

PN174

MR HATCHER: Yes.

PN175

MR NEILSON: Commissioner, I'm in a somewhat difficult position today given that we have notice of this. My instructions are that the dispute at the Warwick Farm site relates primarily to the production bonus which is detailed within the correspondence marked Visy 1. Basically the production bonus provided for a payment of $60 to each individual employee and it applied both at the Warwick Farm and the Smithfield sites.

PN176

A letter that was tendered and marked Visy 1 I'm instructed actually forms part of the certified agreement. I'm not sure whether that's correct. On my copy it doesn't but I'm instructed that the letter which was exchanged between the parties was the result of some negotiation between the company and t he AMWU at the time the enterprise agreement was entered into between the parties.

PN177

The correspondence detail provides that the company will review the production bonus system in place both at Warwick Farm and Smithfield. My instructions are that the company has sought to if you like review the production bonus in place at Warwick Farm. They haven't instituted that proceeding at Smithfield as of yet. As I've made mention, the production bonus provides for a payment of $60. Discussions between the company and the union have indicated that the company's position is that they're going to withdraw the $60 payment and implement some new system.

PN178

I'm not totally over the facets of that new system but I am instructed that there is no longer a guarantee that the $60 payment which has been made will not be reduced, and that is the source of some angst for our members who have required that as part of any discussions there be a guarantee that the current $60 payment not be reduced in any way. My instructions are that the company have so far refused to give that undertaking.

PN179

There have been some discussions for a period of three months between the parties as part of this review, and that review has only taken place at Warwick Farm. I'm instructed that the union has raised concerns that the review has not taken place at Smithfield and our members at Smithfield are sufficiently concerned that they haven't been part of any such review.

PN180

As part of the discussions and the negotiations for the review I'm instructed that recently, and I don't have a copy of the correspondence, but recently the company advised all its employees at Warwick Farm of an arbitrary decision that they had made that they were going to implement this new system which had been the source of some dispute. That immediately incensed our members employed at Warwick Farm and it raised the eyebrows of all of our members employed at Smithfield who felt that they were going to be the subject of the new system that was being implemented at Warwick Farm.

PN181

The situation is that you have a situation whereby parties are in some discussions about a matter of a great deal of concern to our members. Our members do not want a reduction in their working conditions as part of the enterprise agreement and the letters that were entered into between the parties at the time of that negotiation. The company then said that despite the discussions, despite the matter still being in dispute, we're going to implement this system anyway, and basically took an attitude of you can either lump it or leave it.

PN182

Our members have engaged in industrial action and there can be no disputing that. They are currently on strike at the Warwick Farm site and I'm instructed that they are also out at the Smithfield site, but from our point of view the company does not come to this Commission with clean hands, if you like. Often in equity, for a person or a party to seek an injunction then a principle of equity is that the party comes with clean hands to the application.

PN183

We say that this company has taken an attitude which has been highly provocative. It has been highly provocative of our members in an effort to say to them that despite our undertakings that there will be a review and that you will be part of any review and that there will be some form of consensus reached between the parties, despite those undertakings in the 27 September 2001 letter, and certainly we would say that that's the intention of such a letter, the company has implemented this decision without any consensus being reached between the members and the union, and that is the source of a great deal of concern for our members.

PN184

The strike, I'm instructed, at Smithfield is in relation to their fear, and I wouldn't say it's not an unwarranted fear given the company's past actions, that the system that has been imposed, not implemented, imposed upon the members at Warwick Farm, will also be imposed upon the members at Smithfield.

PN185

Commissioner, I'm instructed that at 2.00 pm this afternoon representatives of the company met with Ms Amanda Perkins, the secretary of the printing division of the state branch of the AMWU, in an effort to try and resolve the matters that remain outstanding between the parties. They met at Warwick Farm to discuss specifically the Warwick Farm issues, given that the new production bonus was implemented with respect to Warwick Farm.

PN186

I'm instructed that those discussions have been somewhat successful insofar as the company has moved a little bit towards the union's position and the union has indeed moved a little bit towards the company's position. However, the fact remains that the parties remain in dispute and the employees remain outside the gates.

PN187

I'm instructed that there is a meeting scheduled for tomorrow morning at 9.30 am between representatives of the company and representatives of the union. I'm instructed that our members will hopefully convene some time after that meeting and I think there is a mass meeting scheduled for 4.00 pm that afternoon which is the time that the afternoon shift is due to start work, so that the union and the delegates can address those particular members on the result of the discussions which took place earlier in the morning.

PN188

Certainly we would say that if the Commission decides to grant the orders sought or if the Commission decides to make any other determination, then we would certainly undertake to report back to those members about the subject of these proceedings today. But the position of course of this union is that for this company to suggest that it is the totally innocent party in these proceedings is a false position. This company's actions have been, we would say, highly provocative of our members. We would think that some form of conciliation between the parties would be a more helpful way of resolving those issues.

PN189

I recognise that I'm not probably the most appropriate person with respect to conciliation given that I have had no previous dealings with the company, but certainly Ms Amanda Perkins would be able to assist the parties. Our position is that given that there is a meeting first thing tomorrow morning, that meeting should be allowed to occur. Given that the parties had a fruitful meeting this afternoon at 2.00 pm at the Warwick Farm site, we're certainly hopeful that the meeting proposed for tomorrow will resolve the issues between the parties and the employees will return to work with a system and a production bonus system which we say is fair and equitable for them and has not been arbitrarily imposed.

PN190

The position is - and we've made submissions on this fact and I won't seek to go into any great detail - given that my instructions are severely limited in this matter, we would think that the Commission should exercise its discretion, A, to defer the issuing of the order. We would obviously say that we demand that the order be outright rejected, but the Commission may take an alternative approach so as to allow the parties to continue discussions; that the application be stood over until tomorrow morning, allow those discussions to occur between the parties at 9.30 am, and some form of report back can be facilitated between the parties to this application and certainly the CFMEU may choose to make an appearance on that particular occasion.

PN191

Commissioner, my friend has stressed the damage that has occurred to the company as a result of the industrial action which is currently occurring at the various sites, and that submission has been made from the bar table without any evidence supporting that. We certainly see no documentary evidence of the company's loss with respect to the industrial action.

PN192

THE COMMISSIONER: Still I suppose Mr Neilson you would accept that there is probably some damage occurring?

PN193

MR NEILSON: Yes Commissioner, I don't think anyone can deny that. We would say that given the company's actions, given the fact that there is a meeting tomorrow morning and given the fact that there was a meeting today at 2.00pm before these proceedings which we would say were quite fruitful, we would say that given the severity of the application and its potential impact upon the employees and the union we would say that the parties should be given the opportunity to meet to try and resolve the issues between them tomorrow morning at 9.30 and then if the applicant so pleases the application can be pressed.

PN194

Of course the Commission may be minded to issue the orders today, that is of course a matter for the Commission. I'm sure the applicant will press the issuing of those orders today. But can I raise with the Commission a concern of the AMWU and that is that we are probably extremely unlikely to be able to contact our members to communicate the effect of your decision this afternoon or even this evening.

PN195

If the Commission is minded to issue the orders today we may seek to make some submissions with respect to the term and date of the effect of those orders. Certainly our position is that given the company's actions - and I apologise to the Commission that I'm not able to adduce some form of evidence about the history of the negotiations relating to Visy 1, I do apologise for that given that Ms Perkins and other union delegates aren't able to be here and if the Commission is mindful of the submission that I made that I would be happy to seek to contact those relevant people in an effort to try and bring them in here to provide some form of evidence as to their position with respect to the production bonus.

PN196

What the Commission should be aware of is that a lot of these employees were threatened with a situation whereby they were going to lose a payment of $60. For a lot of employees that $60 was, for every employee $60 is quite a lot of money these days given that - - -

PN197

THE COMMISSIONER: That's per week I gather, is it?

PN198

MR NEILSON: Per week, yes, given the requirements for mortgage, mortgage repayments, etcetera, etcetera, given that the employees as at 27 September 2001 hopeful that some form of resolution and consensus review if you like will take place and given that we would say that was held out to them the company by imposing this arbitrary system has provoked the action. It is threatening the employees with a reduction in their wages which we would say would go against the certified agreement, it would even go against the no extra claims provision in the certified agreement that my friend has made reference to insofar as the employees at the time of the certification of the agreement were entitled to this particular bonus. During the course of that particular agreement the company is now saying that we may take it away. You may get more, you may get less, but we may take it away.

PN199

Therefore we say that the company has in fact made an extra claim on the employees. We would say that they perhaps were in breach of their own agreement insofar as that the position of the company is that whilst you are currently on $60, or you are currently provided with a production bonus of $60 you may get $10 plus being a reduction of $50. Therefore we would say that that's an extra claim. The company has imposed its decision arbitrarily, they don't come here with clean hands. They have, we would say, provoked this dispute.

PN200

The offer to resolve this matter by way of the dispute resolution procedure I'm instructed has not necessarily been raised here today - my instructions on that matter are limited - but given that the letter does not form part of the agreement although I'm instructed that it does but it appears that it doesn't, there would be some serious question marks as to the Commission's ability if you like to arbitrate over the particular matter in dispute and quite often in the union's dealings with matters of this type it has often been the company's position that they would submit that the Commission does not have the power to arbitrate over the particular dispute.

PN201

My friend has made some submission today that the company would not adopt such a submission and such a position but that's the first time with me being involved in this dispute that I'm aware of such a position. We would say it's not unreasonable for the union to genuinely believe given the way these discussions have taken place that the company would use every opportunity to prevent the employees being given a more favourable production bonus as is contemplated by the employees at the time of entering into the particular letter that is marked, or correspondence that is marked as Visy 1.

PN202

So Commissioner, we would say that utilising your discretion in these proceedings which, and the discretion is at large, you don't have to issue section 127 orders where there is industrial action taking place. The Commission should be mindful of the circumstances, they should be mindful of the procedural fairness afforded to each particular party which the order seeks to bind. We would say given that those factors when weighed in a considered manner we would say that the appropriate course of action is for the application which is before the Commission today should be rejected.

PN203

The matter may well be referred back to the Commission tomorrow for some form of report-back. Then if that's the case then so be it. We would say that the Commission should allow the parties to resolve these particular matters between themselves where possible and given that a meeting is scheduled for first thing tomorrow morning we would say that the Commission should allow the parties to meet and allow themselves to try and resolve it and if they can't then the applicant is within its rights to refer the matter back to the Commission and the AMWU will of course be properly served next time. If it pleases.

PN204

THE COMMISSIONER: Thank you, Mr Neilson. Mr Hatcher, did you wish to reply?

PN205

MR HATCHER: I do, Commissioner, but there is one thing that has fallen from Mr Neilson that is directly at odds with my instructions. I wonder if we could have a few minutes in order to confirm my instructions.

PN206

THE COMMISSIONER: Yes. Did you want a formal adjournment for that purpose?

PN207

MR HATCHER: If it please, yes.

PN208

THE COMMISSIONER: We'll adjourn for a few minutes.

SHORT ADJOURNMENT [4.54pm]

RESUMES [5.00pm]

PN209

THE COMMISSIONER: Yes, Mr Hatcher?

PN210

MR HATCHER: Thank you, Commissioner. I am indebted to the Commission for the opportunity to confirm my instructions. I am instructed that there is a meeting scheduled for 9.30 tomorrow between Ms Perkins and management of my client's operations. On my instructions it is not to consider the bonus issue but is to consider a number of other issues that were raised in the meeting at 1 o'clock today. Given that the meeting at 1 o'clock today was unable to resolve any issues there is no expectation on my client's part that the meeting at 9.30 tomorrow will be any different.

PN211

If it please the Commission my client is concerned that it should be alleged against it that the company doesn't come before the Commission with clean hands. My clients take the view that they have complied to the letter and the spirit of Visy 1. As to Visy 1 my instructions are it is not part of the certified agreement. If it is part of the certified agreement it only reinforces every submission that we have made.

PN212

In order to satisfy the Commission if such satisfaction be necessary that our clients don't wish to be thought to be approaching the Commission with other than clean hands. I'm instructed to undertake and to invite the Commission to note the undertaking in granting any order it might, that my client will for three months continue to underwrite the bonus scheme to a minimum of $60 per week which is the bonus currently payable to all employees, and to thereafter abide by any recommendation or direction of the Commission to continue to so underwrite the bonus system while the question of the bonus system is before the Commission, and to further undertake to submit that question to the Commission for determination.

PN213

If it please the Commission I'm also instructed that the majority of the employees are still at site in the vicinity of the gates and our clients will undertake to assist my friend's organisation in contacting employees to advise them of any orders the Commission might make this evening.

PN214

We ask the Commission to make the orders in the terms sought.

PN215

THE COMMISSIONER: Thank you. Notwithstanding you pressing for the orders at the moment, Mr Hatcher, I would like to perhaps go off the record and into conference with the parties just briefly. It's not taking away from you pressing your orders but would there be any objection to that; there's just a couple of issues I want to explore?

PN216

MR HATCHER: No Commissioner, no objection.

PN217

THE COMMISSIONER: Mr Neilson, have you any objection?

PN218

MR NEILSON: No objection.

PN219

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

OFF THE RECORD [5.05pm

RESUMES [5.55pm]

PN220

THE COMMISSIONER: Is there anything that either of you wanted to place on the record before I announce my decision in relation to the application? Mr Hatcher?]

PN221

MR HATCHER: No, Commissioner.

PN222

THE COMMISSIONER: Mr Neilson?

PN223

MR NEILSON: No, Commissioner.

PN224

THE COMMISSIONER: Thank you. I am in a position to be able to announce my decision in this matter after consideration of the submissions that have been put earlier. I arriving at my conclusions I've had regard to the principles outlined in the decisions of Coal and Allied and other decisions of this Commission such as Patrick Stevedores and A.G. Coombes and the CEPU.

PN225

I am satisfied firstly that the necessary jurisdictional prerequisites have been met in relation to this application and indeed I don't think these were seriously disputed by the AMWU. Firstly, the work at the Warwick Farm and Smithfield sites is work which is regulated by a certified agreement of this Commission which is within its nominal period of operation. Secondly, the application has been brought by the employer which is obviously directly affected by the present withdrawal of labour and it is also obvious that industrial action is presently taking place, that industrial action being action set out in section 4 of the Act.

PN226

I am also satisfied in this case that the industrial action that is happening at the moment is illegitimate in the sense referred to in the Coal and Allied decision. I have decided in the circumstances to issue the orders sought by the applicant and as set out in exhibits Visy 2 and 3 with some alterations. I have reached this conclusion notwithstanding Mr Neilson's submissions about the issue of blame or clean hands argument that he raised earlier.

PN227

The orders that are sought - and there are two of them - will come into effect from 10.30am tomorrow morning, 8 August 2003, and they will be in force for a period of two months.

PN228

I would like to also urge the parties to perhaps take note of this and report this back particularly in the case of Mr Neilson, report this back to the relevant organiser for passing on to the employees. But if the parties are unsuccessful in resolving their differences in the meeting tomorrow or in any other meetings in the near future that I would urge one or other or both of the parties to seek to bring the matters before the Commission for resolution in an orderly fashion so that there is in fact then no further loss of production on the part of the company and income on the part of the employees.

PN229

Is there anything further?

PN230

MR HATCHER: No, Commissioner.

PN231

MR NEILSON: No, Commissioner.

PN232

THE COMMISSIONER: In that case the matter is adjourned.

ADJOURNED INDEFINITELY [6.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VISY1 CORRESPONDENCE DATED 27.9.01 PN117
EXHIBIT #VISY 2 DRAFT ORDER RELATING TO WARWICK FARM PN153
EXHIBIT #VISY 3 DRAFT ORDER RELATING TO SMITHFIELD SITES PN153