C2003/6682, Transcript of Proceedings [2003] AIRCTrans 5619 (15 December 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N F8131
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2003/6682

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by HPM Industries Pty Limited for an order
to stop or prevent industrial action

SYDNEY

9.05 AM, WEDNESDAY, 3 DECEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, ladies and gentlemen, I'll take the appearances please.

PN2

MR C. NURSEY: If the Commission pleases, I am from the Australian Industry Group and with me from the company are MR E. ARENA and MS D. LUGTON and MS S. VASS from Abbott Tout.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. When you say Ms Vass from Abbott Tout - - -

PN4

MR NURSEY: She is part of the group with the company rather than appearing before you, Commissioner.

PN5

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Morrison?

PN6

MR I. MORRISON: Yes, your Honour, if it pleases, I appear for the Australian Manufacturing Workers Union and with me today is MR M. CARTWRIGHT the organiser from the site.

PN7

MS A. HUGHES: If it pleases, I appear for the National Union of Workers New South Wales Branch and with me is MR S. MUELLER also from the union.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, good morning. Well, Mr Nursey, it's your application, so over to you.

PN9

MR NURSEY: Commissioner, this is an application under section 127 of the Industrial Relations Act of 1996 by the AI Group on behalf of HPM Industries, a member of our organisation. Commissioner, section 127 of the Workplace Relations Act provides relief for a party where industrial action is happening or is threatened, impending or probable. It is under this section that we seek relief. We understand the exercise by the Commission of its power to issue an order under section 127 is discretionary, not mandatory, and we believe at the moment there is ample evidence that there is actually industrial action occurring. I'm not sure whether we need to bring further evidence as to the actual occurrence of industrial action at this stage.

PN10

MR MORRISON: Your Honour, if I could just interrupt, I can only speak on behalf of the Australian Manufacturing Workers Union. The AMW has not been served as required under rule 25 of the Workplace Relations Act with the orders sought, or the terms sought, so we are operating a bit in the dark here, so we would ask firstly that this matter be adjourned for a period of time at least until we can be properly served with the appropriate documentation. I imagine the NUW would like to make a similar request when their turn comes. On that basis we would ask for that adjournment, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: And when you say, until you are served, what do you have in mind in making that proposal?

PN12

MR MORRISON: Well your Honour, this is I'd say fairly typical of why we are here today, the fact that the company in its arrogance has not recognised the union. Not recognised the members and not applied the appropriate documentation they are required to do. We would need to see that documentation. The organiser and the NUW organiser when they have their turn would perhaps need to seek some direction and need some instructions from their members on what that documentation may contain because we are not really clear on what is being sought. Then some consideration would have to be made. At this time, without seeing that documentation, I am unable really to progress the matter or to actually mount an adequate defence to the proposed application.

PN13

THE SENIOR DEPUTY PRESIDENT: So you are seeking an adjournment of half and hour or what?

PN14

MR MORRISON: Well you Honour the time would depend on how long, and what's in the document. I can't anticipate what is in the document, what discussion would occur between the various unions and their members and where it proceeds to from there. We don't want to frustrate, there are certain issues we feel necessary to bring on the table but until we see that documentation we cannot progress.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Morrison. Ms Hughes was there something you wanted to say?

PN16

MS HUGHES: The NUW also has not been served with any documentation. I would also adopt the submissions put by Mr Morrison this morning in regards to the granting of an adjournment. I will note for the record though our organiser of this site is currently caught up in another matter before Commissioner Raffaelli this morning so for me to get in touch with him will take quite some time considering he is before another member of this Commission.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nursey, how would like to proceed?

PN18

MR NURSEY: I apologise. It was my understanding the documents had been served. Obviously there has been an error in the way that we have processed this through our office yesterday. There has been some uncertainty about how it's been handled so I apologise for that.

PN19

THE SENIOR DEPUTY PRESIDENT: I do confirm that I issued an order for substituted service.

PN20

MR NURSEY: Yes your Honour, that was issued, but it was my understanding that was actually done, so I'm at a bit of a loss. I'm in a position to be able to photocopy the documents that were faxed through to the Commission yesterday and provide those to the unions today.

PN21

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Morrison I think you'll not be terribly surprised by anything that is in the orders sought, but on the basis of what has been said the Commission will adjourn for half an hour to enable those documents to be provided. I am influenced in that by the fact that I have a limit of 11.15 on how long the proceedings can run this morning because of an external appointment that I have to meet, so there is a time factor from my point of view as well. So we will adjourn for half an hour to allow those documents to be provided and more consultations to take place.

SHORT ADJOURNMENT [9.11am]

RESUMED [9.45am]

PN22

THE SENIOR DEPUTY PRESIDENT: Now I assume that all the documents have been not only passed over but you have had an opportunity to review them Mr Morrison and Ms Hughes.

PN23

MR MORRISON: Yes we have your Honour, thank you.

PN24

THE SENIOR DEPUTY PRESIDENT: I have already indicated that I've got a time consideration in the progress of this matter which of course is why it was listed at 9 o'clock this morning instead of at a different time, and I've got no idea of what the issues are, all I've received is the application and the draft order. So in order to manage our time effectively perhaps the first thing that you might let me know is whether the jurisdictional issues that need to be addressed in dealing with a 127 application are in dispute or not. Mr Nursey advanced the proposition that it was self evident from the attendance this morning that industrial action is occurring but Mr Morrison, Ms Hughes, are any of the issues about the jurisdictional requirement for a 127 application in dispute?

PN25

MR MORRISON: No they are not, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Ms Hughes?

PN27

MS HUGHES: No.

PN28

THE SENIOR DEPUTY PRESIDENT: So essentially, from your answer it comes down to, should the Commission exercise its discretion to issue an order and if so the form of order?

PN29

MR MORRISON: Very much so. We would be seeking to rely on several reasons why the discretionary powers that are afforded the Commission are utilised in decisions you make about whether to issue orders or not.

PN30

THE SENIOR DEPUTY PRESIDENT: Right, so let's get this quite clear. You are not disputing that the jurisdictional requirements are met, namely that industrial action in the words of the act:

PN31

Is happening or is threatened, impending or probable.

PN32

MR MORRISON: Within the definitions of the act, that there is industrial action occurring, yes. Obviously Mr Cartwright will go into that, but there are reasons for that industrial action and other sections of the act we will be raising that should be uppermost in the Commission's mind when exercising its discretion.

PN33

THE SENIOR DEPUTY PRESIDENT: Right, but the jurisdictional requirements are not in dispute and so therefore we can accelerate our progress through this and concentrate on what should and ought to be issued.

PN34

MR MORRISON: Well accelerate might be not the correct word, but we will work our way through the issues as they are addressed and raised by either side.

PN35

THE SENIOR DEPUTY PRESIDENT: I think we understand each other. Well Mr Nursey that perhaps helps you in moving quickly to the numb of the issues.

PN36

MR NURSEY: Yes your Honour. First if I may just announce a slight change in appearance, Ms Vass has left and we have been joined by MR B. BELLING from the interchange bench. If I may your Honour, just a background to the occurrences that have led to this industrial action. On 27 November an incident occurred at the workplace involving a union delegate, Ms Annabel Kulczynski and the company General Manager, Mr Geoff Laidlow.

PN37

The allegations over this incident were Ms Kulczynski remonstrated publicly in loud abusive language with the General Manager with respect to occupational health and safety, physically assaulted the General Manager with two act of violence in the presence of other employees. Verbally abused the General Manager in his office using loud and abusive language, refused to follow a lawful and reasonable request by the General Manager to leave the workplace.

PN38

On the basis of these allegations she was then stood down from work - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Sorry, when did you say that took place?

PN40

MR NURSEY: On Thursday, 27 November. On the basis of these allegations she was then stood down from work initially without pay, subsequently that was varied to be stood down with pay. The standing down and investigation process was confirmed in an email to the union and the employee on Friday 28 November 2003, indicated that she would be stood down until close of business Tuesday, 4 December 2003 while the investigation was undertaken. At 12 noon on Friday, 28 November the AMWU and the NUW held a mass meeting outside the workplace and voted to take industrial action until 12 noon on Monday , 1 December unless Ms Kulczynski was returned to work. At 12 noon on Monday 1 December another mass meeting was held and a decision was taken to continue the industrial action until the morning of Wednesday, 3 December 2003 on the basis that Ms Kulczynski hadn't been returned to work.

PN41

About 110 employees were initially involved in the stoppage from both the AMWU and the NUW although some we understand have now returned to work. Members of the AWU and other employees have continued to work during this period. The delegate has now been terminated based on the results of the investigation and we understand that this morning the employees voted to continue industrial action. Your Honour this is an application by the AIG on behalf of its member, HPM, for an order pursuant to section 127(2) of the Workplace Relations Act. This order is sought to stop the current industrial action and prevent further industrial action by employees of the company and members of the AMWU and NUW at the company operations at Waterloo in New South Wales.

PN42

As previously stated section 127 of the Workplace Relations Act:

PN43

Provides relief for a party where industrial action is happening, or is threatening.

PN44

and it is under this section we seek relief. The exercise by the Commission of its power under the section is discretionary and not mandatory and if I may, your Honour, quote from a case Coal and Allied Operations v AMWU, I have some copies of that decision here if I may. Having dealt with the jurisdictional issue your Honour, we look to whether or not the Commission should exercise its discretion in issuing orders under section 127. Just with respect to whether the - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Just on the jurisdictional question; so what do you say? You say that industrial action is happening?

PN46

MR NURSEY: That's correct, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: And probable.

PN48

MR NURSEY: Well, it is occurring at the moment and as we understand it likely to continue.

PN49

THE SENIOR DEPUTY PRESIDENT: And I presume from your application that you say that the work is regulated by the HPM Industries Certified Agreement 2002 which is still within its nominal duration date?

PN50

MR NURSEY: That is correct, your Honour, it doesn't expire until 24 June, 2004.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. And presumably you also say that the action is not protected.

PN52

MR NURSEY: That is part of our submission. Your Honour, there's no bargaining period been commenced. There was no notice of intention to take industrial action, there was no due notice given and the agreement is still on foot so we don't see how it can possibly fall within the area of protected action.

PN53

THE SENIOR DEPUTY PRESIDENT: And presumably you also say that the application is made by a person directly affected?

PN54

MR NURSEY: Yes, the company is the employer of these people and therefore is being directly affected in its business as the industrial action takes place.

PN55

THE SENIOR DEPUTY PRESIDENT: And the industrial action you say is within the definition of section 4?

PN56

MR NURSEY: Yes, we do, your Honour, in that there is actually - - -

PN57

THE SENIOR DEPUTY PRESIDENT: I just wanted to clarify what you meant when you referred to jurisdictional matters.

PN58

MR NURSEY: Yes, your Honour. We believe there's a failure or refusal by persons to attend for work or failure or refusal to perform any work at all by persons who attend for work under clause D of the definition of industrial action in section 4.

PN59

THE SENIOR DEPUTY PRESIDENT: Okay, so you were saying you wanted to draw attention to this particular case.

PN60

MR NURSEY: That's correct your Honour. If I may, on page 327 in this case, the court said:

PN61

Viewed in perspective with the provisions of the Act generally ...(reads)... unlawful as a contravention of the Act.

PN62

Furthermore, it went on to say that:

PN63

Unprotected action was not illegitimate per se

PN64

at page 329.

PN65

There was nothing in either the second reading speech or in the provisions of the Act ...(reads)... consider that the discretion should be guided accordingly.

PN66

Therefore a basic issue for the Commission in this matter is whether it considers the industrial action that has occurred and has continued to occur to be illegitimate. With respect to that I would direct the Commission to page 342 of the decision. In the last paragraph, fifth line, starting half way through:

PN67

We hold that view because we discern a real difference between the relevant classes of industrial action ...(reads)... effect of the industrial action.

PN68

Here, there is a clear inference that industrial action such as that being carried on here in pursuit of changes to the disciplinary approach or procedure of the company would fall into the illegitimate areas that should be addressed by section 127. Your Honour in our submission the considerations are as follows. The action is clearly not a protected action within the meaning of section 170ML of the Act. There was no bargaining period. There was no written notice given. There was less than three days' notice actually occurred prior to the industrial action had taken place. The industrial action breaches section 170MN of the Act.

PN69

There is an agreement in place and it remains in place until 24 June 2004. It is our submission that delegates and organisers of union industrial action to be illegal and that they have been reminded that it is illegal and requested to file a disputes resolution procedure. The industrial action that has occurred is in direct contravention of the established disputes resolution procedure within the agreement itself. I have a copy of that procedure if the Commission would like to have a look at that.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. I haven't had the opportunity to look at that.

PN71

MR NURSEY: The disputes resolution procedure goes through a series of steps whereby the matter is elevated through the organisation to more senior people for discussion and consideration. It provides for a matter to be referred for conciliation before the Commission and then provides in the ultimate situation for arbitration to resolve matters that arise as disputes at the work place. The industrial action that has occurred is in direct contravention of the established resolution procedure. The disputes resolution procedure also provides for work to continue while the matter goes through the various steps of the procedure.

PN72

The employer has suffered considerable disruption to their business as a result of this action that has been taken and has resulted in considerable cost being incurred by the company. The clear and obvious purpose and intended effect of this action was to strongarm the company into backing down from reasonable disciplinary in line with accepted normal practice in the industrial arena. In summary, too, Deputy President there is industrial action taking place. There is no bargaining period in place. There was no notice given of intention to take industrial action. There was an existing certified agreement in place which provides an appropriate disputes resolution procedure.

PN73

The company was acting in a fair and reasonable manner in standing the employee aside on pay while investigations were completed. The employee was represented by the union during the process. The union initially chose to notify a dispute in line with the disputes procedure but then withdrew that notification. The union chose instead to use standover tactics in an attempt to force the company to give in to their ultimatum. The industrial action was commenced on Friday, due to finish on Monday, extended to Tuesday and again this morning, extended - and I'm not sure exactly when it is extended to.

PN74

There is an alternative course of action available to the employee and the union like the use of the disputes procedure. Well, they could use the disputes procedure, but now there's another alternative course of action and that is if they feel that the person is being dismissed inappropriately they have the right to apply to the Commission to have the matter heard.

PN75

THE SENIOR DEPUTY PRESIDENT: When do you say the individual's employment was terminated?

PN76

MR MORRISON: Your Honour, could I just object here and make a point? My understanding of how process is be conducted is that their side makes initial statements, we would have that opportunity, then they can prove their assertions. We have had nothing but assertions, there does not seem to be any evidence that this is it, they are going to put evidence, just assertion after assertion. We have been waiting for that opportunity because one of the points where I said the jurisdictional issues are not challenged is though the point in the definitions, if I could take the Commission to the definitions of the Act. Where industrial action is defined it refers to (g) of the definitions, Part IV, under Industrial Action.

PN77

Without making our submissions, without evidence, without witnesses being called in the preliminary, the point we are putting is that this is not a matter of the termination or a not of a delegate, this is a matter about occupational health and safety and there are various questions we wish to raise on why our members are taking this action. What we have had to put up with is assertion after assertion without any balance, and that seems to be how they are putting their case, which is an improper process.

PN78

What we say is if they want to press for their orders the accepted format is for them to put witnesses and to prove their claims, we can put our witnesses and refute their claims and then we can make our submissions, that's how we prepared and that's how the Commission has always conducted 127 hearings. That is not what we are experiencing here today. I am very conscious of your time, I am very conscious of our members' time. Let's have it done properly or not at all.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Morrison, you will get your chance in a moment.

PN80

MR NURSEY: Your Honour, with section 127 we are talking about industrial action being taken by the employees, we are talking about whether or not the Commission should exercise its discretion to grant orders to have those employees return to work and while my friend has raised the issue of it being a safety issue, clearly the issue we are talking about is a disciplinary issue that brought about an industrial action that is ongoing.

PN81

MR MORRISON: Again I must interrupt, your Honour, that is what the company is talking about, it's not what we are talking about and to presume that is what we are talking about is entirely inappropriate.

PN82

THE SENIOR DEPUTY PRESIDENT: You will get your chance in a moment, Mr Morrison, to tell me what your side of the story is. Mr Nursey, I asked the question as to when the delegate's employment was terminated.

PN83

MR NURSEY: Yesterday afternoon, I am informed, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Thank you, carry on. In summary, why do you say that the Commission should exercise its discretion to issue the order.

PN85

MR NURSEY: Because there is industrial action taking place. It is not protected industrial action. It is industrial action pursuant to a dispute that the union has with the company. That dispute is concerning disciplinary procedure. There is another appropriate method of dealing with that dispute in either the disputes procedure provided in the agreement or by going through the Commission and taking appropriate action there. We believe that the action being taken is illegitimate industrial action in terms of the decision that was handed down in Coal v Allied and we believe in those circumstances the Commission should grant the orders.

PN86

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Morrison, do you want to go first or does Ms Hughes want to go first?

PN87

MR MORRISON: Well we have had nothing but assertions. Is this - just for clarification, your Honour - are we making our opening statements now? Will the company be calling witnesses? What is the process that we are following? If it is just two advocates on their feet - - -

PN88

THE SENIOR DEPUTY PRESIDENT: What I have done is asked you some questions at the beginning where it emerges that the jurisdictional issues are not in dispute. Effectively it is a matter of whether the Commission should exercise its discretion; and I have asked you both to address me on that. So it is now your turn to do that.

PN89

MR MORRISON: In a sense then, your Honour, it is a jurisdictional issue. If industrial action, even though it is defined by section 4 of the Act, it is further - and I take you again to part G of the definition of industrial action precluding and after (d):

PN90

But does not include action by an employee.

PN91

So there we have the word "action". There is do doubt, we are not denying that there is action but it is not industrial action that would attract 127 orders. If that action is:

PN92

Action based on a reasonable concern by the employee about an imminent risk to his or her health and safety.

PN93

That is what the industrial action - for lack of a better word - is about. Now whether that then creates the jurisdiction dilemma for the Commission is what you will have to decide and we are prepared to put evidence and witnesses forward.

PN94

THE SENIOR DEPUTY PRESIDENT: So, you are withdrawing your statement of before that the jurisdictional issues are not in dispute?

PN95

MR MORRISON: Clearly we have to in the circumstances. It is a position where the jurisdiction in its purest form, I suppose, is defined by Coal v Allied which has been put in the preliminary statements. In its jurisdictional form as defined by that, yes, we are disputing the jurisdictional case that has been put.

PN96

THE SENIOR DEPUTY PRESIDENT: And so essentially you are saying that all of the other issues are not in dispute, but the industrial action in your view is that which is covered by part G in the definition of industrial action in section 4 - - -

PN97

MR MORRISON: Yes, yes. So, it is industrial action but that is not - - -

PN98

THE SENIOR DEPUTY PRESIDENT: - - - and therefore it is not industrial action as defined by section 4.

PN99

MR MORRISON: Well, as required in section 127. And just for a point that was raised: the dispute notification that was put in earlier that was withdrawn from the union, concerned the company standing down the employee, and that was without pay. That was remedied, that matter. And that is why the matter was withdrawn. And for it, again, to be raised here is a furphy. It is not what is at issue and is not what the action that is being taken is concerned with.

PN100

THE SENIOR DEPUTY PRESIDENT: So, why do you say Mr Morrison that the action is covered by the exemption in G?

PN101

MR MORRISON: That is what we will take the opportunity, when it is our turn, to put evidence, to put witnesses forwarded on. When it is our turn to do that.

PN102

THE SENIOR DEPUTY PRESIDENT: I see, so - - -

PN103

MR MORRISON: The onus is not on the unions. The onus is very much the company's to demonstrate that the "industrial action" - as they define it - is occurring and why it is occurring.

PN104

THE SENIOR DEPUTY PRESIDENT: In clarifying the issues to be dealt with, Mr Nursey has said why in his view the Commission should exercise its discretion. You are saying that the industrial action being taken is covered by the exemption, in G, of the definition in section 4 and therefore the Commission's jurisdiction is not attracted - - -

PN105

MR MORRISON: Yes, that is - for clarification, yes.

PN106

THE SENIOR DEPUTY PRESIDENT: - - - to be able to. And, even if it were, you would no doubt have some points you would want to make on whether the Commission should exercise any discretion.

PN107

MR MORRISON: Exercise its discretion, yes. Bearing in mind and what we would, when the opportunity arises, put, is the very strong depth of feeling that our members have. And other sections of the Act which we think the Commission should be mindful of.

PN108

THE SENIOR DEPUTY PRESIDENT: And you want to bring evidence in relation to the exemption in G?

PN109

MR MORRISON: Yes, we do.

PN110

THE SENIOR DEPUTY PRESIDENT: I see. Ms Hughes?

PN111

MS HUGHES: We would support the submissions of the AMWU and I really have nothing further to add at this stage.

PN112

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I just come back to your, Mr Morrison? So, why do you say that the action is covered by G? You said you want to bring evidence, but in a nutshell why is it covered by G?

PN113

MR MORRISON: Our members and the NUW members have a very legitimate and real concern about occupational health and safety and the danger that they face working at this workplace. Now, as a peripheral, the actions of the delegate were related to those concerns. The union has attempted to try and address those concerns to be ignored by the company. The company has not met there requirements under their Enterprise Agreement and under the Occupational Health and Safety Act.

PN114

THE SENIOR DEPUTY PRESIDENT: I am having a bit of trouble appreciating how that relates to what Mr Nursey said. Namely, there was an argument and an alleged assault.

PN115

MR MORRISON: So do we, because it is not relevant to the action.

PN116

THE SENIOR DEPUTY PRESIDENT: Which on his version was then investigated and led to termination of employment. What is the link between the two?

PN117

MR MORRISON: Well, I think Mr Cartwright would be the best one to answer that.

PN118

MR CARTWRIGHT: The termination was a direct consequence of the concerns that the union has been constantly raising about the imminent risk to workers' health and safety. The company is choosing to ignore the issues we have raised and we are happy to table that correspondence, your Honour, but clearly the termination is not what we are here for. If that is a matter that the company wishes to pursue, well, we can pursue that, but the reason we are here is because these workers have a concern, an imminent and immediate concern, about their own safety and welfare at work.

PN119

THE SENIOR DEPUTY PRESIDENT: So what you say is, and I want to check that I understand what you are putting, that essentially the argument between the delegate and the general manager arose over safety issues.

PN120

MR CARTWRIGHT: For the second time in two weeks.

PN121

THE SENIOR DEPUTY PRESIDENT: Because it was an argument over wanting to improve safety standards, or however you want to put that later on, and that argument led to the termination that has somehow crystallised the concern about health and safety since that industrial action has been taken.

PN122

MR CARTWRIGHT: This has always been about occupational health and safety and this is not about the delegate's termination. This action is not a direct result of her termination. She was stood down, she was only terminated yesterday afternoon at approximately 4 o'clock when she got home and found the termination letter, hand delivered, which was placed under her door. Action was taking place before she was in fact terminated. The company want to come down here today and use the assistance of the Commission and quote Coal and Allied. Clearly that is not what we are here for, with respect, Senior Deputy President.

PN123

THE SENIOR DEPUTY PRESIDENT: Well, now, Mr Nursey, you know the issues you need to address. We have clarified out of that that there is a jurisdictional matter in dispute, namely, whether the industrial action is industrial action within the definition of section 4. How do you want to address that?

PN124

MR NURSEY: This is news so far as the company is concerned. The formal discussions that occurred and the notifications and the newsletters that the union have put out have been about getting the delegate back to work. The issue of safety has been raised a number of times but this industrial action would not have occurred had it not been for the standing down of the delegate, so in terms of being able to put forward evidence, etcetera, the only evidence we could put - - -

PN125

MS HUGHES: Your Honour, I object to this assertion that is being made from the bar table, that the industrial action is just over the dismissal of the delegate. We have been through this with Mr Morrison's objection previously and the union continually object to the assertions being made from the bar table.

PN126

THE SENIOR DEPUTY PRESIDENT: I am sure you will have the opportunity to make your assertions, Ms Hughes. The Commission is quite used to parties making assertions in submissions and those assertions, if they are to be supported by evidence, need to be assessed.

PN127

MS HUGHES: Yes, well, those are the words to use, if they are to be supported by evidence. At this stage there has been no evidence put on. The unions will put on evidence.

PN128

THE SENIOR DEPUTY PRESIDENT: Well, Ms Hughes, before your interruption that was a question I was asking Mr Nursey to address.

PN129

MR NURSEY: Your Honour, consistently through the whole of this dispute the company has been told by the union that the people will go back to work when the delegate is returned to work. The safety issue has been the peripheral issue in this whole thing. If I could read from the AMWUs news flash - - -

PN130

THE SENIOR DEPUTY PRESIDENT: I see, but addressing the point that Ms Hughes raises, it is clear to us that the question of whether this is industrial action as defined in section 4 is a matter in dispute. Now, in programming our time and noting that we only have an hour of this session available to us, how do you want to present the case, are you going to bring evidence?

PN131

MR NURSEY: Well, we could, your Honour, have Mr Arena give evidence as to the discussions he was involved in with the union organisers, etcetera, as to the reasons that the industrial action has taken place. That would give an indication of why the company believes the issue is the reinstatement and not the safety issues that the union is raising at this stage.

PN132

THE SENIOR DEPUTY PRESIDENT: It does seem that a critical point here is the characterisation of the industrial action, which really can only be adequately dealt with by evidence. You can all make your submissions about it and whether you choose to characterise those submissions as assertions or submissions is neither here nor there. Ultimately if the Commission is to make a decision on the characterisation of what is conceded to be industrial action, whether it is industrial action within the definition of section 4 is a matter to be decided by evidence.

PN133

MR NURSEY: Yes, your Honour, so I would call Mr Arena, the Human Resources Manager for HPM Industries.

PN134

THE SENIOR DEPUTY PRESIDENT: I presume, Mr Morrison, you also want to call witnesses?

PN135

MR MORRISON: At this stage, yes, we would want to, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Well, let me just tell you all what I have in mind before we get on to that. As I indicated right at the outset, it will be necessary for the Commission to adjourn at 11.15 and if we haven't finished by then I would relist the matter later this afternoon to resume today, that would probably be about 2.30. That is where we are going in a programming sense, obviously it would be good if we finish by 11.15, that's really in your hands.

PN137

MR MORRISON: Your Honour, could I just interrupt for a moment. In discussions we have had at the bar table it might be more appropriate, bearing in mind that clearly all the parties might perhaps not run through all their witnesses before 11.15, if no witnesses were called before the matter is reconvened this afternoon.

PN138

THE SENIOR DEPUTY PRESIDENT: Why do you say that? From the submissions that have already been made this morning it is clear that the jurisdictional point is to be decided before we even get to the question of whether the Commission should exercise any discretion in issuing an order, so that is a fundamental point, so it seems to me there's not much we can do until we have dealt with that point and therefore unless there is some strong reason I propose that we work through what evidence is required to deal with that jurisdictional point.

PN139

MR MORRISON: Certainly. We are in your hands, your Honour, I was thinking just more of a procedure that might be more appropriate.

PN140

THE SENIOR DEPUTY PRESIDENT: How many witnesses did you have in mind?

PN141

MR MORRISON: Well, without knowing how many the other side have in mind, we are not going to one-up, I could envisage the unions having one witness each.

PN142

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN143

MR MORRISON: But that is something the parties have not fully determined and I think that would be perhaps in reaction to what Mr Arena raises.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes. Can I also raise the question of - noting the attendance this morning, it is the usual practice that I adopt during the giving of evidence that those who are going to be called as witnesses later in the proceedings not be present. Do either side want to put a proposition or a position on that?

PN145

MR MORRISON: I would anticipate some of the witnesses may be in the room at this moment and so one we are contemplating calling is not here and we can arrange for him to be here. That would be Mr David Kennedy the Occupational Health and Safety Officer. He may be required to give evidence but these are matters in the hands of the other side. Whether Mr Nursey has any objection to the parties being in the room.

PN146

THE SENIOR DEPUTY PRESIDENT: Mr Nursey.

PN147

MR NURSEY: In the circumstances I don't think we have objection to it but I was wondering whether we may take a five minute break to sort out a few issues.

PN148

THE SENIOR DEPUTY PRESIDENT: Certainly I am happy for you to take a five minute break but let me indicate that my normal practice is that those who are going to be called as witnesses not be present during the hearing of other witnesses.

PN149

MR NURSEY: Perhaps, your Honour, the union could determine who their witnesses are going to be - in that five minute break - so that we can then come back and be in position to examine whether they should be excluded.

PN150

THE SENIOR DEPUTY PRESIDENT: Certainly. We will adjourn for five minutes so that you can have a discussion about those procedural matters.

SHORT ADJOURNMENT [10.22am]

RESUMED [10.33am]

PN151

THE SENIOR DEPUTY PRESIDENT: So, Mr Nursey?

PN152

MR NURSEY: Thank you for that opportunity, your Honour. Perhaps if the union could indicate the number of witnesses and who the witnesses would be then we can ascertain where we stand on this thing.

PN153

THE SENIOR DEPUTY PRESIDENT: You have not had that discussion?

PN154

MR NURSEY: No.

PN155

MR MORRISON: No. Just to assist, the union would intend to call three witnesses. Ms Mona Pritchard, Mr Martin Cartwright and Mr Dave Henry.

PN156

THE SENIOR DEPUTY PRESIDENT: When you say, "the union" is that the combined - - -

PN157

MR MORRISON: No. I am only speaking on behalf of the AMWU.

PN158

THE SENIOR DEPUTY PRESIDENT: Right, and, Ms Hughes, you want to proceed how?

PN159

MS HUGHES: At this stage the NUW will call no additional witnesses to those the AMWU is calling. We would probably, if anything did come up that did affect anything else, the union would reserve its right to call someone.

PN160

THE SENIOR DEPUTY PRESIDENT: Thank you. I have also considered the question of whether witnesses should be in the room. We will proceed on the basis that those who are going to give evidence should be out of the room until they have given their evidence.

PN161

MR MORRISON: We have actually had Mr Cartwright and Ms Pritchard leave the room, your Honour.

PN162

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Morrison. And Mr Henry hasn't arrived yet?

PN163

MR MORRISON: No, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: I think that means we are up to Mr Arena.

<EDWARD GERALD ARENA, SWORN [10.35am]

<EXAMINATION-IN-CHIEF BY MR NURSEY

PN165

MR NURSEY: Mr Arena, you are employed by HPM Industries?---That is correct.

PN166

Could you please describe your role in that organisation?---I am the Human Resources Manager of HPM.

PN167

And in that role do you become a contact point for the unions?---Yes.

PN168

Could you please describe to us what occurred around noon on Friday, 28 November at your site?---There was a stop-work meeting involving the members of the AMWU and some members of the NUW. At that point I am not sure if the NUW were participating or observing. And there was a mass meeting held on site.

PN169

What was the result of that mass meeting?---A decision of the workforce, as I understand it, to go out on strike from noon Friday until noon Monday.

PN170

How many people were participating in that industrial action?---The records we have say that about 111-115, thereabouts.

PN171

Were you contacted by the unions after that meeting?---Yes.

PN172

And what did they say to you about that meeting?---Several things. The key point was reinstate Ms Kulczynski to her duties whilst an investigation is being conducted and the industrial action will end.

PN173

So they made it clear that the industrial action would end if the delegate, Ms Kulczynski, was reinstated?---Correct.

**** EDWARD GERALD ARENA XN MR NURSEY

PN174

Then we move forward to Monday, 1 September, at noon again?---Yes.

PN175

There was another meeting?---Yes.

PN176

Was a vote taken at that stage?---I am assuming a vote was take during the - I wasn't at the industrial meeting, or the mass meeting. But a decision was made at that meeting by the employees, yes.

PN177

Were you contacted by the unions after that meeting?---Yes.

PN178

And what was the content of their communication?---The message was, again, that the employees will be out on strike until Wednesday morning. And I was, again, implored by the organiser to find a "fix" for the problem and that Annabel should be reinstated whilst the investigation is going on.

PN179

So the problem that you were asked to find a fix for was?---The dispute between Annabel Kulczynski and Geoff Laidlow, the General Manager.

PN180

The result of that dispute had been?---That Annabel had been stood down whilst we conducted an investigation. That investigation concluded yesterday where Annabel Kulczynski was terminated - or her employment was terminated.

PN181

So during the period from Friday to today your understanding of the basis for industrial action was?---The basis for industrial action was that - there are certainly two parts to it. There was an OH&S issue which Ms Kulczynski had reacted to. And then her reaction was the cause for her being stood down.

PN182

And the union had told you that the employees would return to work on what basis?---On the basis that firstly it was unfair that she be stood down and not the General Manager as well for the alleged breach of the OH&S Act. But, also, that in finding a fix for the problem that her employment should not come under question.

**** EDWARD GERALD ARENA XN MR NURSEY

PN183

So you understanding was that the industrial action would stop if she was reinstated to the company?---Correct.

PN184

No further questions, Senior Deputy President.

PN185

THE SENIOR DEPUTY PRESIDENT: Mr Morrison?

<CROSS-EXAMINATION BY MR MORRISON [10.39am]

PN186

MR MORRISON: Mr Arena, something you said just puzzled me there. You stood down Ms Kulczynski because of a breach of the Occupational Health and Safety Act?---No, I didn't.

PN187

You didn't? You didn't say that.

PN188

THE SENIOR DEPUTY PRESIDENT: Excuse me, we will clear the Court if there is that sort of response again.

PN189

MR MORRISON: Why was she stood down then?---Because she verbally and physically abused, or assaulted, the General Manager of Manufacturing.

PN190

Do you have any - you investigated that issue, didn't you? That assault as you call it?---Yes.

PN191

Why did she assault the General Manager?---Annabel would have to answer that question. I can only assume that she was angry.

PN192

But you investigated it, Mr Arena, you must have made some attempt in your investigation to find out why it happened. Did Mr Laidlow inappropriately touch her?---No.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN193

So you investigated that part of it?---Correct.

PN194

Mr Laidlaw?---Laidlow.

PN195

Laidlow - said things to her?---No.

PN196

No? So, why did she assault him then, in your words?---In my words, Annabel responded disproportionately to the erection of a security fence in the dispatch area that was being installed to provide protection for our employees from individuals entering the property from the rear of the laneway.

PN197

So, the simple erection of what you call "the security fence" caused Annabel to attack Mr Laidlow?---Correct.

PN198

What is that security fence colloquially called at the workplace?---There have been many names associated to it.

PN199

Let's have a couple, Mr Arena?---Mr Cartwright I think calls it the monkey cage and other people refer to it as the cage, other people refer to it as a security fence.

PN200

Has there been any concerns raised with you about this cage?---Yes.

PN201

How often?---I have been in daily contact with Mr Cartwright over the whole issue and, yes, he has raised the issue of the cage, the fence, in those occasions.

PN202

Has anybody else raised it with you?---The NUW have asked questions about it.

PN203

What have they asked you about it, not just Mr Cartwright and not the NUW, others, what others have been asked?---The only other person that has asked has been the NUW and he has asked why and he has put forward a suggestion as to why we hadn't just installed a touch pad to the actual door itself, lock.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN204

So you are sitting there telling us today that only Mr Cartwright and a representative of the NUW are the only people that you are aware of that have raised concerns over the cage?---When I say that they are raising the concerns on behalf of their members, yes.

PN205

So are you aware of any members or any of your employees who have raised concerns over that cage?---Specifically with me?

PN206

Specifically with your organisation?---With the organisation. I can say specifically with me I have spoken to Philomena Crucia who is the chairperson of the committee.

PN207

What committee would that be, Mr Arena?---The workplace committee.

PN208

The workplace committee. Does she have any other roles as opposed to being chairman of the workplace committee?---She is a shop steward.

PN209

Any other roles?---She is an employee.

PN210

What about chair of the Occupational Health and Safety Committee?---I've said that already.

PN211

You said the workplace committee?---There is only one committee, the workplace committee.

PN212

I don't work at the place, I am assuming that his Honour does not work at the place so, for clarity, she is the chair of the Occupational Health and Safety Committee?---No, she is the chair of the workplace committee which has a dual role, it's a consultative role and a OH&S role.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN213

I won't get into semantics with you on that issue. So she raised with you her concerns over that cage?---She raised her concerns that we should have consulted over the installation of that cage.

PN214

So you didn't consult?---That is the allegation.

PN215

Did you consult?---I didn't consult.

PN216

Did the organisation consult?---The organisation with in the process of consulting.

PN217

Was it built before that consultation or was it built after that consultation?---During. And what did that consultation take the form of?---Well, at this point in time I am still gathering the information on that and I am actually conducting an investigation into that whole process.

PN218

Of the consultation?---On the whole consultation exercise and the safety issues that are being alleged regarding the erection of that structure.

PN219

So it is erected?---Not fully, no.

PN220

What part is erected?---The fence structure.

PN221

The fence structure. What else, seeing you've called it the fence, what else has to go to be part of it?---A gate with a lock.

PN222

So what's there at the moment?---A fence.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN223

A fence?---With an open doorway, with no limitation to egress in any capacity.

PN224

How far has your investigation gone to that consultation?---We have engaged the services of two professionals. One is the Brief Group and the other is an architect engineer and they are providing reports for me as we speak.

PN225

And their qualifications with regard to appropriate points of consultation are?---The Brief Group are an organisation who are specifically professionals in the area of occupational health and safety and the gentleman conducting the investigation as I understand it was a former prosecutor for the WorkCover Authority and the engineer is a qualified engineer and architect.

PN226

And what have they told you about your requirements for consultation so far?---At this stage they haven't given me any response to their reports, they are in the process of completing those reports.

PN227

Did they say that you consulted - what information did you give them about your consultation process?---I have made available to them copies of our occupational health and safety system, copies of witness statements that we have obtained and they are required to go away and review that material and to provide a response.

PN228

Mr Arena, you did not consult with the occupational health and safety committee, with the unions, with the employees before you installed the cage, isn't that correct?---Me personally, no.

PN229

Your organisation did not consult with the employees, with the unions, with the occupational health and safety before the installation of the cage, is that correct?---Well, as that's a matter that is under investigation I'd refrain from actually answering that question.

PN230

When was it first raised with you, the union's and the occupational health and safety's concern about this cage?---After Ms Kulczynski assaulted Geoff Laidlow.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN231

You had not heard, and let's be really clear on this, you had not heard any concerns prior to that incident?---I will be very clear about this, the incident occurred within the space of half an hour on Thursday morning.

PN232

The 27th?---Correct.

PN233

And you had no inkling whatsoever there were any problems?---Correct.

PN234

And anyone, can you can anyone from your organisation had any inkling that there was any concerns about it prior to that?---Correct.

PN235

Subsequent to the incident of the 27th, has it been communicated to you that there are concerns regarding the cage?---Correct.

PN236

Had been, yes or not?---Yes.

PN237

What has that communication taken the form of?---Mostly verbal - no mostly verbal and in the form of AMWU newsletters regarding the industrial dispute which also listed at least half a dozen other issues and a letter from Martin Cartwright to myself and a letter to Geoff Laidlow to myself requesting specific information relating to the names of individuals involved in the installation of the structure and my investigations into the OH&S issue.

PN238

Have you responded to those letters and those verbal requests?---Yes.

PN239

What have you told them?---I have told them that I am in the process of conducting an investigation and I will respond when that investigation is completed.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN240

What are you doing about the cage in the interim?---It is still there.

PN241

You are saying that you were spoken to on the Friday, the 28th, about several things?---Correct.

PN242

With Mr Cartwright. You seem to recall for some reason it's uppermost in your memory the situation regarding Annabel?---Correct.

PN243

Is it not fair to say, though, that emphasis was also placed on the cages?---No, it's not fair to say.

PN244

What percentage of the discussion related to the cages?---About 20.

PN245

You said there were several things, so there were issues raised about the cages?---Yes.

PN246

Issues raised about Annabel?---Yes.

PN247

What other issues were raised?---The industrial action that would follow in the ensuing days.

PN248

Did you see any linkage between the cages and the industrial action?---No.

PN249

So that link is your clear recollection that there was no link between the industrial action and the installation and the lack of consultation on the cages?---Correct.

PN250

THE SENIOR DEPUTY PRESIDENT: Can I clarify one thing. You've referred to "cages". Is it cages, plural or one cage?---Singular.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN251

MR MORRISON: Sorry if I was not clear on that, it's one cage.

PN252

THE SENIOR DEPUTY PRESIDENT: And the cage is for what?---Our dispatch area has two roller doors at the rear exist and built into one of those roller doors is an emergency egress. That rear laneway backs into a scrap metal yard and is basically there as an egress point. Employees use that door as an access point to go to the street, to go for a cigarette, to go to their motor vehicle or to go to the shop. There is a security issue that HPM believes there is a security issue. The purpose of erecting the structure was so that we could leave the door, the actual door in the roller door open and people walking in off the street would be able to identify themselves but the door that would be erected on the structure would be identical to a structure and a key pad in an adjoining building with a pass, a code, so you would use a code to go in but there was free access to go out.

PN253

So what you are describing is that there has been as wire fence erected inside the roller door?---Correct.

PN254

MR NURSEY: Your Honour, if I may, a sketch has been prepared here.

PN255

THE SENIOR DEPUTY PRESIDENT: That might come up later.

PN256

MR MORRISON: It might be more appropriate for the AMWU to present more detail rather than a sketch of the installation.

PN257

THE SENIOR DEPUTY PRESIDENT: I just wanted to clarify in my own mind what we are talking about here, whether it was one fence or what exactly it was.

PN258

MR MORRISON: Moving on, Mr Arena, that exit, what purpose does it serve apart from the ones you described?---Well I've described four purposes.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN259

Is it the emergency exit?---Yes. It is one of the emergency exits.

PN260

Is it an emergency exit, yes?---Yes.

PN261

And that concern was raised as such, this is an emergency exit?---Correct.

PN262

When was that concerned raised to you?---Well, I'm sorry, in terms of a concern I'm not sure what you mean, like, the concern about it being an exit or - - -

PN263

The concern that the installation, the cage, is where there is an emergency exit. That was raised to you, was it not?---Yes.

PN264

When was that raised to you?---Friday.

PN265

Friday. Was it raised with anyone else in your organisation prior to Friday?---Yes.

PN266

When was that?---When - on Thursday, when Ms Kulczynski confronted the general manager.

PN267

So you're aware of what happened between the general manager and Ms Kulczynski?---I'm aware of what happened between Ms Kulczynski and the general manager, yes.

PN268

What happened?---She verbally and physically assaulted him.

PN269

And then she raised the issue of this cage or perhaps the reverse, that she raised the issue of the cage with him, her concern over it and then the incident allegedly occurred?---I can't give you the exact description of the conversation.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN270

Well, what do you think the timing was, Mr Arena? I'll make it real easy. Did she assault him then talk about the cage or do you think that perhaps they talked about the cage then she assaulted him?---The way the situation has been described to me is that Ms Kulczynski approached the general manager and in a very agitated loud and abusive way, made her thoughts known to the general manager. In the heat of that moment, I don't have a verbatim account of what was said.

PN271

But you investigated it, didn't you?---I did. I did investigate it.

PN272

But you have no idea the process of your investigation revealed, but on the basis of that investigation, you terminated her?---Correct.

PN273

When Mr Laidlow gave you his version of events, did he say they all occurred at the same time, did he?---Which event?

PN274

The event of the 27th?---From what I've been able to establish there were three discreet events that occurred on the 27th.

PN275

Three discreet events and what were those three discreet events?---Ms Kulczynski approached the general manager in the factory floor, verbally and physically abused him. She then left. Then she approached him in his office and continued to verbally abuse him. She refused to be stood down at that point in time and then out in the dispatch area, she verbally abused him again and refused to follow his instructions to be stood down and then, I'll amend my statement, there were four events. The fourth event was then that she refused to leave the factory at the instruction of other representatives of the company.

PN276

Why was she abusing him?---You'd have to ask her.

PN277

Come on, Mr Arena, you did an investigation. You know why she abused him?---Mr Morrison, I can't tell you why Annabel abused him.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN278

Well what did Mr Laidlow tell you?---I can't tell you why a person choses to abuse another person.

PN279

What did Mr Laidlow tell you she abused him about? You spoke to Mr Laidlow before you suspended her at least, didn't you?---Yes.

PN280

So he would have told you why she abused him?---Ms Kulczynski made the repeated comment about consultation.

PN281

About?---Consultation.

PN282

Just consultation, not consultation about the cage, just consultation?---About the cage.

PN283

So she kept on saying she wanted to be consulted about the cage?---Ms Kulczynski kept saying she wanted to be consulted about occupational health and safety.

PN284

Do you think she hasn't been told to consult about occupational health and safety?---Yes.

PN285

So what was Mr Laidlow's response to her request to be consulted about occupational health and safety?---He tried to explain to her what we were doing.

PN286

What you were doing, so that's consultation, is it?---Well, there is a point of divergence here where HPM and the union are in disagreement and that is what is actually constituting consultation under the Act. That is the purpose of my investigation and whilst that investigation is ongoing, I'm not going to give a definition for you.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN287

So you refuse to answer the question?---Well, I would prefer to get the advice from the independent specialists that I have engaged to actually identify that definition.

PN288

Do you employ independent specialists that tell you how to dress in the morning, Mr Arena? The point is, Mr Arena, you must have an opinion of what consultation is?---It's true to say that the AMWU and HPM have had many different views about what consultation is.

PN289

Go on. You don't wish to add anything to that?---No.

PN290

You're aware of the enterprise agreement between the parties?---I am.

PN291

Does it not require that the parties consult?---It does.

PN292

And you feel that simply doing something is consultation and then maybe we'll get some experts in to look at it later?

PN293

MR NURSEY: Your Honour, this question has already been asked and answered before.

PN294

MR MORRISON: Well, it hasn't been answered, your Honour. It hasn't been answered. He refused to answer consultation.

PN295

THE SENIOR DEPUTY PRESIDENT: I'll allow the question.

PN296

THE WITNESS: If I could have a copy of the certified agreement, please. Thank you.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN297

MR MORRISON: Clause 11, your Honour. If you don't have a copy I can perhaps assist.

PN298

So you have a copy now, Mr Arena?---I do.

PN299

What does the first sentence, "The management of HPM Industries Pty Ltd" yourself, "holds in high regard the safety welfare and health of its employees"?---I'm sorry, where are - - -

PN300

Clause 11?---Clause 11.

PN301

Are you with me on that?---I am.

PN302

So yourself, you agree with that, you "hold in high regard the safety welfare and health" of your employees?---We do.

PN303

You do, well, you must, because you actually suspended someone because, you said earlier, for an OH&S breach?---No, I didn't suspend her for an OH&S breach.

PN304

I'm sorry, I thought you did, in answering to Mr - - -?---I said, if I recall the comment, and I can be corrected, but I said "her response was disproportionate to an alleged breach".

PN305

I see, so if we move on to the third paragraph, "HPM commenced the implementation of a risk management strategy knowing that the Occupational Health and Safety Act 2000 introduces new obligations with respect to consultation and risk management"?---Correct.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN306

Of course your company has followed that, hasn't it?---Correct.

PN307

So what are the obligations with respect to consultation and risk management?---The obligations are defined in many ways that the employer must consult with the employees on certain matters.

PN308

"On certain matters". Is that what it says, does it?---The Act defines how the consultation should occur and why it should occur. I don't have a copy with me here. But if I could say this, Mr Morrison, the risk management strategy that has been introduced by HPM has been introduced by myself with the assistance of the HR team. That risk management strategy is about improving the occupational health and safety in the workplace. HPM has been very active at introducing measures to introduce occupational health and safety in the workplace. We have been very involved with the committees in the process of co-ordinating that strategy and involving employees in that strategy. We have undergone numerous amounts of consultation and training on how we go about safety improvements in the workplace.

PN309

And yet Ms Crucia, the Chair of your workplace committee - or the occupational health and safety committee as I prefer to call it - came to you and complained about this lack of consultation?---She did, in this incident.

PN310

"In this incident". The incident being the erection of what we call "the cage"?---Yes.

PN311

Well you failed that hurdle, didn't you Mr Arena?---I haven't decided whether we have failed that hurdle yet.

PN312

Well it is good to know that the idea of consultation is entirely contained within your decision making. The next paragraph down:

**** EDWARD GERALD ARENA XXN MR MORRISON

PN313

The parties to this agreement are committed to ensuring that the principal objectives of the OH&S risk management strategy are achieved. The implementation of the risk management strategy will be achieved through the ordinary consultative process as described in clause 17 of this agreement.

PN314

Is that what it says, Mr Arena?---That is correct.

PN315

Now, you are aware of clause 17 - the Consultation clause of your agreement?---I am.

PN316

So, do you think that the installation of the cage met those requirements?---Well, if I look at clause 17 there are definitely two parts to that clause. The first part says:

PN317

Consultation occurs on an ongoing basis through the ordinary consultative process in respect of the many issues that arise which do not necessarily involve the need for corporate decision making. This consultation is essential to promote effective employment relationships within manufacturing.

PN318

that means that there is - - -

PN319

Well, clearly, you don't mean that in this case because that didn't occur, did it?---Well, when a person is assaulted, no.

PN320

We are not talking about the assault. You see you keep coming back, Mr Arena, to the assault. Are you aware that from the union's point-of-view we don't see the assault as being the issue. We see the erection of the cage as the issue. That is the reason, Mr Arena, if you accept it that all these people are here today. Because you erected the cage. Not because of the assault, that will be sorted out in another process?---The next part of the clause says:

**** EDWARD GERALD ARENA XXN MR MORRISON

PN321

In the event that HPM - - -

PN322

Mr Arena, I asked you a question. Answer that then you will get your chance to editorialise. Do you accept that we are here because of the erection of the cage?---Well that is what you are asserting.

PN323

That is what I said. Do you accept that I am asserting that at least? Will you accept that?---I accept that you are asserting that.

PN324

Good. All right, now have your chance?---The next part of the clause says:

PN325

In the event of HPM making a definite corporate commitment to introduce a major change that will affect the employees covered by this agreement the parties bound agree to discuss the process required to implement that stage.

PN326

I would not describe a security fence as, "A corporate commitment to introduce a major change".

PN327

So the second paragraph is the consultation is required in this process?---Mr Morrison, in the ordinary consultative processes if an OH&S issue is raised, an employee or a workplace committee representative who has - and in Annabel's case - been put through 10-days worth of training by HPM in the past 20 months would have the following responses to make. She could take the matter up with the manager; she could take the matter up with more senior management; she could have called an "urgent" safety committee meeting; she could have called the union; she could have called the workcover authority. She had all of those options available to her. She could have come to the HR department.

PN328

And what did she choose to do?---Assault the General Manager.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN329

No; she took it up with the General Manager. The situation then became such that the parties had a heated discussion?---No.

PN330

Yes?---No. The General Manager - - -

PN331

Were you there?---No, but the evidence - - -

PN332

You haven't sought Ms Annabel's version. You have said that. How do you know what occurred?---Because the witness statements say that Mr Laidlow remained calm throughout the whole altercation. That in fact it was Ms Kulczynski that remained verbal, abusive and aggressive.

PN333

It might have something to do with she was trying to raise an issue that she felt very strongly about, that was important to the workplace. And you know what I think she found with Mr Laidlow, the same attitude that I am finding with you. You do not see that the union, that their representatives have a right to raise concerns. And Mr Laidlow reacted. Is that correct?---No.

PN334

But you weren't there?---Nor were you, sir.

PN335

No, I wasn't there either. But what we have established though is it was about the safety fence. The confrontation was about the safety fence. Is that not correct?---That is how it commenced.

PN336

We are talking about the - not the subsequent where you directed her off the premises; you have directed her to be suspended without pay. They are irrelevant, they are for another time and another place. What is at point is your organisation's response to a legitimate concern about safety. Do you accept that?---No. Because this dispute that we are here today discussing has always been put to me, in the majority part, about Ms Kulczynski.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN337

Do you have any evidence to substantiate that?---Well, I didn't tape my phone conversations with Mr Cartwright, no.

PN338

So you accept that it will be your version of events as distinct from Mr Cartwright's, from Ms Crucia's, who will give evidence - I can assure you that they raise that concern - that any other workers we can put up. That the reason these people are here is because of your company's approach to occupational health and safety. You are dismissing that?---If I look at the newsletters that the AMWU have circulated during this dispute, the reasons that they have put down in terms of HPM are numerous. They include safety, competency standards, equal pay, nepotism, intimidation, entitlements, workers comp, fair-play, skills recognition, training and consultation.

PN339

When was that, that you were reading from, Mr Arena?---That is a newsletter from the AMWU dated December 2003, I understand. If you would just bear with me for a moment - it is not dated by the looks of it, but it was circulated yesterday indicating that there would be a mass meeting this morning, 3 December at 7 am.

PN340

And is it a constant theme of all the newsletters that you have seen, have they been about occupational health and safety?---The constant theme has been about supporting the delegate who raised an occupational health and safety issue.

PN341

So you accept that occupational health and safety is featured in all the union's documentation since this matter was first raised with some person in your organisation?---That is correct.

PN342

And it was raised because your company determined, We will put the cage and we will consult later?---That's your interpretation of the process that the company was going through.

PN343

Did you consult first or did you put up the cage first, Mr Arena?---We erected a structure, we had not completed the process.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN344

When did you intend to consult, Mr Arena?---Once the cage was erected we were going to consult with the employees. There was to be no door installed until we'd called the workplace committee together.

PN345

And when did you communicate that fact to the workers?---It hadn't been done.

PN346

So all the workers knew that you guys were putting up a cage, no consultation, they didn't know the details, up it goes?---No. The general manager took the opportunity in the morning while - - -

PN347

Which morning would that be, Mr Arena?---Morning, what is it, the 27th, the morning of the 27th.

PN348

Thursday morning?---When he was in the office of the warehouse controller and in the presence of the warehouse controller and the assistant warehouse controller, Eric Jackson, who is a store person, he is a NUW delegate and he is also a representative on the workplace committee. He might be in this room now so.

PN349

He's not in this room at this time?---Okay. He came in as I understand it to organise the Powerball entries for the individuals within warehousing and Geoff Laidlow took that opportunity to inform Eric in an informal kind of way in an informal setting of the erection of that structure and that there would be more consultation on the process.

PN350

And who is this gentleman he informed again?---Eric Jackson.

PN351

Eric Jackson. And what role does Mr Jackson play?---He is a store person, he is a shop steward of the NUW, and he is a representative, employee representative on the workplace committee.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN352

But he is not the committee in its entirety?---No, he's not.

PN353

So that was the whole, this is on the 27th, the thing is there, it's already there so everyone can see it presumably?---It's, at the time that that discussion was being had the parts were being taken as I understand it to the back of the warehouse.

PN354

So everyone knew something was going on?---Correct.

PN355

And Mr Laidlow's sole contribution to putting it up is to mention to someone who is not there for an OH&S meeting but there in fact to collect Powerball numbers that we're putting a fence up, is that correct?---Correct.

PN356

That was the consultation?---No, that wasn't the entirety of it. I say that - - -

PN357

I forgot about Mr Laidlow's discussion with Annabel, that was part of the consultation, wasn't it?---I say that because you indicated earlier on that HPM had consulted nobody or informed nobody of the structure that was going on. I don't remember your exact words but I say in the morning he did in fat mention to Eric, yes in a passing kind of way, in an informal kind of way, but Eric is in fact the representative of the area in question.

PN358

But there was no, there's so many issues raised by that answer, I won't go into them, Mr Arena, but he has not, your organisation has not formally told anybody (a) that the cage is going there; secondly, what the cage's purpose is, and thirdly how the cage will operate. Is that correct?---We didn't get a chance to.

PN359

Because what happened was the delegate comes and raises concern and what does she find, Mr Laidlow toughing it out?---That's your interpretation.

PN360

I think it's the only interpretation we can take, I'll leave it there, Mr Arena.

**** EDWARD GERALD ARENA XXN MR MORRISON

PN361

THE SENIOR DEPUTY PRESIDENT: Ms Hughes, do you want to ask any questions?

PN362

MS HUGHES: I'll just ask a couple of further questions, I won't go over the grounds Mr Morrison has already done.

<CROSS-EXAMINATION BY MS HUGHES [11.19am]

PN363

MS HUGHES: Mr Arena, what are the types of products that you manufacture at HPM?---Electrical accessories.

PN364

Do you use any kind of toxic or hazardous substances or flammable substances at that workplace?---We do.

PN365

And you've already stated in evidence that the cage is actually around an emergency exit?---Correct.

PN366

Now, are you aware of your requirements under the Occupational Health and Safety Act and the regulations as to risk management and identifying hazards and controls as well as consultation?---Yes.

PN367

So have you actually identified any hazards by putting a cage around an emergency exit?---A risk assessment was not done.

PN368

So you've put up a cage around an emergency exit but you have not conducted any kind of hazard identification or risk assessment on people getting out of the factory in the case of an emergency?---We have erected a fence and at this point an unobstructed exit still exists in the building.

PN369

And have you told anybody this?---Well everyone now knows about it.

**** EDWARD GERALD ARENA XXN MS HUGHES

PN370

But after the fact that the cage had already been erected?---Correct.

PN371

So you've already said you manufacture electrical goods, you use toxic and hazardous substances, inflammable substances; what happens if there is a fire at the place and everyone runs towards the emergency exit?---I'm not aware of any flammable substances and I'm not entirely sure of any toxic substances that are stored by the emergency exit.

PN372

That doesn't mean that they aren't in the factory, just because they're not near the exit it doesn't mitigate the company's obligations under the Occupational Health and Safety Act?---Well, I suppose to get to understand the question, around every exit and in every workplace there are flammable substances, there are toxic substances of some nature but the question in a risk assessment is what are their proximities to the actual issue at hand. At this point in time the issue at hand is the structure around the emergency exit.

PN373

Right. And in a risk assessment wouldn't you also take into account the easy access of people to get out of the workplace?---Yes, you would.

PN374

In the event of an emergency?---You would.

PN375

Having a cage around an emergency exit would that not have problems for people to get out of the workplace?---I don't believe so.

PN376

You don't believe so. But yet you haven't conducted a hazard identification or a risk assessment as required under the Occupational Health and Safety Act and the regulations before you actually erected the cage?---That is correct.

PN377

And you see no reason why people would be upset by this?---I come back to, I come back to - - -

**** EDWARD GERALD ARENA XXN MS HUGHES

PN378

No, I asked you a question?---Look, the answer is - - -

PN379

Please answer the question?---I will answer your question. The response has to be proportionate.

PN380

No, you're putting people's health and safety at risk by erecting a cage around an emergency exit without conducting a hazard identification and a risk assessment?---It doesn't excuse - - -

PN381

And people are - - -?---It doesn't excuse being physical.

PN382

I'm not talking about that, Mr Arena, what I'm talking about is the health and safety issues at the workplace that the company has not taken into consideration and this is what the issue is about, this is what this dispute is about, the Occupational Health and Safety Act, the occupational health and safety legislation that the company has just completely pushed to the side. You have not done - - -

PN383

MR NURSEY: Your Honour, this is an assertion that's being made at this stage.

PN384

THE SENIOR DEPUTY PRESIDENT: Yes, is there a question?

PN385

MS HUGHES: I will add nothing further.

PN386

THE SENIOR DEPUTY PRESIDENT: Thank you. In view of the time we'll adjourn now and when we resume obviously, Mr Nursey, you have the opportunity for re-examination.

PN387

MR MORRISON: Your Honour, I know it's not necessary but I think it might be more appropriate if an emphasis can be given to Mr Arena on the necessity to not shall we say be debriefed before re-examination occurs.

**** EDWARD GERALD ARENA XXN MS HUGHES

PN388

THE SENIOR DEPUTY PRESIDENT: I was coming to that, Mr Morrison.

PN389

MR MORRISON: I am sure you were, your Honour.

PN390

THE SENIOR DEPUTY PRESIDENT: I am not entirely wet behind the ears. So when we resume, Mr Nursey will have the opportunity for re-examination and Mr Arena, let me remind you that you are under oath and you are not to discuss your evidence with anyone during the break. We'll resume at 2.30.

LUNCHEON ADJOURNMENT [11.23am]

RESUMED [4.55pm]

PN391

THE SENIOR DEPUTY PRESIDENT: Now, I note Mr O'Donnell we should add you to the appearances. In fact, we've got several additions to the appearances haven't we, so I'll make those. Well, now we adjourned at about 11.20 this morning and have since had a conciliation conference in which we've explored various options and talked about ways of dealing with the matter. I think it is fair to say we haven't succeeded in finding a solution and so I'm really in your hands as to where we go from here. Mr Nursey.

PN392

MR NURSEY: Your Honour, if I may. Firstly, you were about to re-examine Mr Arena and I'd just like to indicate that we have no further questions so we won't be looking to continue re-examination of Mr Arena in the circumstances.

PN393

THE SENIOR DEPUTY PRESIDENT: I see.

**** EDWARD GERALD ARENA XXN MS HUGHES

PN394

MR NURSEY: We would also request at this stage an adjournment of this matter. It is the company's proposal that we will remove the fence overnight. The unions have raised the lack of consultation with respect to this fence as being a significant issue in this matter that has been before you today. We also can affirm that no fence will be put back into place until appropriate consultation has taken place or any other option for that matter. This we believe would then allow the unions to vote again tomorrow on whether or not to continue the industrial action that is in place at the moment, although we would request that the matter be able to be re-listed at short notice should they decide that they were going to continue with the industrial action that is in place.

PN395

THE SENIOR DEPUTY PRESIDENT: Well, you've done two things there. You've applied for an adjournment of the matter and you've also put a proposition that I take it you are expecting the unions to respond to.

PN396

MR NURSEY: We would expect that there would be some response at this stage. Yes your Honour.

PN397

THE SENIOR DEPUTY PRESIDENT: I see. Mr Morrison or Mr Cartwright?

PN398

MR CARTWRIGHT: Well, Senior Deputy President, we have to take any proposal being put by the company back to our members and they will consider as to whether they return to work. I mean, I'm certainly not in a position to give those commitments because our members will make those decisions.

PN399

MR NURSEY: Your Honour, sorry if I may, we fully expect that the unions would have to vote and we would expect that they would be voting on this matter tomorrow.

PN400

THE SENIOR DEPUTY PRESIDENT: So - - -

**** EDWARD GERALD ARENA XXN MS HUGHES

PN401

MR MORRISON: Your Honour, just for a point of clarity though, the issue is the application that is before you which is referring to industrial actions currently under way or action that is under way, that action as we've maintained throughout this whole issue related to a concern over occupational, health and safety issues. Therefore, we say that this application ceases if it is withdrawn and any further matters would not be this matter being re-heard but would be a new application.

PN402

MR NURSEY: Your Honour, we made the application on the basis of the industrial occurring. The union was the one who raised the issue of occupational health and safety. We would see that a matter could be adjourned and then re-continue at a later date.

PN403

THE SENIOR DEPUTY PRESIDENT: Well, I suppose that from the Commission's point of view the question of adjournment can be dealt with separately to what matter is being considered when it is re-listed.

PN404

MR MORRISON: Your Honour, the issue would then be we would require from you today a decision on the jurisdictional arguments that we have run so far, not completely, but we have run - - -

PN405

THE SENIOR DEPUTY PRESIDENT: Well, in the situation where the company is seeking an adjournment of its application with no surety that it would seek that it be re-listed - - -

PN406

MR MORRISON: Well, I'm just talking about a procedural issue.

PN407

THE SENIOR DEPUTY PRESIDENT: Yes, and so am I.

PN408

MR MORRISON: How can a matter which has ceased be quickly re-listed? It would be a new matter surely. It would be a new application.

**** EDWARD GERALD ARENA XXN MS HUGHES

PN409

THE SENIOR DEPUTY PRESIDENT: Well Mr Nursey, exactly what are you seeking this afternoon?

PN410

MR NURSEY: We seek an adjournment of the matter your Honour, but we believe that we're prepared to make some significant alterations to the situation at the site. We believe that these are a reflection of the concerns the union have raised but we consider that the matter is still on foot and should still be able to be argued in the subsequent hearing.

PN411

THE SENIOR DEPUTY PRESIDENT: I see. Ms Hughes, anything you want to say? Sorry.

PN412

MS HUGHES: Just one moment.

PN413

MR MORRISON: Your Honour, if we could just have a few more moments - - -

PN414

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN415

MR MORRISON: Your Honour.

PN416

THE SENIOR DEPUTY PRESIDENT: Yes.

PN417

MR MORRISON: After considering what has been put and appreciative of the time and other people's commitments, we won't press our arguments and accept the proposal put by the other side.

PN418

THE SENIOR DEPUTY PRESIDENT: I mean, it seems to me Mr Morrison I'm in the situation where the applicant has sought an adjournment of its application - - -

**** EDWARD GERALD ARENA XXN MS HUGHES

PN419

MR MORRISON: Yes we recognise that. It is their application to do with as they see fit.

PN420

THE SENIOR DEPUTY PRESIDENT: - - - and I would express the hope based on all the constructive discussions we've had this afternoon that there may nevertheless be some way of finding some accommodation whether it is a shift overnight or whether it is re-considering overnight but I think I am bound to - - -

PN421

MR MORRISON: Accept their - - -

PN422

THE SENIOR DEPUTY PRESIDENT: - - - grant the applicant's request for an adjournment of their application.

PN423

MR MORRISON: - - - for their application. Yes and that was the basis of our discussion.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes. Having said that, is there anything else you wanted to say because implicit in what Mr Nursey has said is a request that the unions have a meeting tomorrow I guess. I mean, that's unstated but it seems to me implicit in what Mr Nursey said, that they are saying, "well, we're going to remove the fence overnight and no fence is going to be erected until any consultation process is complete and on that basis we are asking people to consider going back to work". Is there any response you want to - I took it that that's what Mr Nursey was putting.

PN425

MR MORRISON: As I said, we only represent the union. The union are the guys outside and the ones at the site and so I'd feel confident speaking on behalf of Mr Cartwright that I'm sure he'll be relaying exactly what has occurred here today to our membership and passing on his recommendations and views on what has occurred.

**** EDWARD GERALD ARENA XXN MS HUGHES

PN426

THE SENIOR DEPUTY PRESIDENT: Okay and so therefore the ball is in your respective courts as to how we go from here and I urge you to be sensible.

PN427

MR NURSEY: If I may your Honour, we'll advise yourself by close of business tomorrow afternoon as to where the company wishes to take the application.

PN428

THE SENIOR DEPUTY PRESIDENT: Okay. Having considered what you've said, we'll adjourn. I wish you well.

ADJOURNED INDEFINITELY [5.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EDWARD GERALD ARENA, SWORN PN165
EXAMINATION-IN-CHIEF BY MR NURSEY PN165
CROSS-EXAMINATION BY MR MORRISON PN186
CROSS-EXAMINATION BY MS HUGHES PN363