C2003/5332, Transcript of Proceedings [2003] AIRCTrans 4062 (16 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 4396
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2003/5332
C2003/5333

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Clough Engineering Limited re notice
of intention to bring an action in tort
against the CFMEU, its officials, employees,
delegates, members and agents including
Garath Stephenson

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Clough Engineering Limited for an order to
stop or prevent industrial action at Lang Lang
site

MELBOURNE

2.17 PM, THURSDAY, 28 AUGUST 2003

PN1

MR J. TUCK: I seek leave to appear on behalf of the applicant.

PN2

THE COMMISSIONER: Yes. Mr Maddison? Your appearance and your comments on the seeking leave.

PN3

MR J. MADDISON: Yes, Commissioner, I appear on behalf of the CFMEU. Also appearing with me is MR G. STEPHENSON. Commissioner, given of the nature of the proceedings, we don't, in this instance at least, oppose leave of Mr Tuck.

PN4

THE COMMISSIONER: Yes.

PN5

MR MADDISON: And we say that those matters would be relevant to the adjournment that the Union will be seeking. I am not sure if it is appropriate now that - the appropriate juncture - that we put arguments as to the adjournment, or if the Commission - - -

PN6

THE COMMISSIONER: Yes, thank you, Mr Maddison. To begin with, I am happy to grant Mr Tuck leave. Mr Tuck, I think what I would like to do is - well perhaps if I just flag to you, Mr Maddison, I would be happy to hear from you about the issue of an adjournment, however you know very well that the timetable in respect of 166A applications if very very tight. I have, in fact, had to forego something else of considerable significance in the Commission to be able to list this matter promptly. So, to be honest, rather than adjournment, I am more interested in hearing about what your view is about any attempt to conciliate the matter today. But I will come to you, and hear you on the issue of an adjournment.

PN7

But at this stage I would like to hear from Mr Tuck further about his application. I would like to ask him also to formally tender the submissions. Mr Maddison, you have received the submissions in this matter, which I asked to be provided - - -

PN8

MR MADDISON: At approximately 1 o'clock we received the submissions in part compliance with your directions.

PN9

THE COMMISSIONER: Yes.

PN10

MR MADDISON: And again we raise further matters in relation to that in respect of the adjournment application I have already foreshadowed, Commissioner.

PN11

THE COMMISSIONER: Yes. Yes, good, thanks very much. Perhaps if you would tender - Mr Tuck, if you would tender your outline of submissions and the draft order that you are seeking, thank you.

PN12

MR TUCK: I will ask that they be tendered, Commissioner.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS OF CLOUGH

PN13

THE COMMISSIONER: The draft order, as emailed to my office this morning, I will mark A2.

EXHIBIT #A2 DRAFT ORDER

PN14

MR TUCK: Those submissions, Commissioner, are limited to the section 127 application. There are two matters before you - - -

PN15

THE COMMISSIONER: Yes indeed.

PN16

MR TUCK: I am happy to outline the position of the applicant, Clough. 166A does put before the Commission the obligation to seek to exercise conciliation of powers and determine whether or not the matter can be resolved. As a first step, the company wouldn't object to that course, Commissioner, however there is no - we don't want to mislead anyone in the sense that our determination to press the 127 application if the matter cannot be resolved in conciliation promptly - - -

PN17

THE COMMISSIONER: Yes, yes, no I am concerned about - - -

PN18

MR TUCK: - - - is at the forefront of my client's mind.

PN19

THE COMMISSIONER: Yes.

PN20

MR TUCK: This is a significant project. Loss that has been held up in this way, the costs are significant. The potential delay costs are enormous, and all those things are keen motivators for my client to have this matter dealt with quickly.

PN21

THE COMMISSIONER: Yes.

PN22

MR TUCK: The outline of submissions, Commissioner, I think articulates what the background of this dispute is, and I am happy if Mr Maddison has read that and it is before you, Commissioner, that that sets out the framework in which the application has been brought. Now, I don't need to say much more than that, Commissioner, save that as an update, there are some six employers who presently have a role to play at the Bass Gas Plant, down at Lang Lang, that is Clough Engineering, Fitzgeralds, Joto Mex, Saunders, James Cranes, and another company Groves. It is the CFMEU - it is the companies which engage employees who are members of the CFMEU who are not presently on site. Fitzgeralds employees have - are not on site, they are CFMEU. Joto Mex's CFMEU employees are not on site. James Cranes' CFMEU employees are not on site, and Groves employees are not on site. Clough Engineering's people are on site, and Saunders are on site.

PN23

By way of background, Commissioner, Fitzgeralds have the responsibility for the concrete foundations. They are not on site, and that work is not taking place. Saunders International are on site to build tanks. They have just been - come on site this week, and they are conducting inductions at the moment, but they will be held up if people continue to remain on strike. James Cranes have two cranes which are to be on site to unload various mechanical equipment that is to arrive on site so that the Clough employees can set to work on the construction. They cannot do that whilst things cannot be unloaded, that is holding up work. Joto Mex are there to build the workshop. They are also - that work is being affected and the Groves work is also, obviously, not taking place, and they were to come on site this week. So there is a significant hold up in all the construction works due to this action, notwithstanding that Clough's employees are at work today.

PN24

THE COMMISSIONER: Yes. Can I make a suggestion, Mr Tuck? I - there are two separate applications, I am hearing both of them together, but it would help - it would be helpful if you actually address me in respect of each of them, sequentially. Because, I assume you are pressing the 166A application.

PN25

MR TUCK: We will press it, Commissioner. I don't want the matter to go off, I am happy for - as a first step, if the Commission is - - -

PN26

THE COMMISSIONER: I am here to stay until midnight, Mr Tuck.

PN27

MR TUCK: Well, that is probably of comfort to the people sitting behind me and to my left, because it does need to be resolved today. Rather than me articulate our submissions in detail, I am happy, Commissioner, if we see whether there is any common ground.

PN28

THE COMMISSIONER: Yes.

PN29

MR TUCK: If there can't be - that can be ascertained reasonably quickly, I would have thought.

PN30

THE COMMISSIONER: Yes.

PN31

MR TUCK: If there can't be, then I would press both applications.

PN32

THE COMMISSIONER: Yes.

PN33

MR TUCK: And I would intend to call Mr Harmer and he can give evidence in the witness box - - -

PN34

THE COMMISSIONER: Yes.

PN35

MR TUCK: - - - as to what has been going on.

PN36

THE COMMISSIONER: Yes. All right, fine, thanks very much, Mr Tuck. Yes, Mr Maddison.

PN37

MR MADDISON: Commissioner, for the sake of expediency, noting that it appears that we will be going to conciliation, and with a - I suppose, one always remains hopeful that the matters can be resolved - I will reserve the adjournment - - -

PN38

THE COMMISSIONER: Yes.

PN39

MR MADDISON: - - - submissions until after that, if we are not able to resolve the matter.

PN40

THE COMMISSIONER: Yes.

PN41

MR MADDISON: Just very briefly, for the purpose of the record, we don't concede any matters that are raised in the applications or the outline of submissions.

PN42

THE COMMISSIONER: Yes.

PN43

MR MADDISON: Nor that there is any jurisdiction, but we do note your statutory obligation to seek - under subsection 6 of 166A - to try to stop the conduct - - -

PN44

THE COMMISSIONER: Yes.

PN45

MR MADDISON: - - - which can be sought by the various powers of the Commission through the Act.

PN46

THE COMMISSIONER: Yes.

PN47

MR MADDISON: We note that obligation, Commissioner, and reserve our position in respect of the adjournment post that.

PN48

THE COMMISSIONER: Yes, good, thanks very much, Mr Maddison. What I would like to do then, is adjourn. I would like to meet with the applicant, and then, Mr Maddison, I would like to meet with you and Mr Stephenson. So, if you would wait, I will adjourn now, and I will rejoin you in a moment. If you would step out after I adjourn, thanks. I now adjourn.

SHORT ADJOURNMENT [2.27pm]

RESUMED [4.04pm]

PN49

THE COMMISSIONER: Thank you. I have had the opportunity to discuss this matter in conference with the parties. While I am not satisfied that the matter is able readily to be resolved, I believe it should be able to be readily resolved. I intend to issue, and I will issue, a number of recommendations, which I will read onto the record, and they will be handed to the applicant and the respondent. Having heard the parties and discussed this matter with you in conciliation conference today, I make the following recommendations:

PN50

(1) that all industrial action, if any presently being undertaken by CFMEU at the Bass Gas Plant Site, Lang Lang, the site, cease from midnight on 28 August 2003;

PN51

(2) that a two-week trial of the peggie arrangements being put in place at the site for Clough Engineering Ltd, Fitzgerald Construction Australia Pty Ltd, and Saunders International employees from Monday 1 September 2003, be undertaken from that date;

PN52

(3) that at the end of the two-week period, that is after 14 September 2003, Clough, Fitzgerald and Saunders meet with the delegates for AWU, AMWU and CFMEU at the site to consider the effectiveness of the peggie arrangements over the previous two-week period;

PN53

(4) that CFMEU not press the issue of the employment by Clough of Mr John Moran;

PN54

(5) that Clough give consideration to any application by Mr Moran for such position or positions with it at the site for which he is qualified and will include Mr Moran in its database of potentially eligible employees for the site.

PN55

This matter will be listed for report back and possible further hearing for 8 am tomorrow morning, Friday 29 August 2003.

PN56

I am happy to go on hearing the matter now, if that is what the parties want. On the other hand, it is possible that the Union needs to take stock of those recommendations and consider any communication it may wish to have with its members and the setting up of any meeting with its members tomorrow morning. Mr Maddison, what is your view?

PN57

MR MADDISON: Commissioner, if the matter could be stood down for 10 minutes while I get some instructions I would appreciate it.

PN58

THE COMMISSIONER: Yes, sure, sure, sure, all right, I will do that. If I could - you had foreshadowed that you were going to seek an adjournment anyway. This would give you the opportunity to have a little bit more time to look at it, but it would also enable me to see whether the recommendations have had any affect. However, I might say, on the other hand, there is some attraction - if Mr Tuck is wanting to actually put a witness in the box at this stage it might be useful, on the other hand, Mr Tuck, it might actually be better if we are having a hearing tomorrow, if you have actually got a witness statement for any witness that you are wanting to put in the box.

PN59

MR TUCK: Well, depending on what the position of the CFMEU is, if they can give an indication that they will accept the recommendations in the next 10 minutes, then we may well then just see what happens tomorrow morning.

PN60

THE COMMISSIONER: Yes.

PN61

MR TUCK: If they cannot give that indication, then I am instructed to run the case this evening - - -

PN62

THE COMMISSIONER: Yes.

PN63

MR TUCK: - - - with viva voce evidence, so that we would be in a position to have effectively made our case today.

PN64

THE COMMISSIONER: Yes.

PN65

MR TUCK: All that would be effectively left if there was a report back tomorrow morning, would be to indicate whether they have returned to work or not.

PN66

THE COMMISSIONER: Yes.

PN67

MR TUCK: Whether we just simply then make a submission that we would ask for the order to be made. There may not even be a requirement for us to - - -

PN68

THE COMMISSIONER: Yes. Well, it may well - yes. But Mr Maddison may want to have overnight to think about any cross-examination of your witness.

PN69

MR TUCK: Well he could have that this afternoon.

PN70

THE COMMISSIONER: Yes, but he might want a bit of time to reflect, given the speed with which the matter has come on on, and I would be sympathetic to any request by him to conduct further cross-examination. He might want to ask some questions this afternoon, but he might want to ask some tomorrow. In any event, I will adjourn for 10 minutes, and we will see where you get. Thank you very much. I might say - in the adjournment, my associate will actually be listing the matter for tomorrow morning.

SHORT ADJOURNMENT [4.08pm]

RESUMED [4.30pm]

PN71

THE COMMISSIONER: Yes, who would like to report to me? Mr Maddison?

PN72

MR MADDISON: Commissioner, in respect of the recommendations - Commissioner, in respect for, specifically - the Union is just not in a position to be able to accept that we cannot seek to advance the claims of an unemployed member with an employer who will be seeking labour in the future. We just simply cannot, we cannot do that.

PN73

THE COMMISSIONER: But what is your problem?

PN74

MR MADDISON: The Union reserves our right to seek - to press the issue of the employment of Mr Moran with Clough and any other employer, Commissioner.

PN75

THE COMMISSIONER: Well, look, it is a case of what interpretation you place on those words. The interpretation, or what I meant by those words, were that the Union won't be pushing for Mr Moran's employment and making it an industrial issue. The Union is entitled to make representations about people to companies, if it chooses to.

PN76

MR MADDISON: With respect, Commissioner, I think one deals with industrial action, which is distinct, obviously, from industrial dispute, but it is not something, Commissioner, that, unfortunately, that we can accept in that form. I don't want to mislead the Commission to say that - - -

PN77

THE COMMISSIONER: Sure.

PN78

MR MADDISON: - - - it is something that is acceptable when it is not.

PN79

THE COMMISSIONER: I think it is something that should be acceptable, but I wouldn't want it to be misunderstood. I see no reason why, if you are wanting to make any representations with regard to Mr Moran, that you shouldn't be able to do so.

PN80

MR MADDISON: Again, with respect, Commissioner, it doesn't - that four - four, in our - - -

PN81

THE COMMISSIONER: Well, you can be as respectful as you like, Mr Maddison, but where are you at?

PN82

MR MADDISON: I have indicated that we can't accept the recommendation, and that is - - -

PN83

THE COMMISSIONER: Yes. Well, if that - Mr Tuck is entitled to press ahead with the hearing of the matter this afternoon.

PN84

MR MADDISON: He certainly is at liberty to do that, Commissioner.

PN85

THE COMMISSIONER: Yes.

PN86

MR MADDISON: We did indicate earlier that we would be seeking an adjournment.

PN87

THE COMMISSIONER: Yes.

PN88

MR MADDISON: We wouldn't oppose evidence-in-chief.

PN89

THE COMMISSIONER: Yes. But Mr - I - what I can't understand, is are you saying that people are not going to go back to work tomorrow morning?

PN90

MR MADDISON: I don't know, Commissioner, I am not in a position to answer that.

PN91

THE COMMISSIONER: Right. Well, if you are not in a position to answer, then obviously Mr Tuck will be pressing for the matter to proceed this afternoon, as far as it possibly can. I mean, the matter is being listed also for 8 am tomorrow morning, and I will go ahead with that as well.

PN92

MR MADDISON: Yes, and in respect of - as indicated, Commissioner, I am not - certainly don't oppose evidence-in-chief and that would probably be a more convenient use of time where that evidence is given tonight.

PN93

THE COMMISSIONER: Yes.

PN94

MR MADDISON: Then I have an opportunity to seek instructions about whatever evidence that may be and cross-examine tomorrow and also potentially bring any evidence in response if the Union seeks to do that.

PN95

THE COMMISSIONER: Yes. Mr Maddison, have you - I would be happy to consider - if that were the only stumbling block to a return to work at 7 am tomorrow morning, I would be happy to consider any suggestion you might have as to an amendment to that wording.

PN96

MR TUCK: Can I just indicate this, Commissioner? We were happy for paragraph - if it resolved the matter, for paragraph 4 to go out.

PN97

THE COMMISSIONER: Can I just make clear to both of you, I issue the recommendations. I don't issue them with a view to you being happy or agreeing with them. I issue them because I think they are the recommendations to be made, okay? But I am listening to Mr Maddison now, about whether there is some finetuning of that wording that might be more palatable, and I will consider that.

PN98

MR MADDISON: Yes, Commissioner. We did have some discussions during the adjournment in respect of all the words as well, but what we indicate to you, Commissioner, is that 4 be deleted, we put two alternative propositions.

PN99

THE COMMISSIONER: Yes.

PN100

MR MADDISON: Either, in paragraph 3, that at the end of that sentence would be, "and to continue discussions of the employment of John Moran," and delete 5 as well. The other alternative that - was to again, deleting paragraph 4, and paragraph 5 would become 4, the word that Clough give - insert the word "careful consideration", and at the end of that sentence "and this be part of the discussions as mentioned in paragraph 3."

PN101

We indicate to you, Commissioner, we did to the company, that on - we would accept those recommendations and put them favourably to the membership.

PN102

THE COMMISSIONER: Right, okay. Mr Tuck, have you had the opportunity to talk about that with your - - -

PN103

MR TUCK: Yes, we have. Yes, and we would - I am instructed that that form of recommendation, if the Commissioner was minded to make it, would be unacceptable to the applicant.

PN104

THE COMMISSIONER: What does that mean? That you are not going to turn up for work tomorrow?

PN105

MR TUCK: I suppose the reality of it means that we wouldn't participate in discussions which included Mr Moran.

PN106

THE COMMISSIONER: Yes, see I find that - I find a measure of childishness appearing before me. It may be that it is late in the afternoon.

PN107

MR TUCK: Can I just make the clear - - -

PN108

THE COMMISSIONER: People are being - feeling very frayed, not afraid.

PN109

MR TUCK: Commissioner, there are three days of stoppages.

PN110

THE COMMISSIONER: Yes, sure.

PN111

MR TUCK: There is significant costs.

PN112

THE COMMISSIONER: Sure, sure.

PN113

MR TUCK: It is unlawful.

PN114

THE COMMISSIONER: Well, you are making, you are going to be making submissions with regard to those - yes.

PN115

MR TUCK: We will submit that it is unlawful, it is hard to see how it is lawful behaviour. The issue is, now, one of amenities. What has been linked to that consistently - - -

PN116

THE COMMISSIONER: Yes.

PN117

MR TUCK: - - - by the Union is that issue is linked to the employment of Mr Moran, so that, it is difficult as an industrial reality for the - if that is the recommendation - for the company in the future - if, for example, there was consideration given that the amenities wasn't up to scratch, that anyone other than Mr Moran would get that position, that is not the way in which people have been employed on that site, that is not the standard, but it would become very difficult for it not to be the standard for the company in the future. It is - and the company, we submit, Commissioner, ought not, in circumstances where it has suffered significant loss as a result of that, effectively give an industrial win to the Union for that bastardry, effectively.

PN118

THE COMMISSIONER: Well, I wouldn't see a recommendation to that effect as doing so, but I am just - it is a case of what I - - -

PN119

MR TUCK: That would be our concern.

PN120

THE COMMISSIONER: - - - it is what - it is a case of what - I would like to see these people go back to work tomorrow morning, that is what I would like to see, and I would like to do what I consider to be appropriate to try and procure that outcome.

PN121

MR TUCK: Can I indicate - - -

PN122

THE COMMISSIONER: The issue really is, I suppose, that the Union is placing an interpretation on the words of clause 4 that I think are more - give it a more Draconian consequence. I don't mean by those words - I make very clear on the record - I don't mean by those words that the Union must never raise with the company, or any of these companies, the possibility that Mr Moran might be employed by them, or any other person, for that matter. The reason I used the words, the CFMEU not press the issue, was that I meant that it not, if you like, be a bullet at the company's head, in terms of industrial action.

PN123

MR TUCK: I could indicate this, Commissioner, and I understand it is your recommendation, and not a common effort by the parties, but even if - - -

PN124

THE COMMISSIONER: Yes, I am not running a consultative democracy here.

PN125

MR TUCK: - - - if paragraph 4 was not in that document, the company would indicate and it would still accept that recommendation and comply with it. The company's position, even if paragraph 4 was simply deleted - - -

PN126

THE COMMISSIONER: Yes.

PN127

MR TUCK: - - - the company would comply with that recommendation.

PN128

THE COMMISSIONER: What do you mean?

PN129

MR TUCK: We would participate in a two-week trial period - - -

PN130

THE COMMISSIONER: Yes.

PN131

MR TUCK: - - - in bona fide, and we would give Mr Clough consideration of - to any application - Clough would give consideration to any application of Mr Moran, as set out in paragraph 5, if it was renumbered paragraph 4.

PN132

THE COMMISSIONER: Yes, you would?

PN133

MR TUCK: We would.

PN134

THE COMMISSIONER: Yes.

PN135

MR TUCK: What we are saying - the concern that we have with the amendments - - -

PN136

THE COMMISSIONER: Yes.

PN137

MR TUCK: - - - proposed by the CFMEU, is that to link Mr Moran directly into the issue of amenity, gives him an unfair advantage, and sets a difficult precedent for the business.

PN138

THE COMMISSIONER: Understand, Mr Tuck, good, okay, fine. Mr Maddison. If clause 4 is deleted, where does that leave you? And clause 5 becomes clause 4, perhaps even that I include the word, "careful consideration"?

[4.42pm]

PN139

MR MADDISON: The Union have sought discussions the past few weeks with the company, on two bases - the peggie issue, and Mr Moran.

PN140

THE COMMISSIONER: Yes.

PN141

MR MADDISON: They now say they are putting on a peggie, and therefore Mr Moran goes away.

PN142

THE COMMISSIONER: Yes.

PN143

MR MADDISON: We don't see it like that, Commissioner, and we have made it very clear all the way through those discussions that the two things are linked, and we still see the two things as linked.

PN144

THE COMMISSIONER: Yes.

PN145

MR MADDISON: That is, Mr Moran, and the position, and all we are seeking as part of those discussions, that Mr Moran still be part of it.

PN146

THE COMMISSIONER: Well there is nothing in that - if that clause were deleted, there would be nothing in those recommendations to prevent you from raising it in that meeting.

PN147

MR MADDISON: We say that there is a delinkage of what has been very clear, that the position of the Union, and Mr Moran, in 5, is no better or no worse off than any other person who walks in off the street.

PN148

THE COMMISSIONER: Yes, I am not sure why he should be.

PN149

MR MADDISON: Well, we have a different view, Commissioner, that is all.

PN150

THE COMMISSIONER: Yes, sure.

PN151

MR MADDISON: That is all we say. And, as Mr Tuck - - -

PN152

THE COMMISSIONER: Yes, where I am trying to get this - where I am trying to get this matter, Mr Maddison, and actually, which I am finding it unbelievably difficult to understand why you would not be willing to get it to the point where these actions that have been taken against the Union, which have very, very serious consequences, are suspended, that industrial action cease, and that an assessment be undertaken on what is going on. If the company is agreeable to clause 4 going out, it doesn't prevent you from having such discussions as you want to have. I might say, I don't know that even if it stayed in, it would be preventative probably, but if it gave you greater comfort, and the company finds it acceptable, I am happy to amend the recommendations, and delete 4.

PN153

MR MADDISON: Just bear with me for one moment.

PN154

THE COMMISSIONER: We might just switch off.

OFF THE RECORD

PN155

THE COMMISSIONER: We are back on the record again. Yes, thanks Mr Maddison.

PN156

MR MADDISON: Mr Stephenson, perhaps, has outflanked us all and come up with hopefully what may be a very good suggestion, Commissioner, that given what you said about your intent of 4 is something different to what we have read into it - - -

PN157

THE COMMISSIONER: Yes.

PN158

MR MADDISON: Perhaps if that is clarified - if what you are saying is not press the issue of his employment by way of industrial action - if that is the CFMEU not press by way of industrial action the issue of employment by Clough, of Mr John Moran - if that is included there so it is clear what - - -

PN159

THE COMMISSIONER: Yes.

PN160

MR MADDISON: - - - as I apprehend, what your intention is, then we would - on the basis of that recommendation, we would accept that recommendation, and Mr Stephenson would recommend a return to work on that basis.

PN161

THE COMMISSIONER: Yes. Mr Tuck, that doesn't seem to be too bad? Clause 4 stays in.

PN162

MR TUCK: We are trying to do this on the run - - -

PN163

THE COMMISSIONER: We are.

PN164

MR TUCK: - - - and be as sensible about it as we can be.

PN165

THE COMMISSIONER: Yes, I realise - - -

PN166

MR TUCK: My indications from Mr Harmer is that - - -

PN167

THE COMMISSIONER: Why don't I - why don't we just go off the record for a minute. We will just go back off the record.

OFF THE RECORD

PN168

THE COMMISSIONER: Thanks very much. Yes, we have had a brief adjournment, I have had the opportunity to have further discussions with the parties. The Union has indicated that it could live with an amendment of the recommendations which I have put on the record, by clause 4 being amended to read:

PN169

That CFMEU not press by way of industrial action, the issue of employment by Clough of Mr John Moran.

PN170

And that the recommendations otherwise remain the same. The company is - Mr Tuck has indicated on behalf of the company that the company could live with that amendment. Accordingly, I amend those recommendations in that way, and I will issue them under seal shortly. On that basis, Mr Tuck, how would you like to proceed this afternoon?

PN171

MR TUCK: Commissioner, there is one other issue that has been raised with me. Before we deal with that issue, Commissioner - I understand it is not a drafting exercise, but paragraph 3 refers to the word, delegates.

PN172

THE COMMISSIONER: Yes.

PN173

MR TUCK: That would not include Mr Stephenson, and we understand that would be an issue for the Union.

PN174

THE COMMISSIONER: Yes, no I didn't - and I didn't - I wasn't seeking to do that.

PN175

MR TUCK: The EBAs use the term, responsible trade union organiser.

PN176

THE COMMISSIONER: Yes.

PN177

MR TUCK: A rather optimistic phrase. If we could include that in the recommendation.

PN178

THE COMMISSIONER: So, how would you like the wording to be? Meet - clause 3 to read:

PN179

Meet with the responsible trade union organisers and delegates

PN180

or - delegate.

PN181

MR TUCK: There is one delegate.

PN182

THE COMMISSIONER: Is organiser singular or plural?

PN183

MR STEPHENSON: Organisers.

PN184

THE COMMISSIONER: Organisers.

PN185

MR TUCK: It is plural.

PN186

THE COMMISSIONER: And, one delegate.

PN187

MR TUCK: There is a delegate.

PN188

THE COMMISSIONER: For AWU, AMWU and CFMEU, yes.

PN189

MR TUCK: Thank you Commissioner.

PN190

THE COMMISSIONER: Yes, I will make those amendments as well. Mr Maddison, you are happy with that?

PN191

MR MADDISON: Yes, we are.

PN192

THE COMMISSIONER: I will make those amendments, and will issue them under seal. I must say, my concern is now, Mr Stephenson's capacity to actually reach his members. Mr Stephenson, can I just ask you directly, how would you be proposing to contact your members to organise to meet with them tomorrow morning?

PN193

MR STEPHENSON: My assumption is that the various sub-contractors who are the employers of our members will be making the necessary contacts this evening.

PN194

THE COMMISSIONER: Yes.

PN195

MR STEPHENSON: Possibly with the assistance of Clough's.

PN196

THE COMMISSIONER: Will you be getting in touch with your members? How many people are - - -

PN197

MR STEPHENSON: Well, I will certainly speak to our delegate.

PN198

THE COMMISSIONER: Yes.

PN199

MR STEPHENSON: But, the number of sub-contractors that are involved, I think it is probably more practical that they be contacting their employees to have them return to work tomorrow. It would be my intention to be there to have a meeting with them first.

PN200

THE COMMISSIONER: So you are happy for the company to be telling them - the companies to be telling their employees that you will be recommending a return to work at a meeting a 7 am tomorrow morning, is that right?

PN201

MR STEPHENSON: Well, that there will be a meeting.

PN202

THE COMMISSIONER: There will be a meeting.

PN203

MR STEPHENSON: There will be a meeting. Yes. And that out of today's proceedings - - -

PN204

THE COMMISSIONER: Yes.

PN205

MR STEPHENSON: - - - it has been agreed that there will be a return to work in order to allow that meeting to - - -

PN206

THE COMMISSIONER: Yes. All right, okay. Now, is that going to be 7 am?

PN207

MR STEPHENSON: Yes.

PN208

THE COMMISSIONER: Yes, thank you very much. Good. Because otherwise, you would be in here at 8 am, so.

PN209

MR TUCK: Just so it is clear, we will be advising that will be happening, but it will be of course, advice that the meeting in respect of CFMEU members. There are AMWU members and AWU members.

PN210

THE COMMISSIONER: Yes, that is right, is it not, Mr Stephenson?

PN211

MR TUCK: The presumption is they will not be - - -

PN212

MR STEPHENSON: That is correct.

PN213

THE COMMISSIONER: It is your union's members. How many of them are there?

PN214

MR STEPHENSON: Approximately 25 to 30.

PN215

THE COMMISSIONER: Okay, fine.

PN216

MR TUCK: Yes, there is 24 who should be on site, we say.

PN217

THE COMMISSIONER: Yes, all right, okay, fine. Yes.

PN218

MR TUCK: Commissioner, I am mindful of the time - - -

PN219

THE COMMISSIONER: Yes.

PN220

MR TUCK: And I am mindful of the fact that - - -

PN221

THE COMMISSIONER: I am going to leave it - - -

PN222

MR TUCK: - - - regardless of what we do now - - -

PN223

THE COMMISSIONER: Yes.

PN224

MR TUCK: - - - there is going to be an opportunity to cross-examine.

PN225

THE COMMISSIONER: Yes. I think we should adjourn now, can I just say.

PN226

MR TUCK: We are happy to adjourn.

PN227

THE COMMISSIONER: Yes. On that - on the basis that that is where we have got to.

PN228

MR TUCK: In the morning though - - -

PN229

THE COMMISSIONER: I am keeping it on, yes.

PN230

MR TUCK: - - - Mr Harmer will be on site.

PN231

THE COMMISSIONER: Yes.

PN232

MR TUCK: And he can't be back here at 8 am.

PN233

THE COMMISSIONER: Yes.

PN234

MR TUCK: I wonder whether we could, instead of resuming at 8 - - -

PN235

THE COMMISSIONER: Yes.

PN236

MR TUCK: - - - put it back to 10. I understand that you may have - - -

PN237

THE COMMISSIONER: No, it puts me in an extremely difficult position, if I am to be very frank.

PN238

MR TUCK: 9.30? We will leave it at 8 am then. That is easier.

PN239

THE COMMISSIONER: Yes.

PN240

MR TUCK: We will contact your associate, Commissioner, if there has been a return to work.

PN241

THE COMMISSIONER: Yes, I think what I will do, is I will get my associate to actually give you his - sorry, I shouldn't volunteer his private mobile number, I will leave it to my associate to negotiate with you the best means of making early contact with us.

PN242

MR TUCK: Can I indicate, Commissioner, that if there is a return to work, and there is no need for the matter to be relisted at 8 am, we would, just to make it clear, we would ask that the file remain with you for report back on 14 September.

PN243

THE COMMISSIONER: Yes.

PN244

MR TUCK: And the file - otherwise we are at liberty to - - -

PN245

THE COMMISSIONER: Restore it on 24 hours notice or less, subject to my diary.

PN246

MR TUCK: And we would be making the submission then, just so that we are clear, we would be making the submission in any future hearing - - -

PN247

THE COMMISSIONER: Yes.

PN248

MR TUCK: - - - in relation to the 166A, that the time that has lapsed between the service this morning until the return to work be time credited against the 72 hours. Now that is an argument for down the track, but we will just make that clear.

PN249

THE COMMISSIONER: I note that that is the position you are putting, and Mr Maddison, you will have the opportunity to say something about that at any future hearing. Could I ask that apart from hearing at - well, I would prefer to have a witness statement from Mr Harmer for 8 am tomorrow morning - - -

PN250

MR TUCK: We will provide a statement this evening.

PN251

THE COMMISSIONER: Yes, thank you very much. Good. All right, on that basis I will adjourn. We will just make those amendments to the recommendations and they will be - they will be brought round to you under seal. I will head them "Amended Recommendations". Good, thank you very much, I now adjourn.

ADJOURNED UNTIL FRIDAY, 29 AUGUST 2003 [4.53pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSIONS OF CLOUGH PN13
EXHIBIT #A2 DRAFT ORDER PN14