C2003/5262, Transcript of Proceedings [2003] AIRCTrans 3881 (3 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

No C2003/5262

HIGHRISE CONCRETE CONTRACTORS PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Notification pursuant to section 99
of the Act of a dispute re stoppages
of work in support of terminated
employees

No C2003/5266

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Highrise Concrete Contractors Pty Limited
and Another re action against the Construction,
Forestry, Mining and Energy Union in relation
to stoppages of work in support of terminated
employees

No C2003/5267

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2)
of the Act by the Forestry, Mining
and Energy Union for an order to stop
or prevent industrial action

SYDNEY

11.00 AM, TUESDAY, 19 AUGUST 2003

PN1

THE COMMISSIONER: Could I have appearances, please?

PN2

MR G. THOMAS: I appear for Highrise Concrete Contractors Pty Limited and St George Concrete Pumping Service Pty Limited. With me is MR A. BASIL.

PN3

MR S. MARSHALL: I appear for the CFMEU New South Wales Branch and with is MR S. MANNA and this is MR S. SALIADARRE.

PN4

THE COMMISSIONER: Thank you Mr Marshall. Yes, Mr Thomas?

PN5

MR THOMAS: Thank you, Commissioner. The events leading to this matter are set out in the application or the notice under section 99 they are also recounted in the application for orders under section 127 and the application for a certificate under section 166A. In essence they are these: a meeting was held involving union organisers Mr Serge Saliadarre and Mr Michael Delzell at the company's depot at Chipping Norton yesterday morning. That meeting commenced at approximately 6.30 in the morning and extended into the employee normal working hours.

PN6

When the matter giving rise to the meeting was not resolved the meeting continued at the union's Lidcombe office involving executive members of the union Mr P. McLelland, Mr B. Fitzpatrick along with Mr S. Manna. As a result of the meeting that carried on from Chipping Norton there was no resolution for the problem giving rise to the stoppage and indeed following the end of the meeting yesterday morning the company and the MBA was advised that employees of both companies Highrise Concrete Contractors Pty Limited and St George Concrete Pumping Services Pty Limited would be on strike to meet tomorrow morning at the union's Lidcombe office at 7am.

PN7

Now the applications before this morning deal with those events. They relate to another incident on a building site in Auburn controlled by Holdmark Developments Pty Limited on the corner of Queen and Park Streets, Auburn. That incident which occurred last Monday in early to mid morning involved a serious assault. Now assault sufficiently serious that there are police charges pending and indeed one of the three employees in question was taken into custody.

PN8

The assault was witnessed by Mr Basil, a director of the company, and indeed on seeing the incident Mr Basil acted to terminate the three employees concerned who were employees of Highrise Concrete Contractors Australia and St George Concrete Pumping Service. The two companies operate side by side and employees of both were present on the job. The three, I think there was one St George employee and two Highrise employees terminated as a result of the assault witnessed by Mr Basil. The meeting yesterday as advised by Mr Saliadarre and Mr Delzell was to deal with mitigating circumstances arising from the assault and also deal with threshold issue relating violence on building sites.

PN9

Now, at that particular point I believe that I need to make some points to you that in the first instance close on the heals of the incident last Monday, Holdmark Developers terminated the contracts of Highrise Concrete and St George Pumping Service. There was therefore no prospect of employees of either company going back to that site and as a natural consequence of that no likelihood that any ongoing issues would need to be addressed although I must say that at all times yesterday morning and both at Chipping Norton and at Lidcombe the company indicated a preparedness to talk to the CFMEU about issues relevant to the company relating to the broad issue of violence on building sites. However, it was the company's strong view and remains the company's strong view that those discussions should take place indeed must take place with normal work continuing.

PN10

If I may now deal with the issue of the incident and any mitigating circumstances flowing from that. The individuals concerned are not in the view of Highrise Concrete Contractors Australia and St George Pumping Services Pty Limited ex employees. However, they do have rights under the Workplace Relations Act to pursue issues that they perceive in the event that the termination made on 18 August was either harsh and unreasonable or unlawful. The company doesn't believe that it's an issue that it now needs to address in the way that the union believes it should be addressed.

PN11

The union has said to the company both at Chipping Norton and later at Lidcombe that it is prepared to conciliate but the employees must be reinstated. The company for its part is not prepared to do that for two reasons, the first is that the assault was an extremely serious one. It involved injuries to an employee of Holdmark Developers Pty Limited that required hospitalisation. The person injured was quite seriously injured. Indeed, if others had not intervened to stop the assault continuing it is quite possible that the individual concerned would have been injured more seriously. In a nutshell Commissioner, his head was immersed in concrete.

PN12

It was on that basis that the company, I believe, acted rightly and quickly to terminate the employment. Whatever issue the CFMEU may have about that action and any subsequent action an my submission to you is rightly followed up in separate proceedings before the Commission under the Workplace Relations Act that can deal with the circumstances can conciliate between the parties and if no resolution is obtained in conciliation, arbitrate the matter. The company does not believe it is appropriate to deal with that matter as it were, on the job, where, as experience has shown, the CFMEU has resorted to withdraw labour as a means for enforcing a more favourable outcome for the union and its members.

PN13

if I may turn now to what the company regards as the circumstances of the last two days, and its experience following the stoppage at work.

PN14

Commissioner, both companies, Highrise and St George, are parties to certified agreements of this tribunal. They are agreements with the CFMEU, they are amongst the first agreements to be entered into in the current round and I take this opportunity to hand up as an exhibit the St George Concrete Pumping Services Pty Ltd CFMEU Enterprise Agreement, expiring 31 October 2005. And the Highrise Concrete Contractors Australia Pty Ltd CFMEU Enterprise Agreement, expiring 31 October 2005.

PN15

Both agreements, Commissioner, bear a remarkable resemblance. And I draw your attention to clause 18 on page 11 which is a clause entitled dispute settling procedures. The last two paragraphs of that clause:

PN16

Unresolved matters shall be formally submitted to the Australian Industrial Relations Commission ...(reads)... rather than the employees stopping the work.

PN17

I draw your attention to those words, Commissioner. I submit that in this matter the union is in clear breach of its own agreement with both the companies, and in particular those words.

PN18

Commissioner, I also draw your attention to page 15, at the top of the page, clause 22, Right of Entry. Now that clause refers to accredited union officials having right of entry to any place where the company is undertaking work:

PN19

Upon arrival on site the credit union official will notify the relevant company personnel available of their presence.

PN20

And then follow crucial words:

PN21

Nothing in this clause shall be contrary to law.

PN22

Now, Commissioner, I mention that because while the company does not take issue with the fact that there was notice given of the attendance of union officials at its depot yesterday morning. And it is not taking issue with the access of the officials to those premises, as both were known to the company. What they do take strong exception to is that the union automatically assumed that it had right of access to company employees in working time, namely, after 7.00am in the morning, or whatever other time was designated by the company as the time for commencing duty.

PN23

It is my submission to you that that is clearly in breach of sections 285C and 285D(1) of the Workplace Relations Act. The industrial action that continued from the meeting at Chipping Norton is quite clearly unprotected industrial action. The union has entered into an agreement with both the companies and there are clear words in that agreement that provide both parties with a course for managing the circumstances that they both confronted.

PN24

The point of these proceedings is that there was little or no attempt to follow them. Work was stopped and remained stopped. Now, the fact that it remained stopped is the basis for the application to you for orders under section 127 of the Act which would prohibit the continuation of that action and, indeed, prohibit any action against a company for a period of time. The other issue here is the impact on the company's general operations.

PN25

Now, at the present time and over those particular days the company was involved in work on two Bovis Lend Lease projects: one at Jacksons Landing, one at 126 Phillip Street. It was involved on a Grocon Constructions project at St Margaret's Hospital, it was also involved in a residential development project for Multiplex in Erskineville. If I can deal in isolation with the impact on Bovis Lend Lease if work doesn't resume tomorrow something like five concrete pours will have been disrupted.

PN26

As these proceedings continue on the Bovis Lend Lease Jacksons Landing project my instructions are that there are some 15 steel fixers and eight stressers for whom it is difficult to find gainful employment. If there are no concrete pours tomorrow 70 form workers face stand down. My instructions are that on the Jacksons Landing job alone the holding costs on the job are $100,000 a day. Now, this is the impact on one major builder of the union's action, action over an incident for which it had an appropriate alternative recourse and, indeed, a lawful alternative recourse.

PN27

I have also been instructed to place on the record that as far as Bovis Lend Lease is concerned it regards the CFMEU as being in breach of the 126 Phillip Street project award, an award of the New South Wales Industrial Relations Commission. If I may hand up a copy of that award as an exhibit.

PN28

THE COMMISSIONER: Mr Thomas, are you aware whether Bovis are taking any action in the State Commission in relation to that.

PN29

MR THOMAS: I am not aware at this juncture, Commissioner. I shall be taking instructions from them.As is the norm in any such award, I draw your attention to page 10 which contains a disputes settling procedure, and indeed it quite a detailed one. It includes a requirement, an obligation to involve Bovis Lend Lease.

PN30

Now, this dispute falls within the purview of clause 9.1 of that award and I believe the processes there are fairly well spelled out. At 9.1(h) if the dispute is not resolved the employer may notify the dispute to the Industrial Relations Commission of New South Wales and requests that the Industrial Relations Commission of New South Wales resolve the dispute pursuant to its powers. That's a discretionary thing that's determined by jurisdiction but there's nothing jurisdictional about 8:

PN31

Work shall continue without interruption or dislocation during discussion and resolution of the disputes.

PN32

I would suggest to you seriously, Commissioner, that none of that happened and that the CFMEU is in breach of that project award, if not others.

PN33

Commissioner, the case for an order being granted under section 127 is in my submission dealt with in print 2071, that is the Coal and Allied Operations Pty Limited decision a copy of which I have here and will hand up. I hand up a decision of the Australian Industrial Relations Commission, print number 2071 a decision of a Full Bench in the matter of Coal and Allied Operations Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others.

PN34

Commissioner, I draw your attention to page 17 of that print and indeed to the paragraph to the top of that page, the middle top, that commences: "The purpose of section 127". Towards the end of that paragraph I read as follows:

PN35

The international recognition of rights ...(reads)... causing it to be unlawful.

PN36

Now, my submissions to you this morning, Commissioner, are to the effect that you should issue an order which causes continuation of that action to be unlawful and I shall refer you to other parts of that decision which established the basis for that submission.

PN37

On the same page and indeed at the bottom of that paragraph above the heading there is a sentence which says:

PN38

It is appropriate for the discretion under section 127 to be exercised in a fully contemporary context without inhibitions based on precepts formulated for purposes and objectives that may have no counterpart in the current Act.

PN39

Now Commissioner, in recent memory the Federal Government held a Royal Commission into the building construction nationally - - -

PN40

MR MARSHALL: Objection, Commissioner.

PN41

THE COMMISSIONER: Yes Mr Marshall? Just a moment, Mr Thomas. Mr Marshall, what objection?

PN42

MR MARSHALL: Commissioner, I don't want to hear chapter and verse about the Building Industry Royal Commission. We hear it every time we're down here with the MBA. It's frankly not relevant to this dispute, it's been going for half an hour. I think we should get on with the relevant points of this dispute and not have chapter and verse about the Building Industry Royal Commission. It's not relevant to this dispute, Commissioner.

PN43

THE COMMISSIONER: Did you want to respond to that?

PN44

MR THOMAS: Commissioner, I am attempting to establish what the decision before you refers to as a contemporary context because I am, the point of my remarks and if my colleague is prepared to accept it as a fact I'm more than welcome but I'm saying the contemporary context is this. This conduct is no different to conduct which was criticised and indeed the subject of serious criticism and indeed findings in the Royal Commissioner's report. That is the contemporary context and the point of striking the contemporary context is if there is that parallel then it follows almost by natural logic that this Commissioner should not accept that same type of conduct as being lawful. That's my point.

PN45

THE COMMISSIONER: I take your point, Mr Thomas. I don't know though that my decision is going to be founded upon whether particular conduct was found to be worthy of comment by the Royal Commission or not. I mean, it's up to you to establish whether or not the conduct that you say is occurring at the moment meets the jurisdictional bounds and then whether I should exercise my discretion to issue the order that you are seeking.

PN46

MR THOMAS: Commissioner, the Royal Commissioner's report referred in some detail to breaches of disputes settling procedures and indeed breaches that were, disputes settling procedures that were in fact honoured only in the breach. That's my first point. My second point is that the other important factor here is other breaches of the Act and awards significantly in the area of access to premises and in what is more important for my immediate submissions to you breaches of the Act in terms of when meetings of employees were held and how those meetings were held. There was no option as to how the meetings were held, there was no reason why they couldn't be held in accordance with the Act during employees' time. That is my point.

PN47

THE COMMISSIONER: Yes, Mr Thomas, what you've got before me is as you well know, I can't deal with breaches of the Act. I mean, if there are alleged breaches of the Act you have to go somewhere else.

PN48

MR THOMAS: Exactly, Commissioner, but we are dealing with an industrial dispute here and I am seeking an order from you that makes the conduct complained of illegal.

PN49

THE COMMISSIONER: Yes, but I don't know - what I'm getting at, Mr Thomas, is I don't know how referring to what happened before the Royal Commission is going to assist me in that regard.

PN50

MR THOMAS: I mention it, Commissioner, to make the point and my submission to you if I go back to my earlier remarks to you about a contemporary context then in an industry where breach of disputes settling procedures is rife and in an industry where other regard for the rule of law is rife as for example highlighted in for example volume 12 of the report, that's the contemporary context and I will say no more about it other than, Commissioner, to draw your attention also to page 29. the Coal and Allied decision and the paragraph at the bottom of the page. Again I read for the record:

PN51

Local unprotected action of the kind we have described was not comprehensively ...(reads)... if it ever had one.

PN52

Now, I think that that particular extract is pertinent coming from a Full Bench of this Tribunal. I have referred to the grievance procedures that were available and indeed the jurisdiction of this Commission that was available as an alternative to holding a meeting in breach of right of access provisions of the Workplace Relations Act and then embarking on unprotected industrial action. I believe that that extract of the Coal and Allied decision is most pertinent.

PN53

Commissioner, I now turn to the issue of section 166A and if I could draw your attention to another decision of the Full Bench, print 913101. This is The Age Company Limited v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union again and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. I now hand up a copy of that decision.

PN54

Commissioner, can I draw your attention to page 14 of that decision and in particular paragraph 98. Paragraph 98 says:

PN55

That paragraph 166A consistently we think with the objects of the Workplace Relations Act ...(reads)... to the person who wants to bring such action.

PN56

Now, they once again are the remarks of a Full Bench of this Tribunal in a decision that was handed down in January 2002 and I believe that there are elements of that here. The companies involved in this matter exercised a discretion which they would argue was their responsibility. Indeed, the director of the company was in a position where if he didn't act in the way that he did he would have condoned a serious misconduct, indeed, a conduct which was clearly a repudiation of the employment contract of three individuals.

PN57

The law says that such conduct or the common law says, the case law says that that type of conduct can't be condoned. Now, indeed, even though the people were terminated, summarily dismissed, the contract to provide services to Holdmark Developers Pty Limited was still cancelled. So we have St George Concrete Pumping Service and Highrise Concrete Contractors Pty Limited in a position where they've acted in unfortunate circumstances in a manner that's, they will argue, not unreasonable and at the same time in a fashion that does not deny the rights either of the individuals concerned or the union representing them to challenge that action within the jurisdiction of this Tribunal.

PN58

But they are nevertheless subjected to coercion to reinstate the former employees and they are subject to disruption of their operations of quite a serious nature. The company has contracts with major builders. We've heard of the implications of the action on just one of the sites that the company is currently involved on in contractual obligations this week. Now, the company is in a position as a result of the union's actions this week of losing significant revenue as a result of services that it is unable to provide and I am suggesting that they are circumstances already where the company is justified in seeking the issue of a certificate which would allow it to protect its interests in other places and indeed seek redress in other places.

PN59

Given that, the union in question has a right undenied by the companies to seek redress for its issues here. My submission to you is that there is a basis if you look at the terms of that decision that I've drawn your attention to that you also proceed to the issue of a certificate under section 166.

PN60

THE COMMISSIONER: What, immediately, Mr Thomas?

PN61

MR THOMAS: I'm putting it depending upon the outcome of these proceedings, Commissioner.

PN62

THE COMMISSIONER: It's just that if you go on in that decision it certainly makes it clear that the Commission can only reach a view that the dispute would cause substantial injustice while the Commission is exercising conciliation powers. If I don't commence to exercise those powers, and I don't know how I can do it from up here, I can't reach a view.

PN63

MR THOMAS: That's quite true, Commissioner, but I am, I suppose, in these remarks simply creating - I'm putting to you what is the company's view and they are in a position where they do seek a certificate and certainly would be seeking a certificate if the outcome of these proceedings doesn't result in a resumption of normal work.

PN64

THE COMMISSIONER: So you're not suggesting that I don't commence to exercise conciliation powers.

PN65

MR THOMAS: I'm not suggesting that you shouldn't exercise conciliation powers or any other discretions that you have under the Act. I'm simply drawing to your attention what your potential powers are under section 166A and relating those to the circumstances of this matter and I'm suggesting to you that the circumstances of this matter that point to the "injustice" is that the other party in these proceedings, the CFMEU, when confronted with a choice between a legal course and an illegal course has taken the illegal course.

PN66

And in a nutshell, Commissioner, that is the basis of the case for issue of a certificate under section 166A. In terms of the operation of the Act, in terms of the discretion which the commission has and the jurisdiction which the commission has, it is my submission that that is an appropriate course.

PN67

Commissioner, I believe that at this juncture my remarks have canvassed not only the facts of the matter but also other considerations relating to the other matters before you. I will end my remarks with a submission to you that in this matter, subject to you exercising your discretion to conciliate between the parties, that there is a strong case both for the issue of an order under section 127 and for a certificate under section 166.

PN68

The company's position, and my instructions, are that they are not prepared to reinstate the three employees in question. In the circumstances they believe that the decision that was taken was a reasonable one. In so saying they freely acknowledge the rights of the union to challenge the exercise of that discretion and if the union so chooses they will obviously put their point in those separate proceedings. But in this matter it is my submission to you that subject to the outcome of conciliation proceedings that there is a case both for the issue of an order under section 127 and for the issue of a certificate under section 166A. As the commission pleases.

PN69

THE COMMISSIONER: Thank you, Mr Thomas. Yes, Mr Marshall?

PN70

MR MARSHALL: Commissioner, Mr Thomas has made much of the phrase "contemporary contacts" in the terms of this dispute and there is a fair bit in the terms of the context of the dispute that has been left out so far. I suppose, fundamentally, there has been a history of violence and intimidation on this job which has been visited both upon Mr Saliadarre as our organiser and he also has witnessed violence on the job, so has Mr Manna here.

PN71

Specifically, the three workers who were sacked had actually begged over a period of time for the company not to send them to this job because they found it so violent and intimidating. Mr Saliadarre had actually witnessed three workers on the site being forced to work dangerously by the developers. When they raised objection to this happening they were told in Arabic, as Mr Saliadarre had translated for him, that if they called the union in again that they would be "cut to pieces" by this supervisor called Billy Masif who works for Holdmark.

PN72

On the day of the dismissal a Mr Peter Babi commenced to pour concrete on the site. He was produced by a foreman - I don't know his surname, his first name is Basha. He was ordering Mr Babi to cease the concrete pour. He refused saying, the pour has started, you can't stop these things without causing significant damage to machinery. And Mr Basha approached Mr Peter Babi brandishing a hammer, threatening violence on him. Our member defended himself and then he had a brother and a cousin working on the site, George and Richard Babi, they came to his aid upon seeing their relative under attack from this foreman.

PN73

Then the situation degenerated into an all-in brawl on the site between employees of Holdmark and the two companies involved here. When that brawl ceased the three workers then attempted to leave the site in a truck, one of the company's trucks, and, again, the Holdmark employees forced them out of a truck and another fight ensued. They finally managed to get off the site.

PN74

The point that needs to be made, Commissioner, is that these men were fearful of attending this workplace anyway. And had asked, repeatedly, not to be sent to the job as they felt they were in a situation of violence and intimidation.

PN75

Now the reason for the stoppage of work is just that. That the workforce perceives that the company has not had proper regard to the health and safety on this job. And they feel that the three men who have been terminated have been treated very unjustly by the company. If, in the first place, the company had ensured that they were in a healthy and safe workplace without threats to their welfare they would have dealt with the violence and intimidation coming from Holdmark towards their employees.

PN76

It is a very serious situation in terms of the withdrawal of labour. And I should make a couple of points with regards to the information provided both by Mr Thomas, verbally, and also on the various applications.

PN77

The dismissals were not summary dismissals. Mr Sami Manna contacted the principal of both of the companies I believe - he runs both the companies - and had an arrangement on the Wednesday following August 11 to discuss the incidents. And that the men would be stood down on full pay. The meeting was cancelled at short notice on the Wednesday morning - Tuesday, sorry. Then it had been arranged for Wednesday and eventually the meeting was again re-scheduled for the following Monday.

PN78

So there was supposed to be a meeting on the 18th which was an authorised meeting between both the union, its members and the company. There was no illegality in the act; it was an agreed meeting. So, certainly, we rebut the allegations made by Mr Thomas. We also rebut the allegations made in terms of the assault. It is only an alleged assault. And we allege that the assault was actually visited on our member first and he was defending himself.

PN79

At the meeting then the principal of the company announced that, yes those three men were then to be dismissed and that that was to be backdated to 11 August. That meeting continued at the union's offices. In fact at the meeting the principal of the company informed the union organisers that they had actually had death threats from the Holdmark - sorry, I should say, anonymous death threats that if the three men weren't removed from the employment of the company that there would be deaths. There would be deaths amongst the workforce. So there is a huge amount of violence and intimidation inherent in this dispute.

PN80

Now, as I say, our members are outraged that the company has failed to provide for their health and safety on this job. The three men involved were concerned for their health and safety and had made repeated requests to the company to be taken off the job as they feared that there would be violence on the job. And that is precisely what happened.

PN81

We see that the withdrawal of labour in this circumstance is quite legitimate insofar as the company has failed to meet their obligations under the Occupational Health and Safety Act. The union have tried to conciliate the matter. The workforce are of a unanimous view that the men have been treated unfairly and should be put back on. There are no concerns over their ability to do their work properly. The problem lies with violent and intimidating tactics adopted by the developer's company, Holdmark, and their employees.

PN82

We would like to see if the commission can conciliate this dispute. Hopefully to result in a return to work by these three employees. And undertakings given by the two companies, Highrise and St George, that they will abide by the Occupational Health and Safety Act and provide healthy, safe workplaces which attend to the welfare of their employees.

PN83

Obviously we oppose the making of the section 127 and 166A orders because our members are taking action that they see will clearly prevent them being involved in further threats to their health and safety. And can only see that they can make this plain and clear to the company by taking the action that they have done. THE COMMISSIONER: Mr Marshall, can I just ask, the people who are on strike are employed at other places other than where this site was at Holdmark at Auburn?

PN84

MR MARSHALL: Yes, they are, Commissioner.

PN85

THE COMMISSIONER: So in other words they're all the employees of the companies?

PN86

MR MARSHALL: Yes, and I thought I might ask Mr Manna to give a bit more detail of the discussions that have taken place between the union and the company in the last week.

PN87

THE COMMISSIONER: Maybe we can do that when we're in conference, Mr Marshall, it might be easier to do that then perhaps.

PN88

MR MARSHALL: Very well.

PN89

THE COMMISSIONER: You've heard what Mr Thomas has said that the contract between the companies and Holdmark has now been terminated.

PN90

MR MARSHALL: Commissioner, our understanding is that there was never a written contract between the two companies and Holdmark and that the manner in which work proceeded was concrete pour to concrete pour and they were basically contracted pour to pour and there was no written agreement between the companies. That's my instructions from the organisers as to their understanding of the contractual arrangements between the organisations referred to.

PN91

THE COMMISSIONER: Mr Thomas, did you want to put anything briefly in reply and then maybe we might go into conference?

PN92

MR THOMAS: Commissioner, I do want to make a couple of points clear. Firstly, let me be perfectly clear in saying that St George and Highrise will not be back on the Holdmark job. They have been told that by Holdmark and that was conveyed to union officials yesterday both at Chipping Norton and at Lidcombe and indeed it was on that basis that the company assumed that there would be no impediment to the continuation of normal work because with that threat removed indeed there was to their knowledge no threat to the health and safety of either Highrise or St George employees as a result of any presence whatsoever on the Holdmark job.

PN93

So that's the first point that needs to be made. I don't care how the contract is formulated. They were told that they wouldn't be doing any more work on that job. We are here today because of the disruption that is occurring to other Highrise and St George jobs and indeed the impact of the direct industrial action, the unprotected industrial action by St George and Highrise employees on other building projects which is as I've recounted already quite significant.

PN94

Second, Mr Marshall has gone into greater detail on the incidents of the 18th and I for the very simple reason that the issue in the company's mind given that it is now no longer providing any services to the Auburn site of Holdmark Developers Pty Limited is that the current issue is the stoppage of its employees now despite its agreements with the union and despite the fact that there is in its view no threat to the occupational health and safety of its employees from, for example, continuing on the Jacksons Landing job or the St Margarets Hospital job.

PN95

The point that Mr Marshall has made quite eloquently is that the unions made a decision that a no longer immediate occupational health and safety problem is now industrial and I suggest that it's not appropriate that it make that judgment.

PN96

Commissioner, I'm quite happy to now adjourn into conference but I must restate the prime position of the companies which is that they see themselves in a position where they would believe it difficult to reinstate the employees concerned. They acknowledge that there are other avenues where the issues specific to that incident can be explored with the Commission lawfully rather than in breach of agreements of this Tribunal. As the Commission pleases.

PN97

THE COMMISSIONER: Did you want to say something else, Mr Marshall, because I was proposing to go into conference?

PN98

MR MANNA: I think, Commissioner, I just want to put on the record that the issue with Holdmark, there was no contract with the Highrise and St George. St George were making a phone call the night before they want to pull out of the job, they didn't want to continue under intimidation. We got evidence from the manager of Highrise and St George that he was refused to attend on that project because of the intimidation which was taking place. We say here and the rest of the working force of St George, Mr Basil come to our office and talk to myself and other people where he say he must sack the employees because the track that go from other source from outside of the working force that they be killed unless they sack that employee.

PN99

Now St George are not on that project any more, that ..... should go but yesterday on the lift we have another gentleman which is involved with the local Lebanese community in our office where they say that it's impossible for St George to keep those employees, that's why their life be in danger. So they shouldn't be here, they should talk to police with the threat which they received, this is a criminal offence. That's all I want to say.

PN100

Thank you, Mr Manna. We'll go off the record and into conference.

OFF THE RECORD [12.01pm]

NO FURTHER PROCEEDINGS REPORTED