C2003/5593, Transcript of Proceedings [2003] AIRCTrans 5370 (4 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5355
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER FOGGO

C2003/5593

APPEAL UNDER SECTION 45 OF THE ACT BY
AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
AGAINST A DECISION AND ORDER [PR937025]
BY COMMISSIONER GRAINGER AT MELBOURNE
ON 5 SEPTEMBER IN C2003/2762

MELBOURNE

11.35 AM, TUESDAY, 18 NOVEMBER 2003

PN1

MR M. ADDISON: I appear on behalf of the AMWU.

PN2

MR P. BURCHARDT: I seek leave to appear on behalf of the respondent to the appeal.

PN3

MR G. BORENSTEIN: I appear for the CEPU. I seek leave to intervene under section 43(1). I don't wish to make any submissions outside those of the AMWU and will support their submissions in this matter. And I did have some preliminary discussions with my friend whether he would object to my seeking to intervene. I hope that that commitment I have just given satisfies him.

PN4

SENIOR DEPUTY PRESIDENT WILLIAMS: First of all, is there any objection, Mr Addison to Mr Burchardt being given leave?

PN5

MR ADDISON: No.

PN6

SENIOR DEPUTY PRESIDENT WILLIAMS: Leave is granted, Mr Burchardt. To you maintain - - -

PN7

MR BURCHARDT: Thank you, that brings us to the application for intervention. What I told Mr Borenstein was that I would not object to his application provided he undertook not to say anything. And he, sort of, said that and sort of, has not. Really, it comes to this. There is no doubt that the CEPU and its members are people who may be affected by the outcome of this proceeding. Certainly there would be no suggestion in my submissions that the order that is being sought to be appealed won't be either upheld or struck down.

PN8

We are not going to be trying to leave it as a ..... to the CEPU or something like that because it would just not be practical. But the CEPU, neither itself or on behalf - as agents for its members has made no endeavour to participate in the appeal. It has not - it has been well aware of it and attended proceedings before your Honour, Senior Deputy President Williams at the stay applications and so on. And if they have nothing to add there is not much point in giving them leave to intervene.

PN9

If there is, how could it be different from what Mr Addison is going to advance in respect of the grounds of his own appeal anyway. I have no objection, obviously, to Mr Borenstein sitting at the table and making any suggestions to Mr Addison to incorporate that he may feel appropriate. But you can't, sort of, make yourself an appellant without actually properly joining in the appeal process. It is a short one, you will see it one way or the other.

PN10

SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Borenstein?

PN11

MR BORENSTEIN: From what my friends say, I am happy to just to sit here and to observe.

PN12

SENIOR DEPUTY PRESIDENT WILLIAMS: In those circumstances we won't grant you leave to intervene, Mr Borenstein, but I think, speaking for myself, if at some stage during the proceedings you are overwhelmed by a desire to renew that application then you are free to do so.

PN13

MR BORENSTEIN: Thank you, your Honour.

PN14

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, Mr Addison?

PN15

MR ADDISON: Yes, thanks, your Honour. Your Honour, first of all, possibly a housekeeping matter. I am informed by my friend, Mr Burchardt, that the appeal book which has been lodged is deficient in a couple of respects. I understand that the original application before Commissioner Grainger has been omitted from the appeal book. I can only apologise for that; it has obviously been overlooked and Mr Burchardt does have a copy of that but I understand only one copy. So I apologise for that. There is also a couple of submissions from MRE - yes, MRE and the AWU which are also missing from the appeal book. So I apologise for that, your Honour.

PN16

MR BURCHARDT: I don't think that latter omission is an - it is true they are not there but the decision of Commissioner Grainger sets out the submissions in extenso so they are before you in that way.

PN17

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes and we do have access to the original file in the matter.

PN18

MR BURCHARDT: Yes.

PN19

SENIOR DEPUTY PRESIDENT WILLIAMS: So you are not - - -

PN20

MR BURCHARDT: No, I am not seeking to making any point out of that. The other document you don't have though which is material is the statement by Mr Paley who is the witness called by the AWU, the only witness called by them which is marked as exhibit R2 and that is material. And the only problem is that the only copy we now have left is the one I was working on during the case which is covered in comments you may feel might not be appropriate to be received. It might be more helpful if there is a copy on the file if copies of that were made available.

PN21

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. Do you intent to refer to it?

PN22

MR ADDISON: I don't, your Honour, not in terms of Mr Paley's statement, no.

PN23

SENIOR DEPUTY PRESIDENT WILLIAMS: Well, perhaps, we can make arrangements while Mr Addison is addressing us, for copies to be taken from the original file.

PN24

MR BURCHARDT: We can hand up a copy of the application before Commissioner Grainger if that is convenient.

PN25

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. Well, we will arrange for copies of this and the application to be made to the members of the bench. Are you - do you each have a copy, I take it, do you, yourselves?

PN26

MR BURCHARDT: I have a copy of both of the documents, your Honour.

PN27

MR ADDISON: I don't have one with me, your Honour, I have just brought the appeal book.

PN28

SENIOR DEPUTY PRESIDENT WILLIAMS: All right, well, make four copies of each document. Yes, Mr Addison?

PN29

MR ADDISON: Yes, thanks, your Honour. Your Honour, this is an appeal on behalf of the AMWU against the decision of Commissioner Grainger of 2 September this year where Commissioner Grainger issued a section 127 order to apply on the MRE site at the Shell Geelong Refinery. Your Honour, the AMWU submits that Commissioner Grainger erred in the issuing of such an order. Your Honour, the act requires that a section 127 order under 127(1) can only be issued if it appears to the Commission that industrial action is happening or is threatened, impending or probable in relation to an industrial dispute or the negotiation of a proposed agreement under division 2 or work that is - to work that is regulated by an award or a certified agreement.

PN30

Now, your Honour, there is no argument that the work on the site is regulated by the certified agreement and obviously by a relevant award. Your Honour, we say that the decision of Commissioner Grainer sets out in some detail the evidence that was effectively before the Commission from paragraph 15. The Commissioner deals with the evidence of activity that had occurred on the site over a period of about six months. We say that the evidence as laid out by the Commissioner at paragraph 15 and the sub paragraphs underneath paragraph 15 reveal that the vast majority of the activity that had occurred on the site was in fact not industrial action, but rather, was action with regard to health and safety matters.

PN31

And we say under section 4 of the definition of industrial action occupational health and safety matters are exempt from the definition of industrial action.

PN32

COMMISSIONER FOGGO: Mr Addison, are you referring to paragraph 16?

PN33

MR ADDISON: 15. It is on page 3 I think of the Commissioner's decision. It starts about two thirds of the way down the page - - -

PN34

COMMISSIONER FOGGO: Yes, thank you.

PN35

MR ADDISON: Yes, and then goes through to obviously page 4 and there are some 13 sub paragraphs at paragraph 15 which outline the activity that had occurred over a period of time. Now, we say, your Honours and Commissioner, that the Act requires the jurisdictional pre-requisites to be made out prior to the issuing of a section 127 order which in turn, based on the jurisdictional and the discretionary aspects of 127, effectively makes unlawful any industrial activity. We say that the whole way that this matter was dealt with was contrary to that proposition.

PN36

At page - sorry, paragraph 898 of the transcript there is a discussion that occurs between Mr Burchardt and the Commissioner which makes it clear that the basis of the order that is sought is not on the basis that industrial action is happening or is threatened or impending or probable. It is based on a course of conduct over the previous six months. The Commissioner puts to Mr Burchardt that the - perceives the application to be about the conduct over a six month period of time.

PN37

Mr Burchardt says that is right. Commissioner says, "Is that right?" And Mr Burchardt reiterates, "That is quite right, Commissioner, that is why we have the material for Mr Mathieson." At paragraph 15 of the decision relates to that evidence of Mr Mathieson. Now, there is an affidavit of Mr Mathieson in the appeal book where Mr Mathieson lays out a course of conduct that he says has occurred over the previous six month period. Now, Mr Mathieson, when he gave his evidence, your Honours under cross-examination he accepted that there was a significant proportion of the activity that had occurred on the site which was in fact health and safety related.

PN38

And then further conceded at paragraph number 1037 that of all of the issues that had been the subject of activity on the site that all of those issues were either dealt with, had been dealt with, or were in a process before the Commission and being dealt with. There was an issue of some travelling time, a living away from home allowance issues which was then, at that point in time before Commissioner Hingley being dealt with and there was a question of some jackets, some health and safety jackets to be issued which had been before Commissioner Grainger to be dealt with and Commissioner Grainger had in fact issued recommendations, I think, on 13 June to deal with that matter.

PN39

So he conceded that there was no issue that was outstanding except the issue that was then before the Commission. Now, the issue before the Commission with regard to these proceedings, the substantive issue that gave rise to the proceedings, was a threat which was issued by a senior manager of the principal contractor, CBI. And your Honours will note that effectively the transcript deals with two applications at the same time from two different employers which is somewhat unusual and somewhat complicating.

PN40

But there was a 127 application being run by MRE, who are the suppliers of the labour and the employer of the labour, and they effectively contract that labour to the principal contractor which is CBI. And CBI have day to day control of the work and give day to day instructions, as I understand it, to the workforce. There was therefore a 127 application from MRE and also a 166A application from CBI related to the same matters. And the transcript will reveal that the catalyst that gave rise to the difficulties on the site were that a senior manager of CBI, Mr Mann, had approached, or had said to the AWU shop steward on the site when the AWU shop steward asked the question of what he was doing measuring something up, he said, "I am digging a hole and I am going to put you in it."

PN41

For which the AWU shop steward had taken that as a threat and that had then caused others to react. The matter before the Commission dealt extensively with that issue and the Commissioner - - -

PN42

SENIOR DEPUTY PRESIDENT LACY: Commissioner Grainger took all of that into account though?

PN43

MR ADDISON: Absolutely, absolutely, your Honour. The Commissioner on the first day of hearing which was 15 July indicated that Mr Mann should apologise for his activity. Mr Mann refused to do that and on the second day of hearing which was 18 August 2003 the Commission issued recommendations, both orally and in writing, that the employees return to work the following day which was obviously the 19th. And that Mr Mann, for his part, apologise to the AWU shop steward and Mr Mann refused to do that.

PN44

The Commission then directed Mr Mann to apologise for his comments. Once again that direction has yet to be complied with and Mr Mann has never apologised with regard to the matter. However, for the union's part the employees did return to work the following day, 19 August. Despite the fact that Mr Mann had refused to apologise, the employees went back to work. Now, the Commissioner indicated that he was not prepared to issue a decision ex tempore or even without reading the transcript. The Commission then sought written submissions from the parties with regard to the matters that were before him and written submissions were supplied.

PN45

The decision issued by Commissioner Grainger was issued on 2 September 2003. Now, that is some significant time, a fortnight, after the employees had returned to work. We say that in those circumstances it was not open to the Commission to issue a section 127 order as the first step in the process with regard to determining these matters could not be met, ie, industrial action was not threatened, impending, probable or happening. Far from there being no threat there was not even a suggestion that industrial action would happen with regard to these matters.

PN46

It was clear, or it should have been clear, to the Commission as then constituted that he had issued a recommendation, then direction, to Mr Mann and it was clear that that was the issue that had caused the problem. Mr Mann had refused to comply. There had been a gap of approximately 14 days and no further industrial action had occurred. We say that the jurisdictional pre-requisite, before even getting to the discretionary matters, could not and was not met and there was no possibility that it could be met.

PN47

We say that the evidence before the Commission, the evidence of Mr Mathieson, when read fairly and the concessions that Mr Mathieson agreed to under cross-examination from, I think, principally Mr Winter, that all of the matters that had been issues on the job were either health and safety or had been resolved - - -

PN48

SENIOR DEPUTY PRESIDENT LACY: Whereabouts do you say that - - -

PN49

MR ADDISON: That is in the second block of transcript, your Honour, second block of transcript. If you first of all go to paragraph number 1037 and that is where Mr Winter is cross-examining Mr Mathieson, where there is long discussion between the parties - - -

PN50

MR BURCHARDT: You are looking for 1097.

PN51

MR ADDISON: 1097, is it? And then 1097 - 1097 is then the concession, yes, all of the issues that have been issues were in a process of being dealt with. I think that was me rather than Mr Winter - yes, it was. And I have said to Mr Mathieson:

PN52

I put it to you even though it may have been extraordinarily frustrating for you as the state manager ...(reads)... and were being dealt with.

PN53

And Mr Mathieson responds, "Yes." So all of those issues that had been between the parties were in a process before this Commission and being dealt with or had been dealt with, indeed, your Honour.

PN54

Now, we say on the evidence before the Commission it was not open to the Commission to make the order. As I say it is a two step process in a 127 and that is well established by mountains of authority, that the jurisdictional pre-requisites need to be met first, and then following the jurisdictional pre-requisites being met, then there is an exercise of discretion that occurs. Under the circumstances that were before Commissioner Grainer, we say, the jurisdictional pre-requisites could not be met.

PN55

Now, the fact that there had been a serious of issues - and we say paragraph 15 of the decision clarifies what those issues were - and the admissions of Mr Mathieson, we simply say, that it was not open to the Commission to make the order and we say, on that basis, that leave to appeal should be granted. That it is a matter of some importance that these issues be clarified by a Full Bench and that the Bench should squash the orders of Commissioner Grainger with regard to the 127 on the site. They are our submissions short and sweet, hopefully, unless you have any questions.

PN56

SENIOR DEPUTY PRESIDENT LACY: The first ground of appeal, Mr Addison, says the appeal is made under section 45(1)(b) and the Commission's decision was based upon the evidence of Mr Lockyer, Mr Douglas, Mr Mann and Mr Dodgson with regard to allegedly ongoing industrial action. What do you say is the error there, what should the Commissioner have not done and what should he have done?

PN57

MR ADDISON: Well, that is simply a descriptive proposition, your Honour. What we say is that the affidavits of Mr Lockyer, Douglas, Mann and Dodgson - and there should be Mr Mathieson there too - are all in the same vein. They are all in the same vein, they all - - -

PN58

SENIOR DEPUTY PRESIDENT LACY: But you are not saying that the Commissioner had regard to irrelevant considerations? You say it is relevant but he didn't give sufficient weight, if you like, to the - - -

PN59

MR ADDISON: To the - - -

PN60

SENIOR DEPUTY PRESIDENT LACY: - - - cross-examination of Mr Mathieson - - -

PN61

MR ADDISON: Yes.

PN62

SENIOR DEPUTY PRESIDENT LACY: - - - where Mr Mathieson conceded that there was - - -

PN63

MR ADDISON: Indeed, your Honour, yes.

PN64

SENIOR DEPUTY PRESIDENT LACY: Yes, all right.

PN65

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, thank you, Mr Addison. Mr Burchardt?

PN66

MR BURCHARDT: Thank you, your Honour. This application for leave to appeal has only two grounds, and indeed in one sense, only one ground has been actually advanced this morning. If I could take the Bench to the grounds of appeal. Ground 2 is that the Commission disregarded the evidence with regard to the undisputed fact that all of the issues, the subjects of the alleged industrial action, had all been resolved or they were in an agreed process for resolution before the Australian Industrial Relations Commission.

PN67

And the second one is that the Commission did not or did not give sufficient weight to the oral evidence adduced at hearing by the witnesses with meetings between the employer and the shop stewards with regard to genuine attempts to reach agreement. In order to understand the Commissioner's decision, regrettably it is necessary, in my submission, to look at what was actually before him in some detail because the essential challenge is made is that the evidence required a different conclusion from that to which the Commissioner arrived.

PN68

Could I take you, first of all, to a bit of history which is in the materials but I don't need to take you to the particular documents at the moment. The history of the matter between the parties goes back some time but relevantly could be said to commence on 30 June 2003 when Maintenance Resource Engineering made an application under section 127 against the parties who now - against the AMWU, the AWU and various named electrical employees. There were hearings on the 3rd and 17 July at which nothing was concluded.

PN69

It is in Mr Douglas' affidavit - and he was not cross-examined as to this - that MRE accepted certain union undertakings on those dates. On 13 August the application that has given rise to this appeal was filed and there was then a hearing before Commissioner Grainer on the 15th and 18 August. Could I just correct an important typographical error that confused me for some time. Behind what I imagine may be tab 4 in everybody's appeal books there is transcript before Commissioner Grainger and on the second page it started at 10.10 am on Friday 15 July.

PN70

It was in fact 15 August as the context of the transcript makes plain but it certainly through me for a while to look at that. The hearing continued on the 18th - - -

PN71

SENIOR DEPUTY PRESIDENT WILLIAMS: That one could have a hearing before the application was lodged?

PN72

MR BURCHARDT: It would have been quite an achievement, yes. It is just - I must say I became quite confused for a while in reading that but that is what the result was. On 25 August there were written submissions, which, as I say, commenced a process of submissions with - the applicant went first, the unions went second and then there was a reply. All of that material is - it is all relevant and in fact it is in the decision. And then on 2 September the Commissioner produced his decision.

PN73

As my learned friend points out, operative, from that date. The first matter I seek to take you to, as it was undoubtedly before Commissioner Grainger, was the actual application which you should now have a copy of. Could I take the Bench to that please. You will see that the grounds upon which the application were made were:

PN74

1. An ongoing pattern of unlawful industrial action by employees and the unions in contravention of dispute settlement procedures contained in certified agreements listed below and commitments previously given to members of the Commission not to take industrial action.

PN75

There is then a reference to Mr Mathieson's affidavit to which I will come in due course. And then there is the particular strike in paragraph 2 that gave rise to the application. The employees went out on 12 August and were not posited to come back which was Tuesday which was the 19th. So it is against that background that the matter came to the Commission. And all I seek to take from this is that the employer's application was based both on the strike that was then under way and upon the history, as the employer put it, of the matter.

PN76

The affidavit of Mr Mathieson, the first affidavit, was, if you like, a history of the matter up until the time it finishes which from memory is about the end of June. It was marked as exhibit A4 and it is behind tab 9 in my appeal book, if I can take the Commission to that please. The paragraphs are numbered and the pagination is down at the bottom right hand side of this affidavit. You will see in paragraph 5 on page 2 that the project effectively in terms of labour commenced on 1 July 2002. There were over 100 - 130 employees by the time we had reached this stage.

PN77

And in paragraph 7 Mr Mathieson deposed that there was no industrial action on the project until November; that was a day lost in protest against termination of employment. There was then disruption on 13 January in various forms which are detailed by Mr Mathieson. There was an argument about whether the - well, Mr Mathieson deposed in paragraph 9 that the procedures agreed as to inclement weather were not followed and on the 15th there was a stop work meeting to seek reinstatement of the employee dismissed in November.

PN78

There was further difficulty with this later in the morning, paragraph 11. The matter then came to the Commission to test it - MRE was successful. I should interpolate, none of this was challenged in cross-examination. He then indicates on the rest of page 4 that - the matter, sort of, kicks around a bit and then industrial action returns in paragraph 21. Paragraph 23 it comes to Senior Deputy President Acton and an undertaking is given by the AWU to comply with dispute settlement agreements. And, nonetheless, there is another difficulty referred to on 25 February in paragraph 24.

PN79

And in 26 you will see there is a difficulty about the introduction - or proposed introduction of a night shift. In paragraph 29 it becomes apparent that that goes before Commissioner Grainger on 13 June and he recommends that night shift work starts. Paragraph 30 Mr Mathieson traverses the various improvement notices, the PINs that have been put on. And you will see in paragraph 31:

PN80

There are a number of issues raised, some could fairly be said to be occupational health and safety, others, like the night shift and return home trips for Queensland employees, are standard straight up and down industrial issues.

PN81

And if you look at those matters as a whole the majority are, indeed, about things like you see on page 8. Meal money, living away from home allowance, payment payout of sick leave and so on. So, to characterise these as overwhelmingly health and safety issues is to mischaracterise them.

[12.10pm]

PN82

You will see that disputation continued, paragraphs 32 and 33. Mr Mathieson gives his opinion in paragraph 33 as to why that is the case. Formal responses are given to the union's matters. He deposes in paragraph 35 that all the outstanding health and safety issues have been resolved. He then indicates the difficulty involving Mr Whelan from the AMWU in paragraph 37, they lose work on the day shift. There are further difficulties about overtime referred to in paragraphs 39 to 41, and then there is an issue about Mr Dunden, who is the occupational health and safety representative, and you will see that Mr Mathieson complains in paragraph 42 essentially to the effect that the occupational health and safety issues seem to be getting inappropriately mixed up with industrial issues.

PN83

And you will see that by the time he reaches paragraph 45 he is offering an opinion which in evidence is supported by very many years of experience in the industry that the manner in which industrial issues on the project are dealt with by taking action - meant that since the commencement of the project, sorry, without an order there would be a continuing pattern of such developments. The second affidavit of Mr Mathieson in my case behind tab 10 in the appeal book is not one I propose to take you through in detail.

PN84

I will take you, though, to the conclusion that he expressed having detailed the various discussions he had with the parties on page 5 of paragraph 12 at the bottom of that page where he expressed the view:

PN85

I have no doubt that the unions are using occupational health and safety issues to pursue their industrial ...(reads)...the company will not hold discussions with the employee representatives.

PN86

Also before Commissioner Grainger was an affidavit by Mr Dodgson. Once again I don't propose to take you through that in great detail, but you will note that in paragraph 11, and I am sorry, these are not numbered pages, the third last, Mr Dodgson said:

PN87

The overtime shift for the night shift on 11 July 2003 did not proceed and the overtime offered for Saturday 12 July 2003 was not accepted by any employee.

PN88

He then says in paragraph 13 over the page:

PN89

The refusal to work overtime was an example, and I am informed by management of CBI and MRE a continuation of a pattern of industrial action ...(reads)... which apply at the site -

PN90

and he says, not surprisingly -

PN91

as having adverse effect on the program of work.

PN92

The last relevant affidavit - there were a number of other affidavits files about the incident involving Mr Mann and Mr Paley, but the last relevant affidavit is that of Mr Douglas behind tab 12 in the appeal book. What Mr Douglas said, commencing at paragraph 5 on the second page, was:

PN93

In the period that I have performed the onsite management role there have been a number of stoppages of work by all employees on the site and by mechanical employees only on 12 August 2003.

PN94

And he offers the opinion that they are in breach of the Act - sorry, breach of the dispute settlement procedure - and gives details of the dates on which he says that has occurred. You will note that in paragraph 6 he asserts:

PN95

It was reported to management following the stop-work meeting on 12 August 2003 that the meeting was in response to a dispute ...(reads)... allowance to employees classified as welders.

PN96

Once again you have got a mixture of what might be said to be straightforward industrial issues and as chance would have it, it leads to contemporaneous issue in relation to a matter which could properly and fairly be described as health and safety. I should interpolate, the 5 per cent increase issue has been before Commissioner Whelan and has been resolved. The company's position happened to be upheld. The next issue raised is in paragraph 9. He describes industrial action which follows compulsory conferences conducted by Commissioner Grainger on 3 and 17 July.

PN97

He deposes to the acceptance by the company of the undertakings by the union then given, and he asserts obviously at the end that the order is required to help regulate the matter. Now, Mr Paley's statement isn't in the court book, but in fairness we should have a look at that, because it was the only evidence called by the unions and it wasn't called by the AMWU, it was called by the AWU, and Mr Addison expressly disregarded the opportunity to call any evidence. You will notice that he says he has been employed since 1 October 2002 as a steel fixer. He was elected as deputy delegate and then shop steward for the AWU.

PN98

He was requested to deal with issues that have been resolved, most of which related to OH and S matters. He says what they were in paragraph 4, and maintains the difficulties predominantly it would seem with CBI, but nonetheless you will see the sort of problems that arose in paragraphs 5 and 6 which reflect the kind of niceties of interactions that sometimes occur on building sites, I suspect, but then he says in paragraph - - -

PN99

SENIOR DEPUTY PRESIDENT WILLIAMS: Do you accept that CBI had the ongoing day to day supervision of the performance of the work there?

PN100

MR BURCHARDT: Yes.

PN101

SENIOR DEPUTY PRESIDENT WILLIAMS: And one would expect that if directions were being given to work they could well come from CBI officers?

PN102

MR BURCHARDT: Yes, and MRE provides the labour and is the direct employer, but they have to perform it under the control of officers of CBI. Then he supposes in paragraph 7 there is ongoing employment with OHS matters that - and he says what those were, and in number 8 he complains about the lack of proper, prompt response from management about this, and in 9 he said:

PN103

We have numerous OHS and industrial issues we wish to resolve through communication, not confrontation, but management doesn't seem interested.

PN104

He complains about the structure of the way management is - arises with the labour hire in paragraph 10. Paragraph 11 he complains about the lack of appointment of an OHS consultant, but that was a matter which transpired to have been dealt with when we got before the Commissioner. In paragraph 12 he details the incident with Mr Mann that was the immediate catalyst for the strike that brought us to the Commission. Just to remind you of the timing, the remarks were made by Mr Mann on the 12th, the strike was on foot by the 13th.

PN105

We came before the Commission on 15 and 18 on which days the strike was still continuing.

PN106

SENIOR DEPUTY PRESIDENT LACY: When did the Commissioner direct Mr Mann to apologise?

PN107

MR BURCHARDT: I wasn't actually involved in that part of it, but my understanding is that it was on the first day, on the 15th, the Friday. It was initially made as a recommendation, but my recollection is it was subsequently made as a direction. Just to explain, as Mr Addison has rightly pointed out, there was a section 166A application by CBI, and the 127 application by my client, and they were heard on the same sort of transcript, so to speak, but I withdrew from the matter once the section 127 was dealt with because we had no interest in the - or I wasn't instructed to appear, I should more properly say, in the section 166A matter.

PN108

So, although I have an understanding as to what took place, it is only informed by what I have been told.

PN109

SENIOR DEPUTY PRESIDENT LACY: But is it correct as Mr Addison says that Mr Mann has not complied with that direction?

PN110

MR BURCHARDT: Certainly that is my understanding, and certainly his advocate appeared to adopt that position in no uncertain terms when they were before Commissioner Grainger. I am not going to seek to go into bat for Mr Mann or Mr Milne. If I may respectfully say so, I thought the Commissioner's recommendation and direction most appropriate.

PN111

SENIOR DEPUTY PRESIDENT WILLIAMS: That might be said to be delivering a bouncer rather than going into bat.

PN112

MR BURCHARDT: I know that is dobbing them in, but quite frankly, the Commissioner put the matter in a way that was completely neutral and didn't require Mr Mann as I understood it to actually acknowledge that what was alleged against him was true, but in effect to apologise for any hurt his remarks might have caused, even if they were said as he said them, and the failure to take up that recommendation speaks for itself. Now, of course, the evidence-in-chief wasn't all there was. There was naturally cross-examination, and there were also of course submissions.

PN113

Could I take you, and once again I will do this as quickly as I properly can, but nonetheless, if I could take you first to paragraphs 65 to 66, which is in my opening to Commissioner Grainger on the first day. It is behind tab 4 in the appeal book. Now that we don't have page numbers it sometimes takes just a little longer to put your finger on the particular spot. Paragraph 65, in opening I said to the Commissioner:

PN114

I will come on to the affidavits, but the affidavit referred to there is the affidavit Mr Mathieson swore as MRE1 when we were last before you ...(reads)... about 3 pm and didn't come back.

PN115

And then I refer to the fact that there was a strike on the 13th and there is an indication that the employees won't return till the following Tuesday at the earliest, it is not known what would then occur. All that was posited at that stage was that there would be a report back and that the employees were not then working, and of course it is not in issue that all the employees concerned performed work pursuant to and governed by certified agreements. At paragraph 169 through to paragraph 179, I won't perform the laborious exercise of reading all of this out - I took the - - -

PN116

SENIOR DEPUTY PRESIDENT WILLIAMS: Through to what paragraph?

PN117

MR BURCHARDT: Paragraph 169.

PN118

SENIOR DEPUTY PRESIDENT WILLIAMS: But you said through to - - -

PN119

MR BURCHARDT: 179, I am sorry, your Honour. I outlined the history of the matter as it is really set out in the affidavit of Mr Mathieson and then took it through Mr Douglas. So at paragraph 218 we deal with the business of Mr Mann, and you will notice that I adopted a neutral stance as to who said what, but at paragraph 220 the submission or the remark was made at the bottom of the page:

PN120

Even if everything Mr Paley has accepted -

PN121

was accepted -

PN122

for these purposes it does not ground a withdrawal of labour by all of the other persons working with the company.

PN123

Then at 230 to 232 we - I advance the submission first that the certified agreements were still extant, and there was no argument about that. 231:

PN124

We have been to the Commission on quite a number of occasions. We have received assurances both formally and informally that the dispute resolutions ...(reads)... circumstances we say -

PN125

and I make a reference to the Walker case, that - that is as far as I need to go with that passage. And finally at paragraphs 370 to 374 I ask Mr Douglas if any work was being that day and he deposed that they weren't. I should once again interpolate, the way we did it was that the evidence was put in chief on the first occasion and then cross-examination took place when we came back on the Monday. Mr Addison is nodding his head, so my recollection is correct. So, we came back, and at paragraph 893 - - -

PN126

SENIOR DEPUTY PRESIDENT WILLIAMS: Eight?

PN127

MR BURCHARDT: 893, your Honour. You will notice that the Commissioner asked me a question. He said:

PN128

Mr Burchardt, the other thing I just want to be clear on is that the company's application is not simply in relation to the stoppage which has been taking place.

PN129

And at 897:

PN130

The company's section 127 application relates to the totality of what it perceives to be, to conduct over about a six-month period.

PN131

And I said, yes, that is quite correct, and referred to the material for Mr Mathieson and Dodgson. At 906 it was clarified for the Commissioner in these terms:

PN132

Although on one view the current stoppage would be enough, we say that in considering this matter it is appropriate that the Commission see the long-standing history of disruptions that occurred.

PN133

Mr Mathieson was recalled, and he was cross-examined, and it is important to see what he said and didn't say. If we could go to paragraph 990 first of all, there was a bit of an exchange - - -

PN134

COMMISSIONER FOGGO: I am sorry, what paragraph is that?

PN135

MR BURCHARDT: 990, I am sorry. If I am not speaking up, I do have a bit of a cold, so if it is making me hard to follow I do apologise. At 990 the Commissioner was having a discussion with Mr Mathieson about the fact that the labour hire arrangements might be seen to be innovative or new, and you will see that Mr Mathieson says:

PN136

Yes, I was going to comment, Commissioner. I think the big issue could be acceptance of change -

PN137

and there is a discussion to the effect that that is difficult. And then in 994, and this is under cross-examination by Mr Winter for the AWU, the question was put to Mr Mathieson:

PN138

Would it be fair to say, Mr Mathieson, that a majority of the disputes on site are related to occupational health and safety or inclement weather-type issues?

PN139

Answer:

PN140

No. That is totally incorrect to my mind. I think I indicated in this Commission once beforehand that the number of OH and S issues we had on site ...(reads)... couldn't be achieved.

PN141

Then at 1037 there was a question once again put to Mr Mathieson by Mr Winter:

PN142

The question I would put to you is, well, if the unions had agreed to a process in this Commission ...(reads)... you say that they were using those OH and S issues to pursue industrial interests?

PN143

Answer:

PN144

Mainly because we had a number of meetings with union or on site with shop stewards and OH and S reps where despite at almost every meeting ...(reads)... union shop stewards leave.

PN145

Then:

PN146

But this was prior to agreement being reached in this Commission on that process I have outlined earlier.

PN147

That is the question:

PN148

Well, it continued. That was a non-stop process.

PN149

Then at 1097 in the passage to which Mr Addison has already referred it was put to Mr Mathieson by Mr Addison:

PN150

Now, I put to you, Mr Mathieson, even though it may have been extraordinarily frustrating for you as the site manager, all of the issues between the parties were in a process and were being dealt with.

PN151

And he answered: Yes. What he didn't say of course is that they had all been resolved. He said they were in a process. Now, Mr Douglas was cross-examined, and if you turn to paragraph 1255 - - -

PN152

SENIOR DEPUTY PRESIDENT WILLIAMS: 1255?

PN153

MR BURCHARDT: 1225, your Honour.

PN154

SENIOR DEPUTY PRESIDENT WILLIAMS: 1225, thank you.

PN155

MR BURCHARDT: Mr Winter was cross-examining Mr Douglas, and it was put to Mr Douglas that he listed a number of stoppages in his witness statement, and he said: Yes:

PN156

Do you know what those stoppages were about?---They varied. Some of them were in relation to -

PN157

And he says:

PN158

Well, let us deal with them one by one. What about 23 July?

PN159

Answer:

PN160

I can't recall, don't have my diary here, but what I can say generally is that they relate to alleged occupational health and...(reads)... and thereafter the employees left the project site.

PN161

Then:

PN162

So it wouldn't surprise you that 23 July the issue has been rained off?---That wouldn't surprise me, no.

PN163

And it wouldn't surprise you that 28 July was high winds on site?---Yes, that would surprise me, and I take it that is not the case.

PN164

Over the page:

PN165

So, Mr Douglas, why are you so certain of the answer?---Because I recall the incident itself.

PN166

And you will see that Mr Douglas goes on to say in effect that the complaint wasn't - the safety issue wasn't bona fide and you will also notice that in paragraph 1234, the solicitor's paragraph number, he makes a complaint that the way in which these issues were being dealt with, he says:

PN167

Notwithstanding that, once again in contravention of the dispute resolution procedure, the employees refused to work.

PN168

So in part it is a complaint about industrial action, but it is also in part a complaint that the procedures in place for dealing with both industrial and occupational health and safety issues simply weren't being followed. He then deals with the appointment of the occupational health and safety consultant and says it is - you will see at the bottom of the page:

PN169

I don't agree with that at all. The reason why these have become issues is because of a ...(reads)... absence OH and S consultant was the reason why the employees were declining to work.

PN170

That is the last of the relevant material in my submission from Mr Douglas, but in fairness we can't omit the evidence of Mr Paley, who was of course called by the AWU. Could I, before I come to the cross-examination of Mr Paley, just take you to paragraph 1328, because this was where the Commissioner dealt with what was actually said by Mr Mann, who is the person who uttered the remarks that Mr Paley construed as a threat to his safety. He says - this is about the second sentence into the paragraph:

PN171

I wouldn't want there to be any doubt that I do recommend that the employees return to work tomorrow morning whether or not ...(reads)... unhesitatingly if I thought otherwise.

PN172

Now, 1392 I was asking some questions of Mr Paley. This is down towards the bottom of that page:

PN173

And that is the fact, isn't it, there are numerous industrial issues, leaving aside OH and S issues, there are numerous industrial issues that are of concern to you at this site, aren't there?

PN174

Answer:

PN175

Well, yes, you could say that.

PN176

So whatever the position may now be sought to be characterised by the appellant, their own witness readily concedes that there are numerous industrial issues on foot as at this date. And I then put to him:

PN177

And the fact is that those issues have tended to become somewhat confused and interrelated with allegations about occupational health and safety in some cases, haven't they?

PN178

And he says: No:

PN179

You see, if you read this document at first blush you would note that there is a lot of reference to safety issues, but there is only the most glancing ...(reads)... into payment issues every time.

PN180

I referred at 1398 to the undertakings given to Senior Deputy President Acton on 14 February this year about adhering to the dispute resolution procedures in the agreement: Yes:

PN181

And yet the fact is that you and your members have withdrawn your labour on a number of occasions since then without bringing the ...(reads)... into industrial action by the company.

PN182

And then at 1401 there is another answer:

PN183

We have always exhausted every avenue that we can before anything was done. Always organisers are in to handle those, that is above my head.

PN184

And then the Commissioner asked on 1402 of Mr Paley in what way he had utilised the dispute resolution procedure before the stoppage took place, and he said he approached Ted Lockyer who is the sort of head, so to speak, of MRE, for this apology:

PN185

...and we got no apology.

PN186

Then:

PN187

Yes, it is true, but to what extent did that exhaust the dispute resolution procedure; you could have come here, couldn't you, rather than ...(reads)... as a result of the comments by Mr Mann.

PN188

You will see at 1407:

PN189

But you acknowledge that the matter could have been brought straight here to this Commission and would have been probably listed within 24 hours...(reads)... what Mr Mann said to you.

PN190

And he just says: Well, that is right. So that is the evidence relevant to this application that was before the Commission, at least in my submission. The submissions of the AMWU are behind tab 16 in the appeal book. You will notice that at the bottom of page 1 Mr Addison point out:

PN191

The evidence in the matter before the Commission reveals there was no industrial action happening, nor any threatened, impending or probable.

PN192

He refers to the incident the previous week in relation to Mr Mann's remark and the failure of Mr Mann to apologise. He says that workers have gone back. He makes a reference under the heading: Other matters to the decision in CBI Constructors which I will come to, and says in the last paragraph on the second page:

PN193

The AMWU and CEPU submit that the authority of CBI must be viewed in the context of the facts presented in support of the application ...(reads)... are in a process of resolution.

PN194

And he says:

PN195

The catalyst for the current application was the threat of physical violence. It should be seen as an isolated incident and confined to its facts.

PN196

There were submissions by the AWU. It is perhaps unnecessary for me to traverse them in detail. In summary, what they said was that this matter was all about health and safety, and that is a fair - quite happy for the Commission to read it and see if that is a fair summary, but in my submission, it is. It goes on for some length about that issue. Then the defendant's submissions were put in - sorry, I have got this the wrong way round. The applicant - our submissions went in first. Those were in reply, and then we got some further submissions from us, and then we got the decision of Commissioner Grainger. The time has now arrived, in my submission, to have a look at that.

PN197

That, I think, is behind tab 2 in the appeal book. If you could turn to the second page, please, and paragraph 10. The Commissioner observed there:

PN198

There is a long history since MRE began providing labour hire services to CBI at the site of industrial disputation and poor working ...(reads)... have come to the Commission for resolution.

PN199

Now, of course, the Commissioner is entitled to inform himself in whatever way he thinks fit, and bearing in mind the number of matters that have been before him, that remark, in my submission, is plainly unobjectionable. He then says:

PN200

On 13 June 2003 MRE made an application to the Commission for an order under section 127. Whilst that matter was withdrawn prior ...(reads)... health and safety issues.

PN201

Once again, that is a finding by the Commissioner that must surely be open to him:

PN202

As a result of that conference the parties have been working through a list of agreed outcomes, including the ...(reads)... the dispute settlement procedures of the agreements.

PN203

Well, once again, the Commissioner was there. He was in a position to form that view. Then there is a reference to the inappropriate remarks by Mr Mann, and he details the fact that the strike ceased on 19 August. Paragraph 14 is important. The Commissioner was well aware and under no illusions about what the practical state of affairs was by the time he made his decision. He knew no industrial action was happening, and he expressed this so found later on. He then traverses the evidence of Mr Mathieson, which I won't repeat, in paragraphs 15 and 16, and that of Mr Paley in paragraph 17.

PN204

Since those extracts are essentially taken from the affidavits it is fair to say that they are accurate. You will also note at paragraph 18 he made an unexceptionable finding that on 4 June 2003 Worksafe Victoria issued a field report relative to the site, raising a number of safety issues:

PN205

The evidence before me indicates that all matters of significance were attended to promptly by the appellant.

PN206

From these matters he makes various conclusions, and they are made in careful terms. He says in paragraph 19:

PN207

Whilst the Commission should be careful not to draw too wide a field of conclusions from the material before it in this matter, the following ...(reads)... arising from Commission recommendations.

PN208

And he refers to the bad weather clothing one and the consultation processes. He then sets out the legislation and the submissions of the parties. Paragraph 21 is the bulk of the submissions filed by MRE, the rest of what MRE - it is all the relevant submissions. I don't propose to - I am reading out quite a lot as it is, so I won't read out all that over again, but in essence, the position put by the applicant was that the history of the matter was such that the Commission could be comfortably satisfied that the pre-requirement for industrial action that was happening, threatened, impending or probable was met.

PN209

The Commissioner then set out the AWUs submissions, the evidence of Mr Paley, which related in part to that, and the submissions made by the AMWU. At paragraph 24 he sets out the subsequent submissions by the respondent which were if short, but pointed out that the health and safety facilitator had been addressed and referred to the relevant ..... which is 1216, and at five, this is subparagraph 5 of paragraph 24 on page 14:

PN210

The other assertions made by AWU are incorrect. There are no outstanding occupational health and safety issues. ...(reads)... discharged because the issues have been addressed.

PN211

You will notice the inspector's remarks, and so that issue was submitted to be well and truly disposed of. Then the Commissioner asked the question, should he exercise his discretion to issue an order? He says:

PN212

I find (1) that it does appear to me that whilst individual action at the site by the respondents is not happening or threatened -

PN213

I am sorry, this is on page 15 at the top -

PN214

...is not happening or threatened at the present time, it is impending or probable because there is a consistent pattern by the respondents ...(reads)... is regulated by certified agreements.

PN215

And he refers to them. And he then goes on to say in subparagraph (4) having set out an extract from Coal and Allied Operations:

PN216

In the present case the relationship between the parties is governed by the agreements which have identical and clear dispute ...(reads)... Commission under section 99 of the Act.

[12.43pm]

PN217

And he then concluded that an order should be granted as sought. Now, what arises from all this in my submission is this. First, it is submitted that Commissioner Grainger decided, on the totality of the material that there was impending or probable industrial action. He did not - he expressly dis-allowed the proposition that industrial was actually occurring or threatened. History may be said in part to support his proposition as the Commission constituted by your Honour, Senior Deputy President Williams will be aware, two further days of labour have been lost since then to strikes associated with rallies to do with the Government's proposals for new industrial legislation and the like.

PN218

I might observe in passing that the decision of French J in the Federal Court of Australia in a matter involving the CEPU and Commissioner Laing and the Electricity Corporation of Western Australia. It is an unreported decision as yet, dated 13 November 1998, the reference number being SCA1410 - appears to state in terms that while of course persons are entitled to take action in respect of things like legislation that they do not like, if their work is governed by a certified agreement that fact that a rally may be political is nothing to do with the employer's affairs does not mean the section 127 does not have scope to operate.

PN219

But moving on from there the second point to make by way of submission is that the Commissioner was clearly well aware of the competing arguments of the parties. He knew well that the employer was saying there has been far too much industrial action, much of it couched and disguised to an extent as occupational health and safety issues, and he well knew that the unions were saying no to the contrary. This was all really about occupational health and safety.

PN220

He was entitled to make a finding about who was right and in the face of the answers given under cross-examination by Mr Mathieson and Mr Douglas and, indeed, to an extent by Mr Paley, those decisions were very clearly properly open to him to make because their evidence was that not all the action was about health and safety. Mr Mathieson and Mr Douglas said health and safety issues were being abused in a sense by being improperly mixed up with industrial relations issues. And, as I say, ultimately although reluctantly in all senses Mr Paley effectively conceded that.

PN221

Further, the Commission knew and was entitled to take into regard the fact that there was a lot of history of industrial disputation and disruption and he judged the material before him against that totality. He was entitled to do so and there is reference there made to the CBI case which was quoted by your Honour, Senior Deputy President Williams, on 9 October. The observation in that case and I should - I beg your pardon, I will give you the reference - is CBI Constructors Pty Limited v Australian Manufacturing Workers' Union and Another, (1999) 87 IR 82. At 90 - in the second last paragraph where the Full Bench said:

PN222

We observe in passing that a pattern of intermittent but continual industrial action could be sufficient to enable the view to be formed that industrial action was threatened, impending or probable.

PN223

Even though there was no action taking place at the particular time the order was to be operative. In that case of course they found that it was not so. The decision of Commission Grainger must be read as a whole and in the light of all the material before him and the fact is, as we submit strongly, there was evidence of industrial disruption on an on-going basis and breach of the settlement of disputes arrangements, before him.

PN224

That entitled Commissioner Grainger in our submission to conclude that industrial action was impending or probable. As I have said he did not find it to be occurring or threatened. "Impending" or "probable" are words that involve, by definition, looking into the future. Something is not impending if it is already happening. It cannot be only probable if it is already occurring would then be certain. Of its nature a decision that industrial action is pending - impending or probable involves an element of looking to the future and what do you look to the future at - in the light of the past - that is what the Commissioner did and in our submission he was perfectly - not only entitled but required to do so by the circumstances of the case.

PN225

This Commission, on Appeal, will be reminded of the uncertainties that would inevitably attend an exercise of judgment of that sort. You do not know what is going to happen in the future. You just have to - you have to make a decision on what is available to you at the time. Now, we submit strongly, that Commissioner Grainger's decision was correct and then even if one steps back a pace from that the proper conclusion would be that the decision was open to him on material.

PN226

Now, if I go back just to finish to the Grounds of Appeal. The first is that the Commission disregarded the evidence with regard to the undisputed fact that all of the issues, the subject of the alleged industrial action had all been resolved or they were in an agreed process for resolution before the Commission. He did not disregard that at all. He expressly found that there was no industrial action under way. He did however find on the evidence he was entitled to find that the disputes settlement procedures were not followed.

PN227

The next ground is that he did not give sufficient weight to the oral evidence adduced at hearing by the witnesses of meetings between the employer and shop stewards with regard to genuine attempts to reach agreement and the evidence cannot properly be characterised in that but to the extent that there was such evidence, the Commissioner did not disregard it. So we would respectfully submit that the Appeal should be dismissed. I should say it does raise what purports to be a jurisdictional issue and ordinarily it is my experience that the Commission tends to grant leave to appeal where jurisdiction is at large.

PN228

I do not really propose to take up a lot of time about that. It is a matter for the Commission. We - we would certainly also submit that while the Commission generally grants leave to appeal where jurisdiction is at large in this case it does not really get close enough to being arguable to meet that test. But the primary submission we make is that in any event the appeal should be dismissed. Unless there is any matter with which I can further assist those would be my submissions.

PN229

SENIOR DEPUTY PRESIDENT WILLIAMS: It is a jurisdictional question is it. Do you agree with that?

PN230

MR BURCHARDT: Yes.

PN231

SENIOR DEPUTY PRESIDENT WILLIAMS: And either the Commission have got it right or got it wrong.

PN232

MR BURCHARDT: Either you have got it right or got it wrong but in reviewing it you will pay proper regard to the - the way the matter was argued before him and the - and it is a discretionary judgment in one sense in the sense that you - while - yes, if there is - - -

PN233

SENIOR DEPUTY PRESIDENT WILLIAMS: Because it has to appear to him - - -

PN234

MR BURCHARDT: Sorry?

PN235

SENIOR DEPUTY PRESIDENT WILLIAMS: Something has to appear to him is that what you are saying?

PN236

MR BURCHARDT: Precisely. That is right. That is right, your Honour.

PN237

SENIOR DEPUTY PRESIDENT WILLIAMS: And you say that if it is open for him to conclude on the evidence before him that the industrial action was impending or improbably then that is sufficient?

PN238

MR BURCHARDT: Yes. That is sufficient in my submission, yes.

PN239

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, Mr Addison.

PN240

MR ADDISON: Yes, sir. I do not think there is much to put, your Honour, apart from to say that the previous submission I put with regard to paragraph 15 we say a fair reading of that reveals that a significant number of the issues were in fact occupational health and safety issues and it is open for people to take action appropriately under the Occupational Health and Safety Act 1985 in this State if they believe there is a risk to their health and safety as indeed it is open to them under the Workplace Relations Act under section 4, to do the same, and it is specifically exempt from the definition of industrial action.

PN241

We say that a fair reading of the evidence it would not have been open to the Commission to come to the conclusion that he did in paragraph 25 and in the first subparagraph of paragraph 25 Commissioner Grainger talks about:

PN242

A consistent pattern of the respondents since November 2002 failing to comply with the disputes resolution procedure.

PN243

We say the evidence does not lead to that conclusion and cannot lead to that conclusion unless he also took into account the Occupational Health and Safety issues. Now we say action that occurs on various sites from time to time falls into one of two baskets and that there is support for that from Coal and Allied, it is either legitimate or it is illegitimate.

PN244

Arguably, there is some illegitimate action that has occurred on this site but there is also very arguably a whole range of legitimate action that has happened on this site and you cannot mix legitimate and illegitimate action together and then come up with a conclusion that there is a constant and on-going pattern. That is - that is illegitimate in its - in its nature by mixing the two. We say you cannot get there along that route and the only matters that should have been properly considered were any clear instances of illegitimate action.

PN245

We say that the evidence just does not reveal that and even the matter that was before the Commission - the catalyst issue, if you like, that gave rise to the dispute we say it is pretty reasonable and it is pretty legitimate if a boss threatens to kill one of your fellow workers for people to get upset about that. We say it is pretty reasonable for employees to say that that is an unacceptable proposition. Now, arguably people got hot under the collar and took the wrong action. But it is understandable - very understandable in my submission that people would do that when there is a threat to one of their elected delegates of such a nature.

PN246

And, even Commissioner Grainger, in his deliberations on the matter and the transcript clearly reveals - and the decision clearly reveals that Commissioner Grainger thought the action taken by CBIs management was unacceptable and at paragraph 13 Commissioner Grainger says:

PN247

On 15 August 2003 the Commission recommended that Mr Mann should apologise to Mr Paley for that injudicious attempt at humour.

PN248

Now whether it is humour or not - and in the cold light of day after all the heat about the issue, and the matters that had been agitated before the Commissioner, it could possibly be seen as an attempt at humour. But on the day in question when a person gets told that somebody is going to dig a hole and going to put a - put a person in it, or as Mr Paley says, in his witness statement at paragraph 12:

PN249

Mr Mann replied, "I am measuring out your grave to bury you in it. I will kill you".

PN250

That is a fairly - fairly heavy threat for a - - -

PN251

SENIOR DEPUTY PRESIDENT LACY: Did Mr Paley report that to the police?

PN252

MR ADDISON: I have no instructions on that, your Honour, at this point in time. I am instructed - I am advised by Mr Borenstein that, "yes", that was advised to the police. I think that is actually in the transcript at some point but I could not take you to it, your Honour, at this point in time. So we say the jurisdictional pre-requisites could not possibly be made out. We say even if they were, the discretion miscarried in any event because the action probably was legitimate. We say - - -

PN253

COMMISSIONER FOGGO: What do you say - there probably was or probably was not?

PN254

MR ADDISON: Probably was legitimate. Yes, Commissioner. I have nothing further on this unless you have something for me.

PN255

SENIOR DEPUTY PRESIDENT WILLIAMS: Thank you.

PN256

MR ADDISON: Thanks, your Honour.

PN257

SENIOR DEPUTY PRESIDENT WILLIAMS: The Commission will reserve its decision in the matter and as soon as it has made a decision the parties will be notified. The matter is adjourned on that basis and the Commission itself is adjourned.

ADJOURNED INDEFINITELY [1.00pm]