C2003/6530, Transcript of Proceedings [2003] AIRCTrans 5638 (16 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10718

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2003/6530
C2003/6532

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Grocon Constructors Pty Ltd for an order
to stop or prevent industrial action on the
Exhibition Street Project

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Grocon Developments Pty Ltd re
industrial action on the Exhibition
Street Project Site

MELBOURNE

12.08 PM, THURSDAY, 4 DECEMBER 2003

PN1

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

PN2

MR J. MADDISON: I appear on behalf of the CFMEU. Also appearing with me today, your Honour, is MR M. HUDSON. Your Honour, we do, given a recent discussion with Mr Tuck from Freehills, apprehend that some matters may be pressed today. Just to foreshadow an adjournment application. And also while I am on my feet, your Honour, we do oppose leave in these matters.

PN3

MR D. MIER: I appear on behalf of the Electrical Trades Union. I would also like to foreshadow, Commissioner, that I believe that we, the ETU, have had no procedural fairness in this matter, Commissioner. We found out about it this morning. Early this morning I was phoned, at about 9 o'clock, to tell I had to be here at midday. With such a serious matter as a 166A and myself just being an electrician I would have thought that I would have had a bit more time to organise some legal representation. So if that case goes ahead I would like the ability to do that.

PN4

THE VICE PRESIDENT: Okay. Thanks, Mr Mier. Mr Tuck, why should leave be granted?

PN5

MR TUCK: Your Honour, before - can I just deal with - - -

PN6

THE VICE PRESIDENT: Sure.

PN7

MR TUCK: Just to clarify one thing before that, your Honour, is that it is not the company's intention to press today for any orders.

PN8

THE VICE PRESIDENT: Right.

PN9

MR TUCK: I had a conversation at cross-purposes with Mr Maddison before I arrived here today. It may become somewhat redundant for me to make the actual application for leave today if I indicate exactly what - - -

PN10

THE VICE PRESIDENT: No, no, sure. I might - well, I reserve on leave and hear you about where the matter is up to.

PN11

MR TUCK: Your Honour, this matter arose out of an incident that occurred yesterday at Exhibition Street where the site was lost at around midday.

PN12

THE VICE PRESIDENT: Because of the rain or - - -

PN13

MR TUCK: No, it didn't rain yesterday but the - - -

PN14

THE VICE PRESIDENT: Well, I meant the water damage, yes.

PN15

MR TUCK: Sorry. There was an allegation, as set out in the application, that people that were engaged in the de-watering exercise who ought not to have been and therefore that became an issue that led to the loss of the site that day and the indication yesterday was that there would be - on resumption of work today the employees would sit in the shed until an organiser attended the site sometime around midday. What in fact occurred after the filing and service of these applications is there was a short meeting this morning and work has resumed.

PN16

However, this is not the first time that there has been disruption of work at Exhibition Street. There has now been a significant history of stoppages and disruption at that site and my instructions are to seek directions for the filing of an amended application and to seek then orders based on the probability of further industrial action occurring at that site based on the history of industrial actions taking place in the last two years but more relevantly in the last six months. We would ask that we be given leave to file that amended application by close of business next Wednesday. It would be our intention then to - - -

PN17

THE VICE PRESIDENT: You don't need to file an amended application. You can just file any application you like by next Wednesday, can't you?

PN18

MR TUCK: Well, we can but it is our preference, your Honour, to keep this matter open and to simply amend this application and to keep - in a sense this matter will be the amended application. That we would then file our affidavit material some time, preferably by Friday, the 19th, I think it is, of December and for your Honour then to make directions in relation to any material in response after that. I don't intend to go through any more detail about yesterday's behaviour and what may have motivated it but the company is now concerned that they are losing significant time on that project and it is constant and repetitive behaviour over varying issues, one of them being the weather, and there is also concern - for example, tomorrow there is a significant concrete pour required.

PN19

There will be a request for overtime to be worked between 3 and 5 pm. The company is optimistic that that will happen but again the company is concerned that that will be prevented. There has been 20 or 30 incidents over the last six months of various disruptions. We would like to have the opportunity to set that out properly in an application, to give the union an opportunity to see that application and our material but we would like the file to remain open in the meantime, your Honour.

PN20

THE VICE PRESIDENT: Okay. Thank you. Well, as I understand it there is no - orders are not being pressed today in relation to yesterday's incident, Mr Maddison. What is - why shouldn't I grant leave to amend the application in the manner that is sought?

PN21

MR MADDISON: Your Honour, I don't think it makes a great - - -

PN22

THE VICE PRESIDENT: I am not asking you to comment on the merits of what is put but just the process for the moment.

PN23

MR MADDISON: Your Honour, I don't understand there would be a substantial difference between whether or not the applicant in this matter files an amended application or they filed a new application.

PN24

THE VICE PRESIDENT: Well, they have indicated a preference for the amendment and on the face of it, given that they are entitled to make a fresh application if they wish, I can't, subject to what you may wish to put, I can't see any reason why on the face of it I shouldn't allow leave to amend and set in place a process for them to file the material, provide you with an opportunity to respond. That would address Mr Mier's point about short notice and representation also.

PN25

MR MADDISON: Yes. Just on the basis of a practicality we don't oppose the method that Mr Tuck has put to you. Depending upon - it appears that, from what has been put, there is a number of incidents that the applicant would be relying upon. The only issue raised this time is about sufficient time to file materials in response.

PN26

THE VICE PRESIDENT: Well, given that I think Mr Tuck is talking about filing all his material by Friday, 19 December - - -

PN27

MR MADDISON: Yes, I just - - -

PN28

MR TUCK: Yes, your Honour.

PN29

MR MADDISON: In relation to that - - -

PN30

THE VICE PRESIDENT: Well, as a matter of practicality there is the Christmas period immediately after.

PN31

MR MADDISON: Well, that was - yes, and it may be very difficult to get instructions certainly before 12 January and depending upon people taking additional annual leave thereafter it just may cause some difficulty for this side to be able to adequately respond.

PN32

THE VICE PRESIDENT: Yes. Are you in the same boat, Mr Mier?

PN33

MR MIER: Yes, exactly the same.

PN34

THE VICE PRESIDENT: Same. People will be away for the shutdown period?

PN35

MR MIER: Yes. Come back on the 12th and then we obviously have to interview them to ascertain the porkies they are telling.

PN36

THE VICE PRESIDENT: Yes. Well, Mr Tuck, firstly, I grant leave to amend the application in the manner you have suggested and there is no difficulty with what you have proposed, that you file your amendment and the affidavit material by 4 pm on the 19th. I think there is a practical difficulty around the union properly responding. It is then a question of what is reasonable in the circumstances. I think - I would probably provide them with the same sort of period that you have got in mind for yourself. So that would mean the unions filing material in response by 4 pm on Friday, 23 January.

PN37

In the event that there is any difficulty then application can be made to deal with the directions. You may - I appreciate it is difficult to make an assessment at this stage but you may wish to file some supplementary material to deal with what is said in the union material. How long - - -

PN38

MR TUCK: We would only need five days to do that.

PN39

THE VICE PRESIDENT: All right. So by the following Friday, the 30th?

PN40

MR TUCK: Yes.

PN41

THE VICE PRESIDENT: All right. Well, on that basis I would list the matter for hearing in the week commencing 2 February. I would ask the parties - the normal course would be to deal with the evidentiary case first for all the witnesses. I would ask the parties to confer about which witnesses they want to cross-examine and to agree upon a program for dealing with the witness evidence. I know this will be a bit inconvenient for some of the witnesses but I would prefer to have, just to make sure we make efficient use of the time, that we perhaps had more witnesses scheduled for a day than you might think we will get through, even if it means we sit earlier and later.

PN42

I would probably deal with all the witness evidence and then provide a short further period for written submissions once you have had a chance to look at the transcript and what have you. That is probably the fairest course.

PN43

MR TUCK: Thank you.

PN44

THE VICE PRESIDENT: It depends a bit on the magnitude of it but that is what I would be looking at at this stage. Okay? Any comment on any of that?

PN45

MR TUCK: No comment, your Honour.

PN46

THE VICE PRESIDENT: All right. Well, I will list the matter for hearing on 3 and 4 February and the parties are clear about the timeframes for the rest? Perhaps if I just repeat them. The company to file its amended application and affidavit material and serve on the unions by 4 pm, Friday, 19 December. The unions to file material in response by 4 pm, Friday, 23 January. The company to file any supplementary material in reply by 4 pm, Friday, the 30th, and I will hear the matter on 3 and 4 February.

PN47

MR TUCK: Thank you, your Honour.

PN48

THE VICE PRESIDENT: Nothing further? I will adjourn.

ADJOURNED UNTIL TUESDAY, 3 FEBRUARY 2004 [12.21pm]