C2003/5703, Transcript of Proceedings [2003] AIRCTrans 4426 (3 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 4751

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/5703

CONSTRUCTION, FORESTRY,
MINING AND ENERGY UNION

and

MIDWAY WOOD PRODUCTS PTY LTD
and ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re a threat to immediately stand
down employees

MELBOURNE

1.02 PM, THURSDAY, 18 SEPTEMBER 2003

PN1

MS J. CALVERT: I appear for the CFMEU and with me is MR M. O'CONNOR from the CFMEU and MR B. TAYLOR, a delegate from Dormit.

PN2

MR J. HOY: I appear for the Australian Industry Group on behalf of Dormit Pty Ltd and with me is MR D. ROWE.

PN3

MR G. WATSON: I seek leave to appear for Mr David Godding and Mr Darren McKenzie in relation to a summons issue in relation to those people and in relation to these proceedings.

PN4

THE COMMISSIONER: Thank you, Mr Watson. Ms Calvert, do you have any objections to Mr Watson seeking leave?

PN5

MS CALVERT: Well, Commissioner, we have just received as we walked in Mr Watson's letter to us and we would like to actually if we could, the Union, just to go straight into conference with you for a minute just to seek some advice from you.

PN6

THE COMMISSIONER: Do we have objection on appearances?

PN7

MR P. RYAN: Apologies, Commissioner, I seek leave to appear on behalf of Midway Pty Ltd and with me is MR M. TAYLOR, General Manager of Operations for Midway Pty Ltd.

PN8

THE COMMISSIONER: Right. When you say go into conference, Ms Calvert, I am not quite sure what you mean. Do you mean go off transcript with the rest of the parties here or do you - - -

PN9

MS CALVERT: No, I would like to see private conference with yourself, myself and Michael O'Connor for a few short minutes.

PN10

THE COMMISSIONER: Okay. Mr Hoy, what is your view of Mr Watson seeking leave?

PN11

MR HOY: I have got no objection to the application, Commissioner.

PN12

THE COMMISSIONER: Right. Mr Ryan, Mr Watson has sought leave to appear in these proceedings on behalf of Mr Godding and Mr McKenzie. Is that right, Mr Watson?

PN13

MR WATSON: In relation to the summons, Commissioner, Mr Godding and Mr McKenzie.

PN14

THE COMMISSIONER: Yes.

PN15

MR RYAN: We have got no objection to that, Commissioner.

PN16

THE COMMISSIONER: All right. Ms Calvert has sought a short adjournment in order to have a discussion with the Commission. For that to occur we will adjourn the proceedings for about five of 10 minutes or so and my associate will bring Ms Calvert and Mr O'Connor out the back of the Court, thank you. We will stand adjourned.

SHORT ADJOURNMENT [1.04pm]

RESUMED [1.08pm]

PN17

THE COMMISSIONER: All right. Mr Watson, I have a copy of the letter that you sent to the Federal Secretary of the CFMEU. Could you just please indicate why you say that Mr Godding and Mr McKenzie are not required in this matter?

PN18

MR WATSON: Mr Commissioner, Mr Godding and Mr McKenzie are not employed by any of the employers alleged to be party to the dispute in this matter and their employer is a separate entity that undertake separate functions. We have sent that letter as in line with the notification of the hearing in this matter to the Federal Secretary of the Union and also to Ms Calvert in line with the Commission's distribution and copied you into that letter to indicate the position that our clients and their employer are not involved in any industrial dispute and have no involvement in the industrial affairs of any of the parties named in the alleged industrial dispute in this matter.

PN19

And we also indicated in the next paragraph that our understanding is that normal deliveries of timber are occurring and each of the operations and there is no threat of stand downs as alleged in the notification. We are really putting to Ms Calvert, apparently the originator of this notification and the person who on behalf of her organisation initiated the summons against our client, that we are at a loss to understand why a summons has been issued against our clients in relation to this matter and asking that it not be pressed.

PN20

We did receive no response and Ms Calvert informed me immediately before the matter commenced this afternoon that she was not aware of this correspondence faxed to her office shortly after midday today. Now, Mr Commissioner, it appears that this is a notification that has only just been filed in the Commission earlier this week I believe. It has been listed for the first time today. There is no information really about the nature of the dispute other than what is in the notification, which talks about a threat of stand downs at two employers where my client has no involvement.

PN21

Now, it appears that the summons has been issued, although it is not clear on its face, at the initiation of the CFMEU. It has been signed by the Registrar but the rules of the Commission require that no summons be issued unless approved by the Commission. We have no knowledge of who in the Commission has approved the issue of this summons.

PN22

THE COMMISSIONER: I may assist you there, I did.

PN23

MR WATSON: Thank you, Mr Commissioner. There is certainly practices that I am aware of where a request for a summons is sought, that there is at least an opportunity for some consideration of whether it is appropriate to issue a summons in a particular case prior to it being issued or at least if there is a - if one is issued it is possible for summonses to be set aside if objected to by any party and there is a fair history of proceedings of that nature. We say that in the circumstances where my clients are not involved with any of the employers here they would not be involved in any decisions to stand down, that requiring their attendance offends a number of principles in relation to the granting of summons.

PN24

Principles in relation to granting of summons often deal with issues of particular documents rather than individuals being compelled to attend but nevertheless the principles are generally the same. And we say that requiring a third party to attend a proceeding when the matter is called on for the first time is oppressive. There is no indication of whether evidence is going to taken, what the purpose of the proceedings is, what the nature of proceedings is. Usually there would be no evidence taken in an initial notification of a dispute, an initial listing, especially one listed at relatively short notice.

PN25

But how my clients could have anything to do with any relevance to the issue of a stand down at another employer is really beyond us and it would offend the issue of relevance. It appears that this is in the nature of fishing, which again is another principle which a summons will not be issued if it amounts to fishing of some nature. But fundamentally the applicant for a summons has to make out a case that it is necessary for the dealing of a particular matter that a person be compelled to be present for the purposes of proceedings.

PN26

In proceedings in this Commission it is usual for corporations to be represented, for individuals whether employed by the company or agents of one sort or another, and submissions made on a particular corporation's behalf that may have some bearing on issues in dispute. If someone other than a party to a dispute wishes to be involved there is proceedings for applications for leave to intervene that can be made and made out if there is a desire of a third party to be involved in proceedings. It appears that none of that is invoked here and it appears that there is some attempt via the back door by the CFMEU to try to involve my clients in a dispute which actually is alleged to involve the Union and two other employers.

PN27

Now, we would say if that is the case it is an attempt to misuse the powers of this Commission and the Commission certainly to our knowledge has no basis - we don't know the nature of applications made to the Commission or the nature of approval or the reasons, but we say there is no basis in any event of the Commission assisting the Union with this particular purpose if that be involved. We say there are a variety of tests in relations to summons that this summons would fail. Could I perhaps hand up a decision which conveniently summarises these principles that I have been referring to.

PN28

It is a decision of Munro J in a Clarks v Alcoa case, Print H2892. His Honour in that case referred to the power which was then contained in section 41 of the Conciliation and Arbitration Act that is reflected in section 111 of the current Act and he sets out the test and approach and some other authorities relating to the issue of summonses specifically in that case in relation to documents. And it is true that there is a power to issue a summons but it is also true that it is not a right to obtain a summons, that there must be adequate grounds and there must be a broad discretion and a judgment made over the use of that power as is mentioned by his Honour in the paragraph commencing about point 5 of page 2 of the decision.

PN29

And his Honour sets out the principles which largely come from dealings with courts. Principles are not dissimilar although there are some additional ingredients in the industrial jurisdiction in relation to the issuing of summonses. It is important to ensure that a party is not required to produce documents and we say or attend. Were it to do so it would be oppressive where it is not an endeavour to support a case but to discover whether there is a case. And importantly there is also a reluctance of the Commission, the evidence from this case and a number of others, to require production and this is really even in relation to formal proceedings in the Commission where evidence is taken and the like.

PN30

There is a reluctance of the Commission to require a party to disclose internal deliberations on industrial relations matters. It is regarded by the Commission as not conducive to the public interest or the proper resolution of disputes to allow other parties to obtain access to such materials and it is a shield normally applied from such material. We are very much in the dark, Mr Commissioner. We can only speculate as to why this very unusual step has been taken to require a third party to be present in relation to a dispute concerning two other employers and say that it appears very clearly to offend a number of the tests and the appropriate course would be to set aside the summons and not require the attendance of my clients in these proceedings.

PN31

THE COMMISSIONER: Thank you, Mr Watson. Mr Watson, out of curiosity is Mr Godding and Mr McKenzie here?

PN32

MR WATSON: They are not far away, Mr Commissioner.

PN33

THE COMMISSIONER: Thank you. Ms Calvert?

PN34

MS CALVERT: Commissioner, could I first say that Mr McKenzie did indicate two hours ago that he would be present at this hearing. We should make it clear that we are not requiring documents. We are simply requiring the presence of the two people who we see as integral to try and help the Commissioner to resolve this dispute. Commissioner, I am happy to spend a few minutes to show you the link these people have with this dispute if you so wish. I will be guided by you.

PN35

THE COMMISSIONER: I think that would be appropriate. I mean if you say that they are integral to the matter that is currently before the Commission then it needs to understand how that is so.

PN36

MS CALVERT: Commissioner, the logs supply for these two sawmills, or the sawmill and the wood chip mill, Dormit and Midway, is predominantly sourced for State owned forests and the supply - those forests are managed by the Department of Sustainability and Environment. That Department allows sawmillers to not only buy the log from Victoria's forests but it also from time to time allows sawmillers to arrange the harvesting and haulage of those logs from the forests. We say so in order to, for example, sell the log at the mill gate as is the custom in the softwood sector where the customer just buys at the mill gate so to speak.

PN37

In the hardwood sector the sawmill is actually buying, they call it at the stumps, so they buy it out in the forest and they arrange the harvesting and haulage. In the Central Highlands where this dispute emanates from, where such licence conditions exist, the arrangements for the harvesting and delivery are made through a principal contracting company and that company is GCH Harvesting Pty Ltd. The company is owned and operated by sawmillers. Gould Sawmill, which is owned and operated by Mr Godding, is one of the major owners of GCH Harvesting Pty Ltd, the principal contracting company, and that is presumably why Mr Godding is also the Chair of that harvesting and haulage company, GCH Harvesting.

PN38

So he not only owns and operates one of the sawmills that the Government supplies logs to and allows the harvest and haulage, he also is the Chair and a principal owner of the company that does the harvesting and haulage. The Union understands that Dormit is a mere customer of GCH. We don't think there is any legal link there and we are not sure of the precise relationship between Midway and GCH, but certainly there are several sawmillers involved in GCH and Mr Godding's company being one of the main ones.

PN39

Commissioner, DSE licences two sawmillers who then form a company to go in and take the wood and bring it to their gate or into their mill and in turn that principal contracting company, GCH Harvesting, subcontracts the actual work, the actual harvesting and the actual cartage of the logs. And these subcontractors, Commissioner, would be what you would familiarly know as economically dependent contractors and many of them are sitting up in the back of the room today. I say they are economically dependent, and this is quite important, Commissioner, because in the first instance due to the seasonal and environmental constraints on the type of work they do there is actually a finite amount of work, there is a finite amount of wood in any one year to be carted.

PN40

And, secondly, and again this is crucial, that limited amount of work is meted out through a monopoly company. It is GCH Harvesting who alone has the capacity to hand out work to those contractors. So it is, if you like, a fixed group of contractors, there is a fixed amount of work, and there is one place that it comes from, which is GCH Harvesting, so it is a limited pool. Commissioner, most of those subcontract carters are members of a local association, although not all of them. That association is called CHCA, the Central Highlands Carters Association and that in turn is a member of the State-wide council, the Victorian Harvesting Haulage Council, the VFHCC.

PN41

Commissioner, a couple more links in the chain. Since February two consultants, Neil Pope and Mr Des Powell, at the request of the Secretary of DSE, that is the owners of the forest, have been facilitating negotiations between the principal contracting company, that is GCH Harvesting Pty Ltd, and the subcontractors Association, CHCA, and the Union and the State-wide council have also been parties to those negotiations. The dispute that is causing the log shortage in the mill, it is between the principal contacting company and the subcontractors. That has led to stoppages and now obviously the shortage of logs to the mill.

PN42

Because of Mr Godding and Mr McKenzie - and Mr McKenzie, I should point out, has been until recently the Line Manager of GCH Harvesting, Mr Godding is the Chair and also an owner and also a customer. They are the two people that have been involved in all the negotiations, the negotiations between the principal and the subcontractor that have stalled, that has now led to the dispute that has caused our members to fear for their ongoing work. Commissioner, if I could just say finally if we had to assess who has the power to solve this dispute, there are really two parties. One is GCH Harvesting. They have the power to resolve it by coming to some agreement with their subcontractors who are in this room.

PN43

The second party that has the power to solve it is the Department of Sustainability and Environment who, as I outlined very early on, has the capacity to either allow the sawmillers to harvest and cut their logs or disallow them. So, Commissioner, in our view - and that is why we sought to subpoena not only Mr McKenzie and Mr Godding from GCH Harvesting, but also you will be aware we have subpoenaed Ken King from the DSE and also Des Powell and Neil Pope, all being people who we think clearly can help the Commissioner to resolve the dispute which is causing the shortage of logs.

PN44

My colleague, Mr O'Connor, has reminded me that the industrial dispute true is between the Union on behalf of our members and Dormit and Midway, but that dispute has arisen as a consequence of the dispute between the principal contracting company, GCH, and their subcontractors. So in that sense we think, sir, they are integral to actually resolving the dispute that has brought us here today. Thank you, Commissioner.

PN45

THE COMMISSIONER: Thank you. Can I just ask, before I ask Mr Hoy what his view is, is Mr Powell here?

PN46

MR POWELL: Yes, Commissioner.

PN47

THE COMMISSIONER: Thanks, Mr Powell. Is Mr Pope here?

PN48

MR POPE: Yes, Commissioner.

PN49

THE COMMISSIONER: Mr Pope. Mr King?

PN50

MR KING: Yes, Commissioner.

PN51

THE COMMISSIONER: Thank you. So it is just Mr McKenzie and Mr Godding that haven't responded at this stage. Mr Hoy?

PN52

MR HOY: Thank you, Commissioner. Commissioner, I can confirm that Dormit Pty Ltd does receive logs from GCH and as a result of being informed by GCH that logs would not be delivered, they contacted the Union and informed them that the stand downs would be imminent. That took place on Tuesday. The company did source logs from another area, it was very short term and did slow down production to try and keep the work force at work for as long as possible, but indicated to the Union that that would only last for another day or so and that some 45, I think, employees would be stood down initially.

PN53

The company was then advised that GCH would be able to deliver logs and some 20 loads of logs have been delivered from mid afternoon yesterday. As the company requires 15 to 17 loads per day to maintain production, at this stage there is no intention of standing down employees and providing if it maintains deliveries the company is not faced with any stand downs at this point in time, Commissioner.

PN54

THE COMMISSIONER: Could I just ask your view on the submission of Ms Calvert who says that Mr Godding and Mr McKenzie, regardless of whether your client has now a regular supply, is it your view - and I assume your client has been involved in this process or has had some input into this process all the way through, is Mr Godding and Mr McKenzie - according to Ms Calvert, they are integral to this issue. Is that a view that is supported by your client or not?

PN55

MR HOY: I don't think we wish to put a view at this stage, Commissioner, other than Dormit has no relationship with GCH other than as a contractual relationship for GCH to supply logs. If the Commission pleases.

PN56

THE COMMISSIONER: All right, thank you. Yes, Mr Ryan?

PN57

MR RYAN: Commissioner, I appear in respect of Midway Pty Ltd and frankly, Commissioner, we are somewhat surprised in relation to this notification arising. There is no dispute at Midway Pty Ltd. There hasn't been any threats in relation to stand downs and there has certainly been no stand down put in place. Commissioner, it may well be that if shortages of logs do occur well, then the company may have to look at invoking its rights in relation to stand downs but at this point in time there is no such dispute and therefore, Commissioner, we quite frankly fail to see what there is to be had in terms of this notification.

PN58

THE COMMISSIONER: Yes. Yes, Mr Watson?

PN59

MR WATSON: Mr Commissioner, I have speculated as to what the purpose of this summons might have been and in the first submission - Ms Calvert's submissions really confirm that there is an ulterior purpose here behind the Union's notification and she talks about the dispute being between subcontractors and GCH, but they are not alleged to be parties to the dispute in the matter in this Commission nor could they be in any event. But this seems to be now quite an obvious attempt to have the Commission become involved in a dispute which it has no jurisdiction to be involved in, namely, the dispute between GCH and its contractors.

[1.33pm]

PN60

Now the - we say that the Commission should not assist the union in such an attempt to mis-use the powers of the Commission under the Act. The - if there is some attempt to invoke Commission powers in relation to my client then there should be an attempt to allege there is some industrial dispute and then it can be tested as to the - whether the requirements of the Act are satisfied and whether there is any jurisdiction. There has not been any such attempt, instead by this quite frankly crude device there is an attempt to bring my client into proceedings for the purposes of addressing a dispute which falls clearly outside the scope of the powers of this Commission and that is confirmed by the submissions of Ms Calvert.

PN61

She has indicated the nature of the dispute and the nature of the resolution that is sought in this matter and it is, we submit, clearly something which falls well outside the scope of the Act. And we say that the device of using a summons also is a mis-use of powers of the Commission. The Commission, it appears in any event, would have to proceed as to whether there is an industrial dispute. It is obvious that, on its face, that there is not one in any event.

PN62

But for any proceedings to take place the onus is on the notifier to indicate the nature of the industrial dispute, to establish who the parties and the nature of the issues in dispute between those parties and whatever might be behind the scenes that leads to a current state of affairs between the union, its members and an employer is really a separate issue and is obviously a separate issue from the submissions of Ms Calvert. Now we - we say that it is abundantly clear from what Ms Calvert said that this is an abuse of process, a summons is - and any attempt to involve my clients in the resolution of any disputes it might have of a commercial nature is a - an abuse of process and we say that the Commission should set aside the summons.

PN63

THE COMMISSIONER: Thank you. Yes, Ms Calvert.

PN64

MS CALVERT: Commissioner, I may be crude, but I am also very plain talking. And let me put this very plainly. Mr Rowe, to his credit, notified us early on and worked with us to try and ensure that our members at his mill were not stood down. And he has to be commended for the job he has done. Midway management cannot be commended. They went out and told our shop steward who in turn rang the union and they let the bushfire go from there.

PN65

We do have a dispute about impending stand downs because, as Mr Hoy said, today is okay at Dormit, providing delivery is maintained. Providing delivery is maintained and that is the rub. Crudely, but plainly, that is the rub. Commissioner, we do not seek for you to waste your time in here arguing points of jurisdiction. We are good at it, but we do not seek to waste your time about that. We have a dispute where some of our members, upwards of 100, face impending stand downs if delivery of log is not maintained. The threat to the delivery of that log is caused yes, by a dispute between a principal contracting company and their sub-contractors who do have very close links with these companies and the timber industry.

PN66

And all we are seeking today, Commissioner, if we could actually get to it, would be to use your skills to roll your shoulders up, throw us into conference and see what you could do to shift the log jam. Thanks, Commissioner.

PN67

THE COMMISSIONER: I am not quite sure whether I take that as a compliment or whether - I am able to leap tall buildings in a single bound, but I am not quite sure about that. What - would it be the union's intention to what - have a conference?

PN68

MS CALVERT: Yes, Commissioner. We do not seek any documents. Just seek some decision-makers.

PN69

THE COMMISSIONER: Mr Hoy, is there a possibility that there might be some disruption to supply?

PN70

MR HOY: The company has been given an undertaking from GCH that there will be supply. If - well, I could put it no more than that, Commissioner, well, we have - the company has a contract with GCH and providing GCH honours that contract and maintains supply, work will be available.

PN71

THE COMMISSIONER: Right. Mr Ryan.

PN72

MR RYAN: A similar situation exists in relation to Midway Pty Limited, Commissioner. Midway Pty Limited has a contract with GCH. Midway Pty Limited also has contracts and access to other suppliers at other times. And that is the situation, Commissioner.

PN73

THE COMMISSIONER: All right.

PN74

MS CALVERT: Commissioner, could I make a comment?

PN75

MR HOY: Sorry, Commissioner, before Ms Calvert does, I should just put on the record that we do dispute the comments she made in relation to threats being made by Midway Pty Limited. I just want to clarify that no such threats have been made.

PN76

THE COMMISSIONER: Right.

PN77

MR HOY: Or will be made.

PN78

MS CALVERT: Commissioner, I do not want to be cute, but you can see for yourself the log trucks outside this building today. They are not carting logs, they are parked up outside this building. There is a threat to supply - unfortunately.

PN79

THE COMMISSIONER: Mr Watson, do you wish to make a final comment?

PN80

MR WATSON: It would only confirm - what has been said only confirms the submissions that we have already made, Mr Commissioner.

PN81

THE COMMISSIONER: Yes. Well, at the moment the Commission has two matters which it must decide upon - one is that Mr Watson is seeking leave to appear, which the Commission at this point has not granted. The second issue goes to the issuing of a summons to Mr Godding and to Mr McKenzie. It is Mr Watson's argument, on behalf of Mr Godding and Mr McKenzie that firstly they should be excused from the summons; secondly that there is not in Mr Watson's view a dispute that enacts the jurisdiction of this Commission.

PN82

Mr Calvert indicates, from the union, that there has been the potential for stand downs and there continues to be a potential for stand downs indicating that there is a contractual dispute between GCH and the carters, is that right - Mr Hoy indicates, on behalf of his client Dormit, which is a party to the notification, that at this stage Dormit have been guaranteed supply from GCH. Mr Ryan, on behalf of Midway, another party to the dispute notification has also indicated a similar position.

PN83

Ms Calvert says that her objective is to try and use the power - sorry, try and use the offices of the Commission to try and assist the parties by way of conciliation to try and resolve what is a complex issue. On the two issues that the Commission has to rule upon, firstly it will reserve its position in regards to leave to appear on behalf of Mr Watson and leave to intervene; secondly what the Commission will do is go into conference with the parties and try and assist them to resolve this matter, understanding that each party reserves their position in order to argue the jurisdictional point if they wish, if the Commission is unable to assist the parties by way of conference and to assist in that conference the Commission, at this time, would require Mr Godding and Mr McKenzie to respond to the summons. The Commission will now go into conference. Thank you.

SHORT ADJOURNMENT [1.42pm]

RESUMED [2.13pm]

PN84

THE COMMISSIONER: All right. Just for the record, the Commission notes that Mr Godding and Mr McKenzie have responded to the summons. The Commission did have an opportunity to have a brief discussion with the parties by way of conference. Arising from that it has been indicated by Mr Pope, one of those parties subpoenaed with a concurrence of the union which is the applicant in this matter, that the - a conference should proceed but no longer under the auspices of the Commission.

PN85

There was the issue of whether or not the employers named in the dispute notification, that is, Midway Wood Products Pty Limited, and Dormit Timbers Pty Limited can play a role within the conference process. It has been indicated to the Commission that Midway Woods and Dormit Timbers would no longer be required to attend the - attend the conference so therefore they would be excused.

PN86

In order for the Commission to not proceed by way of conference, but would make the facilities available to the parties if they wished to continue by way of conference, but not under the auspices of the Commission, the Commission does need a formal application by the CFMEU which is the applicant in the matter. Ms Calvert?

PN87

MS CALVERT: Commissioner, we would request an adjournment.

PN88

THE COMMISSIONER: So you are formally requesting that the matter be adjourned?

PN89

MS CALVERT: Thanks, Commissioner.

PN90

THE COMMISSIONER: Thank you. All right. And are there any objections to that - no, all right. The Commission will formally adjourn the matter. It goes without saying, but I will say it anyway, if either party thinks that there may be a role for the Commission, and I do understand the complexities of this matter, then the Commission would be more than happy to make itself available. All right. No further business. The Commission stands adjourned.

ADJOURNED INDEFINITELY [2.16pm]