C2003/5302, Transcript of Proceedings [2003] AIRCTrans 3954 (8 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2003/5302

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Salmat Document Management Solutions
Pty Limited re industrial action at
152 Miller Road, Chester Hill

SYDNEY

4.27 AM, FRIDAY, 22 AUGUST 2003

PN1

THE COMMISSIONER: Can I have the appearances, please?

PN2

MR J. MURPHY: May it please the Commission, I seek the Commission's leave to appear on behalf of the notifier.

PN3

MR A. NEILSON: If it pleases the Commission, I appear on behalf of the AMWU in this matter. With me today I have MR M. WEST, the organiser for the site.

PN4

THE COMMISSIONER: Any objection to leave.

PN5

MR NEILSON: There is, Commissioner, insofar as one of the primary purposes of the notification for a section 166A certificate is that the Commission is to exercise its conciliation powers in an effort to try and stop the alleged conduct. Now, there are two elements to that insofar as that it is alleged conducted at this stage which my friends will have to prove through some documentation or affidavit evidence but in the interim, the Commission should be minded towards exercising its conciliation powers to try and resolve the dispute at hand.

PN6

In that instance, we say that the leave for my friends to appear in these proceedings should be rejected so that the Commission can attempt, at least attempt to exercise those conciliation powers at first and if those conciliation powers are unable to resolve the dispute at hand, then my friends may have to make a case out proving the alleged behaviour and in that regard leave could be granted for them to appear at a later stage but certainly we say that in the interim and certainly for the purposes of this afternoon's proceedings given the late time of the proceedings that the Commission should be minded to conciliate the matter and in that case should reject the leave sought to be granted.

PN7

THE COMMISSIONER: Thank you. Mr Murphy?

PN8

MR MURPHY: Commissioner, there has been as you're no doubt aware some consideration of the scope of section 166A by Full Benches of this Commission and it's my submission that based upon that consideration, it is clear that there are substantial legal issues involved in this notification, in this application for a certificate to issue and that makes it desirable that my client be legally represented. He is not represented by any organisation and we would rely upon 42 subsection (3)(b) and (c) in support of that.

PN9

The fact that there may be conciliation involved in this process, it is no argument against legal representation. Our primary purpose is to seek the issue of a certificate under section 166A and in doing that, if given leave, I'll be taking you to the requirements of subsection (6) of that section. It is true that the Commission can attempt to prevent the conduct that is the manifestation of the underlying dispute and we have no difficulty with that but once conciliation is commenced, an issue then immediately arises and that is whether or not the certificate should issue. We'll be pressing that that be done and if necessary, we have some evidentiary material upon which we can demonstrate that there is industrial action in place.

PN10

I would have thought that in a matter such as this, it would have been common ground that there is a strike happening at this very moment. If it's the union's position that these things are going to be put to strict proof, one wonders whether there's any real embracing of a concept of conciliation.

PN11

THE COMMISSIONER: Are there representatives from the company present this afternoon?

PN12

MR MURPHY: There are, Commissioner.

PN13

THE COMMISSIONER: I'm going to grant leave but on the basis that I will attempt to explore the possibility of settling the matter by conciliation initially and though it's not a matter which goes to legal issues or questions of law, I would hope that in granting leave that Mr Murphy and also I see Mr Easton is appearing, will contribute to the conciliation process.

PN14

MR MURPHY: Yes, may it please the Commission.

PN15

THE COMMISSIONER: Mr Murphy:

PN16

MR MURPHY: Commissioner, you will have before you the notice that was sent by my instructing solicitors. There's an issue as to precisely when this notice was sent to the registry and that may become of some importance in consideration of the 72 hour provision in subsection (6)(c) if we get to that stage. It's probably not an issue now but my instructions, and I have a facsimile transmission report to support this, the notice was faxed to the registry at 5.49 last evening.

PN17

It was personally served at the union office at 5.12 last evening, although it's been indicated to us that it was received in the registry at 9 am this morning. Now, perhaps not a great deal turns on that but we say that the time in effect started to run from 5.48 last evening. Can I hand up this document entitled Affidavit of Ben Walters. I have a copy for my friend. It contains some of the factual background to the matter.

PN18

THE COMMISSIONER: Mr Neilson?

PN19

MR NEILSON: Can I just note an objection to the tendering of that document. My copy is unsigned. I don't know whether this is a copy, whether the Commission's copy is signed and sworn but certainly my copy is unsigned and unwitnessed.

PN20

THE COMMISSIONER: My copy is sworn and signed.

PN21

MR NEILSON: Thank you, Commissioner.

PN22

THE COMMISSIONER: Yes, Mr Murphy?

PN23

MR MURPHY: Commissioner, the structure of this is that from paragraph 3, there's an outline of the operations conducted by my client at Chester Hill. It is a very extensive operation involved in the dispatching of items through the post. From paragraph 12, there's reference to a number of significant commercial contracts which are being presently affected by the industrial action.

PN24

In paragraph 14, there's an indication of the number of staff involved on the site, members of the AMWU and then from paragraph 20, there's some of the history of purported bargaining for a new enterprise agreement. There was a notice initiating a bargaining period on 25 July and then a notice of intention to take industrial action on 15 August. Then there's some detail of those negotiations from paragraph 23 and then importantly for this afternoon from paragraph 30, Mr Walters who is the deponent of this provides evidence as to the industrial action and over the page, the further action that is threatened.

PN25

Then at paragraph 38, there's evidence of the damage that this industrial action is causing the client and other matters that I don't go into detail for the purpose of this opening. The current position is that yesterday at 11 am, there was a one and a half hour stopwork meeting by the day shift involving some 49 employees. At 6 pm last evening, there was a further one hour stopwork meeting involving 33 members of the afternoon shift and then this morning at 6 am, there was a strike or at least the day shift did not attend for work which constituted a strike from that time that continues to the present.

PN26

There was a shift due to start at 3 pm this afternoon which did not. That by my calculation brings the period of strike time now to just over 13 hours and the afternoon shift, if it does not return to work prior to its normal ceasing time at 3 am in the morning which is what we anticipated, they're not coming back, that will amount to approximately 24 hours of conduct in support of this alleged dispute.

PN27

It's been indicated and this is contained in Mr Waters affidavit that the intention of the union is that its members will work tomorrow but then on Sunday strike action will recommence and continue on into Monday.

PN28

Now, we accept that the Commission can and should attempt to, using its conciliation powers, resolve this matter but at the core of the application we make today, if the Commission having done that forms the opinion that it is not likely to be able to stop the conduct properly and I'm reading from subsection (6)(a) of 166A, then the certificate must immediately issue. That is the dictate of the provision and unless the union in conciliation is able to give you some indication that the industrial action can cease forthwith or at least no later than the current shift that's out at the moment and that work will resume as normal tomorrow and continue as normal on Sunday and Monday, then it will be my submission that you will need to have formed the opinion that you're unable to stop the conduct promptly and we'll be asking for the certificate.

PN29

THE COMMISSIONER: Thank you. Can I ask you, in the affidavit of Mr Waters, it refers to purported notice of intention to take industrial action. At paragraph 20, a purported notice to initiate a bargaining period and a purported notice of intention to take industrial action. Do you say that those notices are not genuine or there's some doubt about -

PN30

MR MURPHY: We do say the notice of intention to take industrial action is defective. It refers to rolling stoppages and we say that such a description doesn't meet the requirements of the section but we reserve our position in relation to that. It is not necessary for a determination to be made by the Commission that the current action is protected and based upon an effective notice of intention, all that is required at this point is that there be industrial action on foot, whether it be protected or not and we reserve our position in relation to that.

PN31

THE COMMISSIONER: Mr Neilson? Mr West?

PN32

MR WEST: In July - I'm just checking the paperwork, the hearing has been a little rushed this afternoon. Commissioner, on 25 July the union served a bargaining period on the company on behalf of the employees at Salmat. Negotiations had been taking place before, during and after the formal serving of that period. On 5 August, I understand the current enterprise agreement, that was its nominal expiry date and on 14 and 15 August, negotiations with the company stalled over a number of the employees claims on what the employees felt was an inadequate offer by the company.

PN33

On 15 August, the union served a notice on the company of intention to take industrial action and indicated in that notice that industrial action would start at 11 am on Thursday, the 21st to be followed by rolling stoppages throughout the plant. That stopwork meeting happened at 11 am on the 21st. It wasn't until about 10 to 3 that day that we could contact the management representatives. Apparently they were in a conference or some such thing and at that meeting, as indicated in the affidavit, we advised the company that following the stopwork meeting, the employees had decided to take further rolling stoppages and we indicated to the company that - do you want me to go through the shifts, Commissioner?

PN34

THE COMMISSIONER: No, not at this time.

PN35

MR WEST: They had a mixture of different shift patterns at the plant and we indicated to them that all employees would be taking 12 hours off over the next four days. We indicated how that would be applying.

PN36

THE COMMISSIONER: You say 12 hours off over a four day period?

PN37

MR WEST: Yes, over Friday, Saturday, Sunday, Monday.

PN38

THE COMMISSIONER: And the shifts are all 12 hours duration, are they?

PN39

MR WEST: No, there are 12 hour shifts and 8 hour shifts. Do you want more detail?

PN40

THE COMMISSIONER: No, that's all right.

PN41

MR WEST: Currently that action is taking place now.

PN42

THE COMMISSIONER: When is the action due to cease?

PN43

MR WEST: There will be some workers returning to work tomorrow morning at 6 am.

PN44

THE COMMISSIONER: I assume they are people who have already taken their 12 hours off?

PN45

MR WEST: Yes. There are some returning on Monday morning at 7 am, some returning Monday morning at 6 am and the ones returning on Monday morning at 7 am, well, they're knocking off for four hours at the end of that shift. There'll be some returning at 3 pm on Monday doing the same thing and others returning at 6 pm Monday. That's the situation as far as I can -

PN46

THE COMMISSIONER: That's the industrial situation?

PN47

MR WEST: Yes, that's correct.

PN48

THE COMMISSIONER: Mr Neilson, what's your view about the legal situation in respect of this application?

PN49

MR NEILSON: Commissioner, my friend makes reference to the issue that he doesn't believe that he has to satisfy the Commission that the action as alleged is actually going on for the certificate to be issued here. I think and I don't want to paraphrase, he makes reference to the face that if 72 hours expires, the Commission is obliged and forced to issue a certificate.

PN50

The concern for the union is that we believe that the action that is being engaged in is not purported by a notice of bargaining period. It is actually a notice of bargaining period which was duly executed and duly registered by the Commission and was certainly served upon the company. The AMWU has been trying to negotiate with the company in an effort to try and reach and agreement for a section 170LJ agreement. Those negotiations so far have been unsuccessful.

PN51

In those circumstances, the Workplace Relations Act envisages that employees or indeed employers are entitled to take what is known as protected industrial action. That is exactly what the AMWU has engaged in. We say that the notices that have been issued and the subsequent action that has been engaged in by the employees is protected action within the ambit of the Workplace Relations Act and as such, the immunity provisions under section 170MT would apply in that (a) an order of the Commission would have no effect and (b) no action would lie under any state law or territory.

PN52

So therefore the question must be asked as to what utility could be achieved by the company seeking a section 166A certificate in these proceedings. If the Commission is minded to accept the argument that has been argued, if you like, by the notifier, then the Commission could be potentially faced with a situation whereby anybody could simply lodge a notification under section 166A regardless of any conduct occurring and the Commission would have no choice but issue that certificate after 72 hours and we say that would result in a ludicrous position and should not be engaged in by this Commission.

PN53

We say that the action that has been engaged in is protected within the ambit of the Act. We certainly invite conciliation with respect to reaching an agreement with the company because at the end of the day, our members by engaging in industrial action are losing pay. They ultimately do want an agreement that is going to give them better terms and conditions. That's the aim of engaging in industrial action and if conciliation can reach an agreement with respect to a position that the employees are satisfied with, then certainly we'd be happy to go down that path but we say the onus is on the company to at least demonstrate that.

PN54

Some of the things alleged in their section 166A notice are actually occurring and we say a lot of them aren't actually occurring and we'd certainly seek to test that, but given the time this afternoon, Commissioner, we would think that it would be appropriate to enter into conciliation and if it needs to be tested, it can be tested on Monday.

PN55

THE COMMISSIONER: All right. Any objection to adjourning into conference?

PN56

MR MURPHY: No, Commissioner.

PN57

THE COMMISSIONER: We'll adjourn into conference.

OFF THE RECORD [4.51pm]

RESUMES [6.00pm]

PN58

THE COMMISSIONER: Following a conciliation by the Commission between the parties in this matter, I have decided that in my opinion the conduct complained of by Salmat Document Management Solutions Pty Limited is not likely to be stopped promptly. Therefore, pursuant to section 166A(6)(a), I will issue the certificate as sought in the application by Salmat.

PN59

I have indicated to the parties in private conference that upon normal resumption of work next week that the simple issues which have given rise to this dispute hopefully can be resolved and if the Commission can play any role in facilitating a resolution to the dispute, well, then it remains available at the request of either party.

PN60

These proceedings will stand adjourned and my associate will issue the certificate. Thank you.

ADJOURNED INDEFINITELY [6.03pm]